Review essay: The Murmur of Being and the Chatter of Law
| Published date | 01 September 2011 |
| DOI | 10.1177/0964663911404858 |
| Author | Johan van der Walt |
| Date | 01 September 2011 |
| Subject Matter | Articles |
Review essay
Social & Legal Studies
20(3) 389–400
The Murmur of Being
ª The Author(s) 2011
Reprints and permission:
and the Chatter
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DOI: 10.1177/0964663911404858
of Law
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Johan van der Walt
University of Glasgow, Scotland and University of Pretoria, South Africa
Oren Ben-Dor, Thinking About Law in Silence with Heidegger. Oxford: Hart Publishing, 2007,
xvi þ 414 pp. ISBN 978-1-84113-354-6
Oren Ben-Dor’s Thinking About Law in Silence with Heidegger constitutes one of the
most painstaking and patient endeavours to locate the difference between the world of
Heidegger’s thought and the world of the law to date. In a way, it is nothing less
than Heidegger’s central concern with the ontological difference between Being (Sein)
and beings (Seienden) that is at issue in Ben-Dor’s exploration of the difference between
Heidegger’s ontological thinking of Being and the ontic concerns of the law. The law is
indeed a good point of departure for locating this ontic–ontological difference, for there is
hardly anything else (the discipline of accounting may be another example) in the affairs
of mankind that marks itself as so thoroughly concerned with the fully defined and iden-
tified aspects of things. Heidegger himself never said much about the law, but another
tradition of philosophical thought, namely Marxism, refers repeatedly to the law as the
apex of the human attachment to identification and calculation. Law, wrote Marx in his
Critique of the Gotha Programme of 1875,
can by its nature only consist in the application of an equal standard, but unequal individuals
(and they would not be different individuals if they were not unequal) can only be measured
by the same standard if they are looked at from the same aspect, if they are grasped from one
particular side, e.g., if they are regarded as workers and nothing else is seen in them, every-
thing else is ignored. (Marx, 1989: 86–87)
Corresponding author:
Johan van der Walt, 5-9 Stair Building, The Square, Glasgow G12 8QQ, UK
Email: Johan.vanderWalt@glasgow.ac.uk
390
Social & Legal Studies 20(3)
Almost a century later Adorno would echo: ‘Right is the primeval phenomenon of
irrational rationality. It makes the principle of formal equivalence the only applicable
norm. It cuts all sizes over the same last. Such equality, in which differences perish, sur-
reptitiously privileges inequality’.1
Heidegger also included Marxism under what he called ‘metaphysical humanism’, that
is, the metaphysics that reduced the essence of humanity to a presence that could be
known and defined (Heidegger, 1978: 311–360). And the core of his thinking consisted
in a relentless endeavour to articulate a critique of this metaphysics which he generally
also referred to as the ‘metaphysics of presence’. However, an invocation of the Marxist
resistance to the identification, reification or commodification of essences serves well to
give those not familiar with Heidegger’s though a starting clue as to that which is centrally
at issue in Heidegger’s critique or ‘destruction’ of the history of the metaphysics of pres-
ence. And as such it also provides one with a good point of entry into Ben-Dor’s location
of the difference between Heidegger’s contemplation of the question of Being and the
world of law and legality.
In contrast to understandings of man or the human in terms of an a-historical essence
that transcends the unique historicity of the human being and all things human,
Heidegger’s analysis of authentic human existence in terms of a Dasein (being-there or
there-ness) articulates a mode of existence that does not simply exist, complete in itself
so to speak, from which state of completeness it subsequently enters time and engages
with an exterior world. According to Heidegger, human existence ek-sists. It stands-out
of itself into the unfathomable openness and freedom of time, the unlimited freedom
of time to reveal to humans the infinite possibilities of their existence or ek-sistenz.
Human existence as authentic Dasein is thus an irreducible exposure to the infinite mys-
tery of that which time brings to bear on this existence. Humans, however, can close
themselves off from this temporal mystery of their ek-sistenz and most often do so. They
do so by becoming fully occupied or pre-occupied by the concerns of the everyday world.
The everyday (allta¨gliche) world of das man, Heidegger calls this world; the world in
which people do not engage with the incomparable ways in which Being or time calls
them to exist uniquely or singularly (as Jean-Luc Nancy [1996] would put it later in a
unique engagement with Heidegger’s thought), but do as everyone does, do as they do,
as one usually does (Heidegger, 1979: 166–180). In his later work Heidegger would
articulate the response to Being’s unique call to Dasein to eksist in terms of a consciously
precarious poetic dwelling in the fourfold dimensions of earth and sky, mortals and immor-
tals (Heidegger, 1954: 157–179, 181–198) and as an existence that is poetically ‘on its way
to language’ (Unterwegs zur Sprache – cf. Heidegger, 1986).
Law and the world of legality and rights, contends Ben-Dor, confine us to an existence
that has closed in upon itself, a world no longer exposed to the fourfold interplay of hea-
ven and earth, mortals and immortals, a world no longer underway to language, a world
no longer articulating itself in response to the open eventfulness of existence as ek-sistenz.
The law is for Ben-Dor the apex of the calculating world of the they, the world in which
everyone does as everyone else does, where everyone does as the reasonable man does
(Ben-Dor, 2007: 341–342). Indeed, the law is surely not the abode of poetic exceptions
(or excuses) that mark the mortal dwelling on earth that Heidegger had in mind for the
authentic response to the unique call of Being.
van der Walt
391
Can anything be done as regards this calculating closure of the law vis-a`-vis the call of
Being, the beginnings of which closure Ben-Or remarkably also detects in Levinas’ invo-
cation of an ethics beyond ontology, an ethics ‘otherwise than Being’ (Ben-Dor, 2007:
171–305)? Ben-Dor’s thinking about the law with Heidegger sets out to resist this closure
of the law onto itself. He sets out to resist this self-insulation of the law vis-a`-vis its own
Being by a thinking about law in a way that would expose it again to its Being. He
announces this endeavour thus:
The call for thinking about law is not about yearning to have no law but rather about learn-
ing the Being of law. But to learn the Being of law we must first immerse ourselves in those
factors that entrench ontic being and thinking with and through law. There can be no
thinking-Being about law without listening to the unsaid of law’s ontic determinations.
We need to lay bare, uncover and unmask the moment of withdrawal of law’s Being in order
for us to unlearn and endeavour occasionally to overcome the various concealments of that
very moment. (Ben-Dor, 2007: 96, italics in the original)
At issue in thinking about law ontologically instead of just ontically is, then, a thinking that
retrieves the moment in which law’s Being withdraws from its being, that is, from its mere
existence as an everyday ontic entity. A thinking that would not at least occasionally
engage in this retrieval of law’s Being, would leave the law entrenched in its everyday
ontic existence. We shall come back to this word ‘entrench’ shortly, for Ben-Dor makes
a strong statement regarding law’s ontic entrenchment towards the end of his book that
requires incisive scrutiny. Let us first look more closely at the unmasking of the moment
of withdrawal that is at issue here by taking a closer look at the ‘aboutness’ that is at issue
in the phrase ‘thinking [ontologically instead of just ontically] about law’. Ben-Dor writes:
The main challenge here is to point towards the uniqueness of ontological ‘aboutness’ in the
case of the law and to its connection to the ‘aboutness’ of truth, language and ethics . . .
[T]he perspective from which the articulation of ‘aboutness’ occurs requires us to go deeper
and nearer than the average everyday sense of the lawyer, the jurist, or people more gener-
ally. Having said that, the everydayness of the law is always the starting point for ontolo-
gical thinking. The difficulty is that transcending the average everyday sense of the law
may well alienate those people who participate in the average everydayness of the law. Such
everydayness, being a yardstick for the plausibility of their thinking about law, including the
defence of a theory of...
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