Bernard E. Harcourt | Introducing Sarah Kofman: On Metaphor, Law, and Politics

By Bernard E. Harcourt

« It is as if, in the transition from justice as barter to justice as obligation and in the transition from the metaphor to the concept, a volatilization of the constitutive elements takes place, a “sublimation”; only the result is preserved, while the process of genesis is hidden. So we have a new, chemical metaphor to describe the forgetting of metaphor and of the barbaric origin of justice. »

     — Sarah Kofman, Nietzsche and Metaphor (1972), p. 46.

The French philosopher, Sarah Kofman (1934-1994), was deeply marked by her reading of Nietzsche and Freud. A professor at the Université de Paris, Sorbonne, Kofman published numerous books on Nietzsche, starting with Nietzsche et la métaphore (1972), followed by Nietzsche et la scène philosophique (1979), Explosion I: De l’Ecce Homo de Nietzsche (1992), Explosion II: Les enfants de Nietzsche (1993), and then, in 1994, her last book, Le mépris des Juifs. Nietzsche, les Juifs, l’antisémitisme. (This last book serves, still today, as Nietzsche’s defense against the charge of anti-semitism; though, paradoxically, it portrays him as so prejudiced against Germans that the defense, in the end, reads at times like an indictment).

Kofman’s other works, especially her two autobiographical books, Paroles suffoquées [Smothered Words] (1987) and her penultimate book Rue Orderner, Rue Labat (1994), are equally important texts that tell of her harrowing childhood as a Jewish young girl during Nazi occupied France. In that regard, Kofman was also deeply marked by her encounter with Maurice Blanchot’s writings—one of the thinkers to whom she dedicated Smothered Words, and who would ask, in his book The Writing of the Disaster, how one can write or think after the disaster.[1]

How does one write today? Perhaps the answer is, politically.

It is with that in mind that I reread Kofman’s book, Nietzsche and Metaphor (1972), and immediately realized its deep relevance to us and its dialogue with us today. For Nietzsche and Metaphor raises the central question for law and politics—the question that has plagued or haunted judicial decision-making for centuries: whether law is a scientific endeavor based on conceptual analysis or instead an art form based on metaphors.

The Anglo-Saxon common law method was essentially built on metaphor: in its classic application, decision-making by judicial precedent relies on a form of analogical reasoning that depends on metaphorical analysis. The central question in common law decision-making is whether the case at hand resembles more, has more in common, is more similar to one or another previous cases—whether a cabin on a steamer is more like a sleeper car on a train or a room in a motel; whether a promise to reward a good Samaritan is more like a debt that is forgiven or an instrument under seal; whether a mobile phone is more like a personal agenda or a container, more like a wallet, a billfold, an address book, a purse, more like a camera, video player, Rolodex, tape recorder, diary, album, television, map, or newspaper. These arts of analogical reasoning have a lengthy history that goes back at least to Aristotle’s different forms of rhetorical reasoning, such as reasoning from example (paradeigma) and reasoning by likeness (homoiotes). Metaphorical logics are central to these types of analyses.

In the United States, the combination of the pragmatic common law method and the American Legal Realist movement of the 1920s and 30s led by Karl Llewellyn and other legal scholars, predominantly at Columbia Law School, fundamentally undermined the scientific conceptual approach to the law that had been pioneered, during the second half of the nineteenth century, by Christopher Columbus Langdell. Pragmatism, the common law training, and the realist critique so weakened the effort to develop a more conceptual approach to legal decision making, that still today, even the more positivistic approaches (such as Law & Economics or Empirical Legal Studies) avoid conceptual reasoning. There is a shared sense in American legal circles, for the most part, that conceptual legal principles (such as consideration, consent, etc.) are somewhat indeterminate, and that lawyers and judges need to look elsewhere to resolve cases—whether it is common commercial practice, efficiency calculations, or politics. The American Legal Realists basically opened up legal analysis to multiple different methods (social welfare analysis, efficiency calculations, wealth distributive analyses, socio-economic studies, politics, literature, etc.)—all of them, pretty much, alternatives to a conceptual scientific approach and many of them competitors to analogical reasoning. Today, in the United States, the art of analogy continues to play a dominant role in lawyering and judicial decision-making, even if some law and economists (such as Richard Posner) argue that analogical reasoning is simply a veil that hides the imposition of a policy preference or avoids a more grounded economic or pragmatic approach.

By and large, the Continental tradition has remained more faithful to the conceptual scientific view. In many Western European countries, such as France or Germany, the legal field continues to tack more toward an autonomous, formal, positivist view of the law and legal practice—which, in large part, explains the apparent stiffness of European law, the independence and aristocracy of the judicial function, and the lack of interdisciplinarity in legal scholarship. As comparative scholars, such as Mitchell Lasser at Cornell University, have shown, there is less formality and conceptual simplicity to the judicial decision making than first meets the eye. Moreover, Continental legal scholars, such as Michel Troper, have been introducing legal realism into Continental legal thought. Nevertheless, it is fair to say that the lived experience of the law on the Continent—from legal education especially, to legal practice and judicial decision-making—tilts far more toward a conceptual scientific sensibility than in the Anglo-Saxon legal field.

As the epigraph makes clear, Sarah Kofman’s brilliant philosophical work, Nietzsche and Metaphor, explores precisely this age-old conflict between metaphorical and conceptual styles of reasoning—between, on the one hand, the art of drawing analogies and metaphors, of drawing artistic resemblance, and, on the other hand, the science of analytical reasoning and conceptual analysis—and in passages directly addresses the implications for justice.

While a close reading of Kofman’s book and of the extensive Nietzsche passages that she marshals presents, on a first approach, the conventional view that Nietzsche favored metaphor over concept, it becomes clear from Kofman’s analysis that the relationship is far more complex and that we will need a more nuanced view of the opposition between concept and metaphor. In the end, it turns out, the conceptual is in fact made up of coagulated metaphors. As Kofman writes, “every concept is a synthesis of undialectizable meanings” (86), or, more simply, “the conceptual is itself metaphorical.” (17). The subject is ripe for deconstruction—and Kofman, who deeply influenced and worked closely with Jacques Derrida, is the philosopher to do it.

On a first reading, then, one is left with the impression that the contrast between metaphor and concept is one between two almost mutually exclusive styles of reasoning—that the two are radically different, and the first, for Nietzsche in his early works at least, far superior to the latter. This follows somewhat logically from Nietzsche’s love of music, as the highest art form, and his sense that tragedy died when tragedians of classical Greece like Euripides reduced the musicality and poetry of the chorus, replacing the poetic dimensions with the rationality of Socrates. From the early work, it is fair to say, as Kofman does of Nietzsche, that “Conceptual language is the poorest, for its symbolic meaning is the weakest and it can recover its strength only through music or poetic images.” (14) Drawing on Nietzsche’s early unfinished work from 1873, Philosophy in the Tragic Age of the Greeks, Kofman writes that “Metaphorical style is the sign of a plenitude of life, just as ‘demonstrative’ style indicates a poverty of life. The deliberate use of metaphors affirms life, just as the privileging of concepts reveals a will to nothingness, an adherence to the ascetic ideal.”[2] And the fact that Nietzsche, as Kofman shows, “strategically, turns himself into a poet,” “multiplies metaphors,” and demonstrates such a “will to a total art form,” naturally, reinforces this first reading. (102)

But on further analysis, Kofman shows, concepts are little more than a series of metaphors that have been forgotten. The key operative term here is “forgetting.” (49) The underlying logic of forgetting resembles the famous passage of Nietzsche from Truth and Lies in an Extra-moral Sense, where Nietzsche argues that truth is in fact:

A mobile army of metaphors, metonyms, and anthropomorphisms—in short, a sum of human relations which have been enhanced, transposed, and embellished poetically and rhetorically, and which after long use seem firm, canonical, and obligatory to a people: truths are illusions about which one has forgotten that this is what they are; metaphors which are worn out and without sensuous power; coins which have lost their pictures and now matter only as metal, no longer as coins.

On this model, concepts are nothing more than layers of metaphors that we have forgotten are metaphors—and take for granted. As Kofman suggests, “the forgetting of metaphor […] is originary, the necessary correlate of metaphorical activity itself.” (25) This is no different, for Nietzsche, than the way in which meanings and interpretations are imposed on things. Here, Kofman takes us back to the important passage in The Genealogy of Morals, Second Essay, § 12, on punishment, where Nietzsche argues that we have layered so many meanings on our punitive practices that we no longer know why we punish, but that these meanings that stick reflect nothing more than the fact that a will to power has overcome another. (85-87) You will recall the passage (for a further discussion of which you may be interested in these postmodern-meditations-on-punishment):

“Purposes and utilities are only signs that a will to power has become master of something less powerful and imposed upon it the character of a function; and the entire history of a ‘thing,’ an organ, a custom can in this way be a continuous sign-chain of ever new interpretations and adaptations whose causes do not even have to be related to one another but, on the contrary, in some cases succeed and alternate with one another in a purely chance fashion.”

These layers of new interpretations and adaptations, these sign-chains, are nothing other than metaphors that congeal into concepts like deterrence, rehabilitation, incapacitation, or retribution, and then into truths about the efficacy of deterrence or the need for retribution—or notoriously in 1974 America, the fact that “nothing works.” As Kofman writes, “Meaning ‘evolves’ at the whim of the displacements in mastery and follows the chance developments in the struggle for power.” (85) Kofman painstakingly shows the process of the metaphor turning into a concept with her discussion on pages 88-89 of the fourth section of the first essay of The Genealogy of Morals—a key passage in Nietzsche, where he himself, in speaking of the transformations of the notion of good and evil emphasizes how the metaphor of the noble and the aristocratic become “the basic concept [Grundbegriff].” (88)

But at the same time, Kofman’s method is deconstructive: the point is not simply to reverse the conventional hierarchy that privileges logos and reason over metaphor and poetry. That would be simply another arbitrary hierarchy. The point, instead, is to show how the two terms are imbricated and function together, differently than we supposed or that they would on a simple reversal. The conceptual turns out to be metaphorical, but the metaphorical, the poetical, ends up being rigorous philosophy. “By bestowing highly precise limits on the metaphorical,” Kofman writes of Nietzsche, “he was able to hide the fact that the conceptual is itself metaphorical. By effacing the opposition of kind between metaphor and concept and substituting merely a difference of degree (with metaphor being the less metaphorical), Nietzsche inaugurates a type of philosophy which deliberately uses metaphors, at the risk of being confused with poetry.” (17) As a result, after Nietzsche, Kofman contends, the distinction itself between conceptual and metaphorical styles of philosophical writing is no longer important—in her words, “since Nietzsche the opposition has hardly applied any longer.” (3)

Now, to return to American jurisprudence, what is fascinating here is that Langdell’s scientific model—what is generally referred to as the classical or formal jurisprudence—was precisely about taking a scientific sample of cases in a particular area of law, comparing them to each other in a style of analogical reasoning that would try to intuitively draw the similarities and differences, in order to extract by induction a legal principle (a legal concept) that could be freed from all the analogies and applied in other cases—for example, the legal principle that there has to be material consideration by all parties for a contract to be binding. The emergence of the legal principle, of the concept, was effectively intended to wipe away all the metaphors and replace them with a concept—to make us forget the metaphors, to free the decision-maker from the need to review and compare and dissect all the analogies from the panoply of cases. It rested on an analogical form of reasoning, insofar as the codifier, legislator, or legal scholar did all that metaphorical work in order that others would not have to do it. Of course, the cases would be collected, studied, and taught in law school to demonstrate the art of concept-making; but the concepts were to be applied cleanly, in a deductive matter, to new cases as they arose, without going through all the tedium and work (and errors) of analogical reasoning. One can almost hear Sarah Kofman here:

“In other words the concept, itself a product of metaphorical activity, plays a privileged role in the forgetting of metaphor, in that it hides the metaphorical character of the process of generalization by founding it on an essential generality.” (35)

Ironically, the Achilles’ heel to Langdell’s scientific approach in the United States was precisely the existence of all those cases, those collections of cases, and those casebooks—those layers of metaphor. Anyone trained in common law reasoning knew precisely how to get underneath the concept, how to crack open the legal principle, how to remember the metaphors—especially the best trained and most skilled, those the likes of Professor Karl Llewellyn at Columbia Law School who would pen The Common Law Tradition: Deciding Appeals (1960) and The Bramble Bush: On Our Law and Its Study (1930) and who, we are told, “lectured like a poet.”[3] How perfect!

In American jurisprudence, at least at the level of the actual judiciary rather than the academy, the metaphor has effectively won out. The greatest judicial skill today is the art of analogical reasoning. But in the process, that skill playfully embraces the legal principle—the concept. “It is well established that…,” the paragraph starts, before talking about the cases that are “on all fours.” Like in philosophy, as Kofman suggests, the distinction between reasoning by analogy and deciding by principle is hardly recognized or discussed anymore. The distinction itself is no longer really important—in her words, “since Nietzsche the opposition has hardly applied any longer.” (3)

Also relevant here is a second important point that Sarah Kofman develops. Kofman traces an important shift from an early Nietzsche more wedded to the metaphorical arts to a later Nietzsche who spoke, instead of metaphors, of interpretations and meanings within the larger framework of the will to power. This later Nietzsche, you hear well in the passage from The Genealogy of Morals (1887) quoted above. It is the Nietzsche who interprets interpretation through will—and the idea, ultimately, that “a will to power has become master of something less powerful and imposed upon it the character of a function.” So, Kofman writes of the later Nietzsche:

“the multiplication of metaphors is not purely rhetorical: attaching new metaphors to old ones or reiterating them implies a revaluation of their meaning according to the hypothesis of the will to power.” (104).

Here too, one cannot but notice deep reflections in American judicial decision-making today. The ultimate rulings—as we have seen so recently at the United States Supreme Court in the last few years—reflect little more than a will to power becoming master of something less powerful. It seems indeed that Sarah Kofman’s book, Nietzsche and Metaphor, is essential reading for jurists and politicians.

This also relates directly to our current political situation—specifically, to the matter of the endless imposition of interpretation, the infinite task of imposing meaning. It seems that we are living this daily—at an accelerating speed. Massimiliano Tomba suggests that our notions of temporality are changing because our politics are being governed more and more on the style of social media postings and high-frequency trading. This seems right.

The most recent cycle of interpretation regarding “fake news” is a good example. Shortly after President-elect Donald Trump’s victory, the problem of “fake news” became a national issue. The Democratic party seemed to have the upper hand at first, with news reports that Russian websites were producing and feeding fake news to Americans, and that the practice may have skewed the 2016 presidential election.

The phenomenon exploded in the media when a gunman walked into a pizzeria in Washington DC and fired one or more shots with the intent to investigate fake news allegations that Hillary Clinton and her former campaign chair, John Podesta, had run a juvenile sex business out of the basement of the Comet Ping Pong pizzeria. The story went viral and consolidated, for a while, the perceived threat that fake news was serving the interests of the Republic Party and Donald Trump. In fact, Trump himself fired the son of General Flynn from his transition team because the latter had retweeted some fake news (apparently, Flynn had too, but he is still in). In any event, it seemed that fake news was on the top of the national agenda as a liberal cause.

With lighting speed, within the last week or so—so hardly even a news cycle—the Republicans and conservative groups have seized the upper hand and rebranded the “fake news” issue as one of liberal media outlets having a political slant that distorts their news reporting. In other words, the dominant conversation about fake news now is whether the New York Times is biased in its reporting. The whole interpretation and meaning of “fake news” has flipped in just a few days, as if “a will to power ha[d] become master of something less powerful and imposed upon it the character of a function.”

~~

On July 16, 1942, Rabbi Berek Kofman was forcibly transported to the Drancy internment camp at the outskirts of Paris—like many other family members, for some of us. You may know the Drancy rail station, it marks a stop on the RER on the way to the Charles de Gaulle airport. It is from that site at Drancy that tens of thousands of Jews were deported during the French Occupation. From Drancy, Sarah Kofman’s father would be deported to Auschwitz, and murdered there. He refused to work on Sabbath and prayed instead—for which he was buried alive.

Sarah Kofman began to write more openly about her family history later in life, especially in her 1987 autobiography, Smothered Words. In an interview in 1986 published in Le Monde, Kofman suggested that teaching people to read well is a deeply political act that can help people learn to keep promises, and that ultimately can serve to guard against excess.[4] I would like to think this is true, as I myself spend so much time reading and encouraging others to read well, I hope. Also, because it feels, at times, that the reading of others, especially the dead, is a humanist endeavor of warmth and peace and intersubjectivity, of respect for others.

But I fear that, just as metaphorical or conceptual reason are indeterminate and do not necessarily point in any one political direction, that reading, even reading well, may not necessarily ward off excess. I think here of Martin Heidegger—with whom we started this seminar series. Surely he was someone who read well, deeply, and was wedded to teaching others to read well—including his younger brother, who he mentored, and to whom he sent Hitler’s Mein Kampf as a Christmas present in 1931, with the following message:

18th of December, 1931

Dear Fritz, dear Liesl, dear boys,

We would like to wish you a very merry Christmas. […]

It would appear that Germany is finally awakening, understanding and seizing its destiny.

I hope that you will read Hitler’s book; its first few autobiographical chapters are weak. This man has a remarkable and sure political instinct, and he had it even while all of us were still in a haze, there is no way of denying that. The National Socialist movement will soon gain a wholly different force. It is not about mere party politics—it’s about the redemption or fall of Europe and western civilization. Anyone who does not get it deserves to be crushed by the chaos. Thinking about these things is no hindrance to the spirit of Christmas, but marks our return to the character and task of the Germans, which is to say to the place where this beautiful celebration originates.[5]

Having spent a lifetime with the great books and in the life of the mind—which I love and cherish—I have come to realize that reading well and deeply, that the love of great books and literary genius, that all these things that I love and admire, tell us little about a person’s political convictions, about their aspirations for society, about their views on war, on torture, on health care (although here too, it is important never to make assumptions). I learned that as well at the home of Leo Strauss and Alan Bloom, of Milton Friedman and Friedrich Hayek, of the Committee on Social Thought, of the great books tradition—for which I share so much intellectual passion and respect. Great books and close readings do not always coincide with progressive politics. I suppose it would be odd if they did, no?

~~

Kofman concludes her book, Nietzsche and Metaphor, with the suggestion that a fully innovative and metaphorical form of writing, one that would satisfy our highest Nietzschean aspirations, would be an impossibly original form, imposing impossibly new meanings, meanings that had never been heard before, and might in the process be somewhat illegible. It would be “a unique code, an impossible original language containing evaluations which had never taken place.” (119).

Nietzsche often reminded us that the endlessness of interpretation could be hard to bear. The infinite regression, the lack, ever, of an original source or solid foundation, the violent ruptures of imposing new meanings on interpretations—those were dangerous, risky ideas that could easily push us to the limit. They could, as Foucault often reminded us as well, lead to madness.

In a similar vein, Kofman suggest that the impossibly original language that Nietzsche called for could also perhaps be too much. Using only interpretations and meanings that no one ever heard might mean that we, ultimately, would not be heard. Being understood only by the few, the chosen, may be a Nietzschean aspiration; but being understood by no one would go too far. The silence could be unbearable—as unbearable as the infinity of interpretation—which is why perhaps, or so Kofman suggested, we often water things down, just a bit. We “vulgarize ourselves ever so slightly.” (119) We do that to avoid falling into silence, not being heard—which, Kofman writes in the last sentences of her book, would lead to madness. (119)

On the 150th anniversary of Nietzsche’s birth, on October 15, 1994, Sarah Kofman took her life.

 

Indeed it is the same metaphorical activity, reducing differences and assimilating the similar, that is at the origin of the genesis both of “justice” and of the concept: an activity which is characteristic of man, the metaphorical animal, who, because he is always merely establishing equivalences and measuring, has called himself “Mensch.”

           — Sarah Kofman, Nietzsche and Metaphor (1972), p. 43.  

 

Notes

[1] https://jwa.org/encyclopedia/article/kofman-sarah

[2] Kofman, Nietzsche and Metaphor, at p. 19.

[3] Steven Alan Childress, “Foreword” to Llewellyn, The Common Law Tradition (Legal Legends Series)

[4] Interview with Sarah Kofman by Roland Jaccard, “Apprendre aux hommes à tenir parole,” Le Monde (April 27–28, 1986), vii; discussed in https://jwa.org/encyclopedia/article/kofman-sarah

[5] https://www.theparisreview.org/blog/2016/10/18/in-his-own-words/

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