‘The obliging etymology of “nomos” ’: Peter Fitzpatrick and the aesthetics of law

Chapter 10

‘The Obliging Etymology of “Nomos” ’

Peter Fitzpatrick and The Aesthetics Of Law

Carrol Clarkson


In Modernism and the Grounds of Law, Peter Fitzpatrick speaks of the ‘spatial locating of law’s range via the obliging etymology of “nomos” ’ (Fitzpatrick 2001b: 91, my emphasis). He goes on to cite Cornelia Vismann’s essay ‘Starting from scratch: Concepts of order in no man’s land’, which describes the ‘initial scene of the law’:

The primordial scene of the nomos opens with a drawing of a line in the soil. This very act initiates a specific concept of law, which derives order from the notion of space. The plough draws lines – furrows in the field – to mark the space of one’s own. As such, as ownership, the demarcating plough touches the juridical sphere. [. . .] The primordial act as described here brings together land and law, cultivation and order, space and nomos.

(Vismann 1997: 46–7, cited in Fitzpatrick 2001b: 91–2)

Vismann’s paper constitutes a reading (‘an enthralling account and analysis’, in Fitzpatrick’s terms (Fitzpatrick 2001b: 225)) of Carl Schmitt’s The Nomos of the Earth. In this chapter I begin to suggest ways in which Fitzpatrick’s nuanced discussion of nomos in Modernism and the Grounds of Law takes further Vismann’s critique of Schmitt’s relentlessly spatial account of the law, even while Fitzpatrick’s engagement takes the ‘obliging etymology’ of nomos on board. More specifically, I elaborate on what Fitzpatrick calls ‘the other, responsive dimension of space’ (2001b: 93), a concept that offers provocative commentary on Schmitt’s understanding of the relation between nomos and the law defined as spatial orientation. My discussion then opens onto my central argument: that Peter Fitzpatrick’s work can be read as forging a new kind of discourse, what I like to think of as an aesthetics of law. More specifically put: in contrast to the insular spatial determinism that Schmitt identifies with common law, and would like to apply to law more generally, Fitzpatrick develops the idea that law, like poetry, is intrinsically responsive to its other.

A distinctive feature of Fitzpatrick’s own writing style is his extensive and creative use of quotations from a range of other sources. Literary, philosophical, psychoanalytic, anthropological, and critical-legal texts become the colourful and tightly woven-in threads that make up the fabrics of his own arguments. The sustained – even foregrounded – device of quoting and alluding to other works is characteristic, too, of several of the modernist literary texts to which Fitzpatrick himself refers with such insight. My chapter plays up Fitzpatrick’s allusiveness; in fact, I would go so far as to say that my essay is inspired by thoughts about the aesthetic and ethical implications of Fitzpatrick’s use of citation in his own critical legal discourse. In his insistent responsiveness to – and incorporation of – the writings of others in his texts, Fitzpatrick not only speaks about but per-forms what he might call the disruptive ambivalence of instantiating a conceptual field that depends upon what is ever beyond, but at the same time incipient within, it.

Finally, I would like to set Fitzpatrick’s practice of responsiveness to other writers alongside a central ethical preoccupation in the writing of Nobel prize-winning author J. M. Coetzee. ‘Writing is not free expression’, says Coetzee:

There is a true sense in which writing is dialogic: a matter of awakening the countervoices in oneself and embarking upon speech with them. It is some measure of a writer’s seriousness whether he does evoke/invoke those countervoices in himself, that is, step down from the position of what Lacan calls ‘the subject supposed to know.’

(1992: 65)

Carl Schmitt and The Jus Publicum Europaeum

I begin by picking out and following back to its source one of the citationthreads in Modernism and the Grounds of Law. The passage quoted from Cornelia Vismann’s essay at the outset of my chapter – and quoted in Fitzpatrick’s Modernism and the Grounds of Law – in its turn alludes to Carl Schmitt’s extended reflection on the nomos, a reflection that brings nomos into the field of a philosophical, historical, and politically charged discourse. In the foreword to The Nomos of the Earth in the International Law of the Jus Publicum Europaeum, Carl Schmitt presents the concept of nomos as having a primordial, foundational, and even chthonic quality. ‘Human thinking again must be directed to the elemental orders of terrestrial being here and now’, writes Schmitt. ‘We seek to understand the normative order of the earth’ (2003: 39). Nomos, in Schmitt, links order and orientation: ‘Nomos comes from nemein – a [Greek] word that means both “to divide” and “to pasture.” Thus, nomos is the immediate form in which the political and social order of a people becomes spatially visible’ (ibid.: 70).

The boundary line, or fence, or wall, for Schmitt takes on an unequivocally positive and spatially visible relation to that which is enclosed, and hence, to the law:

[T]he solid ground of the earth is delineated by fences, enclosures, boundaries, walls, houses, and other constructs. Then, the orders and orientations of human social life become apparent. Then, obviously, families, clans, tribes, estates, forms of ownership and human proximity, also forms of power and domination, become visible.

(2003: 42)

Further, and importantly in Schmitt, the concrete historical event of land appropriation is intrinsically bound up in the concept of law. Schmitt speaks of land appropriation as being the ‘archetype of a constitutive legal process’; it ‘creates the most radical legal title, in the full and comprehensive sense of the term radical title’ (ibid.: 47). Even further still, it is the historical act of land appropriation that grants conceptual legitimacy to the law: ‘we must take heed that the word not lose its connection to a historical process – to a constitutive act of spatial ordering’ (ibid.: 71); ‘it is a constitutive historical event – an act of legitimacy, whereby the legality of a mere law first is made meaningful’ (ibid.: 73). Carl Schmitt approvingly cites the German linguist Jost Trier: ‘In the beginning was the fence’, says Trier:

Fence, enclosure, and border are deeply interwoven in the world formed by men, determining its concepts. The enclosure gave birth to the shrine by removing it from the ordinary, placing it under its own laws, and entrusting it to the divine.

(Trier 1942: 232, cited in Schmitt 2003: 74)

Thus, nomos ‘is a fence-word’ (Schmitt 2003: 75), and ‘[e]very nomos consists of what is within its own bounds’ (Trier 1942: 232, cited in Schmitt 2003: 75).

Schmitt sees the action of the nomos as having three stages: appropriation, division, and cultivation (2003: 351), and the emphasis of his inquiry is on what is inside the boundary, what the fence tells about the enclosed field it delineates. Hence, ‘this is the original meaning of nomos’, writes Fitzpatrick, citing Dudley Young, ‘that portion of food-bearing land (we still call it “keep”) through which my sheep may safely graze’ (Young 1992: 317, cited in Fitzpatrick 2001b: 92). Schmitt notes that from the sixteenth to the twentieth century, the cultivated, and – by extension – the civilized field demarcated by European international law was taken to be representative of an order applicable to the whole earth. Further, ‘Civilization was synonymous with European civilization’ (Schmitt 2003: 86), and the new world was considered not as enemy territory but as free space, open to European occupation. But the presumed spatial certainty of that which is bounded, unequivocally circumscribed by the nomos, becomes more complex with colonial expansion in Africa. The ‘crucial distinction between European and non-European or colonial soil’, writes Schmitt’s translator, G. L. Ulmen, ‘was lost in Africa, and with it the meaning of the legal distinction of “beyond the line,” which separated the reach of European public law from the sphere of lawlessness’ (2003: 26–7). The question of what is legitimately European in colonial soil demands a separate essay of its own.1 But what is pertinent for the argument in this chapter is that the complexity of our understanding of the spatial range of the nomos intensifies the moment we undertake further serious thinking about the logic of the limit. In thinking the boundary, or the limit, or the fence, one is often led to think foremost of what is supposedly excluded or beyond the range of that limit. The ‘philosophy of the limit’ (to use Drucilla Cornell’s name-phrase for deconstruction), with reference to Derrida’s ‘ “logic of parergonality,” demonstrates how the very establishment of a system as a system implies a beyond to it, precisely by virtue of what it excludes’ (Cornell 1992: 1). Moving away from Schmitt’s resolutely spatially determined legal interiors, Fitzpatrick, with reference to Jorge Luis Borges’ Dreamtigers (1964) and Lewis Carroll’s ‘The Hunting of the Snark’ (1976) (in turn, examples both discussed by Boaventura de Sousa Santos (1995), to whom Fitzpatrick also refers), speaks of the irresolution of law’s spatial determinations: ‘[W]hilst determination can never be completely spatially formed, responsiveness cannot be ever completely unformed’ (Fitzpatrick 2001b: 90–1).

In the work of both Fitzpatrick and Cornell, the irresolution of what is inside the supposed boundary, thanks to its responsive relation to what is beyond it, takes on an ethical resonance. For Cornell reading Derrida, the ‘project is not only to show us why and how there is always the Other to the system; it is also to indicate the ethical aspiration behind that demonstration’ (Cornell 1992: 2). Further, and more specifically, Cornell’s undertaking is to ‘show the significance for legal interpretation of Derrida’s own understanding of justice as an aporia that inevitably serves as the limit to any attempt to collapse justice into positive law’ (ibid.: 2). By way of a thinking through of this philosophy of the limit in relation to the tensions and suspensions between justice and the law, both Fitzpatrick and Cornell offer a challenge to Schmitt’s materially spatial conceptions. Fitzpatrick takes this even further: the content of the law is not only irresolute but vacuous.

Law’s Vacuity: Law and Law’s Other

In his nuanced discussion in Modernism and the Grounds of Law, Fitzpatrick demonstrates the ways in which the common law, ‘despite its vaunted and supposedly exceptional grounding, provides no alternative to law’s vacuity’ (2001b: 93). This passage reminds me of Heidegger’s discussion of art in his essay ‘The origin of the work of art’. In this section of my chapter I bring aspects of Heidegger’s aesthetic theory into conversation with Fitzpatrick’s theory of law. The discussion ultimately brings Heidegger’s use of the word ‘Riss’ (a rift, a fissure, a scratch, and also a draft, a plan, a sketch, according to the Langenscheidt Standard Dictionary) into juxtaposition with the concept of nomos and the philosophy of the limit, as I have been sketching it out thus far. But first let us consider the idea of law’s vacuity in relation to Heidegger’s discussion of art. What is the origin of the work of art, Heidegger asks. Is it the artist, or the work?

The artist is the origin of the work. The work is the origin of the artist. Neither is without the other. Nevertheless, neither is the sole support of the other. In themselves and in their interrelations artist and work are