Before the law: Philosophy and literature (the experience of that which one cannot experience) (Franz Kafka, Ronald Dworkin, Jacques Derrida).

摘要

This dissertation aims at showing that a new way for (re)thinking law, democratic politics and justice has to take into account the literary imagination by stressing the complicity between philosophy, law, and literature. Legal theory and adjudication have not only to presuppose but also to be committed to the crisscrossings and interweavings that are at the very basis of their concerns. From a close reading of Kafka's Before the Law this essay shows the paradoxes and aporias that are at the origin of literature, law, and justice and the difficulties they pose for the traditional discourse of legal philosophy, namely, for legal positivism and, then, the need to approach them from different discourses or practices such as Dworkin's constructive interpretation or Derrida's deconstruction and its contamination in the movement of critical legal studies. These latter are possible responses in face of the failure of legal positivism insofar they lead to diverse forms of asking (and answering) the question of law, democracy and justice (as well as the way they are related to each other) and that their theoretical disagreements are not indifferent to their practical (legal, ethical, and political) interventions. From whichever perspective---epistemological, aesthetic, ethical, political, legal---we look at the relation between philosophy, law, and literature we realize that language is what 'crisscross and interweave' it: they are bound to language and language is reassuring and disquieting at the same time. My effort to (re)think law, democratic politics and justice and the 'languages' I chose to do it are, finally, a response---in the sense of taking the responsibility---in face of the plural, conflictual and unequal world we live in.