Heidegger and the Theory of Adjudication

t Assistant Professor of Law and Philosophy, The University of Texas at Austin. An earlier version of this paper was presented as an invited address to the Law & Interpretation Section of the Association of American Law Schools in New Orleans, January 8, 1995. I am grateful to Dennis Patterson, Chair of the Section, for the invitation to present this paper, and to Larry Solum for his comments on that occasion. I also benefitted from questions posed by Larry Alexander, Randy Barnett, and Stephen Perry at the AALS session. Thanks also to Sheila Sokolowski for comments on an early version of the manuscript, Joshua Brysk and Saul Laureles for research assistance, Jules Coleman and Thomas Morawetz for valuable discussion of the entire manuscript, Jody Kraus for written criticisms, and Cathy Kemp, Doug Laycock, and Sandy Levinson for extremely useful comments on the penultimate draft. This Article is an attempt to make good on the promissory note in my Objectivity and the Problems of Jurisprudence, 72 Tex. L. Rev. 187, 203 n.60 (1993). 1. Similar developments have occurred in other areas of philosophy as well. See, e.g., JOHN McDowell, Mind and World (1994) (drawing on Hegel and Gadamer in discussing basic issues in Anglo-American metaphysics and epistemology); Brian Leiter, Nietzsche and the Morality Critics, 107 Ethics (forthcoming Jan. 1997) (discussing use of Nietzsche in recent Anglo-American moral philosophy). 2. See, e.g., Jerry Frug, Argument as Character, 40 Stan. L. Rev. 869 (1988); Pierre Schlag, Missing Pieces: A Cognitive Approach to Law, 67 TEX. L. REV. 1195, 1205-07 (1989). Both of these essays misinterpret Nietzsche's thought. On Frug's misunderstanding of Nietzsche, see Brian Leiter, Intellectual Voyeurism in Legal Scholarship, 4 Yale J.L. & HUMAN. 79, 81-90 (1992) [hereinafter Leiter, Intellectual Voyeurism]', contrast Schlag's misguided comments on Nietzsche with Brian Leiter, The Paradox of Fatalism and Self-Creation in Nietzsche, in WILLING AND NOTHINGNESS: SCHOPENHAUER AS NIETZSCHE'S Educator (C. Janaway ed., forthcoming 1997). For other discussions of the problems with the way law? yers have used philosophy, see Charles W. Collier, The Use and Abuse of Humanistic Theory in Law: Reexamining the Assumptions of Interdisciplinary Legal Scholarship, 41 DUKE L.J. 191 (1991); Leiter, Intellectual Voyeurism, supra, at 91-101; Alan R. Madry, Analytic Deconstructionism? The Intellectual Voyeurism of Anthony D 'Amato, 63 FORDHAM L. Rev. 1033 (1995); Martha C. Nussbaum, The Use and Abuse of Philosophy in Legal Education, 45 STAN. L. Rev. 1627 (1993). 3. See, e.g., J. M. Balkin, Understanding Legal Understanding: The Legal Subject and the Problem of Legal Coherence, 103 Yale L.J. 105 (1993). Balkin writes: Since H.L.A. Hart, jurisprudence has been grounded on the so-called "internal point of view"?the perspective of a participant in the legal system who regards its laws as norms for her behavior. In contrast, I believe that we must ground jurisprudence in a critical perspective, one that employs ideological critique to reflect on our internal experience of law. . . . A critical perspective takes seriously the contributions of subjectivity to the nature of law; it treats the