Melancholy of the Law
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Melancholy of the Law Przemyslaw Tacik1 Accepted: 6 September 2020 © The Author(s) 2020
Abstract The paper attempts to construct a theoretical account of what melancholy—in a psychoanalytical and cultural sense—may mean for jurisprudence. It argues that the map of relations and displacements between the object and the subject that is associated with melancholy in different psychoanalytical approaches can be fruitfully adopted for understanding of normativity. Based on a thorough re-reading of Freud’s Trauer und Melancholie (Mourning and Melancholy), it suggests that there is an irremovable component of melancholy contained in the primordial act of separation of normativity from non-normative reality. This interpretation is confronted with Kelsen’s Theory of Pure Law in order to analyse in which respect the momentum of self-sufficiency within normativity entails structures of melancholy. Kelsen’s concept of ‘effectiveness’ is proposed as a key link which explains how melancholic withdrawal allows the law to interact with reality. Then the paper discusses Agamben’s theory of applicability and of the state of exception to demonstrate the law’s melancholic trap. Finally, the paper draws on Lacanian and post-Lacanian approaches to melancholy in order to investigate how melancholic momentum is inherent in the very structure of the law’s validity. Keywords Agamben · Applicability · Kelsen · Melancholy · Normativity · Psychoanalysis
Introduction Can the law have its own specific form of melancholy, deeply engrained in the very structure of legality? Or, to venture an even more provocative thought, can this melancholy be a condition of possibility of norm-application? Is there something within the law that makes it melancholic? And, if the link between melancholy and law is something more than an accidental figure of speech, what can the former explain in the functioning of the latter? * Przemyslaw Tacik [email protected]; [email protected] 1
Jagiellonian University in Kraków, Kraków, Poland
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Melancholy and law are not words that often go together. It would be too figurative or too poetical, one might say, to couple them. If they are juxtaposed, as in Jan Klabbers’ recent European Society of International Law contribution (Klabbers 2018), it is usually for the purpose of highlighting the author’s dissatisfaction with the direction that the law or legal scholarship have taken recently; melancholy, there, is nothing more than a term for nostalgic reflection on the lost good times. Alternatively, the combination of the two terms might connote a legal professional’s depression (Silver 2011). There are also some more substantial theoretical accounts of their possible constellations, although not direct ones: melancholy and the law are mediated by a subject that entertains relations with both. In this perspective, Bernard Edelman offered a brilliant reading of Kant’s theory of author’s rights as a protection against an individual’s melancholic folly (Edelman 2007, pp. 59
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