The gift beyond exchange
How is one to think the fact that everything that is only is insofar as it is given?
Derrida’s Given Time: I. Counterfeit Money, stemming from a seminar presented for the first time in 1977 to 1978, stands in close relation to his thinking on justice and law. This can clearly be seen from ‘Force of law’ where Derrida describes justice in terms of a ‘gift without exchange, without circulation, without recognition or gratitude, without economic circularity, without calculation and without rules, without reason and without theoretical rationality, in the sense of regulating mastery’ (AR 254).1 The exploration of the notions of time and the gift in Given Time takes place with reference inter alia to Heidegger’s well-known statement in his 1962 lecture in On Time and Being, ‘es gibt Sein, es gibt Zeit (‘it gives Being, it gives time’; or ‘there is Being, there is time’) as well as Marcel Mauss’s analysis in The Gift of the gift in archaic societies. Given Time has not as yet received much attention from legal scholars.2 This is unfortunate, since, as the quotation above shows, justice in Derrida’s texts clearly has to be understood with reference to his analysis of the gift. Derrida’s analysis of the gift furthermore relates to an issue which is of central importance for legal thinking, namely the origins of law. This issue is of course also addressed in other texts such as ‘Declarations of independence’ (Chapter 2), ‘Before the law’ (Chapter 3) and ‘Force of law’ (Chapter 6). Given Time nevertheless explores the question of law’s origin from a unique angle which in turn makes possible a better understanding of Derrida’s other texts on law. Given Time in addition points to the necessity of exploring the relation between the thinking of Derrida and Heidegger, specifically in relation to the ontico–ontological difference, as well as the way in which this ties in with the origins of law.
For reasons of space the analysis here will be restricted to the first two chapters of Given Time. The chapter will start with a brief exposition of Heidegger’s evaluation of metaphysics. As Derrida notes in Positions, his own thinking would not have been possible without the ‘attention to what Heidegger calls the difference between Being and beings, the ontico–ontological difference such as, in a way, it remains unthought by philosophy’ (Pos 8).3 In Given Time Derrida then also specifically engages with Heidegger’s thinking on Being as well as the difference between Being and beings, by contemplating that which precedes this difference, through the notions of the gift and of time.4 This will be followed by an outline of Mauss’s The Gift, specifically with reference to the way in which Mauss views the gift in terms of a circular economic exchange, as well as a brief discussion of Derrida’s analysis of Mauss’s text. Here we will see the first signs of a development in terms of which the concept of the gift will be exceeded towards a certain ecstasy, or what Derrida elsewhere refers to as ‘a jouissance of the concept to the point of overflowing’ (FWT 5). In the next section, Derrida’s own analysis of the gift will be enquired into in more detail. This will take place in three parts. In the first place, Derrida’s analysis of Heidegger’s thinking on the es gibt and its relation to the gift and time will be enquired into with reference to On Time and Being. Second, an analysis of the ‘notion’ of sexual difference and its relation to the gift will be undertaken. In analysing this relation, a detailed reading will be given of Derrida’s Geschlecht. This in turn will be followed by an analysis of the relation Derrida posits in Given Time between the gift and mourning. The last section will consider the implications for law of the analysis of the gift, specifically with reference to ‘Force of law’.
Heidegger and metaphysics
The question of Being
For Heidegger, all philosophy since Plato, including its derivatives, constitutes metaphysics. Heidegger points out in this regard that metaphysics concerns itself with the question of being by asking ti to on (what is being?). Heidegger wants us to return to this question and to think it through in a more fundamental way. He wants to, in a sense, get behind the guiding question metaphysics poses and to pose a more original question, that is: what sustains and directs the guiding question of metaphysics (Heidegger 1991: II 193)? Heidegger’s thinking can be said to be motivated by the completion of metaphysics or idealism brought about by Hegel’s thinking of the absolute Idea as well as its consummation in Nietzsche’s thinking of the will to power. Relying on the metaphor of harvesting we can say that Hegel succeeded in bringing in the first great harvest. Metaphysics, according to Heidegger, now only involves the threshing of empty straw. He therefore seeks to go back to the source of metaphysics so as to, as he puts it, ‘come to know the field and what it is capable of yielding’ (Heidegger 2005: 34). Heidegger is more specifically of the view that Western philosophy has forgotten the question of Being (das Sein). Although it has concerned itself with Being throughout its history, metaphysics has not as yet adequately thought Being. The question Heidegger concerns himself with is the more fundamental question (as compared to what happens in metaphysics) of the Being of beings. Being for Heidegger is not ‘a being’ (ein Seiende). A being can be any thing, such as what we can grasp with our hands, as well as mountains, a river, the moon, a group of people, the Japanese, Bach’s fugues, Hölderlin’s hymns, day, night, heat, noise, law etcetera (Heidegger 2000: 81; 1984a: 40; 2005: 111). Why is the question of Being important? According to Heidegger, the question of Being determines the way in which we relate to the world around us. This can be explained with reference to the word ‘is’ in language. Even though ‘is’ can be said to drift about ‘as the most threadbare word in language’, it also sustains all our saying, Heidegger contends. We implicitly use the ‘is’ in every verb we employ. It is the same with all substantives and adjectives, all words and articulations of words. Even in our (silent) conduct towards beings, for example by walking in a forest or reading a book, their ‘is’ or Being is at stake. We also are in relation with the ‘is’ when we for example relate in our thinking to a thing that is no longer or not yet, and even a thing that simply is not (Heidegger 1991: IV 188–93). The question of Being is thus extremely important and it is something we already have a pre-understanding of, even though we tend never to think about it. We could say that because of the brightness of beings, the light of Being is obscured. Being in other words withdraws when it reveals itself in beings (Heidegger 1984a: 26). Our relation to Being is according to Heidegger made possible by man’s essential nature prior to any philosophical undertaking, for otherwise man would not have been able to relate to himself as a being or to other beings at all (Heidegger 2005: 88; IJsseling 1986: 115). Philosophy itself, which, as we saw, primarily concerns itself with the question of Being (although it has done so in an inadequate way), is thus made possible by this essential nature of man. Philosophy is not simply thought up, but awakened in man through his relation with Being (Heidegger 2005: 32). As we will see in more detail below, philosophy has grasped the question of Being in different ways: Plato represented Being as Idea, Aristotle as energeia, Kant as position, Hegel as the absolute concept, Nietzsche as the will to power, but consistently as constant presence, which is what Heidegger wishes to place in question (Heidegger 2002c: 9; 2005: 39). These were of course not choices exercised by the philosophers concerned, but a consequence of the sending of Being beyond (modern) subjectivity (Goosen 2007: 334–5).
The understanding of Being in metaphysics
Heidegger, as we saw above, regards Plato as the first metaphysical thinker and views Western philosophy as having been caught up in metaphysics ever since. The early Greeks were not as yet under the sway of metaphysics (Heidegger 1991: IV 165).5 Plato and Aristotle nonetheless, like all philosophers after them, still contemplated Being – that is, the arche (principle) or ground of beings (Heidegger 2005: 71). What then happened with Plato’s thinking? Plato thought of Being in a way different from the early Greeks. He did not think Being as such, but thought it from the perspective of and with reference to (the essence of) beings (Heidegger 1991: IV 207–11). More specifically, for Plato Being is the idea or the universal – that in which the particular thing (a being) has its subsistence and from which it proceeds. Plato’s interpretation of Being as idea has, according to Heidegger, shaped the whole history of Western philosophy. One could say that all philosophy since Plato is ‘idealism’: Being is thought in the idea, the idea-like and the ideal (Heidegger 1991: IV 162–4). The Christian understanding that all beings have a first cause in God as creator is similarly metaphysical (Heidegger 1991: III 7). It also proceeds by thinking Being with reference to beings. That which ‘is’ in the Christian understanding, is the ens creatum, in other words that which is created by the personal Creator-God as the highest cause (Heidegger 1977: 130). Christianity in other words states that the Being of a being is that it has been created by God (Heidegger 1991: IV 88). According to Christianity, beings have been thought out rationally beforehand. As soon as the link between Creator and creation is broken in modernity (Nietzsche’s ‘God is dead’), this idea is adapted and man now takes the place of God, so that the rationality and calculation of man becomes the measure of everything: that is, interpreted as Being (Heidegger 2000: 207; 1977: 148). This is the enlightenment idea of reason (Heidegger 1991: III 7). According to Heidegger (1991: III 51) this is the profound insight of Nietzsche in his reflections on the will to power:
Only what represents and secures rational thinking has a claim to the sanction of a being that is in being. The sole and highest court of appeal, in whose field of vision and speech is decided what is in being and what is not, is reason. We find in reason the most extreme pre-decision as to what Being means.
What ‘is’ in metaphysics, is therefore necessarily determined by a specific understanding of Being (Heidegger 1977: 117, 127–8). The understanding of Being in modernity, Heidegger ascribes in the first place to Descartes’ Ego cogito, ergo sum. This statement entails that ‘[a]ll consciousness of things and of beings as a whole is referred back to the self-consciousness of the human subject as the unshakable ground of all certainty’ (Heidegger 1991: IV 86).6 In modernity, the idea (Being) in Plato has thus become that which man posits for himself (Heidegger 1991: IV 174). Accordingly only that ‘is’ which is correctly thought (Heidegger 2000: 207). Reason has become synonymous with the subjectivity of the human subject, entailing ‘the self-certain representing of beings in their beingness, that is, objectivity’ (Heidegger 1991: III 96). All beings are furthermore turned into objects (Heidegger 1993b: 251).
When Being is in the above-described ways turned into idea or ‘whatness’, the latter is promoted to the status of the Being of beings, to what really is or to what is most in being about beings, whereas beings are relegated to me on – that which really should not be and really is not. A disjoining in this way takes place between on and phainomenon. The idea furthermore becomes the paradeigma, the model and also the ideal (Heidegger 2000: 194–9). Heidegger (2000: 197) describes the consequences of the cleft that opens up between the idea and the imitation as follows:
Because the idea is what really is, and the idea is the prototype, all opening up of beings must be directed toward equalling the prototype, resembling the archetype, directing itself according to the idea. The truth of phusis – alētheia as the unconcealment that essentially unfolds in the emerging sway – now becomes homoiōsis and mimēsis: resemblance, directedness, the correctness of seeing, the correctness of apprehending as representing.
If Being becomes idea there is no longer any link between beings and Being or between beings and truth (understood here as unconcealment or the happening of beings) – only between beings and idea. The foundations upon which metaphysical thinking is built, are thus not foundations at all, as they are themselves derived (and falsified) (Heidegger 1991: IV 163).
One can summarise Heidegger’s diagnosis of metaphysics by saying that metaphysics does not draw a clear distinction between beings and Being. Metaphysics regards Being as the most abstract and emptiest of concepts and in no need of being determined any further. Being is overshadowed by beings (Heidegger 1991: IV 157). This is not because of a mistake in thinking, but because in the appearance of beings, Being withdraws, conceals itself (Heidegger 1991: IV 226–7). Being itself and consequently also the difference between Being and beings thus remains unexplored because metaphysics does not take account of the fact that there is a fundamental difference between Being and beings (Heidegger 1991: IV 195, 196). This difference between Being and beings is referred to by Heidegger as the ontological or ontico–ontological difference. We already saw above that everywhere and continually, man stands in a relationship with Being when comporting himself towards beings. Man could thus also be said to ‘stand in the differentiation of beings and Being’ (Heidegger 1991: IV 153). It is this differentiation which makes possible ‘every naming, experiencing, and conceiving of a being as such’ (Heidegger 1991: IV 154). The ontological difference is thus the unknown and ungrounded ground and foundation of (the possibility of) ontology and of all metaphysics. The differentiation between Being and beings, we could also say, forms the basic structure of metaphysics even though it has remained unexamined as such (Heidegger 1991: IV 182).
A different understanding of Being, in relation to time
Heidegger reflected on the question of Being in a number of ways. In Being and Time (1962 ) he explored the question of Being as a first step with reference to that being for whom its Being or existence is a question: man, or in Heidegger’s terminology, Dasein (literally: there-being). Being can furthermore be understood only when we understand the notion of time (Heidegger 2005: 88). According to Heidegger, one of the problems with the usual conception of time is that it is generally referred to in the same context as space. The reason for this approach lies in the metaphysical conception of Being – in terms of beings, which appear in space and in time. This conception fails to recognise that space and time are not the same (Heidegger 2005: 84). In terms of the metaphysical concept of time, also to be found in Kant, time furthermore gives expression to permanence (Heidegger 2005: 118). This involves viewing time as a calculable sequence of nows (the present as actual now, the past as no longer now and the future as not yet now (Heidegger 2002c: 11) and in terms of things that are present in time. This also informs the understanding of causality (Heidegger 2005: 109, 113). One of the limitations of the conception of time in Kant (time as a mode of comportment of the human subject) is that it does not address the question of Being. It more specifically involves an implicit understanding of Being as constant presence. Heidegger points out that Kant’s view of time simply involves that it occurs in man, instead of viewing time more fundamentally as ‘the ground of the possibility of the understanding of [B]eing’ (Heidegger 2005: 88). Kant in this respect fails to investigate adequately the finitude of man, despite the fact that man stands at the centre of his enquiry in the Critique of Pure Reason (Heidegger 2005: 119). Instead Kant implicitly views man’s way of being as being-present (Heidegger 2005: 134). Kant’s discussion of time is nonetheless important as it tells us, as Aristotle and Augustine also do, that time is not something that can be found somewhere like a thing. Time can be found only in ourselves (Heidegger 2005: 85). To this ‘vulgar’ metaphysical concept of time, Heidegger opposes authentic temporality. He arrives at this notion of temporality through an enquiry into the way in which Dasein actually experiences time. Stated briefly, this notion of temporality according to Heidegger involves a unitary relation of Dasein to the present, the past and the future, stretched along ‘ecstatically’ (Heidegger 1962: 462).7 Ecstatic refers here to Dasein’s being carried to or stretching toward a certain ‘whither’ (Kockelmans 1989: 283; Taminiaux 1994: 52). What Heidegger refers to as Dasein’s ecstatico-horizonal temporality, involves awaiting (the future), retaining (having-been) and making things/beings present. These ecstases do not follow in succession upon each other as in the ordinary conception of time. The future is thus not later than the having-been and the having-been is not earlier than the present. Heidegger (1962: 401) expresses this idea as follows: ‘[t]emporality temporalizes itself as a future which makes present in the process of having been’. The present or making things present in authentic temporality is dependent on an understanding of one’s own having-been thrown forth, which is in turn determined by an anticipation of one’s ultimate and ownmost possibility (Kockelmans 1989: 32, 257; Taminiaux 1994: 51). The future furthermore has priority in authentic temporality as the future relates Dasein to his own Being-towards-death. Authentic temporality is therefore primordially finite (Heidegger 1962: 378–9). The awareness of its own Being-towards-death places Dasein in a relation to Being and makes resolve and authentic existence possible. Heidegger refers to death in this regard as the ownmost possibility of Dasein, which is at the same time Dasein’s utter impossibility (Heidegger 1962: 354, 378). The awareness of Dasein’s own death thus structures temporality as it entails an anticipation of the future which determines the way in which Dasein relates to what has been and in making present.
Heidegger (1962: 246–52) moreover contends that Dasein is already thrown into the world and ‘is’ thus Being-in-the-world. This means that there is no world or reality outside of Dasein the existence of which has to be proven (as Descartes attempted) or to which one has no access (Kant’s ‘thing in itself’). Both these (metaphysical) approaches assume a subject that is world-less and that seeks to assure itself of a world (Heidegger 1962: 250; Chapter 1). In this respect Heidegger’s thinking is not very far removed from Hegel’s critique of Kant regarding the noumenon. As mentioned in Chapter 1, things for Hegel are simply phenomena and there is no reason to go beyond the phenomena to the things-in-themselves (Hyppolite 1974: 125). Heidegger’s thinking in this regard can be better understood when we relate it to what was said above regarding temporality. According to Heidegger (1962: 429, 472), entities other than Dasein are strictly speaking non-temporal; they are nonetheless entities within-the-world that are encountered by Dasein ‘in time’ due to Dasein’s temporality. It is because of Dasein’s awareness of its own mortality that its existence is an issue for it, although it tends to hide this from itself by finding refuge in beings because of the security they seem to offer. Death is therefore for Heidegger not something that stands separate from life or beyond life, but is connected to the life of Dasein in a fundamental way. Heidegger believes that an authentic life (as compared to the inauthentic life of the ‘they’ – das Man) would entail being fully aware of one’s mortality:
Death is a possibility-of-Being which Dasein itself has to take over in every case. With its death, Dasein stands before itself in its ownmost potentiality-for-Being. This is a possibility in which the issue is nothing less than Dasein’s Being-in-the-world. Its death is the possibility of nolonger-being-able-to-be-there.
(Heidegger 1962: 294)
In the above quotation we can see that the intricate relation between life and death is what for Heidegger defines Being. This comes out very clearly in another passage a few pages later in Being and Time (1962: 298): ‘Dasein is always dying already; that is to say, it is in a Being-towards-its-end.’ We see a similar kind of relation between life and death in Freud’s thinking in relation to the death drive which, as we saw, Freud views as a ‘desire’ of all living beings (Chapter 1). Western philosophy, it appears from the reflection of these two thinkers, has ‘hidden’ the relation between life and death from itself, thereby turning itself into a metaphysics of presence. This is borne out by the way in which Being is implicitly viewed by metaphysics through all its epochs:
Of what do we say and has one said from times of old: This ‘is’? What does one take as in being even when one has fallen away from the primordial Platonic way of perceiving? We say something is of that which we always and in advance encounter as always ready to hand; what is always present and has constant stability in this presence. What really is, is what already in advance can never be removed, what stands fast and resists any attack, survives any accident. The beingness of beings signifies permanent presence. What is thus in being is the true, the ‘truth’ one can always and truly hold on to as what is stable and does not withdraw, on the basis of which one can gain a foothold.
(Heidegger 1991: III 59–60)
This notion of constant presence is for example expressed by Kant when he describes appearances in the Critique of Pure Reason: All appearances contain the permanent (substance) as the object itself, and the transitory as its mere determination – that is, as a way in which the object exists’ (Heidegger 2005: 116). Changes of appearance are in other words viewed simply as alteration and not as ‘rising up from nothing and disappearance into nothing’ (Heidegger 2005: 124). The reason for Being taking this form in metaphysics is related to the interest of life in constantly maintaining and securing itself. This is why the true world in metaphysics was taken to be the one that is constant and unchanging rather than one that is changing and transforming (Heidegger 1991: II 61–2). What was at first experienced as ‘presencing’ has due to metaphysics become ‘something present’ (Heidegger 1984a: 50). Heidegger’s discussion of chaos encountered by knowing (as compared to the commonsensical view that we encounter things or objects in an ordered way), in the context of a discussion of truth in Nietzsche, is revealing in this regard. Heidegger speaks in this respect of every living being, and especially man as ‘surrounded, oppressed and penetrated by chaos, the unmastered, overpowering element that tears everything away in its stream’ (Heidegger 1991: III 84). Heidegger contends, in words that cannot but remind one of Freud’s contemplation of the death drive, that Being (in metaphysics) entails an overcoming of this sheer dissolution and annihilation. It is however because of a denial of death as part of his life that man takes his refuge in a particular conception of Being as what is permanent and stable. Instead of viewing this chaos as on the outside whilst praxis or reason provides stability on the inside (as metaphysics does), the chaos must according to Heidegger (1991: III 88) be seen as what is inside:
Rather, the living being as praxis, that is, as the perspectival-horizonal securing of stability, is first installed in chaos as chaos. Chaos as the onrushing urge of living beings for its part makes the perspectival securing of stability necessary for the survival of the living being.
Although acknowledging the necessity of Heidegger’s questioning of the metaphysical tradition, Derrida’s assessment thereof (suspending for a moment the necessarily heterogeneous nature of Heidegger’s texts, which will be explored further below) is that it was not followed through to the end. What is called for according to Derrida is an even more rigorous thinking through of Being and of the metaphysical tradition. Heidegger’s enquiry into the truth of Being, although it involves a radical questioning of the tradition, according to Derrida, ultimately seeks in very metaphysical style a more fundamental truth and origin. Heidegger (2005: 71) in this respect for example describes Being as ‘the primary and ultimate ground of the possibility of every actual and conceivable being’. Derrida thus raises the question whether the ontological thinking of Being – or in Shakespeare’s words, ‘To be, or not to be’ – should receive the precedence it is at times accorded by Heidegger.8 Heidegger furthermore retains in traditional metaphysical style, oppositions such as in his discussion of time and of Dasein between the authentic and the inauthentic (or fallen-ness), and of the proper and the improper, in spite of having suspended all ethical evaluation (MP 63–4). In respect of the ontological difference, Derrida asks whether the thinking of the difference between Being and beings does not still come from the metaphysical order and whether there is not a difference still more unthought than the difference between Being and beings, thereby alluding to différance (SP 153; MP 66–7). Heidegger’s analysis of temporality raises a similar kind of question, that is, whether an alternative conception of time – here, authentic temporality – does not still remain within the metaphysics of presence, as any conception of time inevitably must (MP 63; IJsseling 1986: 123). Lastly, Heidegger’s view of death as a possible impossibility of Dasein raises the question whether it does not risk inscribing death within a circular economy (Ap 29–30, 62–4). Viewing death and time in this way, as we will see below, has important implications for our conception of justice. Despite these reservations, Derrida’s description of justice in terms of the gift and the invocation of justice in ‘Force of law’, as well as his distancing of this conception from the Kantian regulative idea, is clearly indebted to Heidegger’s destruction of the metaphysical understanding of Being as idea (AR 254–5). This destruction is a necessary step should one ultimately attempt to think Being in terms of the gift. Marcel Mauss’s study of the gift further opens this possibility, as we will see in the discussion that follows.
Mauss’s The Gift
Mauss’s exploration of the gift in archaic or ancient societies understandably has a prominent place in Derrida’s analysis in thinking the gift and time in a way that exceeds metaphysics. Mauss shows that gifts in these societies have a structure of circular exchange and are motivated by economic self-interest. Gifts are in other words coupled with an obligation to give (generously), an obligation to receive, and an obligation to reciprocate with interest, taking due account of prescribed time limits (Mauss 1990: 46). A failure to participate in this reciprocal exchange could have fatal consequences as it would amount to an act of war (at 7). In the societies analysed, acts of destruction; the giving of alms to the poor; the giving of children in marriage; the invitation of others to share meals, drink and tobacco; and the exchange of presents, are all forms of obligatory gifts. According to Mauss (at 46, 60–1, 90), the exchange of gifts lies at the origin of law, morality and economy. Mauss specifically contends in this regard that the principle of justice in modern legal systems has taken the place of the gift: justice derives from the obligation resting upon those in ‘primitive’ societies who had in abundance; they had to show generosity in giving alms on certain occasions on pain of being punished by the gods in avenging the poor, and in expectation that they would be richly rewarded by the gods should they do so (at 23).9