Is Nietzsche relevant to law and Rule of Law? Is he relevant to the theory and practice of law? At first glance, it might not seem so. The writings of one of the greatest and most controversial thinkers typically fail to engage lawyers, even those who consider themselves legal philosophers. The mainstream legal community, at least, either ignore or dismiss him as irrelevant and potentially detrimental to legal discourse due to his perceived nihilism. They argue that Nietzsche vehemently rejects key principles of the liberal legal and political tradition, including the social contract, democracy, equality, human rights, and Rule of Law. Consequently, the proponents of liberal legal thought argue that Nietzsche has no bearing on the field of law and legal thought. While some admit that Nietzsche occasionally presents intriguing ideas, they assert that his overall contribution to reflection on law is insignificant. According to them, Nietzsche's remarks on law can be regarded, at best, as a negative jurisprudence.[1] Within this blog post, I contend that such a viewpoint is misguided.
Obviously, what bothers jurists about Nietzsche at first place is probably everything that makes him one of the most original and controversial figures in the history of philosophy: his unusual and unconventional style of thinking and writing; his (mostly purposeful) radicalism; his iconoclasm, “nihilism” and “irrationalism”; his “megalomania”; his “free spirit”; his directness and exuberance; his sharp criticism of the moral (Christian), intellectual (Enlightenment) and institutional (democratic, liberal, etc.) foundations of modern society; the fact that he wrote about law in a fragmented way, that he did not develop a comprehensive, clear and coherent normative theory of law, and that he defended some outrageous positions on women. Of course, I could go on and on.
Even with a casual reading, it becomes apparent that Nietzsche's writings, viewed through an unconventional lens, should be considered relevant for law and legal discourse. As a proponent of Lebensphilosophie, he delves into virtually every aspect of human existence. Many of the concepts and categories central to his thought, such as reason, knowledge, truth, morality, justice, science, and modernity, are frequently addressed in theoretical legal discourse, while other categories, including the state, social contract, democracy, liberalism, and equality, are even central to it. Nietzsche goes even further by examining some key legal concepts and categories, for example crime and the criminal, free will, guilt, debt, victim, responsibility, punishment, penal justice, equality, and so on. Ultimately, Nietzsche's texts directly address some of the most fundamental questions of law, such as what is law (sein) and what law ought to be (sollen).
Nietzsche's thought can be portrayed, in a somewhat clichéd way, as an inexorable critique of the modern age. His writings feature an intellectual attack on history of Western thought: its ideas, ideals and values, and especially its faith in reason. He dissects the core concept of modern philosophy, science, culture, religion, art, ethics, and aesthetics, along with matters concerning state, politics, and law, and key contemporary phenomena such as liberalism, democracy, capitalist market ideology and practices, Christianity, socialism, communism, nationalism, Europeanism and so on and so forth. According to Nietzsche, modern society and its Christian-enlightenment tradition are nihilistic and decadent. He reveals nihilism exactly where it would be least expected – in the values on which Western society built the myth of its cultural superiority.
Nietzsche describes himself as a thinker with many faces.[2] Therefore, it’s no surprise that his reflection on law presents a multitude of perspectives. Initially, he associates law with violence and coercion, allegedly rejecting the notion put forth by modern liberal legal tradition that law serves as a rational counterbalance to irrational political power. Instead, Nietzsche claims that law, as “all that is great in connection with humans,” originates from cruelty and violence rather than reason, that the prime origin of legal (and moral) rules and duties is not reason but blood.[3]
In support of Nietzsche’s claim about the close relation between law and violence, Linarelli draws attention to the legal rules on the transfer of ownership of real estate in the medieval common law.[4] The transfer took place according to a special formal procedure (livery of seisin). A child who was subjected to torture by an adult during the ceremony had to be present in the process in order to remember this day for the rest of his life and in this way to represent a »living record« of the transfer of property on land from one to another owner. The terminology of such a transfer of property has been preserved in English common law to this day, while the ceremonial with explicit violence has gradually disappeared. Linarelli, referring to Williamson, notes that legal traffic in things, both immovable and movable, was based on the idea of “taking hostages.” The same applies to medieval kings who ensured peace by exchanging their children.[5]
Similarly, in contemporary law regulating debtor-creditor relationships, the borrower who takes out a home loan, as a party to the contract, freely accepts the role of debtor, who must give the bank or creditor a “hostage,” namely a mortgage guarantee on immovable property. According to Linarelli, the coupling between law and violence is also clearly visible in the sphere of public law, for example in criminal law. Given that the entire modern legal system is imbued with the threat of violence (e.g. with potential violence), law should be considered predominantly coercive and violent.[6]
Nietzsche holds comparable views towards the law and its origins as he does towards the state and its origins, arguing that the state does not originate from a contractual agreement. Instead, it was established and functioned as a form of tyranny.[7] This, it seems, is the face of Nietzsche that has led many to conclude that Nietzsche is someone who is useless for the modern liberal legal thought. Nevertheless, as previously asserted, Nietzsche and his writings have many faces. Within his works, one can encounter passages where law is addressed not solely an instrument of power and arbitrariness but rather a system that upholds justice by setting boundaries and constraints on reactive feelings and arbitrariness:
“[…] where has the entire administration of law, and also the actual need for law, made its home up to now? In the sphere of the reactive men? Not at all: rather in that of the active, the strong, the spontaneous, the aggressive men. From a historical point of view […] the law represents rather the struggle against the reactive feelings, the war against these feelings in the interest of the active and aggressive forces, which use their strength in part to contain and moderate the extravagance of reactive pathos, and to compel a settlement. Wherever justice is practised, wherever justice is upheld, one sees a stronger power seek means to put an end to the senseless raging of ressentiment among weaker powers subordinate to it (whether groups or individuals). […] But the most decisive action which the highest power takes and implements against the predominance of reactive and retroactive feelings […] is the establishment of the law, the imperious explanation of what in its eyes passes as permitted, as right, and what as forbidden, as wrong. And once the law is established, by treating encroachments and arbitrary acts on the part of individuals or whole groups as a heinous crime against the law, as rebellion against itself, the highest power diverts the feeling of its subordinates from the most immediate harm caused by such crime until by this route it eventually reaches the opposite goal to that desired by all revenge, which only sees and admits as valid the point of view of the injured party.” (On the Genealogy of Morals, II, 11)
Law, as understood by Nietzsche, does not come neither from metaphysical nor from moral origins. It comes from the individual and social living experience, from a rational choice, and should be used as instrument. As Epis points out, law and the rule of law are understood by Nietzsche as legal principle in the sense of pacta sunt servanda, which advices to perceive and use law and the rule of law as a mean:[8]
“Rule of law as a mean. – Law, reposing on compacts between equals continues to exist for so long as the power of those who have concluded these compacts remains equal or similar; prudence created law to put an end to feuding and to useless squandering between forces of similar strength. But just as definitive an end is put to them if one party has become decisively weaker than the other: then subjection enters in and law ceases, but the consequence is the same as that previously attained through the rule of law. For now it is the prudence of the dominant party which advises that strength of the subjected should be economized and not uselessly squandered: and often the subjected find themselves in more favourable circumstances than they did when they were equals. – The rule of law is thus a temporary means advised by prudence, not an end.” (Human, All too Human, II, 26)
We see that, according to Nietzsche, on the one hand, law and the rule of law originate inside a Utopian Society where everyone is formally and substantially equal to any other person. Only in such case, the rule of law comes from the social experience that has been done by equal forces through a “social contract”. They have learned that an endless conflict among them is useless. On the other hand, law and the rule of law originate inside a society where there is not a substantial equality among its members. Nevertheless, those in power have learned that it is sager to economize their forces than to waste them with useless conflicts.
Considering the nature of law and legal regulation and the function that law has, or at least should have in human society, Nietzsche maintains that life, in its fundamental forms, functions as damaging, raping, exploitative and destructive. Considering that it is impossible to imagine life without this character, to talk of right and wrong as such is senseless. In themselves, injury, violation, exploitation, destruction can be nothing ‘wrong’ in so far as life operates in terms of its basic functions: through injury, violation, exploitation, and destruction. In Nietzsche’ view, one is forced to admit something even more disturbing:
“[…] that, from the highest biological point of view, legal conditions may be nothing more than exceptional states of emergency, partial restrictions which the will to life in its quest for power provisionally imposes on itself in order to serve its overall goal: the creation of larger units of power. A state of law conceived as sovereign and general, not as a means of struggle between power-complexes, but as a means against struggle itself, in the manner of […] cliché according to which each will must recognize every other will as equal, would be a principle hostile to life, would represent the destruction and dissolution of man, an attack on the future of man, a sign of exhaustion, a secret path towards nothingness.” (On the Genealogy of Morals, II, 11)
To my understanding, Nietzsche's insights into law and the rule of law mark a small yet noteworthy deviation from the prevailing understanding within the modern liberal legal tradition. Fundamentally, Nietzsche views the rule of law as a means to prevent a bellum omnium contra omnes, entailing the principle that likes should be legally treated alike. However, according to him, law is not and cannot be in any way autonomous in relation to power. It does not introduce the ‘power of argument’ as opposed to the ‘argument of power’ in human relationships. Instead, it represents a means in the struggle of power complexes.
Hence, the traditional liberal scheme, according to which the war of all against all sooner or later exhausts itself in its own contradictions, so that it finally renounces the violence in the name of peace and the rule of law, seems nothing but misleading. The ‘logic’, seen through a Nietzschean lens, should be reversed: the establishment of law and the rule of law instead of violence and the power argument is not an advancement towards the “green pasture of happiness for all.” Instead, it establishes a different kind of violence, a different kind of power argument. Through Nietzsche, law is stripped of the façade imposed on it by ideology.
Foucault appears to express Nietzsche’s insights most effectively by arguing that the establishment of peace and the rule of law is not a profound moral shift but rather an inevitable outcome. Humanity, through its battles, does not progress to a point where the rule of law permanently replaces war and violence. Instead, it positions various forms of power and violence within distinct systems of legal rules, thereby transitioning from one form of dominance to another. “The great game of history lies in who will appropriate the legal rules, who will take the place of those who have the power to use them, who will disguise themselves to subvert them.”[9]
References
[1] See, for example, D. E. Litowitz: Postmodern Philosophy and Law. Universty Press of Kansas, Kansas 1997, p. 30.
[2] See W. Kaufmann: The Portable Nietzsche. Penguin Books, New York 1982, pp. 103-104.
[3] See J. Linarelli: Nietzsche in Law's Cathedral: Beyond Reason and Postmodernism, in: F. J. Mootz III & P. Goodrich (eds.), Nietzsche and Law, pp. 237–272.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] See Nietzsche, 1988, p. 272. Drag razprava, 17. “[…] insertion of a previously unrestraint and unshaped population into a fixed form, just as it began with an act of violence, was only brought to completion through simple act of violence – that the oldest ‘state accordingly emerged and endured as a fearful tyranny, as a crushing and thoughtless machinery […] I used the word ‘state’: it goes without saying what I mean by that – some horde or other of blond predatory animals, a race of conquerors and masters which, itself organized for war and with the strength to organize others, unhesitatingly lays its fearful paws on a population which may be hugely superior in numerical terms but remains shapeless and nomadic. Such is the beginning of the ‘state’ on earth: I think that the sentimental effusion which suggested that it originates in a ‘contract’ has been done away with. He who is capable of giving commands, who is a ‘master’ by nature, who behaves violently in deed and gesture – what are contracts to him! One does not recon with such beings, they arrive like fate, without motive, reason, consideration, pretext, they arrive like lightning, too fearful, too sudden, too convincing, too ‘different’, even to be hated.” (On the Genealogy of Morals, II, 17).
[8] L. Epis: Nietzsche on Rule of Law and Democracy, pp. 47-49. Retrieved from: https://www.lukae.it/wp-content/uploads/2016/08/Nietzsche-on-the-Rule-of-Law-and-Democracy-Book1.pdf (Accessed: 19 January 2024).
[9] See M. Foucault: Vednost-oblast-subjekt, Krtina, Ljubjana, 2008. pp. 96-97.
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