Vol. 15 No.1 (January 2005), pp.42-48

RIGHTS AND PREJUDICE: PROLEGOMENA TO A HERMENEUTICAL PHILOSOPHY OF LAW, by Jarkko Tontti. Aldershot: Ashgate Publishing, 2004. 210pp. Hardback. $99.95 / £55.00. ISBN 0-7546-2397-1.

Reviewed by Adam Gearey, School of Law, Birkbeck College, University of London.

Email: a.gearey@bbk.ac.uk

Rather than attempt to summarise the argument of this bold and powerful book by Jarkko Tontti, I will indicate its trajectory, and give some sense of the importance of its contribution to legal theory.

Tontti’s development of hermeneutics is primarily a working in and against Heidegger’ philosophy. Risking a distortion occasioned by compression, I would suggest that the animus of this work is a saving of law from the forgetfulness of the “everyday” and a jurisprudential/theoretical approach that has ignored an ontological approach to the law. We cannot hope to understand the law unless we return to first principles. This means appreciating the fundamental nature of Heidegger’s philosophy—but also that of Gadamer, and perhaps most importantly for the articulation of Tontti’s thesis, the work of Ricouer and Vattimo.

This is indeed an ambitious project. We have to take seriously its self description as a “prolegomena” to a future hermeneutics of law and thus acknowledge a sense in which the present work is a clearing of the ground, a pioneering attempt to clear a path and open up a territory.

Tontti writes with clarity and passion. One of the strengths of this work is that it can be read as an introduction to debates within a tradition of legal theory that perhaps remains somewhat alien to an Anglo-American audience—at least, those who are not familiar with continental philosophical traditions. For those who lean towards Europe, this book can be understood as a challenge to articulate a tradition that has, of late, perhaps not received the attention that it has deserved in the Anglophone world—or has remained a background for more Hegelian, “deconstructive,” psychoanalytical, Foucauldian or Habermasian accounts of law. The avowed location of this work within Heideggarian philosophy means that its ballast is Dasein. How can this idea be written about in such a way that it means something to those who have never read Heidegger, while not insulting the intelligence of those who have?

Dasein can perhaps be understood as raising a question of fundamental ontology: what does it mean for something to be? Dasein (Being-there), indicates a “special kind of being, because it has a possibility of understanding being” (p.85). Heidegger thus opens up questions of the essential interpretative and temporal nature of human being. Against positivism, this suggests that the hard distinction between subject and object, interpreter and world, breaks down; against pragmatism in its various forms, fundamental ontology would hold that [*43] there is a ground, a prior set of concerns, even a “correct” method.

Where does this take us? What can this approach offer to jurisprudence? First of all, Tontti’s ontologico-hermeneutic philosophy offers a way of re-thinking the grounding concerns of natural law theory (we will return to this point presently). As far as positivism is concerned, an ontologico-hermeneutic approach would reveal the unspoken suppositions and lacunae in one of the most famous developments of hermeneutical jurisprudence, Dworkin’s LAW’S EMPIRE; it would provide a critique of Kantian jurisprudence, and it would act as a corrective to Hart’s understanding of law and the social world. But, it would also offer a way of re-reading other contemporary schools of jurisprudence, in particular James Boyd White’s work in literary jurisprudence and constitutional theory, law and literature in general and critical legal studies in its conventional and post American inflections.

One of the most interesting aspects of Tontti’s work is that it has no time for the various intellectual ghettoes that have developed in legal theory. Tontti also avoids the rather tired debate about the inherently fascist nature of Heidegger’s work. The concluding section of the book is a working through of what could be called an ethical republicanism; a reading of the great linking of liberty, equality and fraternity. Tontti does not suggest a programme or a manifesto for action, but a philosophical approach that scrutinises what is at stake in these essential modernist ideals.

The key to this book is the development of a hermeneutics that is not founded on dialectical resolution but is open to the “play” of the world and is able to offer a way of reading the centrality of conflict in social life. We can gain a sense of this argument by examining the “conditions of interpretation” (p.27). The first condition roots the book in the contemporary methodological problematic. The “universality of language” means that we are always within language; the world cannot be observed from some neutral position. The work thus locates itself within a theory of the humanities and the social sciences that understands the inherently interpretative nature of these disciplines. However, this approach offers more than a methodological position. Indeed, methodology must be related to a more fundamental philosophical and ontological substratum. This can be appreciated in the second “condition of interpretation” (p.29), “historicity.” Historicity is a complex idea. It suggests, first, that interpretation always takes place against a tradition or traditions. The interpreter is never alone, but within a history that makes the individual act of interpretation possible. Against a rather static Habermasian notion of a lifeworld, historicity stresses that interpretation is always a fusion of the horizons of the interpreter and the traditions of interpretation. The third condition of interpretation is the dimension of “conflict” (p.33) that is an irreducible feature of acts of interpretation. Against the hermeneutical tradition, Tontti argues that the end of interpretation is not “consensus” (p.33), or an unproblematic updating or remaking of the truths of the past for the present:  “[m]y proposal for hermeneutics, understood as dialectics without the element of synthesis . . . aims to [*44] highlight that the content of every entity forming a tradition is constantly changing with the new interpretations, which affect both the object and the subject” (p.34).

Tontti’s hermeneutics are thus a philosophy of becoming—less concerned with the re-making of the tradition, and more focused on the question of how traditions can change and become different. As the quotation above suggests, this involves an understanding of the interplay between subject and object, interpreter and text, actor and institution. Tontti’s hermeneutics are not limited to textual exegesis, but address the social text, or action in the social world. This work also sets its face against various formalistic and structuralist readings of law, approaches that can understand the formal conditions of the production of sense, but cannot account for meanings given to texts by actors. Formalism thus fails to comprehend the link between meaning and action.

But what does this mean for ontology of law? Although Heidegger himself never made more than passing references to the possibility of an ontology of law, there have been several attempts to develop this position. Perhaps the most well known in the Anglophone world is that of Carl Schmitt, although the present of work of Hirvonen and Minkkinen is engaging as it updates the equally interesting research by scholars such as Erik Wolf, Werner Maihofer and Walter Heinemann. The central issue is whether the question of law is part of fundamental ontology. In other words, this seems to demand a question about the existential nature of human being and its relationship to law. Following Husserl, Tontti asserts that there can only be a “regional ontology” of law. This is because “law . . . as a linguistic human artefact cannot help us think about questions of fundamental ontology.” However, this does not invalidate an ontological enquiry about the law as a regional ontology of law relates to the fundamental question of “the fundamental normativity of Being-there or the normative component of Being itself” (p.86). Although this is a complex debate that should not be hastily summarised, Tontti suggests that one should not confuse primordial questions about the nature of human being with questions of the role or necessity of law for social life. This is not to deny the relevance of these questions, but to respect the way in which they should be examined and understood. For Tontti, this makes for a distinction between the regional ontology of law and the ontology of justice. We will examine this argument in some detail.

Tontti’s regional ontology of law can be best glimpsed in outline through the direct quotation of a fairly long passage:

The conceptually primary temporality of law, then, is the past, stemming from historicity as the unavoidable, transcendental condition of all acts of consciousness. From the past everything begins, we belong to history, it does not belong to us, as Gadamer expresses it. From the primordial belonging-together of the past and Being-there begins then the dialectical movement of time, which takes the form of a dialectics between past, the present and the future. We interpret the past from the point of view of the present and with constant projection towards an unknown future. The role of the present (Heideggarian Augenblick) in law, then, is the actuality [*45] of the decision . . . In the present the past is applied and made understood and simultaneously conflicting projections concerning the future clash against each other.” (p.124)

We can see how this analysis of law builds on the conditions of interpretation outlined above. Law’s regional ontology, or the explication of what law “is,” law’s “mode of being,” is founded on its temporality. But this does not simply mean that law is reducible to its past. The act of interpretation is a non dialectical realisation of the past, the present and the future that is also, in its very nature, a clashing of rival interpretations. It is in the moment of the present that “the primordial conflict appears in law” (p.134), because the traditions that allow interpretation to take place cannot limit the different ways in which actual interpretations can be made. The play of interpretation is only momentarily brought to an end by the decision itself, “a gesture of power.” This violence is primarily interpretative, because the “empirical-historical” conditions of western law are those in which disputes are resolved by courts. Recourse to violence may of course take place, and indeed, the violent foundations of a legal order haunt the quotidian administration of justice.

Tontti’s notion of ethics confronts this primordial violence. Precisely because the world is nothing but a contest of interpretations, the “only truly ethical position is decreasing or diminishing violence” (p.135). Ethics is founded on the demand that each voice should be heard. Because the world is nothing but interpretation, no interpretation should be suppressed. This can be linked to an observation about fundamental ontology: Being is itself “normative and conflicting.” One must take sides. The need to commit to an ethics may not be based on a calculus of rights and interests, but it is not indeterminate—the correct position is to resist or diminish violence. This, in turn, leads to the assertion that “[w]hereas the temporality of law is the past and the temporality of decision . . . is the present, the temporality of justice . . . is the future” (p.136). Tontti contends that this notion of the future is quite different from Derrida’s. Derrida separates the future, as such, from the justice that is always to come; thus, this is not a claim about the temporality of justice and law, but an assertion about messianic justice that remains forever to come. But, what, then, is the temporality of justice?

Once again, it is necessary to creatively interpret Heidegger. It is very “difficult” (p.138) to develop a Heideggerian ethics or a theory of justice, but, to the extent that it is possible, it is necessary to return to historicity; or, more precisely, the notion of the future: “Even if justice does remain always to come, it is still necessarily a projection, something that Dasein projects (without the option not to do that) to the future; it is ‘in’ the future, and thereby it is not a utopia (a-topos, no place) but a necessary constituent of Dasein” (p.136).

Dasein cannot but help to project itself towards the future, and precisely because this is a constituent of Dasein, justice must be present “even in its absence” because it is structurally an element of Dasein:  “Because Being- there is in its temporality projected towards the future (existentially towards death) justice “is” (p.136)

This would allow a further [*46] distinction between justice and law. Law can only ever be thought as a regional ontology; it is not part of fundamental ontology in the same way that justice is a “necessary component of Dasein’s Being-in-the-world.” The politics of this claim can be elaborated if one connects this analysis with the fundamental modernist articulation of law stemming from the French Revolution—liberty, equality and fraternity. It would be a question of working through these terms ontologically. Freedom would have to be reassessed from the perspective that Being is not strictly free, but falls into the world and into traditions and cultures that restrain its possibilities. Equality is equally problematic, as it appears to make a claim to an unchanging essence of humanity that can be made equal. Historically, this has worked itself out in the denial of difference. Tontti finds a possible counter principle in fraternity:

The attempted reinterpretation of fraternity as the future of justice of law stresses that an alternative is needed between the formal notion of equality—hiding the sameness of all humans- and the radical view of the absolute otherness of the other. Fraternity, then, is a dialectical (without a synthesis) concept of the temporal formation of the selfhood in a constant dialogue with others and it is actualised in the dialectical interplay between the extremes of total equality and total otherness. (p.143)

Fraternity, then, provides an ontology of the social. The social makes for a life lived in common with others. There can be no fetishisation of the autonomous self, as one can only come to being with others. Within social fraternity, there is a constant tension between a drive for the totality of the same and an interruption of this totality by the difference of the other. Neither can be allowed to dominate, but must be allowed to exist in a creative tension or “dialogue” (p.146). Guiding the dialogue is the “unconditional commandment” that violence must be diminished. This principle is only the crudest of guides, and it must be applied in a situation sensitive manner. Justice is the actualisation of this dialogue in its future projection:  “The dream of justice as fraternity is by definition a projection towards an unknown future and its existential ground is Dasein’s temporal Being-towards-death” (p.146).

Where does this leave us? Tontti’s articulation of justice clearly offers some essential insights. The separation of law and justice, and the grounding of justice in Dasein offer an engaging account of human being and sociality that should provoke some timely debate. Its central importance is to stress that legal theory cannot avoid social theory, and that jurisprudence has to become a theory of justice. One obvious point of contact would be natural law, but, as Tontti himself notes, this is not a natural law position. Perhaps the terms of this approach could be sharpened by reading Tontti against Costas Douzinas, whose re-reading of the natural law tradition offers a project that may resist Tontti’s system building, but is equally committed to a jurisprudence of justice.  

Tontti could also usefully be read against Roberto Unger’s project in POLITICS. In part Unger’s work endeavours to provide critical legal thought with a social ontology. His major reference point is perhaps Christian political theology. Although Tontti avoids explicitly theological underpinnings, it would be interesting to understand the [*47] extent to which Tontti’s work operates within a(n) (a)theological problematic. The discussion of Levinas, Christian ethics and love in the latter part of the book would no doubt be thrown into an interesting light through by a theological engagement.

Another essential reference point is Derrida’s later work. Tontti makes reference to the Derrida of “The Force of Law,” but, on the whole avoids an extended discussion. It will be interesting to see whether the development of a hermeneutic philosophy of law goes via Derrida. The latter Derridean texts, and in particular the POLITICS OF FRIENDSHIP, and possibly APORIAS offer meditations on amity, Dasein and death that, like Nietzsche’s last texts, seem to suggest that the “completion” of radical thinking might take the form of a “jurisprudence.” Indeed, Peter Goodrich’s work on friendship and the politics of the institution suggest another element of this trajectory. Although Tontti’s project would be limited by an explicit association with “deconstruction,” any continuation of the hermeneutic philosophy of law would usefully elucidate precisely what is at stake in “deconstructive” legal theory.

In summary, Tontti’s work is a challenging intervention in jurisprudence. Whilst a substantial achievement in its own terms as a “prolegomena,” it is perhaps most properly read as the opening of the first chapter in what will no doubt be a major contribution to legal philosophy—a work to come!

REFERENCES:

Derrida, Jacques. 1992. “Force of Law: The ‘Mystical Foundation of Authority’.” In Drucilla Cornell, Michael Rosenfeld and David Gray Carlson (eds). DECONSTRUCTION AND THE POSSIBILITY OF JUSTICE. London: Routledge, 3-68.

Derrida, Jacques. 1993.  APORIAS. Stanford: Stanford University Press.

Derrida, Jacques. 1997.  THE POLITICS OF FRIENDSHIP.  London: Verso Books.

Douzinas, Costas. 2000. THE END OF HUMAN RIGHTS.  Oxford: Hart Publishing.

Dworkin, Ronald.  1986. LAW’S EMPIRE.  Cambridge: Harvard University Press.

Goodrich, Peter.  2003. “Laws of Friendship.” 15 LAW AND LITERATURE 23-52.

Hart, H. L. A. 1961.  THE CONCEPT OF LAW. Oxford : Clarendon Press.

Hirvonen, Ari (ed).  1998. POLYCENTRICITY: THE MULTIPLE SCENES OF LAW.  London: Pluto Press.

Husserl, Edmund.  2001.  LOGICAL INVESTIGATIONS.  New York: Routledge.

Minkkinen, Panu.  1999.  THINKING WITHOUT DESIRE: A FIRST PHILOSOPHY OF LAW.  Oxford: Hart Publishing. [*48]

Unger, Roberto Mangabeira.  1987. FALSE NECESSITY: ANTI-NECESSITARIAN SOCIAL THEORY IN THE SERVICE OF RADICAL DEMOCRACY. Cambridge: Cambridge University Press.

Unger, Roberto Mangabeira.  1987. SOCIAL THEORY: ITS SITUATION AND ITS TASK : A CRITICAL INTRODUCTION TO POLITICS, A WORK IN CONSTRUCTIVE SOCIAL THEORY. Cambridge: Cambridge University Press.

Unger, Roberto Mangabeira. 1987.  PLASTICITY INTO POWER : COMPARATIVE-HISTORICAL STUDIES ON THE INSTITUTIONAL CONDITIONS OF ECONOMIC AND MILITARY SUCCESS.  Cambridge: Cambridge University Press.

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© Copyright 2005 by the author, Adam Gearey.