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2 “Nihilism as a normal phenomenon,” Nietzsche wrote, “can be a symptom of increasing strength or of increasing weakness: partly, because the strength to create, to will, has so increased that it no longer requires these total interpretations and introductions of meaning (‘present tasks,’ the state, etc.); partly because even the creative strength to create meaning has declined and disappointment becomes the dominant condition. The incapability of believing in a ‘meaning,’‘unbelief.’” Friedrich Nietzsche, The Will to Power 319 (585b), trans. Walter Kaufman & R.]. Hollingdale (New York: Random House, 1967) (“Nietzsche, Will to Power”).Google Scholar

3 Id. at 318 (585a). See also Bela Egyed, “Tracing Nihilism: Heidegger to Nietzsche to Derrida,” in Tom Darby, Bela Egyed, & Ben Jones, eds., Nietzsche and the Rhetoric of Nihilism (Ottawa: Carleton University Press, 1989) (“Darby et al, Nietzsche”).Google Scholar

4 Nietzsche, Will to Power 18 (25).Google Scholar

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7 See Gianni Vattimo, “Nihilism: Reactive and Active,” in Darby et al., Nietzsche. Google Scholar

8 See Edward Purcell, The Crisis of Democratic Theory (Lexington: University of Kentucky Press, 1973); also Schlegel, John Henry, “American Legal Realism and Empirical Social Science. I,” 28 Buffalo L. Rev. 459 (1979).Google Scholar

9 Hessel Yntema, “The Rational Basis of Legal Science,” 31 Colum. L. Rev. 925, 955 (1931).Google Scholar

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11 See Alasdair Maclntyre, After Virtue (Notre Dame, Ind.: University of” Notre Dame Press, 1981).Google Scholar

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14 For another diagnosis of the same problem, see Tom Dumm, “Fear of Law,” 10 Stud. L., Politics & Soc'y 29 (1990).Google Scholar

15 For an interesting discussion of the jurisprudence of Kafka, see Panu Minkkinen, “The Radiance of Justice: On the Minor Jurisprudence of Franz Kafka,”Soc. & Legal Stud. (forthcoming).Google Scholar

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18 George Kateb notes that Nietzsche is saying that “even when it tries to help humanity with its picture of the world, Christianity makes things worse. It arouses expectations that, with time, it loses ever more surely the ability to satisfy…. Nietzsche teaches that God is dead…. The death of God is the loss of the ability to believe that there is an otherness standing in an intentional relation to humanity, an entity, distinct … that is superior to humanity in knowledge, even if most of this knowledge is inaccessible to humanity.” George Kateb, The Inner Ocean 135, 136 (Ithaca, N.Y.: Cornell University Press, 1992) (“Kateb, Inner Ocean”).Google Scholar

19 See Alan Hunt, “Foucault's Expulsion of Law: Toward a Retrieval,” 17 Law & Soc. Inquiry 1, 27 (1992).Google Scholar

20 The genealogical method involves the identification of forces which count toward making something, in Constable's case the sociology of law, valuable. For a fuller treatment of the genealogical method see Gilles Deleuze, Nietzsche and Philosophy, trans. Hugh Tomlinson (New York: Columbia University Press, 1983).Google Scholar

21 See Friedman, Lawrence, “The Law and Society Movement,” 38 Stan. L. Rev. 763 (1986).CrossRefGoogle Scholar

22 Here Constable reflects the sensibility of Nietzsche himself. “What I relate,” Nietzsche claimed, “is the history of the next two centuries. I describe what is coming, what can no longer come differently: the advent of nihilism…. For some time now our whole European culture has been moving as toward a catastrophe, with a tortured tension that is growing from decade to decade:restlessly, violently, headlong, like a river that wants to reach the end, that no longer reflects, that is afraid to reflect.” Nietzsche, Will to Power 4 (P2). See also Dumm, 10 Stud. L., Politics & Soc'yGoogle Scholar

23 Austin Sarat & Thomas Kearns, “A journey through Forgetting: Toward a Jurisprudence of Violence,” in Sarat & Kearns, eds., The Fate of Law (Ann Arbor: University of Michigan Press, 1991).Google Scholar

24 See Donald Black, Sociological Justice (New York; Oxford University Press, 1989).Google Scholar

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26 The phrase “soak and poke” is used in a somewhat different context by Milton Heumann, “Interviewing Trial Judges,” 73 Judicature 200 (1990).Google Scholar

27 See David Trubek, “Where the Action Is: Critical Legal Studies and Empiricism,” 36 Stan. L. Rev. 575 (1984).CrossRefGoogle Scholar

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29 See Philippe Nonet, “What Is Positive Law?” 100 Yak L.J. 667 (1990).CrossRefGoogle Scholar

30 See Sarat & Silbey, 10 Law & Pol'y (cited in note 13).Google Scholar

31 Nietzsche, Will to Power 319 (585B) (cited in note 2).Google Scholar

32 For a particular interesting and important example, see Gillian Rose, The Dialectic of Nihilism: Post-Structuralism and Law (Oxford: Basil Blackwell, 1984).Google Scholar

33 This paraphrase of Nietzsche comes from Peter Goodrich, Reading the Law: A Critical Introduction to Legal Method and Technologies 218 (Oxford: Basil Blackwell, 1986) (“Goodrich, Reading the Law”).Google Scholar

34 Joseph William Singer, “The Player and the Cards: Nihilism and Legal Theory,” 94 Yale L.J. 1, 4, & n.7 (1984). For a different view see John Stick, “Can Nihilism Be Pragmatic?” 100 Haw. L. Rev. 333 (1986).Google Scholar

35 34 Stan. L. Rev. at 739 (1982). See also Fiss, Owen, “The Death of Law,” 72 Cornell L. Rev. 1 (1982).Google Scholar

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37 Id. Google Scholar

38 Id. at 740.Google Scholar

39 Id. Google Scholar

40 Id. at 741.Google Scholar

41 Id. at 746.Google Scholar

42 Id.Google Scholar

43 Id. at 744.Google Scholar

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46 Paul Carrington, “Of Law and the Rivet,” 34 J. Legal Stud. Ill (1984).Google Scholar

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49 Id.Google Scholar

50 Id.Google Scholar

51 Goodrich, Reading the Law 111 (cited in note 33).Google Scholar

52 Id. at 212.Google Scholar

53 Id. at 213.Google Scholar

54 Id. Google Scholar

55 Id. at 214.Google Scholar

56 Id. Emphasis added.Google Scholar

57 Id. Google Scholar

58 Id. Google Scholar

59 Id. at 217.Google Scholar

60 “Trashing,” 36 Stan. L. Rev. 293, 338 (1984).Google Scholar

61 Id. Google Scholar

62 Austin Sarat, “Off to Meet the Wizard: Beyond Validity and Reliability in the Search for a Post-empiricist Sociology of Law,” 15 Law & Soc. Inquiry 155 (1990). See also Christine Harrington & Barbara Yngvesson, “Interpretive Sociolegal Research,” 15 Law & Soc. Inquiry 135 (1990); and Adelaide Villmoare, “Politics and Research: Epistemological Moments,” 15 Law & Soc. Inquiry 149 (1990).Google Scholar

63 Harrington & Yngvesson, 15 Law & Soc. Inquiry at 144.Google Scholar

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71 As Susan Silbey argues,Google Scholar

The concept of practice, as applied to legal action, is used in contradistinction to abstract modes of analysis and rationality, and particularly to ‘logically’ developed criteria of rationality, action, truth, knowledge, whatever. It identifies a sphere of rationality that is neither the formal-rational law described by analytical jurisprudence … nor the radical incoherence of critical analyses. Rather law is located in concrete and particular circumstances where the relations between means and ends are governed by situational rather than abstract or general criteria…. Social practices and institutions … do not require external criteria which would have to be justified by yet another system of ideas or concepts. … A practice, especially in law, is understandable ONLY within the context of its tradition…. See her “Ideals and Practices in the Study of Law,” 9 Legal Stud. F. 7, 15, 16 (1985).Google Scholar

72 See Martha Minow, Michael Ryan, & Austin Sarat, eds., Narrative, Violence and the Law: The Essays of Robert Cover (Ann Arbor: University of Michigan Press, 1992) (Minow et al., Narrative”).CrossRefGoogle Scholar

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74 While I have elsewhere argued that Cover's nomos cannot easily coexist with a violent state apparatus, Constable misreads me if she sees in my own pessimism a rejection of Cover's vision. Instead my work on violence might be read as an injunction to diminish or reject law's violence in order to make it possible for the nomos that Cover so valued to flourish. See Austin Sarat & Thomas Kearns, “Making Peace with Violence: Robert Cover on Law and Legal Theory,” in Sarat & Kearns, eds., Law's Violence (Ann Arbor: University of Michigan Press, 1992). If this be a nihilistic passion for a more humane legality, I plead guilty.Google Scholar

See also Michael Ryan, “Afterwords: Meaning and Altemity,” in Minow et al., Narrative. As Ryan argues (at 271):Google Scholar

Cover accurately describes the conceptual and functional shortcomings of statism. But he cannot escape the dilemma posed by statist alternatives and by the lack of an alternative to the state as a way of dealing with them. Because the state exercises a stabilizing power through the authority of law, it cannot be made a locus for jurisgeneration, but for all its functional shortcomings, the state cannot be abandoned altogether because not all communities are communities of virtue. Some aspire to state power and to the exercise of legal violence against others. While messianic alternity can, therefore, never be a pure good, that which limits its potential as well as its threat-the state in its world maintaining role-can never be a pure good either.Google Scholar

75 Jacques Derrida, “Force of Law: The Mystical Foundations of Authority,” 11 Cardozo L. Rev.919, 953 (1990).Google Scholar

76 Jacques Derrida, “From the Lighthouse: The Promise of Redemption and the Possibility of Legal Interpretation,” 11 Cardozo L. Rev. 1687, 1690 (1990).Google Scholar

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