Self Genealogical Writing: Notes on Experimentation in Legal Research ()
1. Introduction
The dynamics of knowledge production in Law is one of the constitutive phenomena of the Legal Epistemology (Ferraz Júnior, 2014) . Such an aspect, for us, became a starting point or a reflective question regarding the searcher practices in the legal area. Then, what students (re)think about the production of the texts and the way they use methods, techniques, theories and academic-institutional discussions are the comprehensive range of the present study.
Therefore, the developed suppositions paved the way to question the validity of a research and the inspirations (or insights) to the legal thought, whether it is from a point of view more traditional, the legal dogmatic, or under a more free bias, linked to the zetetic method. Irrespectively, in this study, the first axis—the legal dogmatic—is assumed as the argumentative commonplace of these knowledge productions. Because, when law is explained to the common sense (theoretically), the applied and considered logic is the one of “forensic environment”.
For such reasons observed, in this text we examined an alternative scientific writing, or from a legal-scientific non-place, able to sabotage the logic of the statements1 and the forensic environment, to avoid linear perspectives of knowledge and theoretical-systematic aggregation that belongs to the dogmatically organized law. Thus, we operate a search through a journey near poetic and art, the aesthetic-linguistic aspects or the artistic sensibility and subjectivities.
For this, the main theoretical marks that organize the ideas articulated here are from the propositions of Nietzsche, Deleuze, Foucault, Benjamin e Warat, five enthusiasts in philosophy and knowledge as poetic practices. In other words, these authors contributed for a reflection in the studies centered on life, bodies, artistic collage technique and essay as an epistemic-aesthetic examination of experiences. For this purpose, the main issue that guides this research is: what are the contributions of auto genealogy2 of oneself to the knowledge production in Law?
The problem investigation is channeled, equally, through secondary questions: what are the characteristics of language in scientific production centered in legal decidability? And what is the auto genealogy in Friedrich Nietzsche’s philosophy? That way, the investigation explores if the genealogical procedure applied to the individual that studies has something to contribute in the legal area, besides describing the modus operandi of the studies in this area.
In contrast, the general purpose of the investigation is to discuss the contributions of auto-genealogy to the knowledge production in Law. Therefore, the procedure proposed by Nietzsche leads us to a reflection on “truth”, the growth of the person that investigates and writes, allowing the observation of contradictions, multitude and powerful expression that exist in personal experiences.
[1] The term is related to the practice of some jurists to produce their scientific research as if they were writing an initial petition or a legal opinion.
2The terminology is familiar to Nietzsche research, specifically, it is found in the book Ecce homo (1995). The author makes a subversion of the autobiographical genre in order to be able to apply the genealogical procedure to himself.
In a complementary way, the study is articulated based on the following specific objectives: identify what are the language traces in scientific production marked by legal decidability; reflect about auto-genealogy in Friedrich Nietzsche’s philosophy; and compare the legal scientific writing centered in legal decidability with experimental or speculative language.
We aim with this research, and in an essay-like way, to distinguish a legal-scientific grammar, based on legal decidability and on experimental technicality, a language backed in the idea of tragic and people’s unique experiences. The last one, clearly, goes forwards to the disagreement with visual arts, theatre, literature, or music. It is a methodological perspective eligible to understand or demonstrate the impossibility of comprehension before people, their practices, and their experiments with and in the world.
The study is relevant if it considers the research practices and articles that we wrote during the whole graduation. Furthermore, the monitoring subjects in Introduction to the Study in Law, Hermeneutics and Legal Argumentation, Methodology of Scientific Research and Course Conclusion, I and II, helped to reflect about legal writing in forensic environment and scientific writing in Law, creating perceptions (methodological) differentiated from these two activities.
About the importance of this research to the scientific community and to society, we correlated the two justifications because both can mix at the practice moment: the objectives of study are the searchers and their investigations practices. Then, to write about legal epistemology is to “say” to the scientific community the alternative processes of discovery and validity which in this case included the genealogy of oneself as a scientific writing mode.
Such examination on the posture in front of the social entity and social actors is something crucial for someone who pursues research and faces the complex difficulties and intersubjectivity of social research. Therefore, the study comes highly closer to the affections, sensibilities and vulnerabilities present in the tragedy of social immanence, at the same time that we stay closer to the searcher that studies, self criticise, self differentiate and self identify with the ones that he/she investigates.
2. Why a Theoretical-(un)Methodological Destiny?
The title of this (un)methodological chapter is an intertext with one of the books by Nietzsche (1995) titled Ecce homo. In a more specific way, the chapter Why I am a fatality portrays, autobiographically, the reason why the author considers himself an immoral or a psychologist of the western civilization. According to him, his writing, based on such background, is not destined to be a type of sacred scripture, on the contrary:
I am not a man, I am dynamite. And with it all there is nothing of the founder of a religion in me. Religions are matters for the mob; after coming in contact with a religious man, I always feel that I must wash my hands…. I require no “believers”, it is my opinion that I am too full of malice to believe even in myself; I never address myself to the masses. I am horribly frightened that one day I shall be pronounced “holy”. You will understand why I publish this book beforehand—it is to prevent people from wronging me. I refuse to be a saint; I would rather be a clown. Maybe I am a clown… ( Nietzsche, 1995, §1, emphasis added).
It is with this seeming ambiguity—presumptuousness and lack of interest in glorification—that the “character” Nietzsche presents to the readers an intellectual inspiration. In certain moments of the chapter the author recognizes the greatness of his project, but at the same time, doesn’t long to induce a religious expectative on someone that reads his work, whether it is as a redemption or salvation of the soul. Hence, through such rhetoric movement, present in his writing, to interpret him is not to reduce Nietzsche to himself but to use his philosophy to (re)connect different experiences.
It is for this and other aspects that the present study could not be “traditionalized”, not only regarding the elected ideas but also the stylistic resources of his expression. The text in its totality, even if is a fragmented whole cannot be a common argumentative logos3, like several productions found in the legal area. For this purpose, we turned to a literary genre that exists between aesthetics and epistemology, even better, a writing that would be accepted in the academic universe but that had an artistic expressiveness: the essay.
The essay cannot be dimensioned only by its etymology, from French essayer, that comes from Latin exagiu, as a synonym of exercise, training, test. Equally, it is not just a simple examination of a problem. The essay is a literary genre that reflects and displays a problem in an exercised way, meaning that it is a reflective performance that analyses and experiments the different forms to inquire the issue or the objective of a research (Bonaccini, 1994) .
So, the confluence of our inquiry, until then, allows us to employ the essay as a proper way to express the related examinations to the legal decidability making a model in legal research. It is related to the notes (not concluded) that can be made in legal study that goes beyond legal dogmatic or traditional zetetic research and, overall, to the text construction based on metaphors, music, literature or even visual arts. A writing that allows us to use the first person plural.
According to Londoño (2011) , the mentioned genre has some reservations. The first one is that the essay is not just a simple monologue or an autobiographical narrative. In other words, the essay is not a description but a descriptive act that intends to communicate to others, and not to be confused with a provision of beliefs. The second remark, connected to the first one, is that the essay is a style in which the others can read and learn the motives that lead the writing, that is to say, the sensible experience of the author manifested in the text. At last, in an interactive condition, the essay makes up the epistemic material explored and the style to be used.
3Descartes makes the essay something mathematical and impersonal. Therefore, to make an essay, in the Cartesian perspective, is to divide, to fragment the logos so that the reader can perceive the geometrization (causality and linearity) of thought (Nascimento, 2016) .
Through the presented remarks, we justified the chosen style. We tested a critical-problematic description about the modus operandi in legal research in Brazil, more specifically, the perpetuation of legal inquiry under the legal decidability rules that, in our perspective, prevents the transversality of knowledge. Regarding the second and third remarks, the text is crossed with raised aspects by who writes and experiments in the academic environment, but as well by other authors realising the same “symptoms” of a search centered in legal decidability.
The last particularity posed to justify this essay is its freedom of writing or the lack of methodology4. Let’s see what Montaigne says (1984: p. 91) :
Having considered the proceedings of a painter that serves me, I had a mind to imitate his way. He chooses the fairest place and middle of any wall, or panel, wherein to draw a picture, which he finishes with his utmost care and art, and the vacuity about it he fills with grotesques, which are odd fantastic figures without any grace but what they derive from their variety, and the extravagance of their shapes. And in truth, what are these things I scribble, other than grotesques and monstrous bodies, made of various parts, without any certain figure, or any other than accidental order, coherence, or proportion. “A fair woman in her upper form terminates in a fish”. In this second part I go hand in hand with my painter; but fall very short of him in the first and in the better, my power of handling not being such, that I dare to offer at a rich piece, finely polished, and set off according to art (emphasis added).
The essayist spirit of the author, in the titled essay “Of friendship”, is similar to ours, because the author combines different elements in a textual totality. In his case, the essays are from different themes in a single work. In our case, the essay combines different knowledge systems aimed to problematize and to point out traces in Law Science. In addition, it is a reflective project without the traditional scientific writing rules, pushing the present study to two antithetical terms: freedom and fleeting.
4The idea of methodology commonly comes from a Cartesian sense, that is, any construction that presents the method as: evident, that is, one should not accept anything that is not presented in a clear and distinct way; divisible in relation to the object of knowledge; chained, that is, going from the simplest things until arriving at the most composed things; and enumerated so that one can be sure that nothing is obscure or missing (Descartes, 2001) . Therefore, we do not opt for the Cartesian (rigid) way, much less we establish a methodological anarchism, we only interpret it, the methodology, as a detailed description.
5Freedom, in this context, is not to be taken as deliberative action. However, as a point of spontaneity of the person. Ferraz Júnior (2012, 2014, 2015) , mentions two types of research in legal science based on the problem of decidability: dogmatic and zetetic. The first alludes to law in a dogmatic way, that is, without questioning its systemic starting points, but only problematizing (or trying to) solve the applications of such axioms. Zethethics, on the other hand, tenses legal research by questioning its own starting points. However, the author expresses that there are fundamental correlations between the two.
It is free5, because we listened to Nietzche’s advice described previously: not put him in a religious altar. Our essay, or our experimentalism, is not for Nietzsche but it begins based on him. What do we want to say with that? No doubt, the author is a literary-philosophical inspiration but that doesn’t prevent us from criticising the concepts proposed by him, putting him in a dogmatic place. Nietzsche is a conjoined voice, a polyphony that sometimes merges itself with us and sometimes not. This last statement leads us to explain the fleeting, because we do not reduce ourselves to a thinker, then, we resist classifications.
The mentioned fleeting is also important to not be so restrained to the dualities mind-body, me-body, spirit-body. The first one, the spirit, understood in a free form or fully free, and the second, the body, a simple extension, or an instrument of a thinking spirit. Nietzsche (2001, 2011) , for example, refuses such detachment and the privilege given to rationality, thus, we equally agree, because we are not fully free, but as a result of pulses, sensible experiences and if we give a careful thought, this is not an element that Nietzsche wrote about explicitly, of the socio-economic conditions which we face in life.
You need to be informed about other complementary information of our essayist genre, a technique that established the ambiguity present between freedom and fleeting in writing: the collage. The collage in an aesthetic perspective, it is a technique that emerges in the visual arts, especially in the dadaist movement, but it was expanded by literature and philosophy. One of the greatest exponents of this technique, in philosophical essays, is Gilles Deleuze. Then, we mention the two main books by him that highlight the matter: “Difference and Repetition” and “Dialogues”.
In Difference and Repetition, more specifically in the Prologue, Deleuze (2006: p. 10) drafts what would be the collage in philosophy:
In this regard, we can, henceforth, raise the issue of Philosophy History use. It seems that the History of Philosophy must perform a role very similar to the collage in a painting. The History of Philosophy is the reproduction of Philosophy itself. It would be necessary that the review in History of Philosophy would act as a double truth and accommodate the highest modification within the double meaning (imagining a philosophically bearded Hegel, philosophically glabrous Marx, the same way as a Gioconda with a mustache) (emphasis added).
The perspective of Deleuze is shaped by an appropriation of concepts that create its own philosophical system. That is the raison why the author ponders against the History of Philosophy, putting it in a similar way to his philosophical thinking: the collage. For many years, History of Philosophy, according to the author, was a privileged area of knowledge, becoming a repressive instrument of concept production. However, with the perspective of difference in philosophy, the thinking act became a cementing process (appropriating) of the different philosophical systems to produce a new one: “What comes first in thought is the theft” (Deleuze, 2006: p. 191) .
In the book Dialogues, Deleuze (1998: p. 14) explains, in a more profound way, what would be the collage process that benefits from the “stealing” of concepts:
Stealing is the contrary of plagiarising, to copy, imitate or make alike. The capture is always a double-capture, the stealing, a double-stealing, and that makes it not something in a mutual way but in asymmetric block, a non simultaneous evolution, a wedding, always “out” and “between”.
However, how does the philosopher present such “stealing” in a linguistic perspective? In other words, how to organize the language to obtain such an idea and conceive a collage? He answers:
We must be bilingual even in a single language. We must have a smaller language within our language. We must make a lesser use of our own language. Multilingualism is not just the possession of several systems, being each one homogeneous in itself; it is, primarily, the escape route or variation that affects each system preventing it to be homogeneous (Deleuze, 1998: p. 12) .
So, to experiment collage in philosophy, or in this essay, is to be a slow collector of concepts that aggregate to the forming thought. It means to combine elements of different origins and constitutions to form something unambiguous and momentaneous. In other words, it is to (re)think of new elements out of previous ones, not being necessary to elect a linear series or a determined theoretical compilation. If we do so, we would fall again in cumulative and progressive characteristics, such as History of Philosophy, criticised by the author.
This aspect contributes to the use of Nietzsche to approach legal research, since the mentioned philosopher didn’t have Law Science in mind in his studies. Nevertheless, through the collage presented, it does not prevent us to reflect upon the self genealogy and the dimension of the personal experiences in the production of legal knowledge. It is a strangeness to the concept of language itself as we know it and that we judge to dominate, making us strangers in the same language.
3. Subject and Subordination in Legal Research under the Dogmatic Technology
It is with reason, readers, that you can ask yourselves: what is the legal dogmatic? In this passage we seek to offer some elements to the reflection upon such a question as a technological instrument used in modern law, or more specifically, in the dogmatically organized modern law. Furthermore, we related how law practitioners, in general, use such technology to decide the social conflicts in which they face. And afterwards, we explain how this instrument blends with the law science and the knowledge production.
In a reading rhetoric-pragmatic, Ferraz Júnior (2014) describes legal science as an epistemological statute that organizes the research regarding the issue of legal decidability. It is obvious, for example, to the participants in the law area that the legal dogmatic perspective is a kind of common place or a topos in the production of knowledge. That’s because its institutionalization, as the last rational theoretical framework in society, reduced it to conceive social conflicts and necessarily solve them.
The dogmatically organized law, in general terms, can be synthesized in two principles, the undeniability of the starting points and the non liquet (Ferraz Júnior, 2015) . The first principle consists in the undeniability of the legal system to appeal to other axioms that aren’t validly constituted/decided by a previous procedure, in which it is submitted. Thus, whoever has legal jurisdiction to decide in a certain procedure that involves it, must, in thesis, argue and justify the answer based on data already fixed by the system itself.
The non liquet principle, in a different capacity, the obligation of an answer of whoever has the legal power to decide in a legal procedure. That way, all conflicts that arrive at the instances of legal decision must have a proper answer based on the data produced by the system itself. This characteristic is extremely recurrent that the law practitioner in his/her learning and practice, gets in touch with inclusive techniques of the system before an unprecedented conflict—conflicts that are not close to any hypothetical fact imagined by the scholars or like something already judged by the jurisprudence.
Although the mentioned author, Ferraz Júnior, distinguishes the dogmatic and zetetic researches in Law6, his proposition is focused in the forensic environment7. The forensic term, in its usual sense, is related to the courts and to all that perform activities in the legal universe. However, this metaphor, in the present study, is resumed in a wider form: referred to the institutionalized instances (or spaces) in society under the configuration of the dogmatically organized law.
In face of the referred scenery, we focus on legal research. The perspectives of transversality of the researches in Law become limited horizons because the lawyers don’t act beyond the dogmatically organized law domain. Most of the time, when a search assumes an interdisciplinary dimension, there is a switch between a theory derived from another knowledge field and the legal area, that sometimes ends up reducing it to the legal dogmatic.
6 Ferraz Júnior (2012, 2014, 2015) , mentions two types of research in legal science based on the problem of decidability: dogmatic and zetetic. The first alludes to law in a dogmatic way, that is, without questioning its systemic starting points, but only problematizing (or trying to) solve the applications of such axioms. Zethethics, on the other hand, tenses legal research by questioning its own starting points. However, the author expresses that there are fundamental correlations between the two.
7We believe that such a position is intertwined with epistemological skepticism, where description prevails over prescription, even if it is difficult to separate these two movements.
The gender research produced in the legal area is examples. In a study conducted in the Thesis and Dissertation Catalogue of CAPES, between the years 2007 and 2016 (Almeida Neto & Cardoso, 2020) , it was observed that the researches involving the gender category focused, to great extent, just with legal institutes in a exegetic or doctrinal sense: “constitutionality”, “validity”, “effectiveness” and other aspects, based on a institutional reality for a institutional purpose.
On this perspective, the legal research, even if it keeps a relation with the zetetic proposal, like Ferraz Júnior (2012, 2014, 2015) describes, the research makes up a closer scientific tie. This subordinates, for example, an important and transdisciplinary category of study as “gender” to the great technological operations of the dogmatic to decide the law. Obviously, such restricted operation in research, which has multiple potentials, produces antagonic dualities: good law and bad law; statutory and non-statutory; legal and illegal; in which the academic inquiry contaminates itself.
We do not intend, before the presented context, to purge the juridicity of the state bodies. We aim to question the referred juridicity present in all dimensions of the superior formation in Law, and, subsequently, legal research. Life and reality are taken by the Law courses, if it is observed the current curriculum (Brasil, 2018) to produce such correlation of those dimensions with the state itself. The legal manuals and other auxiliary literatures, equally, make the students technocrats, legalistic and officers of the state violence.
After all, they make the body its own flesh, posture and language that absorb (or recreate) its subjectivity focused in the legal grammar, either in or out of the institutional area. For example, an average student in graduation course, or many times in postgraduate, seeks, at first, in his/her investigations, the formal sources of Law, doctrines, legal decisions or any element of the forensic environment to formulate, afterwards, a research problem or the objectives in an investigation plan (sometimes they already initiate with a previous defense of a supposed good law based on a “right way of thinking”).
As if life/body/world, the outside immanence of the forensic environment were marginalized to the status of a secondary data. Or if there were a repeated offer of a consumer type that reduces the complexity, through legal dogmatic, and expands to the search in Law. For us, the elicited area must visualize the phenomena in its contradictions and ambiguities. In other terms, it is necessary to abandon the preliminary presumptions and the reductive configurations of obscurity that want a universal scientific telos.
Maybe, to face this debate, we could approximate our thoughts to the arguments presented by Foucault (1995) . The author describes that exist two meanings to the word “subject” in face of a routine that individualizes ontologically: subjection by control and dependency; and the identity prison, enabled by the conscience. Both senses converge to a power type that subjugates the bodies. It is evident, in these terms, that Foucault did not refer to legal research. However, such aspects could allow a directed appropriation to develop our experimentalism.
The feature in which the science of Law is conceived, crossed by the teaching and research activities, under the axis of legal dogmatic, is a way of subjugation. In other words, it is the subjective (re)creation in a circle mode, making the students and lawyers use the theological-democratic belief in law. Not just that, but also as “agents” that defend such modern fictions and when observing them in crisis, searching simply reformist ideas and incorporating stabilising rhetoric against an apparent chaos.
Furthermore, the ontological juridical category is an invention of the process of subjectivation. Although being hybrid, in case we go deeper in that question, the jurist became a historical character that instructs and prescribes the systematic mode of law, or that is able to offer solutions to the normative power to be validated before new situations. That way, a person that investigates marginalized themes in the law area is not considered a jurist and is typically addressed with questions that aim to check in what level such matters are epistemic and namely interconnected to law.
It is necessary to perceive the existence of an ontological depiction of subject, framed in a specific knowledge area, that is combined with the power operations in legal decidability, repelling, in a culturally unconscious of law, any theme that is destabilising of the systematic, power structures and stylistic that reinforce or feedback the political-juridical. Like we already argued, such aspects are registered to a lesser or greater degree, in the submitted and involved bodies with education and knowledge production in law.
It is important to list some symptoms of this subjugation. Oliveira (2003) , for example, detects some academic signals of the cultural scientific-legal unconscious. The first of them is the tendency to be restricted to manuals, making the authors present chapters or topics destined to transmit in a supposedly pedagogical way concepts, effects and historicity of the legal institutes investigated. In other words, the legal research, by this linear trace, is interconnected with expositions that follow the same causality characteristics of the legal manuals. It is a double effect aspect that is destined to instruct (concept introduction) and to connect the legal institutes to a progressive narrative of cause and effect.
Another highlighted symptom (Oliveira, 2003) is the tendency to honor a typical writing of legal decisions or initial petitions addressed to a judge with the intention to demonstrate that the author possesses the “best right” or “best doctrine”. Such worshiping in writing holds an intrinsic characteristic: the logic of legal decisions (Nobre, 2004) . Like this, jurists produce knowledge as if they were writing an initial petition or a legal decision, replicating varied judgements and legislations (Rocha & Pereira, 2017) .
It is this defense, or rather, such theological-dogmatic belief in legal research, that dimensionate obstacles in the writing fluidity, in innovations on the reading of data analysis and even the way that result exposition is articulated. The “reverentialism” and the logic of the legal decisions assume a feature of an exhortation to the saints, disposing in altars, certain people in a way to promote linearity to the legal thought, formatting reality and removing its complicated traces.
The referred practice is highly reaffirmed and preserved, in a way that many students, when writing academic papers, don’t usually quote, for example, legislation or case law. Or, when they do, they do it in the same way as a pleading. It is as if such elements were naturalized in writing and in language (inscribed on the bodies), and the rules of the Associação Brasileira de Normas Técnicas (ABNT), Brazilian Association of Technical Standards, more specifically, the 10,520 norm (ABNT, 2002) were dispensable.
Another symptom emphasized is the epistemological confusion (Oliveira, 2003) . That is to say, authors consult views and speeches from other scientific areas in an attempt to create an interdisciplinary shape in their studies. So to speak, a mere theoretical-epistemological agglutination. When they don’t do it, they blend ideologies or lines of thought from specific areas and in a random way. So, what is observed is the manipulation of legal terminology or cliché, seen in the court practices trying to persuade with erudition.
All of these descriptions, partly, are encountered in a concept that is very valid to expand such arguments: the experiential technicism (Stamford, 2006) . The term is interconnected to the bureaucratic-juridic knowledge, so to speak, the understanding and technical application of law in administrative, forensic environments and others in the same functionality. However, it is not considered academic knowledge. Thus, when such production is based on legal decisions or legislations to explain something, it is not conceived, necessarily, academic knowledge, just a kind of valuation construction, a knowledge loosely recognizable, but as a result of dogmatization and encased in the positive law.
To a certain extent, in some points of the present discussion, Bourdieu (1989) is right when he wrote the chapter. The Law, or the science of Law, when taken as a field, is autonomous, since there’s a relation of practical and theoretical jurists that compete to name it, just like the fair, legal or valid. Besides demonstrating the capital that they possess using legal grammar (something of difficult access) and consuming models that the own judiciary imposes to be possible the argumentation in this universe.
These are the elements, among others, that grant the effect of universalization, impartiality and historical tautology in Law to any person excluded from the area’s techniques and grammar. So to speak, features capable of recreate and reinforce the belief in law being a universal remedy of social problems. However, they assume the condition, in fact, of reality simplifying, in which such practice is operated through a clipping translation.
The problem in that, considering the objective of our study, refers to the fact that the same conditioning and reproductive types of decidability of conflicts in institutional dimensions, pass through the legal search itself. More specifically, in the way it investigates and observes people and society. Likewise, such types create and capture subjectivities through the legal teaching and writing. So to speak, train official priests of the state immanence.
4. What Makes a Researcher What He/She Is?
The title above is an intertext from the book “Ecce homo—how one becomes what one is”, by Nietzsche (1995) . In the mentioned book, the philosopher carries out an autobiographical writing, explaining the reasons of his philosophical thinking and some questions that surround his works. By all means, for the present experimental essay, nothing more appropriate than an emphatic inspiration of the philosophical journey by the own author, or better yet, of a character named Nietzsche, who produces such self genealogy in one of his last books.
8This category is interpreted, here, as a set of jurists who call themselves “post-positivists”, but who still face methodologies that do not overcome the institutionality of legal positivism.
Is from Nietzsche’s philosophical project that we will conceive the collage of our fragmented reflection, unfinished and partial. Thus, by taking the same attitude as Nietzsche, when facing the modern men, good men, Christians and other nihilists, we also will write against the “modern” jurists, the good and traditional researcher in Law, positivists and neo constitutionalists8. It is a meeting, or a search, dear readers of Law, or not, uncommitted of any theological-dogmatic belief, in order to contemplate the criticism made to what was exposed previously.
One of the precautions suggested by Marton (2018) , regarding the research on Nietzsche is related to the associated prudence of other ideas in the author’s philosophy observing his readings and his theoretical references that did not dispose of what was stated. For that matter, the first warning given to the present experimental study is the disobedience of such recommendation, since we place Nietzsche as an important spokesman and not as an objective of study to our impressions/acknowledgments.
Nietzsche didn’t write, in a specialized manner, about law and even less legal research. However, by an experimental process, ours and the target audience, we decided to invoke some premises of Nietzsche to launch some notes on research. Ironically, even if he hasn’t written about our objective of research, is the perspective of the author himself the experimentation: “I change too quickly: my today contradicts my yesterday. I often skip steps on the way up—no step will forgive me” ( Nietzsche, 2011, The tree on the hill).
This is one of the proposals in Nietzsche’s philosophy: to experiment. An experimentation with yourself, with the one that writes and also with the reader. Furthermore, the experimentation process is becoming. A passage from a fragmented reflection that is inscribed in a given context in the author. With this in mind, it explains the invitation to the reading of this essay not be targeted to the dogmatics, but to those who understand the critical fluidity or the not-so-linear dissolutions.
Another aspect considered by choosing Nietzsche as an inspiration point is his unified plurality. Nietzsche is a psychologist, an anti-scholar and, in the end, a physiologist. The first mask can be found in the “ecce homo” itself: “The fact that the voice which speaks in my works is that of a psychologist who has not his peer, is perhaps the first conclusion at which a good reader will arrive—a reader such as I deserve, and one who reads me just as the good old philologists used to read their Horace.” ( Nietzsche, 1995, Why I write such excellent books, §5, emphasis added).
9Physiology, in Nietzsche, occupies the space dedicated to the study of the body from the idea of totality that it congregates. Thus, this dimension does not perform the concept in a naturalistic (positivist) sense, but adds to the meaning of investigating the body without dualities.
According to Marton (2018) , the author says he is a psychologist because he is a critic of idealizations, an examiner of ethical and moral decaying types and a developer of philosophical practice that despises reality or the world in which he’s in. In a complementary way, Nietzsche is the anti-scholar mask, that feeds on the creative instinct upon the delicate form, as a writing parameter that rescues the beauty of the ancients that cultivated life and the tragic.
In another interface emerges an important mask to his philosophy: the physiologist9. For instance, the philosopher affirms: “Morality is merely a sign-language, simply symptomatology: one must already know what it is all about in order to turn it to any use.” ( Nietzsche, 2006, VII The “improvers” of mankind, §1, emphasis added). The greater sense of the excerpt is in the word “symptomatology”, that is to say, the symptoms study. What does it have to tell us? Nietzsche is not, quintessentially, just a philosopher but a physiologist: the one that studies the health level of a body.
But what is the relation with legal research? The key questions are in the meanings of body and memory. To Nietzsche (Marton, 2009) , the body is a pulse conglomeration in battle, promoting different forms of configurations, as well as assuming varied modes, such as: coordination and conflict, or integration and disintegration.
If the body is, then, an impulse conglomeration, where does the soul live? The body is just a body and not a soul. Then, the body is a unity of different impulses, forces or energies: “But the awakened one, the knowing one, saith: body am I entirely, and nothing more; and soul is only the name of something in the body. The body is a big sagacity, a plurality with one sense, a war and a peace, a flock and a shepherd.” ( Nietzsche, 2011, The despisers of the body, emphasis added1).
The poetic extract from “Thus spoke Zarathustra” points out three questions: Nietzsche denies the ascetic duality of body and soul and, therefore, refuses the dual logic that sustains the previous philosophies before him; conceives that there is uncountable in us; and treats the body as a starting point, that is to say, a guiding immanence for us (“the body is a big sagacity”). Thus, these characteristics are the ones that support our criticism of the ontological design of the researcher, or jurist, mentioned previously.
However, it also exists in the body. According to Paschoal (2015) , the memory in Nietzsche is a complex mixture between what is found in past experiences and subject creation. Then, to remember something is not to keep it in mind so the time will erase it, but is the subjective creation from the current conditions of the subject in face of the effects of the outside world. In other words, is the willingness memory, a psychophysiological procedure that, in an atavistic search for the promises fulfillment, makes mankind, in face of oblivion, to invent memories and accomplish what has been remembered:
This is simply the long history of the origin of responsibility. That task of breeding an animal which can make promises, includes, as we have already grasped, as its condition and preliminary, the more immediate task of first making man to a certain extent, necessitated, uniform, like among his like, regular, and consequently calculable. The immense work of what I have called, “morality of custom” (cp. Dawn of Day, § 9, 14, and 16), the actual work of man on himself during the longest period of the human race, his whole prehistoric work, finds its meaning, its great justification, in spite of all its innate hardness, despotism, stupidity, and idiocy. In this fact: man, with the help of the morality of customs and of social strait-waistcoats, was made genuinely calculable ( Nietzsche, 1998, II, §2, emphasis added).
Possibly, this is our most epistemological discomfort. Observing the sense of the multiple body and the battle against the morality of customs (or ethics of customs)—producer of the gentle bodies through introjection of normative violence, promises creation, memory structure, atavism and ontological designs—we eroticize ourselves looking for other possibilities. From a specific point, since, till then, we elected legal research and the jurist-researcher as study objectives (symbiotic process), we aim for alternatives to the legal science.
The jurist, the hybrid commonly associated with the simultaneous roles of knowledge production and order defense, is an important axis to the present study. Its role permeates the writing in third person, or the first plural person, sparingly, to attest problems in the modus operandi of the legal system or to defend an interpretation that is, to some degree, convenient to maintain the law. So, it creates an impression, let’s say, memorial and repressive, of linear “me”, coherent, cautious, rational and capable of making a good examination of the problems and solutions of the current law without bending to emotions.
On the other hand, the knowledge production, as characterized in the previous section, is an experimental technicism or a theoretical-empirical construction aimed at legal decidability. Therefore, it is visualized subjectivations that (re)create an ego density able to emphasize that reality, from an apparently neuter point of view, is done in a certain way. They are scriptures of safe and true logos, cultivators of the author’s final word, without any expression of doubt, uncertainty or becoming. Then, a stillborn narrative.
For this reason and intuition direct us to Nietzsche! In Ecce Homo, the author (Nietzsche, 1995) adopts a unique autobiographical attitude. He creates a self-staged character, with which he can become what he is through a will to power. That way, the “autobiographical Nietzsche” pursues what the ascetic priest and Wagner could not do: transvaluate yourself. In other words, make subjectivity present between the necessary and possible. Or better yet, a non-subject subject that self appropriates through a complex dynamic of retrospect and creative role-playing.
So, the self narrative doesn’t search for the truth or trustworthy descriptions, after all the memory is fiction or a gentle animal-subject development. Equally, the self theatrical creation breaks the moral and epistemic obligations. Thus, the self narrative does not seek the truth or reliable descriptions, after all, memory is a fiction or a development of the docile animal-subject. Likewise, the theatrical creation of oneself breaks with moral and epistemic obligations. For that matter, we admire one of the most powerful extracts in his book:
At this point I can no longer evade a direct answer to the question, how one becomes what one is. And in giving it, I shall have to touch upon that masterpiece in the art of self-preservation, which is selfishness. Granting that one’s life-task the determination and the fate of one’s life-task greatly exceeds the average measure of such things, nothing more dangerous could be conceived than to come face to face with one’s self by the side of this life-task. The fact that one becomes what one is, presupposes that one has not the remotest suspicion of what one is. From this standpoint even the blunders of one’s life have their own meaning and value, the temporary deviations and aberrations, the moments of hesitation and of modesty, the earnestness wasted upon duties which lie outside the actual life-task. In these matters great wisdom, perhaps even the highest wisdom, comes into activity: in these circumstances, in which nosce teipsum (know thyself) would be the sure road to ruin, forgetting one’s self, misunderstanding one’s self, belittling one’s self, narrowing one’s self, and making one’s self mediocre, amount to reason itself. Expressed morally, to love one’s neighbour and to live for others and for other things may be the means of protection employed to maintain the hardest kind of egoism. This is the exceptional case in which I, contrary to my principle and conviction, take the side of the altruistic instincts; for here they are concerned in subserving selfishness and self-discipline. The whole surface of consciousness—for consciousness is a surface—must be kept free from any one of the great imperatives. ( Nietzsche, 1995, Why I am so clever, § 9, emphasis added)
Is called, in the extract, a powerful socratic subversion put by Nietzsche when he mentions the pettiness promoted by the “know thyself”. The sentence represents what Nietzsche is against because there is not a true willingness, in rational terms, in his philosophy. It doesn’t prevent, on the other hand, the search to self investigate. So, we get closer to the studies of Paschoal (2019) and Stegmaier (2013) on “Ecce homo”, in regard to the objectives of Nietzsche when it comes to the self genealogy.
The opposition to reason, per se, is the result of the criticism made to the western moral ontology, where Socrates and Paul of Tarsus were responsible. Nietzsche makes such an evaluation of western morality under the perspective of life conditions. However, this is not enough, because the philosopher’s academic integrity stresses self application, since, to a certain degree, the author was a man of his time. Such a purpose explains, for example, the arrogance and modesty gestures found in the book in question, since it was not Nietzsche, but the Nietzsche “character”.
In addition, the self narrative in Nietzsche is a philosophical unfolding that goes beyond style. In this sense, an important first aspect is the problem of cognoscibility, that is, the impossibility to know oneself. In other words, to reach objective knowledge. Therefore, an important formulation of his philosophy is that we are strangers to ourselves, even if we have gone through life. In part because, if we do not expose ourselves to what we are, this will imply a lack of self-awareness, and when making the narrative the subject becomes what he/she described/created.
The second aspect comes from the perspective displacement. Although the transvaluation is associated with the character in Nietzsche, a “clown” that intends to make the cultural redemption, the author allows us to see the ability of change in his interpretative angles. Thus, the autobiographical Nietzsche, by an almost solipsistic outline, finds its own sense in the text and completes the transvaluation task. On the other hand, invites the reader to check the last word about the presented face. Thus, is noticeable an ego-multiple stylistic movement.
For legal research purposes and to the own jurist-researcher, this is an epistemological possibility. If we think of the legal non-place as a desirable becoming possibility, or even an effort to exit from the between-place where we found ourselves as researchers in law, the self narratives could be a powerful way. Far from being a prescription of journeys, mainly when it comes to legal science, but the theatrical narratives interconnected with the concept of “me” call our attention for not being disseminated.
Precisely because they are not common, or even because they have not become theoretical common sense, the practice is welcome. This is the possibility to bring the destabilization, or even a breakthrough with what is done, that’s what moves us to say that the jurist-researcher probably will be diluted by these dionysian lyres or auto genealogical performances. Although, the referred discussion is not a topic for this passage, since the explanation has already been perpetuated too long for a tasteful-epistemic moment.
5. New Songs Need New Lyres
The title of this penultimate section is an intertext of an extract from “Thus spoke Zarathustra”: “For behold, O Zarathustra! For thy new songs there are needed new lyres” ( Nietzsche, 2011, The Convalescent, §2). That’s what the animals chanted to Zarathustra when they affirmed that he was the master of the eternal return, that belongs to the beyond-man project, and, finally, responsible for the abyssal thinking. That way, the present chapter is a final draft, or (in)conclusive of the speculations that so far we have traced in the text.
10The depth claimed in everyday life refers to the core, the ontologies or the essences of an object or a subject. In other words, it goes against the appearance and the surface. Therefore, depth, in the terms of this work, does not support the security of the stable, nor the search for truth.
If we take the reflexive premise that it is necessary to add new lyres to other songs, the tone transports us to the destruction of the old lyres and traditional songs. Although we are not thinking about any reform, solution or reconstruction, we did not repress ourselves as to the exercise of ideas and practices that could be inscribed in science, writing and even in the one that investigates. We have built so far, an abyssal thinking, so to speak, that wanders underground or in the depths of particular phenomenon.
However, not the common everyday sense of depth10. But an attempt at what Foucault (1997) described about Nietzsche: the one that goes against the depth, revealing it as a wrinkled surface, as a philosophical invention or a child’s play. Furthermore, in the same description, the author walks through the role of interpretation as an inconclusive, one violence over another. As for the interpreter, is adduced as a truthful person, not because speaks the truth, but because sees in them the masking of other interpretations.
Thus, is there a cover-up in legal research? We believe so. There is something “strange” in the legal-institutional doing, in legal research, in legal teaching and in the jurists themselves—a hermeneutics of the officialization of state violence—that differentiates them from other sciences, techniques and even artistic forms, those that save us from the tragedy of life. It is something that introjects itself into bodies, develops a state-bound consciousness, programs the subject to a peculiar grammar, and grants privileged status by naming positive law.
Through collage, we dialogue with Benjamin (2013) . His concepts of mythical and divine violence, for example, are important to our debate. In his essay Violence criticism, the author interprets the law as an absolute violence and, afterwards, describes it in a mythical perspective, where the positive law is assumed as bloody and life-limiting. Furthermore, is a producer of the inherent guilt in natural life, that delivers the innocent to atonement (when the guilt is purged), while setting free the guilty part from the law, but not from his guilt.
In another interface, Benjamin (2013) describes divine violence. So, to speak, a sweeping force that annihilates the limits implemented by the mythical action of violence. Then, the divine/pure sense, given by the author, contrasts with every life or form that sacrifices the living. This divine force is something comparable to the narrative of Jesus entering the temple and expelling all of the sellers and buyers who carried out their negotiations there and corrupted the nature of the place.
Even though such power and violence definitions are different in Benjamin, Foucault and Nietzsche, authors used in the text, we welcome the annihilating destruction of divina violence. We think about the dilution of the limits produced on organic life, something that can be found in the thinkers in question. Foucault, for example, states: “We have to promote new forms of subjectivity by refusing this type of individuality that was imposed on us several centuries ago.” (Foucault, 1995: p. 239)
As to Nietzsche (1995, Why I write such excellent books, §1) , “The word ‘Superman’, which designates a type of man that would be one of nature’s rarest and luckiest strokes, as opposed to ‘modern’ men, to ‘good’ men, to Christians and other Nihilists—a word which in the mouth of Zarathustra, the annihilator of morality, acquires a very profound meaning […]”. Then, we can perceive a role of mass destruction in Benjamin, the abandonment of the old and the desire for the new in Foucault and a moral annihilation in Nietzsche, against the agents that sustain the décadence.
If we imagine legal research in this scenery, then, the dilution proposal, annihilation or rapture by divine violence are enforceable. It is the search for other forms of research, writing, and even legal science, that probably, can construct other subjectivities. However, this requires the abandonment of subjections to legal forms and, at the same time, the introduction of an epistemological adventure into new knowledge, techniques, and styles.
To a certain degree, is an expression of the eroticism for the new, for the becoming, or for the criminal attitude11 of the destruction of the old lyres and songs that chant legal research. In this perspective, the self narrative is not the solution, on the contrary! However, an aesthetic-scientific path, among others, is capable of diluting the practices described in the first section of this text. Thus, to create self genealogy implies in the desacralization and sabotage of the objective, simplifying and universal forms of law by the jurist.
Moreover, the procedure unfolds in the continuous displacement of interpretations. A jurist, when writing about himself/herself, has as his/her guiding thread his/her living experience and not his/her technical experience. In this sense, and taking the body as multiple, just like says Fernando Pessoa (2000, Odes and other poems, 149) : “Live in us uncountable”; the narrative becomes non-dogmatic. However, connected to bodily pulses. Equally, it induces a living writing, based on impressions and doubts. Also, is an investigative path that goes through the sensibility forgotten by the technical and rational imperatives.
We invoke a letter by Nietzsche, addressed to Lou Salomé, in which the author makes some remarks about writing. The points brought up by the correspondence are in line with what we mentioned earlier. The first consideration chosen by us is: “What matters most is life: style must live.”12 (Nietzsche, 1882, §1, our translation) . Another lesson that we highlight is: “Before you pick up the pen, you need to know exactly how to express what you have to say. Writing should only be an imitation.”13 (Nietzsche, 1882, §3, our translation) .
11 Butler (2020: pp. 1931-1932) , analyzing Benjamin’s (2013) essay, “Violence Criticism”, says the following about the meaning of divine destruction attached to criticism: “To offer a critique is to interrupt and contest the maintaining power of law, to abandon our conformity to law, to occupy ourselves with a provisional criminality that fails to maintain law and thereby undertakes its destruction”.
[1] 2In the original: Das Erste, was noth thut, ist Leben: der Stil soll leben.
[1] 3In the original: Man muß erst genau wissen: “so und so würde ich dies sprechen und vortragen”—bevor man schreiben darf. Schreiben muß eine Nachahmung sein.
[1] 4In the original: Es ist nicht artig und klug, seinem Leser die leichteren Einwände vorwegzunehmen. Es ist sehr artig und sehr klug, seinem Leser zu überlassen, die letzte Quintessenz unserer Weisheit selber auszusprechen.
At last, the main lesson, to us is: “It is not wise or skillful to deprive the reader of his easiest refutations; it is very wise and skillful, on the contrary, to leave him the care of formulating the last word of our wisdom.”14 (Nietzsche, 1882, §10, our translation) . The whole stylistic conjuncture indicated by the philosopher is, in the present experimentation, an indication of the mischaracterization of the researcher as an omnipotent ontology before the text.
In this sense, the aspect reinforces the self genealogy as the way to go, since the jurist-researcher, through the self narrative, is not a ready and finished data. But a multiple one, becoming what it is, when is exercised a retrospective writing of the self personal-corporeal and performative experiences. Likewise, there isn’t a “me” through subjectivating violence, but a corporeal structure that dissolves the ego linearity separated from the body.
Furthermore, examining the atavistic search for truth contrary to what has been exposed, one can create a possible locus of other projections on themes, theories, and objects in Legal Science. If the narrative, as described, is inspired heavily on bodily experience. Then, the body, a plural structure linked to the external world and to intersubjective re-significations, will be able to give flow to subjects not initially thought for this area of knowledge. Therefore, what was inappropriate, becomes flesh and blood in Law.
Not by chance, we seek support in the advances of Warat, when it comes to linguistic aspects in Law. The author, when pointing out an alternative to the omnipotent truths in legal texts, leads us to the “seductive truths”:
Semiology must be concerned, therefore, with seduced truths. Seduction is an idea that comes from Nietzsche who employs it as a detour of meaning. In this direction, seduction implies the fascination of division, of complicity, of ambivalence. In seduction, there are no individualized terms, but dual ones, which fit together by attraction to each other. It is the rule of a game implying struggle, the secret (Warat, 2000: p. 94) .
In another extract, in which the author relates the fissure of the willingness to truth, Warat seeks to bring madness and magic into his affective teaching: “In different ways, I always worry about exposing to criticism the will to truth, from the will to desire, like the good alchemist that I am, I transform the classroom space into a magic circus. This is how I perform the pedagogical function of madness”. So, it is this example, or these means, that drive us to seek new forms of what has already been done.
It is the madness of the different, the destruction by the divine, the desire for other subjectivities and moral annihilation, that makes us excited to realize aesthetic-erotic-corporeal postures. It is this invitation, or even “pamphleteering action” in Legal Epistemology, that engages us in a subversive, dreamlike, and intense way. Observing the utopias thought of so far and linking them to a specific context, we visualize the jurist-researcher as a teller of lies.
Figure 1 of the teller of lies, for us, is a “moving battalion of metaphors”. He is an iconic figure found in the Brazilian Northeast, who assumes multiple facets and is unconcerned with the truth. Complementing such traits, he finds new ways to tell his stories. Therefore, the experimental fascination, since the jurist-researcher, interpreted by the numerous performers and narrators of self, can be found in the popular folkloric figure of the teller of lies.
It is, perhaps, the poetic lie, the background of a self genealogy. But in case it isn’t, it would be an interesting artistic way to engage the existential tragedy. In this perspective, the creator of the woodcut in Figure 1, in a cordel, says about the “Story of the Teller of Lies”:
The lie is floating
It is everywhere
Who writes about lies
See no inspiration missing
One lie leads to another
For the poet to tell.15
[1] 5Original text:
A mentira é flutuante
Está em todo lugar
Quem escreve sobre mentira
Não ver inspiração faltar
Uma mentira puxa a outra
Para o poeta contar. (Borges, 2018b: p. 8)
Therefore, far from the omnipotence of truth and closer to the “lies” that insert themselves into our narratives, since objectivity and epistemic-corporeal stability are not possible, we aim here for a will of literary lie. That is, a floating, inspiring, seductive, instigating, diverse, changeable, and plural way of thinking, knowing, and writing. Is lying, in poetic terms, our salvation?! The word is with each and every one of you…
6. Conclusion
In this first section, we work with the perspective of the essay as a linguistic experimentation in the face of legal science and, simultaneously, added to deleuzian collage. Both practices, which cannot be divided in this methodological path, present a perspective that goes against the linguistic practices carried out in Law, namely, the beliefs in the neutrality and autonomy of the law (Bourdieu, 1989) . That way, the proposed experimentalism resides in the corporeal multiplicity and in the production of difference with the objective of tensioning the fictions of axiological distancing and institutionalization theorized by jurists in the legal phenomenon.
In the second section, we present how legal grammar—the one reduced to dogmatically organized law—creates subjects in series within their pedagogical spaces and professional experience. In that regard, it proposes a limited and closed experience in the face of the countless crossings of everyday life to subsume them to the discursive game of the technology of social decision ability that is the law. Some of these symptoms are already present in manuscripts, which are said to be scientific, in higher education: manualism, reverentialism, logic of opinions, epistemological confusion and experiential technicality.
Against the idea of a subject produced by legal grammar, the nietzschean autogenealogy or the creative staging of the self is used as a tactic, that is, the dismissal of the stratagems of fixing the truths and the subjects that compose them in the present time. Therefore, the first step is to neutralize the subject within our body. In other words, to take a philosophical look at our corporeality and remove what impedes its health. In our case, the subject of legal grammar. Or rather, the whole discursive fabric that surrounds it and that can be overcome by experimentation of self.
Finally, we are inspired by Nietzsche, Benjamin and Foucault to show the need to implode these limits, whether grammatical or subjective, more specifically, to neutralize current legal forms through self-experimentation. In the case of Law, we can do it from the classroom, from scientific manuscripts and even from the way we occupy the university. Instead of a Juridical Epistemology that justifies/describes power, we want a pamphleteering action among jurists about power. But, for that, we need to forget the truths of the legal courses to focus on the literary or ludic “lies” that are aligned with an inappropriate life.