1 Friedrich Nietzsche, Twilight of the Idols 40-41, trans. R. J. Hollingdale (London: Penguin, 1968), translator's footnotes omitted. Page citations to Twilight are given in parentheses in the text.Google Scholar

2 Oliver Wendell Holmes, “The Path of the Law,” 10 Haw. L. Rev. 457, 469 (1897). “‘Black letter law’” refers “in a somewhat disparaging way” to legal doctrine. “The term is derived from the long abandoned practice of employing a gothic typeface for printing common law literature, so that a black letter lawyer was one learned in the legal tradition, and one major ingredient in law and legal reasoning is of course respect for tradition.” A. W. B. Simpson, “Legal Reasoning Anatomized,” 13 Law & Soc. Inquiry 639 (1988).Google Scholar

3 John M. Wisdom, “Some Remarks on the Role of Social Science in the Judicial Decision-making Process in School Desegregation Cases,” 39 Law & Contemp. Prob. 142 (1975), cited in Michael J. Saks & Charles H. Baron, eds., The Use/Nonuse/Misuse of Applied Social Research in the Courts 12 (Cambridge, Mass.: Abt Books, 1980) (“Saks & Baron, Use/Nonuse/Misuse”).Google Scholar

4 Paul L. Rosen, “History and State of the Art of Applied Social Research in the Courts,” in Saks & Baron, Use/Nonuse/Misuse 11.Google Scholar

5 See, e.g., Tanford, J. Alexander, “Law Reform by Courts, Legislatures, and Commissions Following Empirical Research on Jury Instructions,” 25 Law & Soc'y Rev. 155 (1991).CrossRefGoogle Scholar

6 Peter Berkowitz, “On the Laws Governing Free Spirits and Philosophers of the Future: A Response to Nonet's ‘What Is Positive Law?’” 100 Yale L.J. 701, 703, 704 (1990).Google Scholar

7 Hollingdale notes the connection in German of “wahre Welt” (in quotations in the title) translated as “real world” and “Wahrheit,” translated as “truth.” Nietzsche, Twilight 40, translator's first footnote.Google Scholar

8 Joseph William Singer writes: “Recently, there has been a lot of talk among legal scholars about nihilism. This has been more evident in conversations among law professors than in the scholarly literature. When references to nihilism do appear in the law journals, they are vague and generally made only in passing.” He notes: “I am not trying to use the word nihilism in the way philosophers have used it. Those philosophical discussions are irrelevant to the current debates among legal theorists about ‘nihilism’… none of those theorists (myself included) has paid much attention to that literature, at least not in print.” Singer, “The Player and the Cards: Nihilism and Legal Theory,” 94 Yale LJ. 1, 4 text at n.7 (1984). This article, by contrast, uses “nihilism” in the way that philosophical discussion about Nietzsche uses it, showing the relevance of debates about nihilism to modern law and sociological study of law.CrossRefGoogle Scholar

9 Socrates himself may well have understood that reason was no savior, according to Nietzsche, who writes of the “wisdom” of the “courage for death” of “this shrewdest of all self-deceivers”: “Socrates wanted to die it was not Athens, it was he who handed himself the poison cup…‘Socrates is no physician,’ he said softly to himself: ‘death alone is a physician here… Socrates himself has only been a long time sick …’” Nietzsche, Twilight 34, ellipses in original). See also Plato's Cn'to and Phaedo. Google Scholar

10 Homer, The Iliad, Loeb ed., Book II, lines 211-277.Google Scholar

11 Kenneth Burke, Language as Symbolic Action 110-11 (Berkeley: University of California Press, 1966), citing his own Book of Moments 25. I am grateful to Fred Antczak for bringing this passage to my attention in another context.Google Scholar

12 Uncited quotations that follow are from the Nietzsche excerpt quoted at the beginning of this essay.Google Scholar

13 Imperatives, for Kant, are “formulae for expressing the relation of objective laws of willing to the subjective imperfection of the will of this or that rational being for example, of the human will” (at 81). In man, “reason solely by itself is not sufficient to determine the will” as “the will is exposed also to subjective conditions (certain impulsions) which do not always harmonize with the objective ones.” Hence in man, actions “recognized to be objectively necessary are subjectively contingent, and the determining of such a will in accordance with objective laws is necessitation” (at 80). In a being such as God, on the other hand, reason “infallibly determines the will,” and actions “recognized to be objectively necessary are also subjectively necessary that is to say, the will is then a power to choose only that which reason independently of inclination recognizes to be practically necessary, that is, to be good” (at 80). For “the divine will, and in general for a holy will, there are no imperatives: ‘I ought' is here out of place, because ‘I mill’ is already of itself necessarily in harmony with the law” (at 81). Immanuel Kant, Groundwork of the Metaphysic of Morals 80-81, trans. H. J. Paton (New York: Harper & Row, 1964).Google Scholar

14 See John Stuart Mill, “General Remarks,” in Utilitarianism ch. 1 (orig. pub. 1863) (New York: William Collins Sons & Co., 1962) (“Mill, Utilitarianism”).Google Scholar

15 Indeed, Mill tolerates a number of acquired desires, among them virtue, claiming that “the utilitarian standard, while it tolerates and approves those other acquired desires, up to the point beyond which they would be more injurious to the general happiness than promotive of it, enjoins and requires the cultivation of the love of virtue up to the greatest strength possible, as being above all things important to the general happiness.” Mill, Utilitarianism 291-92.Google Scholar

16 As Heidegger puts it, Nietzsche's wording sometimes does “revert to the most ordinary of opinions, to wit, that something is true because and to the extent that it is useful to that much-touted thing called ‘life.’ Yet Nietzsche's wording means something altogether different. The securing of permanence is necessary, but not because it yields an advantage; knowledge is necessary for life because it enables a necessity to arise in and from itself, and carries out that necessity, inasmuch as knowledge is itself commanding. And it is commanding because it stems from a command.” Martin Heidegger, Nietzsche, vol. 3: The Will to Power as Knowledge and as Metaphysics 118, trans. Joan Stambaugh et al. (New York: Harper & Row, 1987) (“Heidegger, Nietzsche”).Google Scholar

17 Id. at 157.Google Scholar

18 See Michel Foucault, “Govemmentality,” 6 Ideology and Consciousness 5-21 (1979); and Michel Foucault, “Politics and Reason,”in Lawrence D. Kritzman, ed., Politics, Philosophy, Culture: Interviews and Other Writings, 1977-1984, at 57-85 (New York: Routledge, 1988).Google Scholar

19 Heidegger, 3 Nietzsche 8.Google Scholar

20 See Edward A. Purcell, Jr., The Crisis of Democracy chs. 5 (“The Rise of Legal Realism”) & 9 (“Crisis in Jurisprudence”) (Lexington: University of Kentucky Press, 1973) (“Purcell, Crisis of Democracy”); Schlegel, John Henry, “American Legal Realism and Empirical Social Science: From the Yale Experience,” 28 Buffalo L. Rev. 459 (1979); G. Edward White, “From Sociological Jurisprudence to Realism: Jurisprudence and Social Change in Early Twentieth-Century America,” 58 Va. L. Rev. 999 (1972).Google Scholar

21 Roscoe Pound, “Liberty of Contract,” 18 Yale L.J. 454, 464 (1909), cited in White, 58 Va. L. Rev. at 1004.Google Scholar

22 Id. Google Scholar

23 Lochner v. New York, 198 U.S. 45 (1905).Google Scholar

24 Id. Google Scholar

25 Thomas C. Grey, “Holmes and Legal Pragmatism,” 41 Stan. L. Rev. 787, 787 (1989).Google Scholar

26 Id. Google Scholar

27 White, 58 Va. L. Rev. at 1003.Google Scholar

28 Oliver W. Holmes, The Common Law 1, ed. Mark DeWolfe Howe (Boston: Little, Brown & Co., 1963).Google Scholar

29 Oliver W. Holmes, “Learning and Science,” Speech 1895, m Collected Legal Papers 138-39 (New York: Harcourt, Brace & Co., 1920) (“Holmes, Collected Papers”).Google Scholar

30 Grey, 41 Stan. L. Rev. at 807.Google Scholar

31 Morton Horwitz, The Transformation of American Law 1870-1960 (New York: Oxford University Press, 1992) (“Horwitz, Transformation”).Google Scholar

32 Roscoe Pound, “The Need of a Sociological Jurisprudence,” 19 Green Bag 607, at 614,609,611-12 (1907).Google Scholar

33 Karl N. Llewellyn, “Some Realism about Realism: Responding to Dean Pound,” 44 Harv. L. Rev. 1222, 1233-34, 1226-28 (1931).Google Scholar

34 Horwitz, Transformation 170-72.Google Scholar

35 See Pound, Roscoe, “The Call for a Realist Jurisprudence,” 44 Harv. L. Rev. 697 (1931).CrossRefGoogle Scholar

36 Horwitz, Transformation 170-72.Google Scholar

37 Id. at 170.Google Scholar

38 Rumble notes: “Both Pound and Brandeis were prone to cite the statement of Arthur Henderson that ‘a lawyer who has not studied economics and sociology is very apt to become a public enemy.’” W. E. Rumble, Jr., American Legal Realism: Skepticism, Reform and the Judicial Process 11 (Ithaca, N.Y.: Cornell University Press, 1968) (“Rumble, American Legal Realism”).Google Scholar

39 Purcell, Crisis of Democracy 86-87 (cited in note 20).Google Scholar

40 Llewellyn, “A Realistic Jurisprudence The Next Step,”in Jurisprudence: Realism in Theory and Practice 3, 39-40 (Chicago: University of Chicago Press, 1962); reprinted from 30 Colum. L. Rev. 431 (1930).Google Scholar

41 Karl N. Llewellyn, The Bramble Bush: On Our Law and Its Study 3 (2d ed. Dobbs Ferry, N.Y.: Oceana, 1951), cited in Purcell, Crisis of Democracy 83. Compare to Holmes: “The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law.” Holmes, Collected Papers 173 (cited in note 29).Google Scholar

42 Purcell, Crisis of Democracy 83.Google Scholar

43 Id. at 89.Google Scholar

44 Id. at 162.Google Scholar

45 Schlegel, 28 Buffalo L. Rev. at 459.Google Scholar

46 See Purcell, Crisis of Democracy 162 ff.; Vetter, Jan, “The Evolution of Holmes, Holmes and Evolution,” 72 Col. L. Rev. 343 (1984); and Lon Fuller, The Law in Quest of Itself (Chicago: Foundation Press, 1940) (“Fuller, Law in Quest”).CrossRefGoogle Scholar

47 Purcell, Crisis of Democracy 162-63, citing Fuller, Law in Qwest 4-6.Google Scholar

48 See, e.g., Grey, 41 Stan. L. Rev. (cited in note 25); see also Rumble, American Legal Realism 4 (cited in note 38), tracing the impact of pragmatism on the legal realists by way of James's and Dewey's “marked effect upon Pound and, to a lesser degree, upon Holmes.”Google Scholar

49 Grey, 41 Sum. L. Rev. at 793, 797, 798.Google Scholar

50 See Hart, Henry, “Supreme Court 1958 Term Foreword,” 73 Harv. L. Rev. 84 (1959); Henry M. Hart & Albert M. Sacks, “The Legal Process” (unpublished, 1958); White, G. Edward, “The Evolution of Reasoned Elaboration: Jurisprudential Criticism and Social Change,” 59 Va. L. Rev. 279 (1973).CrossRefGoogle Scholar

51 H. L. A. Hart, The Concept of Law (Oxford: Clarendon Press, 1961) (“Hart, Concept of Law”).Google Scholar

52 See Pound, Roscoe, “Law in Books and Law in Action,” 44 Am. L. Rev. 12 (1910). For examples of such studies, see Abel, Richard, “Law Books and Books about Law,” 26 Stan. L. Rev. 175, 185–89 (1973).Google Scholar

53 Hart, Concept of Law v.Google Scholar

54 Id. at 17; emphasis added.Google Scholar

55 Id. at v.Google Scholar

56 Ronald Dworkin, Law's Empire (Cambridge, Mass: Harvard University Press, 1986) (“Dworkin, Law's Empire”).Google Scholar

57 Although this view is sometimes attributed to Max Weber, it is misleading to do so. Weber acknowledged the historical aspects of his analyses, claiming: “Today legal coercion by violence is the monopoly of the state” (emphasis added). Weber, 1 Economy and Society 314, ed. Guenther Roth & Claus Wittich (Berkeley: University of California Press, 1978).Google Scholar

58 Dworkin, Law's Empire 93.Google Scholar

59 Donald Black, Sociological Justice (New York: Oxford University Press, 1989).Google Scholar

60 Id. at 8; ch. 5 n.5.Google Scholar

61 Id. at 3.Google Scholar

62 Id. at 21-22.Google Scholar

63 Id. at 69-71.Google Scholar

64 Martin Heidegger, The Question Concerning Technology and Other Essays 3-35, trans. William Lovitt (New York: Harper Torchbooks, 1977).Google Scholar

65 Black, Sociological Justice 103.Google Scholar

66 Id. at 4.Google Scholar

67 For more about Black's nihilism, see Constable, Marianne, “Sociological Justice and Jurisprudential Nihilism,” 11 Oxford J. legal Stud. 114 (1991).CrossRefGoogle Scholar

68 For details, see Marianne Constable, “What Books about Juries Reveal about Social Science and Law,” 16 Law & Soc. Inquiry 353 (1991), concerning Harry Kalven, Jr., & Hans Zeisel, The American Jury (Chicago: University of Chicago Press, 1966; rev. ed. (Phoenix Ed., 1970), printed 1971; Midway Reprint Ed., 1986) (“Kalven & Zeisel, American Jury”); Rita J. Simon, The Jury: Its Role in American Society (Lexington, Mass.: D. C. Heath & Co., 1980) (“Simon, Jury”); Reid Hastie, Steven D. Penrod, & Nancy Pennington, Inside the Jury (Cambridge, Mass: Harvard University Press, 1983) (“Hastie et al., Inside the Jury”); Valerie Hans & Neil Vidmar, Judging the Jury (New York: Plenum Press, 1986); Saul M. Kassin & Lawrence S. Wrightsman, The American Jury on Trial (New York: Hemisphere, 1988) (“Kassin & Wrights-man, American Jury on Trial”); and John Guinther, The Jury in America and The Civil Juror: A Research Project Sponsored by the Roscoe Pound Foundation (New York: Facts on File Publications, 1988).Google Scholar

69 The studies variously attempt to get away from “images,”“intuitions and personal experience,”“rhetoric,”“anecdotes,”“a priori guess[es]” and “sentimentality,” and distinguish factual questions from value questions, empirical from political or ethical ones, the actual from the ideal, the empirical from the theoretical.Google Scholar

70 Kalven & Zeisel, American Jury 10.Google Scholar

71 Simon, Jury 147, for instance, mentions that “experts in law” respect the jury's opinion. Hastie et al. look to the record of decided cases to establish a systematic set of principles by which to measure jury performance. Kassin and Wrightsman construct their ideal of how the jury should conduct itself by looking at the opinions of the legal community. They introduce a problem this way: “The courts want juries to comply with their judges' instructions. With that reasonable assumption as a point of departure, we ask: so why do they cling to psychologically unsound methods of communication?” (Inside the Jury 144).Google Scholar

72 See, e.g., E. Allan Lind & Tom R. Tyler, The Social Psychology of Procedural Justice 91-92 (New York: Plenum Press, 1988); E. Allan Lind et al., “In the Eye of the Beholder: Tort Litigants' Evaluations of Their Experiences in the Civil Justice System,” 24 Law & Soc'y Rev. 953 (1990); Tom R. Tyler, Why People Obey the Law (New Haven, Conn.: Yale University Press, 1990).Google Scholar

73 For more direct proposals to replace common sense with social science, see, e.g., Monahan, John & Walker, Laurens, “Social Authority: Obtaining, Evaluating, and Establishing Social Science in Law,” 134 U. Pa. L. Rev. 477 (1986); and Walker, Laurens & Monahan, John, “Social Frameworks: A New Use of Social Science in Law,” 73 Via. L. Rev. 5559 (1987).CrossRefGoogle Scholar

74 Hastie et al., Inside the Jury 15.Google Scholar

75 Kassin & Wrightsman, American Jury on Trial 66, 120.Google Scholar

76 Hastie et al., Inside the Jury 59.Google Scholar

77 Kassin & Wrightsman, American Jury on Trial 66, 119.Google Scholar

78 Taylor v. Louisiana, 419 U.S. 522 (1975).Google Scholar

79 See Batson v. Kentucky, 106 S.Ct. 1712, 1717 n.6 (1986): “We have never held that the Sixth Amendment requires that ‘petit juries actually chosen must mirror the community and reflect the various distinctive groups in the population.’ Indeed, it would be impossible to apply a concept of proportional representation to the petit jury in view of the heterogeneous nature of our society” (citations omitted).Google Scholar

80 I discuss reliability for statistical purposes and its analogy in jury selection more extensively elsewhere. Briefly: first, the pool from which to sample must approximate the population. In recent years, legislatures and state courts have required the expansion of the pool of potential jurors beyond the traditional voter registration lists to driver registration lists, tax rolls, and so forth. Second, every item in the population must have an equal probability of being selected, and each item selected must be selected independently of the selection of any other particular item. In the 1960s and 1970s, specially appointed blue-ribbon juries were abolished. In the 1970s, too, restrictions were placed on judges' discretion to excuse potential jurors before voir dire and to limit possible excuses. In the 1980s, the constitutionality of peremptory challenges or challenges without cause which, in statistical terms, could “skew” the sample came under attack. Finally, a sample must be large enough. In the 1970s, the Supreme Court considered the question of jury size. Turning to social science research, it found “no evidence that the reliability of jury verdicts diminished with six-member panels,” and held six-member juries to be constitutional. Williams v. Florida, 399 U.S. 78 (1970). A few years later, it again turned to “recent empirical data” to declare five-member juries unconstitutional: “the data now raise doubts about the accuracy of the results achieved by smaller and smaller panels. Statistical studies suggest that the risk of convicting an innocent person (Type I error) rises as the size of the jury diminishes. Because the risk of not convicting a guilty person (Type II error) increases with the size of the panel, an optimal jury size can be selected as a function of the interaction between the two risks.” Ballew v. Georgia, 435 U.S. 223 (1977). See Marianne Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law and Knowledge (Chicago: University of Chicago Press, 1994).Google Scholar

81 Plyler v. Doe, 457 U.S. 202 (1982).Google Scholar

82 Id. Google Scholar

83 For examples of the kind of rationality Foucault discusses in “Governmentality” and “Politics and Reason,” see the essays collected in Graham Burchell, Colin Gordon, & Peter Miller, eds., The Foucault Effect: Studies in Governmentality (Chicago: University of Chicago Press, 1991), and Marianne Constable, “Sovereignty and Governmentality in Modern American Immigration Law,” 13 Stud. L., Politics & Soc'y 249 (1993).Google Scholar

84 “Norm” is a peculiar word, whose very different meanings, significantly enough, often seem indistinguishable in the sociology of law. A societal “norm” can indicate an observed convergence of behavior, an average (the “normal”), or acceptance of a rule or a prac-tice as what ought to be done (what is taken as“normative”). See Georges Canguilhem, The Normal and the Pathological 125 (orig. pub. 1966; New York: Zone Books, 1989), discussing Lalande's medical dictionary.Google Scholar

85 Technically speaking, witnesses are to testify about facts (not opinion or law). The most common expert witnesses testify about medical, psychological, economic, and engineering subjects. (Several instances in which testimony by law professors on questions of “fact” concerning (nonforeign) law have also been mentioned to me, although I have not yet verified them.)Google Scholar

86 The best-known defender of law and economics is Justice Richard Posner, author of The Economics of justice (Cambridge, Mass.: Harvard University Press, 1982) and numerous other works. The seminal works of Coase and Calabresi first appeared a good 30 years ago. Since then, articles in law and economics have become common not only in the Journal of Law and Economics and the Journal of Legal Studies but in all of the mainstream law reviews.Google Scholar

87 Balancing tests as such are discussed relatively little in legal journals although they are common in certain areas of law. But see Henkin, Louis, “Infallibility under Law: Constitutional Balancing,” 78 Colum. L. Rev. 1022 (1978); Regan, Donald H., “The Supreme Court and State Protectionism: Making Sense of the Dormant Commerce Clause,” 84 Mich. L. Rev. 1091 (1986); Aleinikoff, T. Alexander, “Constitutional Law in the Age of Balancing,” 96 Yale L.J. 943 (1987); and White, Barbara Ann, “Risk-Utility Analysis and Learned Hand Formula: A Hand that Helps or a Hand that Hides 32 Ariz L. Rev. 77 (1990). Recall the Learned Hand “formula” for tort liability and the balancing of interests in antitrust and areas of constitutional law. A balancing tests implies an “evaluation of interests” such that judgment seems to be the outcome of elaborate cost-benefit analyses of “values.”Google Scholar

88 Alexander Bickel, The Least Dangerous Branch (Indianapolis: Bobbs-Merrill, 1962).Google Scholar

89 Simon, Jonathan, “The Emergence of a Risk Society: Insurance, Law, and the State,” 17 Socialist Rev. 61 (1987). See also Francois Ewald, “Norms, Discipline, and the Law,” 30 Representations 138 (Spring 1990), and for a striking analysis of the emergence of an insuran-tial legal order in France, Francois Ewald, L'Etat providence (Paris: Bernard Grasset, 1986).Google Scholar

90 See Michael Walzer, Spheres of Justice (New York: Basic Books, 1983), regarding the multiplicity of what count as “goods” (or the things of this world that we value) subject to distribution by political arrangements: “membership, power, honor, ritual eminence, divine grace, kinship and love, knowledge, wealth, physical security, work and leisure, rewards and punishments, and a host of goods more narrowly and materially conceived food, shelter, clothing, transportation, medical care, commodities of every sort, and all the odd things (paintings, rare books, postage stamps) that human beings collect.”Google Scholar

91 John Rawls, A Theory of Justice (Cambridge, Mass.: Harvard University Press, 1971) (“Rawls, Theory of Justice”).Google Scholar

92 Roberto Mangabeira Unger, The Critical Legal Studies Movement 99-102 (Cambridge, Mass.: Harvard University Press, 1983) (“Unger, Critical Legal Studies Movement”). In the following pages, most citations to this work are given in parentheses in the text.Google Scholar

93 Rawls, Theory of Justice 27.Google Scholar

94 Unger, Critical Legal Studies Movement 99-102 (without referring to Rawls by name).Google Scholar

95 Singer, 94 Yale LJ. at 66 (cited in note 8).Google Scholar

96 Robin West, “Disciplines, Subjectivity, and Law,” in Austin Sarat & Thomas R. Kearns, eds., The Fate of Law 119, 155, 157 (Ann Arbor: University of Michigan Press, 1991) (“Sarat & Kearns, Fate”).Google Scholar

97 Roscoe Pound, “The Scope and Purpose of Sociological jurisprudence,” 25 Harv. L. Rev. 489, 505 (1912).Google Scholar

98 Austin Sarat & Thomas R. Kearns, “Editorial Introduction,” m Sarat & Kearnes, Fate 5 (“Sarat & Kearns, ‘Editorial Introduction’”).Google Scholar

99 Greenberg also notes the existence of “feminists of color” who work within these and other approaches. See Judith G. Greenberg, “Introduction to Postmodern Legal Feminism,” in Mary Joe Frug, Postmodern Legal Feminism (New York: Routledge, 1992). Frug herself describes four approaches to feminist legal scholarship, distinguishing “sameness” from “difference” scholarship by classifying them as concerned respectively with “equality doctrine” and “equality theory.”Google Scholar

100 See, e.g., Catharine A. MacKinnon, Toward a Feminist Theory of the State (Cambridge, Mass.: Harvard University Press, 1989).Google Scholar

101 See 15 Law & Soc. Inquiry 135-80 (1990), containing a “Review Section Debate” on “Interpretation in Sociological Research.” See also on “post-realism,”Brigham, John & Harrington, Christine B., “Realism and Its Consequences: An Inquiry into Contemporary Sociological Research,” 17 Int'lJ. Soc. L. 41, 55–57 (1989).Google Scholar

102 See Austin Sarat, “Off to Meet the Wizard: Beyond Validity and Reliability in the Search for a Post-empiricist Sociology of Law,” 15 Law & Soc. Inquiry 155 (1990).CrossRefGoogle Scholar

103 Sarat & Kearns, “Editorial Introduction” (cited in note 98).Google Scholar

104 Id. at 4-5. Regarding the vagueness of the meaning of nihilism in current legal scholarship, see note 8 above.Google Scholar

105 Robert Cover, “Violence and the Word,” 95 Yale L.J. 1601, 1602 n.2 (1986).CrossRefGoogle Scholar

106 Austin Sarat & Thomas R. Kearns, “A Journey through Forgetting: Toward a Jurisprudence of Violence,” in Sarat & Kearns, Fate 268.Google Scholar

107 Id. at 270, 269-70.Google Scholar

108 Id. at 272-73.Google Scholar

109 Austin Sarat & Thomas R. Kearns, “Introduction,” in Austin Sarat & Thomas R. Kearns, eds., Law's Violence 3 (Ann Arbor: University of Michigan Press, 1992) (“Sarat & Kearns, ‘Introduction’”).CrossRefGoogle Scholar

110 Austin Sarat & Thomas R. Kearns, “Making Peace with Violence; Robert Cover on Law and Legal Theory,” in Sarat & Kearns, Law's Violence 211 (“Sarat & Kearns, ‘Making Peace’”).Google Scholar

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112 Sarat & Kearns, “Making Peace,” at 214; id., “Introduction,” at 3, 4.Google Scholar

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114 Friedrich Nietzsche, “On the New Idol,”Thus Spoke Zarathustra, trans. Kaufmann (New York: Viking Press, 1954).Google Scholar

115 This is not to say that sociological law is Nietzschean will to power; “life” as Nietzsche understands it when he speaks of will to life as strong will to power is not the same as the sociologist's “social.” The claim is simply that sociological law falls prey to the criticism Heidegger makes of what he takes to be Nietzschean will to power. Heidegger's reading of Nietzsche as such has not been addressed. By contrast with the above, Philippe Nonet in “What Is Positive Law?” 100 Yale L.J. 667, 669 (1990), also identifies legal positivism with the law of the modern age or rather with “the historic movement by which the power of command rises to the rank of supreme source of law,” but shows precisely how Nietzsche is “the thinker and prophet of legal positivism.”CrossRefGoogle Scholar

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