Nietzsche and the Law of the “The Other”: The Jew in Refraction

This article asks what Nietzsche might tell us about the possibility and conditions of having knowledge of the legal other or "the Other" in law. lthough not a familiar formulation, this line of inquiry must be permitted to take shape because it goes directly to the most basic theoretical conundrum of comparative law. This conundrum lies well beyond the moribund debate over the purported "commensurability'" or "incommensurability" of differing legal "systems" or "traditions. " Instead it takes comparative lawyers to task by asking them to explain how they might know, or hope to have knowledge of legal otherness. In this article, I will attempt to furnish a preliminary and wholly tentative answer to this conundrum by mapping Nietzsche's comparison of the Jewish and Christian legal interpretive traditions.

The notion of "the law, " will be invoked in two overlapping, albeit distinct, senses. First, I will draw on Thus Spoke Zarathustra (1885) ("TSZ") and Zarathustra's breaking of the tables of law as a representation of the generative quality of legal re-inscription. 1 Specifically, I will argue that the early Zionist drive toward a new cultural, linguistic, and political way of being was demonstrative of particular ethos of joyful destruction. Second, I will argue that the narrative developed in the Genealogy of Morals (1887) (hereinafter, "GM") fuses the archetypal Gentile "Self' and Jewish "Other" in the annals of European history.

Both lines of analysis consider how legality and the law is engaged in the discernment of truth and the epistemological conditions of knowing or having knowledge. The article will conclude by considering the possibility that knowledge of "the Legal Other, "at least as understood via the Nietzschean ocular, might be obfuscated rather than elucidated by the juridical and social sciences.