Introduction: Law beyond Sovereignty

The triumphal story of “the law” is one of the most enduring myths of Western modernity. From its Roman roots, the law had continued to evolve during the dark Middle Ages, it became more universally accepted in the early modern period when it also “emancipated” itself from local customs and religion to become an autonomous sphere of formal rationality that allows modern societies to solve their conflicts in less violent ways. Today, the rule of law creates powerful political bodies, the nation states, and continues to work for a global society, since human rights politics are becoming more and more important also on an international scale – a politics in which the reference to the story mentioned becomes political, legitimizing hegemonic claims as part of the universal project of “the law.”

There is a certain irony, in this story, however; namely that today, when it seems to come to its fulfillment, “the law” tends to dissolve itself. Today, law is no longer homogenous nor unquestioned. Different overlapping legal regimes constantly interfere with one another, both on an international level, in complex transnational contexts such as the European Union or human rights law, but also in the context of cultural diversity or conflicts between religious norms and civil institutions. On the other hand, the neutrality of law is also under growing pressure, be it from different global transnational players, or from within nation states where populist calls are made to adapt law to the “will of the people.” The heated European debate on the “refugee crisis” has made it manifest that law is more necessary than ever and yet fundamentally contested, perhaps even caught in contradictions and self-limitations. At the same time, the current perspective on legal problems allows us to address issues of diversity and the role of Europe in the globalized world more clearly.

Legal pluralism is, of course, not without precedents. The legal order has rarely been as homogenous as the modern nation state imagined it to be. Even within classical nation states there have always been different, at times multiple, forms of legal practice that interact and usually compete with one another. Residues of older corporate institutions remain such as the university, the church, or the military. Different legal cultures overlap in the border zones of imperial expansion, leading to practices of negotiation and improvisation. Moreover, different religious and cultural minorities such as the Jews, the Sinti and Roma, the Armenians, or the Huguenots had different degrees of juridical autonomy with respect to their own legal rulings or even negotiations with the state. We believe that recent debates on legal pluralism, multinormativism, and diversity have much to learn from these historical examples. For they also provide a more concrete understanding, more detail, and color to discussions that, when limited to the most pressing actual debates, quickly run into dead ends: into abstract distinctions as between “us” and “them” or equally abstract appeals that one “could not” or “has to.” Concrete cases and a vivid memory might help here.

The plurality of different orders which no longer coincide with homogenous territories can be discussed in the context of diaspora. Diaspora, usually denoting the dispersion of a certain population and the loss of a political center, has become a powerful concept that refers to deterritorialization and the non-coincidence of different layers of social and cultural practice. Diaspora thus offers a conceptual framework that might help to unsettle presuppositions about modernity, modern states and communities, and their relation toward the modern subject. The very relation of diaspora and law comes with its own tensions, which we consider fruitful: law, that might seem a simple, single, homogenous, albeit somewhat abstract entity becomes multifaceted, even kaleidoscopic when seen from a diasporic perspective; diaspora, with which we might associate a colorful, multicultural, creative form of life, becomes more serious and problematic when normative and legal issues are raised.

Refiguring law

Before the law sits a gatekeeper. To this gatekeeper comes a man from the country who asks to gain entry into the law. But the gatekeeper says that he cannot grant him entry at the moment.

Modern attempts to understand the law usually begin with a sort of astonishment, or estrangement, that something so familiar and so rational remains somewhat uncanny – a feeling that finds expression in Franz Kafka’s “Before the Law,” a parable that has proven essential for so many thinkers of the twentieth century. Maybe we, the moderns or postmoderns, are no longer at home with the law. We approach it as a stranger, as a man from the country, and we do not really get to it. We do not pass from our displaced and diasporic identities towards the center towards which we are drawn. The little story that contains and unfolds the tensions of law in modernity can thus help us to articulate the questions that our subject implies.

For Kafka, law is indeed displaced, for first, there is a doorkeeper who would not let the man enter. Law, we are told, is a complex issue, something that modern societies are justly proud of, but which also bears strange ambivalences. It seems to be something abstract, but it also has a location, a series of rooms or rather doors; it is a body of law, and it is even guarded. Law is not only a principle, but also an institution the German calls Zwangsanstalt – a ‘coercive institute,’ a form of power, that is usually most manifest in the fact that modern law has become bound to the state. With its doorkeepers, the law does not only draw boundaries in the world, as the boundary between the “legal” and the “illegal”; it also draws boundaries around itself, excluding the “extralegal,” e. g., questions of taste, of mere morality, or of religion. These issues, at least in the liberal model, fall outside of law, or rather in the parable, have to be kept out of law by the very doorkeeper who would not let the man from the country enter. Having a location, law also seems to contain – or not. Though the law is general (it should be accessible to anyone at any time, as the man in Kafka’s parable wonders), some are “within” the law and some are not. Maybe, one might suspect, the force of the law rests on that very distinction; at least this distinction, or the promise that you might enter, but not now, keeps the man waiting.

Second, the man keeps waiting, among other things because there is a radiance shining from the inner realms of the law. There is a moment of fullness, substance, or even sacrality at stake, and indeed, the relation of law and religion might be much more central than the modern myth of law as a rational form suggests. Remember that, within the larger frame of The Process, Kafka’s parable is narrated in a church. This setting suggests that something, or someone, is in the law, that there are not merely doorkeepers but something that they protect and also represent: the lawgiver, the spirit of law, the sovereign – or something even loftier such as justice, redemption? Moreover, law is translucent because of this radiance; it has its own transcendence, visible in its procedures even in modern societies – or maybe especially in modern society, where legal rituals might still hold a remainder of transcendence, ritual, and absoluteness. Historically, law often emerged from religious context. Religion and law share the issue of normativity, and in many legal regimes, religious norms are indistinguishable from legal ones. To be sure, modern law pretends to be secular; as the doorkeeper, it shows neither affect nor preference but simply does its duty. Yet does it? Is it really that neutral? At least in Germany, the relation of religion and law has never been so easily determined, since the relation of church and state is determined by what legal theory calls – in an aptly Kafkaesque image – the “hinkende Trennung” (‘limping separation’) in which the state grants some religious groups considerable privileges. Again, at least some have already entered the law, have been incorporated, although others are being warded off. And today, in our postsecular time, the reemerging conflicts between religious values and secular laws seem to indicate that the latter are maybe not that secular or that their secularity is driven by other energies than we assumed.

Thirdly, towards the end of the parable, the dying man asks the doorkeeper why, even though everyone strives for access to the law, no one else has ever come along to request entry. The doorkeeper responds: “No one else could gain admittance here, because this entrance was meant solely for you. I’m going to go and shut it now.” As norms in general, law is not only a social institution, they also concern the subject in its innermost intimacy. They do not only regulate society, but also constitute legal subjects, and since political subjectivity is bound to its legal form, it is of utmost importance how and in what respect the legal subject...