Heidegger’s critique of European nihilism seeks to expose self-legislation as the governing principle of central manifestations of modernity such as science, technology, and the interpretation of art as aesthetics. Need we accept the conclusion that modern constitutional democracies are intrinsically nihilistic, insofar as they give political and legal form to the principle of collective self-legislation? An answer to this question turns on the concept of power implied in constituent and constituted power. A confrontation of the genealogies of modern subjectivity proposed (...) by Heidegger and Blumenberg suggests that there is indeed a metaphysical core to the concept of constituent power developed by various political theorists, including Schmitt and Habermas. By contrast, closer consideration of the paradoxical relation between constituent and constituted power illuminates the ambiguity of collective self-legislation, which means both enactment of a legal order by a collective self and the enactment of a collective self by a legal order. To the extent that constitutional democracies are a way of preserving rather than dissolving this ambiguity, they imply an interpretation of power and human finitude that parries the charge of nihilism. (shrink)

In lieu of an abstract, here is a brief excerpt of the content:Negative Capability Reclaimed: Literature and Philosophy Contra PoliticsIhab HassanI began a few years ago to try to make space in my reckoning and imagining for the marvellous as well as the murderous.Seamus HeaneyTwo concerns cross in this essay: the first, explicit, regards the current condition of the academic humanities, their idioms and axioms, especially in America; the second, implicit, regards my own need to confront criticism, its abstractions that (...) now enable, now disable, the profession and even more the experience of literature. Such concerns must mix speculation and autobiography, mix the pride with the pathos of mind.But I should admit it from the start: my title cries paradox. Negative capability reclaimed? Can reclamation dwell in “uncertainties, mysteries, doubts, without any irritable reaching after fact and reason,” as Keats thought, and can a critic aspire to the condition of a poet, in whom the “sense of Beauty overcomes every other consideration, or rather obliterates consideration”? 1Mine, I repeat, is a hybrid critical discourse, touched by exasperation more than mystery. Yet negative capability can still serve us as emblem of certain qualities, attitudes, dispositions that we bring to literature, without turning that happy phrase into yet another slogan. Beyond the arrogance of transient ideologies, beyond the mawkishness of self-regard, negative capability may offer us a kind of patience, perhaps ascesis, the intellectual and, yes, spiritual equivalent of discipline in our moment. [End Page 305]IStated baldly, my proposition, which I will need continually to texture and qualify, is this: the prevalence of politics, the obsession with power, the unrelieved pressure of both in the university, skew our language, thought, values. Thus the ancient quarrel between poetry and philosophy, between Homer and Plato, now cedes the field to a nastier agon between both and politics as GRIM (my acronym for the Great Rumbling Ideological Machine) grinds on. These are no abstractions; the clamorous evidence is all about, indicative even in its triviality, banality.Take a book blurb. Kathy Acker endorses a new, and quite intelligent work, entitled Male Matters, thus: “Calvin Thomas is able to hint at a way out of the prisonhouse of straight male identity.” Granted, this is but an ad in a university press catalogue. But what does the language reveal about the assumptions of academic discourse? “Prisonhouse,” really, for all unfortunate, straight males? Is a generalization of this kind permissible when blander generalizations about other groups raise such a hue and cry? Will straight African-American or Native American males feel “offended” by the statement? Or is it all a matter of restitution, categorical loyalty, political commitment? And when will that supreme fiction, the white, straight, bourgeois, rational male “subject” cease to prop up every ideological complaint?Thought blends into hype; words writhe; stereotypes become as transparent as the stereotypes they once repugned. But let us consider an example worthier of criticism. In his Inaugural Lecture as Robert Wallace Professor at the University of Melbourne, entitled “The Departure of English?” (the question mark risks disingenuousness), Professor Simon During inelegantly states: “The academic appropriation of the avant-garde transfiguration of values is happening as what I am calling the departure of English—in the relative decline of literary studies and cultural studies’ emergence.” 2 Professor During thus assumes, on behalf of cultural studies, the mantles of Friedrich Nietzsche, Arthur Rimbaud, Alfred Jarry, Hugo Ball—where is Antonin Artaud?—and Walter Benjamin, though none really had a mantle to bequeath. For a moment, the mind reels: Nietzscheans and poètes maudits, Pataphysicians and Dadaists, as apostles of cultural studies, of political correctness, group think, and GRIM? Involuntarily, the lines of William Butler Yeats, in “The Scholars,” sing out: “Lord, what would they say / Did their Catullus walk that way?” [End Page 306]We are all free, of course, to reinvent our ancestors and to derive later authority from what an earlier generation derided—free, this side of ludicrousness. But Professor During’s argument, a sort of academic conceit, discourages mere ridicule; it has pedagogical consequences. Thus he continues: “I am certainly not claiming a causal relation between modernism circa 1900 and academic cultural studies today. Rather I want to argue that cultural studies... (shrink)

After a brief explanation of my approach, this paper questions the foundations of a phenomenological theory of law, deploying the argument in three steps.In a first step I reconstruct the connection between Anspruchand Anrecht as developed in Waldenfels’ paradigm of responsiveness. Can law be characterised as an order that is able to ‘respond’ in this specific sense?The second step confronts the radical perspective of a phenomenology of the alien with the question of order. Can a theory of order characterise law (...) as ‘just,’ given that modern positive law is explicitly contained in and founded on itself? In a third step I review the boundaries of law. Would a phenomenology of law acknowledge law as a dimension that – inside the boundaries of law as order – is structurally able to react to the alien and to respond to alien appeals? The overall answer to these questions will be negative.A phenomenology of the alien will not surmount the boundaries inherent to the legal order as order – which push- es the question of justice to the outer limits of the law. The question of the alien, then, does not refer to questions within law; rather, it refers to the problem of juridification or to the sacrifices to be made to obtain access to rights. Decisive is the step into the realm of law, not a certain rule or a decision within thatrealm.If one is to pursue the phenomenological viewpoint of the alien and the dual theme of Anspruch and Antwort, legal phenomena should be considered from the problem of order – in a critical vein to be sure. (shrink)