[PHILOSOPHER OF LAW]
Chairs, and the philosophers who sit in them
Determinate existence, and responsive regard for what is ever beyond it
Law is at least partly mythology
Nationalism grows out of a secularism that isn’t really secular
Nelson Mandela is amazing
What does law do for us? What is it supposed to do for us? We might think its main job is to decide conflict and make proclamations of right and wrong, and then maybe help us order our personal lives according to civil procedures such as marriage and will-making. Peter Fitzpatrick argues that law’s purpose is not so easy to pin down, and points out that theories of law are conspicuous in their collective inability to tell us what law is, and what it, definitively, is for.
Fitzpatrick, philosopher of law and author of The Mythology of Modern Law (Routledge, 1992) and Modernism and the Grounds of Law (Cambridge University Press, 2001) alongside countless articles and edited collections, prompts us to ask why, for instance, Nelson Mandela could despair of law under apartheid and yet view it as perhaps the only chance a black South African had to see justice done. In turn, how can the law giving Native Americans certain rights be the same as the law that so oppresses them? How—philosophically and factually—can law be the agent of so much justice and injustice at the same time? That and related questions are the subject of this interview.
Fitzpatrick is Anniversary Professor of Law at the Birkbeck School of Law in the University of London, U.K. He has also taught at universities in continental Europe, North America, and Papua New Guinea.
THE BELIEVER: What does it mean that so many of our secular conceptions are in fact secularized versions of theological forms? Is this a failure of “modern” human beings to conceptualize law and its demands? Or is it an unavoidable characteristic of law?
PETER FITZPATRICK: The theology in such thought is monotheistic. Now, if you will tolerate for a while another stark contradiction, this monotheism has involved two gods. One is a fully determinate god, omnipresent, perfectly ordered, named, and unable to be other than what “he” is. The other god—as you might expect—is responsive. That god is one of possibility, an ineffable and unnamable god, a god of mystery, miracle, and revelation. Monotheism would combine these gods into one. The impossible deity that results has predominantly been an elevation of the first god, the absolutely determinate god. The other god—the one who is responsive—has been instrumentally subordinated to this first one. We can see this kind of configuration with nationalism. Here, the nation becomes all-encompassing (determinate) and relates beyond itself only as a secondary matter and in the cause of its determinate self. Broadening the range, we could say that this same configuration characterizes the modern idea of “the sacred.” “Determinate” gets asserted over “responsive.” What is sacred ultimately gets construed as fixed and inviolate, so “the sacred” is not only nation but also law and the constitution, property, life, stem cells. If these things are determinate, we need give no thought to how our ideas of them have to change over time. “In God we trust” can relieve us of trusting each other.
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