Last updated 09/07/24: Online ordering is currently unavailable due to technical issues. We apologise for any delays responding to customers while we resolve this. For further updates please visit our website: https://www.cambridge.org/news-and-insights/technical-incident
We use cookies to distinguish you from other users and to provide you with a better experience on our websites. Close this message to accept cookies or find out how to manage your cookie settings.
Marianne Constable's Nietzschean foray into American legal writing is a contribution simultaneously to both theory and history. The latter deserves special mention, for despite the very important legal theory currently being played in a Nietzschean key, legal history has largely remained immune, caught in a range of liberal and critical approaches. Constable in this essay takes a familiar body of thought and interrogates it with a stunningly new set of questions. What looks like the checkered career of “democratic culture” to a writer like Morton Horwitz becomes the descent into the lowest stages of hell for Constable, a journey to the deepest recesses of nihilism.
1 Marianne Constable, “Genealogy and Jurisprudence: Nietzsche, Nihilism, and the Social Scientification of Law,” 19 Law & Soc. Inquiry 551 (1994).Google Scholar
2 The interest in governmentality has shown promise not only in writing intellectual history, as Constable does here, but also for legal and institutional history. See Francois Ewald, L'Etat providence (Paris: Bernard Grasset, 1986); Graham Burchell, Colin Gordon, & Peter Miller, The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press, 1991).Google Scholar
3 Martin Heidegger, The Question Concerning Technology and Other Essays 3-35 (New York: Garland Publishers, 1977).Google Scholar
4 268 U.S. 652 (1925).Google Scholar
5 “Those who won our independence believed that the final end of the State was to make men free to develop their faculties…. They valued liberty both as an end and as a means. They believed liberty to be the secret of happiness and courage to be the secret of liberty.” Whitney v. California, 274 U.S. 357, 375 (1927).Google Scholar
6 The “amenities” of strolling, wandering, and loafing were, according to Douglas, “in part responsible for giving our people the feeling of independence and self-confidence, the feeling of creativity. These amenities have dignified the right of dissent and have honored the right to be nonconformists and the right to defy submissiveness. They have encouraged lives of high spirits rather than hushed, suffocating silence.” Papachristo v. City of Jacksonville, 405 U.S. 156, 164 (1972).Google Scholar
7 Warren, Samuel & Brandeis, Louis, “The Right to Privacy,” 4 Harv. L. Rev. 193 (1890).CrossRefGoogle Scholar
8 Alasdair Maclntyre, “Community, Law, and the Idiom and Rhetoric of Rights,” 26 Listening 96 (Spring 1991).Google Scholar
9 Lochner v. New York, 198 U.S. 45, 75 (1905).Google Scholar
10 John Rawls, A Theory of justice 60 (Cambridge: Harvard University Press, 1971). Rawls's second principle, the so-called difference principle, remains a perfect illustration of modern law as an effort to manage populations. In fact, I would argue, Rawls's two principles, taken together, provide a good illustration of one way that the social and antisocial is articulated as a package.Google Scholar
11 Morton Horwitz, The Transformation of American Law, 1870-1960 at 261 (New York: Oxford University Press, 1992).Google Scholar
12 Drucilla Cornell, The Philosophy of the limit 176 (New York: Routledge, 1992).Google Scholar
13 The Portable Nietzsche 208-11, ed. Walter Kaufmann (New York: Viking Press, 1968).Google Scholar
14 For two contemporary versions of this theme, see Cass R. Sunstein, The Partial Constitution (Cambridge, Mass.: Harvard University Press, 1993); Martha Minow, Making All the Difference: Inclusion, Exclusion, and American Law (Ithaca, N.Y.: Cornell University Press, 1990), esp. at 263, 293-96, 302. I stress that this is the ideal. Writers like Sunstein and Minow know this is not the unfailing practice.Google Scholar
15 Jurgen Habermas, The Philosophical Discourse of Modernity 7 (Cambridge, Mass.: MIT Press, 1990).Google Scholar
16 See Hans Joas, Pragmatism and Social Theory (Chicago: University of Chicago Press, 1993).Google Scholar
17 “It does not need research to show that no such sweeping condemnation can be passed upon the statute before us.”Lochner at 76.Google Scholar
18 Cornell, Philosophy of the Limit 91-95.Google Scholar
19 In fact, Constable's more resolute Nietzscheanism helps reveal how much a writer like Cornell actually comes closer to the American reform tradition, despite all the trappings of European social theory.Google Scholar
20 Friedrich Nietzsche, On the Genealogy of Morals/Ecce Homo 339, ed. Walter Kauf-mann (New York: Vintage Books, 1967).Google Scholar
21 Ralph Waldo Emerson, Selected Essays 116, 121, ed. Larzer Ziff (New York: Penguin Books, 1982).Google Scholar
22 Joseph Wood Krutch, ed., Thoreau: Walden and Other Writings 86 (New York: Bantam Books, 1962).Google Scholar
