Heidegger’s Dasein: A Metaphysical Approach for Exploring the Essence of Law
INTRODUCTION
What calls for thinking about the essence of law? What is aboutness? What does it mean to think ‘about’ something? Has law, in its essence, ever been pondered about? In exploring these questions, this article reads Heidegger’s thought, especially his later pieces and highlights his transformational reflective approach to thinking through ‘Being’. His understanding of notions such as ‘essence’, ‘thinking’, ‘language’, ‘truth’ harmonize together to indicate the otherness of the essence of law from what is referred to as the ‘legal’. Further, this article points out that his notion and process of thinking reflectively about law has catastrophic implications for the current critical theory-based approach to law. Incidentally, the article concludes by describing the pitfalls to the ontic approach to law.
DASEIN: THINKING THROUGH ‘BEING’
In the Pre-Socratic Era, the examination of the essential nature of truth of a thing was predicated on unconcealment, disclosedness, clearing and revealing. Post the Socratic Era, the approach to examination of truth was premised on the notion of correctness, i.e. the correspondence between ideas and beings. Correctness assumes without question a correspondence between a statement and an object, a thing.
Contradistinction, Heidegger proposes that in order to explore the essential nature of a truth, we must resort to ‘thinking’. Interestingly, this ‘thinking’ must relate to anything that is to be thought about and this aboutness should become the main focus of inquiry. For example, I am thinking about a chair, about a friend, about law, about liberty. Surely what must be important is the object of thought — chair, friend/friendship, law, liberty — and not that ‘aboutness’. No! In order to explore ‘aboutness’, we need to explore ‘the question of Being’. Heidegger claims to awaken the question of Being that was lying dormant all through the Western philosophical tradition from the Plato to Nietzsche.
By thinking back to pre-Socratic understanding of truth as unconcealment, Heidegger endeavours to excavate that very moment when the question of Being has been forgotten and buried. The question of Being entails the question of essence of a being. Arguably, even in transcendental phenomenology, idea and ideatum — that of which it is an idea — must correspond in their essence.
What does the essential of something consist in? Presumably it lies in what the entity is in truth. The true essential nature of a thing is determined by way of its true being, by way of the truth of the given being. But we are now seeking not the truth of essential nature but the essential nature of truth.
To seek the essential nature of truth, we must think ‘through’ as opposed ‘to see happenings from a given perspective’. The phenomenon relates to the primordial moment of experiencing actuality rather than to the investigation of how ‘things’ are experienced from different angles by a transcendental ego.
The transcendental Dasein, finds itself among beings and also reflects upon itself as a being — an ego, an ‘I’, a subject. In moments of anxiety, though, beings, including the ego, shrink so that their Being which has been given to them can be glimpsed at. This is one instance of experiencing actuality wherein the true essential nature of a thing can be revealed.
Heidegger explains that the structure of Dasein is not prior to Being but is already thrown in Being, already claimed by it. In a moment of readiness it is snatched by Being but it is always left hanging. The main message of Letter on Humanism is that it is not as if Dasein is playing the flute to which Being dances. Being has always already projected itself. ‘Being is It Itself’. Dasein, as a respondent to a call is always already a projection onto Being. Dasein oscillates/hangs as care, anxiously moving further from, and nearing, engagement with Being’s projection. The essence of human beings is that they ‘ek-sist’ in that they are, expressly or through concealment, attentive to, as standing out in the midst of, the moment that the Saying of Being shows itself.
THINKING REFLECTIVELY ABOUT LAW
When we try to understand the essence of law we are inevitably linked to the question of what is the origin of the truth of law, what is primordial in law its Being. Have we even come close to primordial engagement with the first question, namely what is it about law which is to be understood and thought about?
The question of the Being of law — has not yet been asked. Despite this, a primordial contemplation and reflection can be generated about law, a contemplation which is not reducible to, and has ontological priority over, other ways in which law is being thought about or theorised upon.
To think reflectively about law requires us to attend to the Being of law. What is understood today by the ‘law’ and ‘legal’ embodies in it the Being of law while at the same time distorting that Being. To see law for what it is, odd as it may seem, requires us to work from a different kind of ‘within’, a ‘within’ which needs to be nearer to the mundane involvements. The claim that the Being of law is distorted by any theorising of law may lose potential audiences with the effect that the claim would make no imprint on their reflections. The Being of law, as distinguished from the ontic approach does not connote correspondence between an ‘idea of law’ and a ‘thing’” that is law. The Being of law is not a thing. The Being of law is the unfolding of the essence of law.
To think about law is to think about the prevalent notion of ‘aboutness’ in which the current multiplicity of ways of theorising law is captive. For that, the way to language, truth, Man, ethics has to be visited. Thinking about law is to think-back, to recollect, to connect to the memory of that prudence of jurisprudence, in order to see that which jurisprudence makes us forget. What calls for thinking about law is precisely to recollect what is prudent about law and to show that this prudent ‘aboutness’ turns us away from thinking the ‘aboutness’ that comes to Dasein who is involved with the law as a call from the Being of law.
Thinking about law is thinking about the historicity of its Being and it entails a different reflection from that in which other historical reflections are embodied. A proper historicity of the Being of law would relate to tracing the moment where the question of the Being of law has been forgotten in order to grasp the historicity of that Being. A proper historical investigation would search for a more primordial temporality of law. Thinking the Being of law should take us back to that which sets the philosophical tradition in motion and thus involves the very thinking back of that tradition. Only in this thinking back could we talk about a primordial historicity that comes from the saying of the actuality of the actual in law.
THE PITFALLS OF ONTIC-APPROACH TO LAW
Ontic thinking is generalizing thinking, that is always expressed through representational ideas, definitions, conceptual structures, a horizon of truth in which language is investigated through formal logic. Any look at a book on jurisprudence would reveal the wealth of different frameworks within which law is being theorised: constitutional, liberal, Marxist, sociological jurisprudence, regulatory and risk frameworks, critical legal scholarship, psychoanalysis, critical race theory, and it goes on. At least initially, it seems that there are distinct frameworks to theorise law. Each has its own story of concealment to tell. Each theory conceals the Being of law. This concealment is itself a way in which the Being of law has already spoken.
These representational theories of law, that span inter-alia across debates between natural law and legal positivism, Marxist critique of law, critical legal studies, and critical constitutionalism think about law by ontically thinking with and through it as the thing it is. These theories either explicitly generalise features of that ‘thing’ called law or criticise the specific content of the doctrines that this ‘thing’ encapsulates.
Moreover, ontic approaches to law embody historical reflections for the conceptualization of ideas which gives birth to the forgetfulness of the ‘Being of Law’. The very situation that humans look for to methodology for the thinking about law is part of the historicity which conditions them. The events that occur prior to the realisation of a particular theory may already contain a relationship to law which is more primordial than the postulates promulgated by that particular theory.
For instance, the events that must have led to Hobbes’ theorization of ‘State of Nature’ in which the contrast between the ‘barbaric’, or unfree, state of nature to that of law and order under which security and liberty can flourish is already embedded in philosophical assumptions about truth, language, ethics, freedom and law.
Similarly, referring to a recent example, the events which must have led to the conceptualization of the term, collateral censorship which occurs when an intermediary suppresses the speech of others in order to avoid liability that otherwise might be imposed on it as a result of that speech is already covered within the notion of the right to free speech and expression of an individual. Apparently, this free speech-individual dynamic contains a relationship to law which is more primordial than the postulated contours of collateral censorship.
CONCLUSION
We must contemplate both how ontic thinking about law and the significance attached to law have become so pervasive as well as how questions about law’s primordial significance, that is about the Being of law, have become so deeply forgotten.
To sum up, thinking about law, thinking the Being of law, cannot involve re description of law because Dasein will find himself once again, in every new description, perpetuating the forgetting in a new manner. That we are still not thinking about law by for-the-most-part thinking with and through it, however critically, is itself a part of the practice of law and will somehow show in this practice.
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