The Problem of Law and Life in Nietzsche's Thought

Introduction

The notion of law (Gesetz) ¹ plays a central but also profoundly ambivalent and confusing role in Nietzsche's thought. The confusion stems partly from the wide range of meanings of the term Gesetz that depend upon the contexts in which it occurs, from religion, art, philosophy, epistemology, language, psychology, sociology, politics, justice (in metaphysical and sociopolitical senses), and criminal law. It is in Nietzsche's critical thought, above all, that the notion of law plays a crucial role—most notably in his critical reflections on morality and his life-long program to "translate moral values back into their nature," ² but also in his critical engagement with natural sciences, particularly mechanism, and the attempt to supplement it with the "inner world" of Will to Power. ³ In many such contexts, "law" and "lawfulness" carry strong negative connotations in passages that question prevailing norms or values and expose their presuppositions. But they can also carry strong affirmative connotations in operational contexts, where Nietzsche uses "law" to formulate positive claims or counterclaims. Gesetz, like so many other key terms in Nietzsche's writing, is used in a double—affirmative and negative—register.

To make sense of this confusing, apparently contradictory usage, it is important to see what makes the concept of law problematic for Nietzsche, and then to examine how he responds to these problems. There is good textual evidence ⁴ for two kinds of response to the problem of law in Nietzsche's writing: on one side, a rejection or denial of laws, within a strategy to expunge the term from language and thought; on the other, a strategy to reinterpret "law," to invest the word with meanings radically opposed to the tradition. With this twofold response in mind, we can begin to make sense of his conflictual attitude to law.

In the present essay, I will concentrate on the problem of law from a perspective in Nietzsche's philosophical conception of life. ⁵ For Nietzsche, traditional and prevailing notions of law are problematic because they represent a negation of life. One would expect him, then, to reject law in the name of life and life affirmation. The problem is, however, exacerbated by his claim that law can only be a product of life, and further, that life is inescapably law-bound. In response to this double-bind Nietzsche cannot possibly reject law in the name of life, and his thought gravitates instead around the task of differential evaluation: to discriminate between different meanings of the word, between different kinds or forms of law, and to interrogate them from a standpoint in life; that is, in terms of the value or quality of life they exhibit or make possible. Nietzsche's questioning concerns the forms of life, the dispositions, attitudes, or types that flourish under the rule of law: What form of life is conditioned, preserved, or fostered by (this or that kind of) law, and what quality of life does it exhibit? At stake in these reflections is one of Nietzsche's most important legacies to contemporary thought: the philosophical task of determining the value, worth, or quality of diverse forms of human life.

I. The Problematic of Law and Life

Nietzsche's problems with the concept of law derive first and foremost from his conception of life. For Nietzsche, life is becoming, occurring (Geschehen), and self-overcoming; it is dynamic and fluid in character. Law, by contrast, is static, rigid, and fixed in character, often the result of human efforts to "petrify," to "eternalize," to arrest or fix the flow of things through an act of Festsetzen or making-fast. ⁶ This is clearly expressed in the concept of immutable, eternal laws common to natural science, religion, and morality, but also more subtly in the conventions, traditions, habits, and the status quo, in which we acquiesce. ⁷ There is, then, a conflict or tension between the dynamism of life and the rigidity of law, as when Nietzsche writes: "Every thought, like flowing lava, builds a bulwark around itself and suffocates itself with 'laws,'" or more simply: "where life...