"It is an extremely painful thing," writes Kafka, "to be ruled by laws that one does not know." Equally terrible, as so many of his tales remind us, is to submit onself to laws that contradict one another. The modern European liberal ideal of autonomy - the command from outside to be rulers of ourselves-is perhaps the most imperious and terrible such command we know. Nevertheless that ideal has taken hold to such an extent that it often seems a veritable given of natural law. Still, even an entrenched ideal of autonomy cannot dispense with the inevitability of received authority-that is, of a law beyond self-regulation. Within a theory of identity and rights governed by the ideal of autonomy, received authority is inherently problematic; law, so to speak, is illegitimate.
The allusion to questionable filiation in our vernacular use of the word "illegitimate" is indeed germane here. For in psychoanalysis, the oxymoronic notion of illegitimate law, a central modern theory of identity, is traced through a notion of patriarchy, "the Law of the Father." What is seen as illegitimate in patriarchy is its forceful imposition upon weaker children (the theory in fact speaks only of sons), while the authoritative power of law is seen as grounded in guilt at the sons' rebellion against the Father. In perhaps the most common version of Western liberalism's foundation story, the institution of patriarchy is tied to the religion of the Old Testament.
This Article examines the common notion of a shared source and a privileged historical relationship linking Jewish monotheism, patriarchy as a social institution, and the legal systems of modern Western states. I claim that modern critical identifications of ancient Israelite religion as the source of patriarchal repression actually reflect the ideological dilemma of an impossible ideal of individual autonomy. Furthermore, there are fundamental differences between understandings of the nexus among ancestry, text, and subject in Jewishness and in Protestant modernity. While the psychoanalytic notion of "the law of the Father" points toward the centrality of this nexus, it offers a progressivist and supersessionist account that effectively privileges Christianity.
"Another Abraham: Jewishness and the Law of the Father,"
Yale Journal of Law & the Humanities:
2, Article 3.
Available at: http://digitalcommons.law.yale.edu/yjlh/vol9/iss2/3