Notes Series editor’s preface 1. Hegel, Elements of the Philosophy of Right, trans. H.B. Nisbet (Cambridge: Cambridge University Press, 1991), p.22. 2. In this respect the reaction of Derrida to the work of Fukuyama is instructive as the former is in the conflict between them in many respects more Hegelian than the latter though this alignment is made intricately complicated here by the former’s invocation of Marx. 1 Gillian Rose, philosopher of law 1. However, Rose does identify philosophers from the tradition with whom she would align herself including Marx, Freud, Rousseau, Pascal, and Plato. 2. Judith Butler’s (1987) reading of the Phenomenology, while lacking Rose’s emphasis on risk, does emphasize process and conflict over reconciliation, as does Malabou (2004). 3. Nietzsche himself, according to Rose, is more equivocal, interested in demonstrating the ongoing tension between law and morality in its various historical modalities. But Heidegger ‘ruins’ Nietzsche ‘by turning the history of the relation between law and morality into the singular Event, das Ereignis’ (Rose 1984, p.90). 4. Hart addresses this issue rather unpersuasively by introducing a dialectic between ‘internal’ and ‘external’ perspectives on rule-following, both of which, he claims, are necessary to correctly understand rules (1994, pp.89–90). Recently Nicos Stavropoulos (1996), drawing on the analytic metaphysics of Kripke, Putnam, and Burge, has supplemented Hart’s account of the objectivity of rules. See also Leiter (2001). 5. Derrida (1976) might be said to hold an ‘immodest’ view of writing in a similar way, permitting it to expand from its conventional domain to cover the world. 6. Common law jurisprudence, to be precise – assuming a legal system where there are not statutes. 7. This is the case, too, with concepts such as ‘freedom,’ ‘justice,’ and ‘the good.’ They are what we have in the fallen world so we must work with them, and Rose is willing to do so. 8. I discuss these issues and their implications in more detail in my recent writing (Lloyd 2008a, 2008b, Forthcoming). 9. But still: how is this ethical? Ethics, for Rose, is identified with doing the difficult work of the middle. To be unethical would be to withdraw, to have the false consciousness of certainty of one’s position. 198 Notes 199 10. Time itself has a complicated status for Rose which will not be discussed here. ‘Time is devastation. You can’t believe in time. Time is going to destroy you. So you have to believe in eternity’ (Rose 2008). 11. See also Žižek (1993) Brandom (1979, 1994) and McDowell (1996), too, claim to offer a philosophy which completes (again) the move from Kant to Hegel. 2 On dualism 1. This imagery is suggestive of a particular reading of Heidegger in which the ready-to-hand is beneath the present-at-hand – and, in late Heidegger, Being is beneath it all (Brandom 2002). 2. See, for instance, Butler (2004, p.207). Compare Butler’s early work on Hegel (Butler 1987). 3. The best philosophical study of Buber, comparing and contrasting Buber, Heidegger, and others, is Theunissen (1986); also important is Mendes-Flohr (1989). 4. Although I am using the Kaufman translation (Buber 1970), I am taking Du as ‘Thou’ rather than Kaufman’s ‘You.’ 5. Both Buber and, later, Levinas make this point in relation to the Lover’s per- ception of his or her Beloved, although Levinas later retracts this suggestions because he takes love to be too rooted in the world. 6. In the next chapter, we will see how Milbank and Pickstock similarly posit an anarchic but harmonious realm – although they associate it with Christianity rather than with the ‘primitive.’ 7. See Wittgenstein (1953). When I suggested this image to Lacoste and pointed out that it would help reconcile his more recent Wittgenstein-inflected work with his earlier Heidegger-inflected work, Lacoste thought the idea was interesting and provocative. However, he was resistant to whole-heartedly embrace it because (presumably as a theologian rather than as a philoso- pher) he does want to privilege one mode of experience, the liturgical mode of experience. He indicated that he is much more comfortable talking about the ‘subversive’ power of the liturgical mode of experience rather than the more neutral language of a Gestalt switch. However, I think Lacoste’s philo- sophical position is illuminated by using the Gestalt switch imagery, with the language of ‘subversion’ being considered as a theological addendum – and that is what I will do here. 8. This duck-rabbit image is more appropriate to Lacoste than to Buber because Lacoste is very explicit about ‘being’ remaining the same while ‘experi- ence’ switches, while Buber’s language is sufficiently vague to allow for the inflection affected by the Thou-relation to skew ‘being’ itself. 9. This point is made forcefully by John McDowell in ‘Two Sorts of Naturalism’ in (1998b). I discuss it further in Chapter 5, below. 3 On traditionalism 1. The phrase, although certainly not the sentiment, comes from Rorty (1999). 2. On a broader view, associated with the interpretivism of Ronald Dworkin, facts about a community and its history also determine the correct ruling 200 Notes of a court, not directly, but through the discernment of values embodied in that community and its history. 3. Perhaps it puts less strain on the term ‘tradition’ to say that these are two complementary parts of the same tradition. 4. Stout is making use of terminology, and theory, developed by Robert Brandom (1994). 4 On quietism 1. My account of the legal realist is a composite of a number of views, but pri- marily ‘American Legal Realists’ of the early twentieth century. See especially Holmes (1897) and Llewellyn (1930). Critical legal studies scholars, working in the latter half of the twentieth century, make related points (Unger 1986). Ronald Dworkin criticizes the ‘model of rules,’ and his recent writings res- onate with aspects of the realist position, although he is explicitly critical of it (1977, 1996). For a recent, rigorous philosophical discussion of these issues, see Leiter (2007). 2. See Hart’s discussion of ‘rule-scepticism’ in The Concept of Law, Chapter 7, where he writes, for example: ‘Laws function in [individuals’] lives not merely as habits or the basis for predicting the decisions of courts or the actions of other officials, but as accepted legal standards of behaviour’ (1994, p.137). For an opinionated discussion of the issues raised by Hart, see Leiter (2007). 3. The French is ‘autant de reduction, autant de donation.’ It has also been translated as ‘so much reduction, so much givenness.’ Marion occasionally discusses different degrees of reduction and givenness, for example, ‘Given- ness therefore admits degrees, not only for individuals but for essences as well, not only for vague, remote, or poor visions, but for coming forward in person’ (writing of Husserl, which he seems to endorse) (Marion 2002a, p.29; 1998, p.203), but I find such language impenetrably obscure. 4. As a Descartes scholar himself, Marion’s relationship to Descartes is, of course, very complicated. For an introduction to his reading of Descartes, see Marion (1999). 5. These two options roughly corresponding, of course, to the early and late thought of Heidegger, with the obvious cautions. 6. Indeed, I would argue that in Marion’s work before Being Given he fit much more closely into the ‘dualist’ category. It appears that Michel Henry’s critique of Reduction and Givenness (Henry 1991) prompted Marion to recon- sider his position – and align himself much more closely with Henry’s work. 7. In addition to Wittgenstein (1953), see McDowell’s other writing on Wittgenstein (1998b); Cavell (1976) (to which McDowell refers), and Kripke (1982). McDowell is much more sympathetic to Cavell’s reading of Wittgenstein than to Kripke’s. 8. On this point, McDowell’s view in Mind and World seems to differ from his view in ‘Virtue and Reason’ (included in McDowell 1998b), written well before the book. In the article, McDowell identifies being sufficiently articu- late to self-describe having virtues with possessing concepts of the particular Notes 201 virtues. The discussion in Mind and World Lecture III of demonstratives creating concepts that cannot be articulated in language would seem to sever the close link between language and concepts. 9. McDowell limits his discussion to easy cases, circumstances where there is clearly a right thing to do (McDowell 1998b, p.53n5). See my discussion below. 10. McDowell has much more to say about the parallels between his project and Kant’s work, but he does recognize its resonance with Hegel’s work as well. He introduces Mind and World ‘as a prolegomenon to a reading of [Hegel’s] Phenomenology’ (McDowell 1996, p.ix). 5 Metaphysics of law 1. Haugeland and Brandom loosely attribute their proposals to Heidegger and Kant/Hegel, respectively. Brandom’s better known work (1994) devel- ops his proposals in a rather different direction. Instead of translating the idiom of that labyrinthine and garrulous text, I will set it aside here. 2. This distinction corresponds very neatly with Badiou’s (2005) distinction between the ‘presented’ and the ‘represented.’ 3. Animals, at least the more sophisticated ones, move from incompetence to competence as they mature. It seems less clear whether animals can have pathological or excellent stances toward norms. 4. As we will see shortly, this ultimately does not make sense because prac- tices can be disaggregated, and what seems like pathology may in fact be competence at some parts and incompetence at others. 5. Compare Ellickson’s (2001) discussion of ‘norm entrepreneurs’ and other norm innovators. 6. This is Saul Kripke’s (1982) description of Wittgenstein’s paradox.