Volume 2, Issue 2
La Loi, La Liberté et La Justice du Chagrin*
Matthew Jay*

ABSTRACT:This article develops some thoughts on law, freedom, justice, hope and grief. Taking an interdisciplinary approach by looking at poetry, painting, Latin and films I utilise Krzysztof Kieślowski’s Trois Couleurs: Bleu, and in particular, the life of its main protagonist, Julie, to explore how the very essence of man makes freedom possible. Heidegger’s theory on Being, first developed in Being and Time and his thoughts on freedom explored in later works, are used as an analytical framework. The essential question is: if man is forever bound by his history, if he is always under the compulsion of law (law eventually takes on the meaning found by Ben-Dor in Thinking about Law), then how is it that man can ever be free? Explored in tandem with this is the ontology of Grief (emphatically with a capital ‘G’), the ‘tragic oppression’ brought about by it and the ‘genuine liberation’ achieved by Hope. The work is a spiral. It is impossible to present it as a straightforward question with a straightforward answer. The ultimate lesson to be drawn from it, however, is that freedom can only occur within the framework of slavery. Man can only be free when he is bound to his historicality. It is only in accepting this and acting truly to oneself that one can ever achieve happiness. What I have sought to do at the same time is show that happiness can only occur at a very human level. The law's obsession with rights and duties, and certain obsessions with selfishness, go far in oppressing man but not in liberating him.

Human freedom is the freedom that breaks through man and takes him up unto itself, thus making man possible.1


Julie was a mother and wife. She was a musician. And she was the protagonist in Krzysztof Kieślowski’s film Bleu. Hers is a story of flight. Flight from her past and into her future. This is ambiguous. Not only is Julie’s journey a tale of escape from a tragedy which befell her, it is a tale of the movement of man through time, of man’s existence in time, indeed, of man’s very being. Bleu is the first film in the Trois Couleurs trilogy which explores the French revolutionary ideals of liberté (Bleu), égalité (Blanc) and fraternité (Rouge). It opens with an incredibly mundane, though beautifully portrayed, motorway trip in some anonymous part of France. Not long after a perfectly average, everyday toilet break that is a mandatory part of every long journey involving a child, the trauma which carried with it such profundity of consequence befell Julie: the car crashes into a tree, killing her child and her husband. It also hospitalises Julie, who attempts to commit suicide but fails: she just cannot bring herself to do it.

Throughout the rest of the film, we witness Julie’s attempts to release herself from her past life. There is some faltering, some imperfection, in all these respects. She sells or attempts to sell everything she owns (save for one blue lamp); she destroys the music her husband composed2 (which makes it into the hands of others); she engages in a one-night therapeutic or hedonistic affair with one Olivier, a man who has always loved her (but who only knows her through her late husband); she reverts back to her maiden name (but lets slip her married); and the examples can be multiplied. We shall see how Julie is an example of what it means that there is something, rather than nothing. But more than this: for Julie’s account is, of course, one of freedom—the bleu of the Tricolore in Kieślowski’s rendering. It is also a story of grief as grief has compelled Julie on to fulfil her life. If man is constantly under the influence of some force or compulsion, what manner of force is this? Is it law? How does this stand towards grief? Although it is difficult to explain at this stage, I shall seek law (or its force, its compulsion) in grief. And if law is compulsion, if man is constantly under the influence of some part of his past, I shall have to ask where freedom and justice reside and how they can ever occur. These are not straightforward questions with straightforward answers but what I shall show is that freedom can only occur within the context of slavery. What Julie teaches above all else is that obsessions with inauthenticity are what oppress man most brutally. The essence of man and the essence of law must be properly recognised if true happiness is ever to be sought.

What is presented here may seem to be a random, eclectic collection of various artworks which are, indeed, examples of my personal taste. We shall read the Odyssey, Aesop, Cowper; we shall look at English peinture; and, of course, we shall watch French cinema. It is in artwork that the world is preserved; it is through art that Man can truly appreciate what it means to be human.3 Do these works represent a cultural bias towards Western Europe? Perhaps. But to attempt a universal picture of man would be too much for we are not in the business of measuring up variables and testing the significance of data. There is also another, more fundamental, response to this objection. If philosophy is to mean anything at all, it must be personal to each who philosophises.4 If it is not a matter of self-questioning, self-discovery, self-thinking, then philosophy can be nothing other than a stale, mortified and pointless endeavour.

I should also explain the title. It may seem strange that a work which is supposed to be presented in English (and is, despite the odd bit of Greek, Latin, German and French) should be entitled by the French language. I am not seeking these concepts—law, grief—in the abstract. Rather, what I am after is how they determine Julie’s fate. ‘[N]one of these themes or phenomena (freedom, etc.) occur intelligibly outside of the events that comprise human lives’.5 So French plays an important rôle. Julie is French and her world is understood by her as a French woman, recently widowed and having outlived her only child; her world is Paris and France; it is the quaint Parisian coffee shops; it is French music; and it is post-Communist European unification (in the broadest sense). So it is Julie’s (French) freedom, law, justice, grief and hope with which we are concerned, and to which we now turn.

Phase the First – Being

We find in Being and Time the radicalisation of the question of being. Heidegger asks not only ‘what are beings?’ but crucially, ‘what is being?’ The answer to this question—the question of the ontological difference—so fundamental to all philosophy and ontologically fundamental, lies in being ‘there’, in Da-sein. Because this concept is central to everything that follows, it is crucial to provide an account of it here.

‘Dasein’ should not be understood as referring simply to individuals. Indeed, as Polt points out, Heidegger uses the infinitive ‘sein’ so as to express constant action.6 One must be particularly on guard against using ‘Dasein’ as a static noun, a danger which especially presents itself when speaking of ‘human Dasein’, or ‘Daseins’ in the plural.7 Should it be necessary, and although there is, of course, no English word that cannot be verbed (including, of course, participles), it might in fact be better to translate it more like ‘is-there’ as opposed to ‘being-there’, as the present participle is akin to a noun and so even this manifests the risk of rigor-mortification. The reason for such warning, before I have even begun my exposition, is not just to avoid providing an inaccurate summary; rather, it is to avoid falling into errancy in our thinking and to avoid taking man as a mere being among beings.

Man has a very special relationship with being. ‘Man is that being in whose ownmost being and essential ground there occurs the understanding of being. Man is awesome in a way that a god can never be, for a god must be utterly other.’8 This is the ontico-ontological priority of man. It is because man understands that he is, and that other things are, that man has a priority over other beings in Heidegger’s analysis. Man is the guardian of being, and being man’s guardian. Man must himself be, and in order to even be able to ask the question ‘what is being?’ man must have at least a primordial understanding of being.9

So what, then, is being? To be is to be-there. The ‘there’ is man’s ‘world’, which is the referential totality of all entities within-the-world and which does not exist without Dasein. In inhabiting a world, which is composed of references among entities, all of which are for-the-sake-of Dasein and its potentiality-for-being,10 man goes about his business understandingly with a view of what it means to him to be an academic, a housewife or so on.11 He projects himself upon his world with historicality and always with a view to the future—he is always already thrown, and is always throwing.12 Mostly, man is quite happy to slip into comfortable average everydayness. It takes some special event, some moment of profound anxiety or cataclysm where man must face his own mortality (the possibility of the impossible, where everything no longer is and where nothing abides),13 to open up for Dasein its true existentiell possibilities.14 In other words, it is in these moments, when nothing seems to matter, when all entities seem to mean nothing, that the meaning of Dasein’s world is revealed to it. Man is left homeless in a sea of infinite directionlessness. Hither is and world order is restored. What is important for Heidegger is that an authentic choice is made.15 To fall back into everydayness, to err in thinking, is to perpetuate forgetfulness of the question of being and to perpetuate a deluded state of being. An authentic choice is made when man makes a choice which fulfils his existentiell possibilities, when he realises the true significance of the fact that he is: and acts accordingly. He becomes the very person it is proper for him to be. He makes the decisions which effectuate his happiness in a way which is peculiarly proper to him.

Though the initial scene of Bleu is brief, we learn enough from this, and from a few glimpses later on, to understand Julie’s former life fully. The car journey is grey and dull. The viewer is subjected to a stream of road-lights reflected off the rear windscreen, which reflects with it the subjection to the everyday which Julie has endured. We later learn that Julie’s husband, Patrice, was a composer; that they had a beautiful country house complete with live-in help; that they were in regular touch with a television reporter; that they had friends (or at least hangers-on); that Patrice had a lover about whom Julie was ignorant. For all we know, her life might not have been boring; but it was certainly for the most part average and everyday: it was mundane. Then this humdrum way is obliterated in an instant. ‘So devoid of meaning everything appears, in fact, that she attempts to commit suicide by stuffing a handful of pills into her mouth – only to find herself unable to swallow them.’16 We can never know what went through Julie’s mind when she attempted—and gave up—suicide but we can see that from then, from some point during her grievance when she realised everything in her world would forever be different, from when everything lost its former meaning, that she legislated afresh.17 Julie’s attempt to escape her grief, which is manifested most strikingly in the odd tear at the beginning and again at the end of the film, is effectuated by attempting to destroy all traces of her former self. And with this, she starts a new life.

This single tear is crucially important. It, along with the quivering of her mouth, the induced asperity of her chin, is one of the very few visible manifestations of her grief, that emotion which has so toyed with her life. So important is the scene that it would be well worth the reader’s time viewing it—not only because it is a beautiful scene depicting sorrow and pain in so touching a way that no other film compares—but also because this tear is a metaphor for the destruction of Julie’s entire world.18

She does indeed fall back into everydayness (witness, for example, the café where she orders a coffee and ice cream ‘comme d’habitude’ and where she is clearly just content) and this highlights another aspect of Heidegger’s saying: that falling into errancy is essential to Dasein.19 Indeed, it would be intolerable to man to have to make only authentic decisions and to be constantly thinking about his being. Julie, however, is persistently shaken as being is constantly revealed to her.20 She is throughout chased by her husband’s memory, by his photographs, by his lover; her sensibilities are assaulted when the only friend she makes comments on the blue lamp; she stops everything when she hears a busker playing her husband’s music. At one point, after learning of her husband’s lover, she seems to attempt to commit suicide again, this time by drowning herself.21 We witness a continuous changing, a continuous sending and withdrawal of being, and a continuous self-appraisal of her own life. Grief compels Julie on to become the woman it is proper for her to be; and all the while, her falling chains her down; in turn, her world suffers yet more quaking.

In his rich analysis of the trilogy, Bert Olivier (the writer) comments on the scene where Julie learns that Olivier (the character) is attempting to finish Patrice’s concert. This is the score she thought she had destroyed. He says it is the only thing to do to cause some response in Julie. Olivier’s (writer’s) interpretation of this is that, ‘[a]s Kierkegaard would say, Olivier is attempting to make Julie realise that, sooner or later, she has to choose, the alternative to which is to “lose” herself. Not to choose, is not to exist. In Lacanian terms on the other hand, Olivier may be understood as trying to help Julie discover her own desire, in contrast to the desire of her alienated self, who attempted to withdraw from the world and society.’22 The first half of this analysis is not apt for Julie. In another film, Je vais bien, ne t’en fais pas,23 Lili returns from Spain to discover that her brother, Loïc, and their father had had an argument so severe as to make him leave home. She fails to find out what had happened, is unable to find him, and falls into a deep depression, the result of which is her starvation and near death. All that saves her is a letter from Loïc. However, we eventually learn that it was her father who wrote the letter and many subsequent ones. In a particularly painful and moving ending, we find out, though Lili does not, that Loïc died in a climbing accident. No argument, no fleeing: just a hiding which not even her new lover would break. The letters from her father, without which Lili recognises she would be dead, are an attempt to make Lili realise she must choose. If she chose not to eat, she would simply die. In her case, not to choose would be not to exist. But Julie made her choice and makes many more. Choosing hermitage is still to exist. Even solitude is a form of being-with others.24 It may not be what Olivier wants and it might not be best for Julie’s self-actualisation. But her world has come to be structured in that way, even if not for long. We can see in Bleu, and in Je vais bien, what Heidegger called a leaping-in or a leaping-ahead in a manner of solicitude.25 The difference between the two films is that Olivier’s is an attempt, as Olivier (author) puts in the alternative, to help her find her true desire, not to prevent her from losing herself and her world.

Phase the Second – Grief and Hope; Their Position in Law

What I seek, in one place, is the ontology of law: it must be grounded in Man for Man is the site of being. In seeking the ontology of law, we must first have in mind some clarifications—some preliminary senses in the ways in which we ordinarily speak of law. We have, in the first place, the paraphernalia of law: physical entities present-at-hand or ready-to-hand within-the-world: statutes printed on the official rolls, the law reports, court houses, parliaments, assemblies, wigs and gowns, and even pens and paper. These are, broadly speaking, the physical equipment of law. In the second place, there are doctrine and legality. These are rights, declaratory utterings of the judges, conduct rendered criminal; these are rights and duties assigned, regulated and adjudged by the legal system.

But law has another meaning, a meaning which I shall explore much more deeply. This has been called a ‘corporal normativity that might, under adequate conditions, give rise to justice’.26 We shall attach to it the word ius. Ius to the Romans had many meanings. It was a right. Thus, one might have ius conubium—the right to marry. One may also have a right legitimised and formalised by authority: ius dicere—the power to pronounce judgment. One might also be ‘in the power’ of another: alieni iuris. Alternatively, ius could mean simply ‘justice’. More recently, ius has also taken on the character of doctrine: ius cogens. Though we shall be leaving these examples, and whatever other meanings the term might commonly carry, aside, ius shall be used because it is, like many Latin words, capable of bearing such diversity of meaning. Ius, to us, is not a connected list of rights, obligations and powers—whether posited or otherwise—or concepts of justice or righteousness, but instead is some sort of force. Law is something which modifies behaviour: it compels, conforms, restricts. On this very broad view, it could be ius—in its compelling character as a ubiquitous force—that compels Julie forward and here, perhaps, lies a hint at the ontological foundations of law and grief.

Man is essentially temporal and goes about his life, authentically or inauthentically, always with a temporal dimension. This is not simply to assert that man exists ‘in time’ and moves from time-point A to time-point B. Rather, it expresses what Heidegger calls the articulated whole of ‘care’ as ‘ahead-of-itself-Being-already-in-(the-world) as being-alongside (entities encountered within-the-world).’27 Man is built with historicality and comes with a host of prior understandings, accumulated from birth, which he projects upon the world. Julie is not just a human being: she is a French woman, a former wife and mother, born with certain hair colour and with a certain colour of skin, educated in a certain way and raised in a certain place. But further: man exists as potentiality-for-being. Those prior understandings are projected by Dasein onto its world always with a view to the future. In moments of authenticity, when she is aware of her own mortality, and when her entire world is shaken to its very foundations by her trauma, Julie can only make a choice as to what she wants herself to become. And she can only do this qua herself, with her historical burden. She can only understand her world as her, with her history and attunement. What is it that forces these decisions? Her grief. The destruction of her world.

If we are to seek the law of grief, or seek law within grief, we shall need to examine this emotion closely. Grief is distinguishable from sadness in much the same way as happiness is distinct from joy. Joy is much more intense than happiness, as is grief vis-à-vis sadness. But this is not merely a matter of degree, for joy and grief are of a different kind to sadness and happiness. Grief is not merely intense sadness. Nor is it depression, anguish or anxiety, though the four may be linked, scientifically speaking.28 ‘Every perturbation is a misery, but grief is a cruel torment, a domineering passion: as in old Rome, when the Dictator was created, all inferior magistracies ceased, when grief appears, all other passions vanish.’29 The home is no longer comfortable, no longer home. Something is missing. Even new experiences are not as they should be for the referents which once made up the world are obliterated. This could be to a more or less intense degree, to a more or less permanent one. Thus we witness the disruption to Cowper’s world when one of his pet hares dies:30

Tamen mortuus est—
Et moriar ego.

Or we can see the utter devastation of the mother in Holl’s Hushed,31 which depicts a grieving mother sat beside her standing daughter in an impoverished kitchen. In front of this sorry pair we see the back of a cot, shaped like a gravestone and of its grim hue. The only inference to be drawn is of infantile mortality.

Or we might consider the same devastation of the wife in Bramley’s A Hopeless Dawn.32 Another domestic scene marked by the loss of a loved one. Another empty room. Through some curtainless windows we can see the sea; within the room, we view a woman, bent over a caring figure and weeping into this other’s lap. The serenity of the dining table taunts the inner turmoil only this woman knows.

What is common is that grief is a reaction to loss, whether that loss be bereavement, as with Julie, the ending of a relationship, or the parting with some part of life held dear.33 As separation,34 grief involves an upheaval, a change. Grief is a robber. It essentially involves the destruction of a former way of life, even of a world. Grief creates disunity in the world. It breaks significance down whilst holding it up. A man grieving knows all too well the object of his love is now gone, but his world is still, in grief, built up around it. The world has split-ends, severed-nerves. Her bereavement utterly changes Julie’s world, rendering it meaningless. As Olivier points out, during the time she spent in hospital, Julie’s world was so meaningless to her that she attempted suicide.35 Only after that moment is order restored and can Julie look forward again.

Does it sound, perhaps, like there is a spec of spes in grief? Possumusne spem inuenire?36 After all, we have characterised Julie’s behaviour as a compulsion from her grief to her future. This temporal projecting is, of course, part of her existential make-up. In looking to the past, does grief, through hope, also look towards the future?

Hope37 by George Frederic Watts depicts an individual atop a globe, blindfolded and chained to a lyre of only one string. She has nowhere to go, nothing to see, and nothing to do but try and play. There is, indeed, much here to be aggrieved about. But Hope is essentially to the future. Hope hopes to make her music. It is to come. And why have hope if all is well? Surely hope only manifests itself when there is something about which to be hopeful. When is there something about which to be hopeful? When something is missing, when there is some disunity in the world. When the lyre is without its full complement of strings. Grief is the perfect opportunity for hope to come about. Being imprisoned on a globe has surely destroyed this figure’s former life. While she clearly understands what music is, what a lyre is, what sight is, what freedom is, these things have been taken from her. Hope is there to make sense of all this: to create the world afresh.

This does not establish, however, an ontological link between hope and grief—I shall not be able to describe this link until the Fifth Phase. It is possible to be hopeful of something without there being any current grief. We can see, however, that hope is given to Dasein to make sense of something. In bringing about some change, or something new, man must be able to understand his world and to imagine what it would be like should the hoped-for be established. Grief robs man of all meaning, Hope restores it. This is illustrated by one of Aesop’s Fables called ‘All Lost Save Hope’:38

Zeus packed all the good things of life in a jar, put a lid on it, and left it in the care of a certain man. Itching to know what was inside, the man lifted the lid. The contents immediately flew up into the air and departed from earth to heaven. Only Hope remained – for she was shut in when he clapped the lid on again.

Mankind only have Hope to promise them recovery of the blessings they have lost.

But not in all instances does Hope prove to be man’s saviour. When Odysseus meets her in the Underworld, Anticlea, his mother, tells him, ‘And I with … grief, I died and met my fate / … [I]t was my longing for you, my shining Odysseus— / you and your quickness, you and your gentle ways— / that tore away my life that had been sweet.’39 Anticlea’s loss deprived her life of sweetness. Her son was her life. Without him, the robbing of Grief rendered her world meaningless in the same way it did for Julie. Yet for Anticlea, there was no Hope. Her world was never restored and re-ordered, even inauthentically. She was left to wander aimlessly and was rendered so lost that she could stave off death no longer.

Without Hope’s intervention, Grief torments in tearing apart man’s world. It may even be a torment not even known to Tantalus, for his torment was to last forever. Anticlea’s was so intense, her world was shaken to such an extent, that she forfeited and was rendered powerless of her essence—she died.40 Is Grief, then, not the same thing as lawlessness of world? and Hope the sheriff commanded to bring before man his meaning? is Hope being? These are questions we must suspend for a later answer.

Phase the Third – Grief and the Possibility of Freedom

Bleu is a portrayal of freedom. Olivier puts through the mouth of the film the question ‘Is it possible to be truly free (liberated) without love?’41 The answer is a resounding ‘No:’ ‘One can only truly be free when one has found love.’42 How are we to understand this? Must man find love to be free? Kieślowski certainly thought not for ‘you immediately make yourself dependant on the’ object of your love.43 But this cannot dispense with the matter, and nor can a simple conception of freedom. We are concerned with Grief and Hope and how they are in respect of man’s being. To properly seek ius in these emotions, we must, for reasons that will only clarify themselves later, also seek freedom.

In very crude terms, freedom can be divided into ‘negative’ freedom from… or ‘positive’ freedom for…. This is the dichotomy Heidegger uses, derived from Kant, as a starting point, in The Essence of Human Freedom44 and is that employed by Olivier in his analysis of Bleu. In fact, Olivier hits on the very issue which prompted me to begin this paper in the first place.45 We have already seen how Julie sells up everything and attempts to move on. But in all these attempts, her past revisits her; or she revisits her past. One particular example upon which Olivier attaches great importance (though the same could equally be said of any instance of Julie’s past’s returning to her) is the blue lamp. ‘[I]t … signals the truth about her inability to free herself from the things that constitute the material world in which we live, in an absolute manner.’46 Man comes to his world with his world in tow. He cannot escape it and he cannot suspend it. Even were he to successfully rid himself of everything prior, to completely abolish his former world, he would only think this possible because of the way he was raised. He would only think it necessary to do this because of something that happened in his former life. Indeed, to use the term ‘former life’ is wholly misleading. There is no sharp break. Even if he were able to sever all links in an instant, he would still be the man he was before and he would still understand his world as himself, albeit an himself who has attempted to escape. How then, can man ever be free? How can man be free from Grief if it is Grief which has pushed him forward? Here we must take a detour into the land of light: into Heidegger’s conception of truth. It is in the battle between truth and untruth where the problem of freedom from… and freedom for… really comes to the fore.

Important, also, is this: I have characterised Grief as some disunity in the world where significance is severed. I have done this at the same time as describing it as something which pushes forward, compels. It is this that brought Grief within the purview of law in the first place. I have also just said how it is impossible to escape one’s past. So how is Grief overcome? The short answer, which I shall magnify later, is that Grief is not something to be overcome. This is not to say that man should dwell with Grief or that he should just put up with it. That would be intolerable and we have already seen how an inability to escape the rupture of Grief drove Anticlea to her death. Rather, it is to say that the essence of Grief is not grieving—or grievance. Grief, as already hinted at and as will be seen more fully, is the disunity of world, it is the way in which being is given to man. It is in moments of Grief that the world breaks down. It is a moment when being is revealed to Dasein, when it is understood what it means that there is something rather than nothing. But this can only occur with Hope. Hope is that which enables Dasein to understand its world anew. Without Hope, the disunity abides. So Grief only pushes and compels in the sense that man is presented with something most unpleasant and something he must escape, if possible. It is the possibility of this escape—man’s freedom—which we shall now consider.

To follow Heidegger’s thoughts on freedom in The Essence of Truth, it is crucial to understand what he is doing. He is, naturally, considering the essence of truth. To do this properly, he must think back to the ancients and he must overthrow modern misinterpretations of them.47 And to do this, he begins with the allegory of the cave in Plato’s Πολιτεία48 and the notion of truth as αληθεια49 —un-hiddenness; α-ληθεια.50 In Heidegger’s interpretation, that which is true is αληθες.51 It is deconcealed.52 We shall have to examine Plato more closely if we are to understand this.

The cave allegory is essentially thus (and is divided thusly by Heidegger):53 (1) There are prisoners in a cave who have been shackled in such a way that they can only look upon the wall in front of them; behind them is a large fire. The prisoners can consequently only see, and only have ever seen from birth, shadows on the wall. (2) One of the prisoners is freed from the cave, sees the light of day but is too dazzled by it, the light is too painful though he has been told that what is before him is now properly unhidden. Yet he scurries back to the cave to what he has always known. (3) A more profound liberation takes place. The man leaves the cave once more, adjusts to the light, learns of beings in their being-ness and learns of the falsity of his former life. (4) The man returns to the cave—it takes time for his eyes to readjust to the darkness and should he try to interpret the shadows with the prisoners, he would be mocked: they would say that he had come back to regain his vision and that the ascent was not worth it.

The allegory is about the way in which beings reveal themselves to Dasein and in this way, there are degrees of being. The shackled prisoners hold the shadows to be ‘more beingful’, more true, more unhidden than anything else. When beings are beheld outside the cave, they become more beingful, more unhidden, to the man. In order to speak of the correctness of assertions about beings, their unhiddenness must be revealed first.54 The first liberation failed because the prisoner did not understand it. He could not ‘be involved’ in his world55 for becoming unshackled of its own means nothing and is not genuine freedom for the prisoner. He is rendered unable to cope because he is unable to make sense of the world. ‘Liberation is only genuine when he who is liberated thereby becomes free for himself, i.e. comes to stand in the ground of his essence.’56 The true measure of freedom is the freedom for being. ‘Genuine becoming free is a projective binding of oneself’.57 Becoming free requires man to bind himself to the truth of world.

Becoming free means understanding beings as such, which understanding first of all lets beings as beings be. Whether beings become more beingful or less beingful is therefore up to the freedom of man. Freedom is measured according to the primordiality, breadth and decisiveness of the binding, i.e. this individual grasping himself as Da-sein, set back into the isolation and thrownness of his historical past and future. The more primordial the binding, the greater proximity to beings.58

In other words, freedom is a genuine understanding of being: the ability to hold up in advance a projection of being and in so projecting, understanding beings in αληθεια.59 ‘To be deconcealing is the innermost accomplishment of liberation. It is care itself: becoming-free … as letting being give the lead.’60

But freedom goes beyond this. Freedom is neither just a matter of being unshackled or being free for…; genuine freedom, rather, means to be a liberator from the darkness of the cave. Freedom is the freedom to differentiate between beings and being and since free man can do this, he will insist on a divorce between beings and what appears to be, between truth and untruth.61 In other words, he will insist on the proper and truthful meaning of his being-there. ‘Freedom consists of accepting the serfdom of attentiveness to the call of actuality of the actual to own-ness, as well as responding to that call.’62 With this in mind, it is possible to fully understand what Heidegger meant when, some years earlier, he said that ‘[e]xperience is the only way in which man has knowledge of beings’63 and thus is the question of finite knowledge, the question of the finitude of existence. It is in the understanding of being, the occurrence of being, where the deepest essence of man’s finitude, and hence his freedom, is to be sought.64 This also explains the first quote at the top of this paper: ‘Human freedom is the freedom that breaks through man and takes him up unto itself, thus making man possible.’65

We have gone to great pains, quoting much of Heidegger’s saying, to fully explain the concept of freedom so that we can properly grasp the possibility of its occurrence in moments of Grief and Hope. Grief disrupts a world suddenly. It may even rob Man of his essence as that which understands being. This is so where the grieving man is unable to restore a world, when he is unable to make sense of it (Anticlea). The references which once built up that world are obliterated and all the attachments are now in relation to something no longer there, or at least no longer there in the former sense. Shackled to Grief, man cannot be free. He is only genuinely free when he is able to stand in his essence. He is only free when he can bring beings into αληθεια. Grief denies man this ability proper. The process of properly deconcealing is what Grief robs of man. Proper and genuine significancing is what Grief robs of man.

Is Julie free? She is free from love; free from her child, her husband; she feels free to free herself from her past life. Of course, she is not free from her past life. This we have already seen. But she is free. Her true liberation arises out of the ashes of Grief. Her liberation occurs when the tormenting, destructive power of Grief is rendered impotent. By being able to make sense of the world around her anew, by quietly withdrawing into obscurity, and re-entering society later on, she is able to bring beings into unhiddenness. She is able to make sense of her loss and make sense of her world without Patrice and her daughter, Anna. Even Lili was liberated. Had she learned that Loïc was dead she undoubtedly would have felt betrayed, hurt, devastated. She would have been aggrieved again. But with Julie, and unlike Anticlea, she is still able to make some sense of what, to her, it means for things to be. World was restored.

What makes this freedom an actuality? If Grief is a situation without sense, a world without world, a place where man is not free to properly make the connections and differentiations essential to his being, a place where man is not free—then what frees him? Surely this must be Hope. For it is Hope which is given to Dasein to make sense of a world where, without it, no sense could be made. Were Grief to run amok, were man to be unable to restore a world, he could not exist as Dasein. In those Grief-stricken moments, the world changes irreversibly and it is down to Hope to light the way to a new order. Anticlea was never freed, for it was Grief that robbed her of her world, and there was no Hope to restore it. She was never able to make sense of her world without Odysseus. Indeed, she was aware of the truth of his being missing; but the disunity and falsity brought about in her world by Grief eventually robbed her of life, also.

Phase the Fourth – Justice, Law and the Legal

Let me recall Hushed and A Hopeless Dawn. In both, a sombre picture is painted. A mother and a wife are grieving over the loss of a loved one. They are surrounded by familiar domesticity: by the cookery and the dining. We can safely presume, being of a former age, that this was their everyday world. The scene is very gentle in both, too, as expressed by the soft light and, in Dawn, a tranquil sea seen through the window. A perfect metaphor these pictures are for ius and Grief. Despite the torment suffered by these poor women, the worlds around them are perfectly ordered (metaphorically by ius). They cannot escape ius for ius is that normativity ever-present based on man’s historicality. But Grief destroys world and, by extension, law. If ius and world can never be escaped, how can this be? Is this not in direct conflict with what I said in the previous Phase? In fact, I have also said that Grief is, like ius, that compulsive force propelling man forward. So many inconsistencies! But not inconsistencies which cannot be overcome. Until now, we have been relying on too simple a notion of ius and must examine it ontologically if we are to truly understand the relationships of Grief and Hope with law.

In seeking ius within Grief, I have not, cannot, make any attempt to delimit the boundaries of ius or distinguish it from any other phenomenon. It is common to hear of extra-legal factors and that considerations of morality, ethics, politics and justice are extraneous to law, other to it. And if this holds, then, surely, aesthetics, art, literature, poetry and other areas of human life are even farther from law. Here the analysis of Oren Ben-Dor is particularly illuminating. The first half of his book Thinking about Law is dedicated to getting at the essence of law. He demonstrates that ‘the essence of law is not legal’ and that the predominant thinking of law as the legal has become entrenched by man’s essential errancy. What is other to law—psychoanalysis, poetry, morality—is only seemingly other. To explain this fully, it will be necessary to explain why the ontology of law is sought in the first place—what it is about law that is so bothering.

‘Law is being pervasively practised. It governs all areas of life, even those that it decides shall be beyond its reach.’66 Why should I obey the law? If I open a text on jurisprudence or the theory of law, I shall find a host of theories of law: we have positivism, natural law, systems theory, Marxism, feminism, realism, Dworkinism, historical and anthropological, and so on, and so on.67 But as Ben-Dor says, these do not solve the problem but are part of the problem for even the most critical legal scholarship anticipates the legal. ‘Going “out” was merely a way of staying in, albeit “critically”.’68 True it is that Ben-Dor is not so much concerned with justifications. In fact, he considers that law is easily justifiable.69 What is especially bothering about law is not whether or not it can be justified. The problem of law’s justification may be our starting point but even concluding that it cannot be justified—if it cannot—will not dispense with the matter. This is because, especially if our preliminary conception of ius is correct, law will still be felt. And just addressing the justification of law, even in an especially critical way, will not get at the actuality of human relationships. ‘The mysterious and turbulent nature of human relationships begged the question of whether the very language used in the law – the moral language of values, rights and duties – went a long way to cover up the actuality of these relationships. … [H]owever much I justified law … the inauthenticity of the enterprise loomed large. That which governs human relationships continue [sic] unabated beneath the façade of representations of jural relations.’70 What is crucial for us is the ontological interpretation of law. ‘[T]hinking about law is not about law’s content but about law’s Being.’71

Earlier I described ius as a corporeal normativity. I did not, it is worth repeating, attempt any sort of distinction between this force and any other aspect of human relationships. Everything that follows in this Phase is the reason why. In everyday thinking about law there is an alterity between ‘law’ and its ‘other’. However, the other of law can be used to challenge law, to destabilise the symbolic order of law. But this is an inauthentic perpetuation of the legal.

Even when critical theories come to deconstruct the content of the law, even to the extent of attempting to see the functions of law as symbolic rather than merely instrumental and definitional, they still resort back to ontic methodology, language and conceptions of truth that embody metaphysics and subjectivity…Even the most critical theories deconstruct a given ontic content of law but they do not deconstruct the distortion that prevails between the Being of law and its ontic determinations. These critical theories do not yet think about the Being of law hidden in their critical accounts whose concealment is perpetuated by those very accounts.72

These theories ‘do not let the Being of law speak.’73 They do this because otherness ‘is not otherness in the sense of being a practice which is completely distinguished from law but rather it is a saying of the Being of law as hazed by the ontic.’74 When aesthetic, moral, psychoanalytical (or whatever) insights are converted into legal ones, they have, before the conversion takes place, already been consumed by ontic, everyday thinking.75 Ontic thinking seeks to differentiate between activities: law, poetry, psychoanalysis. But what if these are not distinct activities ontologically? Could the apparent otherness not actually lie in ontological similarity? After all, it is the being of law we are seeking.76 ‘The Being of law, on the way of the sending of Being, unfolds together with the Being of other beings. They may unfold into a world together, in unity. Being transcends particular identifications, qua beings/practices/activities.’77 This explains why we cannot draw any distinctions between law (ius) and other activities.

‘The essence of law is not legal.’78 To think about (the essence of) law is to think ‘about how the Being of law unconceals itself within the mystery of beings as a whole.’79 For Heidegger, there is no ‘thing’ which is an essence. Instead, ‘[e]ssences are aspects of Being.’80 They ‘connect the “there” of things and the “there” of Dasein.81 The use of the word ‘not’ in Ben-Dor’s formula captures what is concealed in the average everyday thinking of law as the legal.82 It serves to emphasise that the legal is an ontic distortion of the primordial essence of law, that distortion being ‘nothing less than the distortion of Being itself and is the manner in which the ontological difference shows itself.’83 Essences—the essence of truth, language, technology, man—are all woven together in one fugal order. They are not distinguishable from one another as all essences converge on one single thought, that of thinking-being.84 Essences are the primordial ‘there’ of whereat there-is. It is in this sense that essences connect the ‘there’ of things with the ‘there’ of Dasein.

Ius is δίκη,85 which stands for both the fugal order, and a protector-goddess who protects that which is most in need of protection.86 What is it that is most in need of protection? It is the fugal order of essences. It is man in his essence. What needs protection most of all is man’s especial ability to hold out in his essence and to comport himself understandingly to his world. Ben-Dor describes what manner of protection this can be: protection is not only protection as being left unharmed, but also to enable, and also ‘to be decent, to be just, to give what is due.’87 Man is given his due, he is primordially protected, when he is protected in his essence—when he can ‘comport humbly towards the call of Being.’88 When the protection fails, αδικία89 (injustice), as the αδικου,90 presents itself, with an emphasis on the α-. ‘Something is out of joint. … Α-δικία is “not-rightness” in the sense of dis-order.’91 Of course, there being something which is out of joint means there is something which is there; it is just not right somehow.

We can read in Ben-Dor’s interpretation of (in)justice something already very familiar, something we have explored in the context of freedom. Iustitia is the name of the Lady who adorns much of that which is ontic in law. She is the one (like Hope) suffocated by a blindfold. This Lady (by the way) is sometimes also called Θέμις,92 who was the mother of Δίκη.93 Ius(titia), both as ontic and ontological, is she who orders man’s world. Ius is the silent ontological force which enables man to shackle himself to his being. Αδικία is, in contrast, destructive. She disables man. She shackles him down in the most brutal way. While Αδικία reigns, her subjects face the most tragic oppression. They are freed from the jointure of their world; but theirs is a false freedom, for in disjointure, they are held down in a world which is not theirs. They are prevented from holding out into their genuine, authentic world where their being and their self are actualisable.

Phase the Fifth – Slavery and the Possibility of Hope

Jussively binding oneself to being, to essence, to world, is the only way to be free and just. Accepting one’s historicality, one’s identity, one’s thrownness, and projecting that understanding onto the world, understanding one’s potentialities (and one’s limitations), in recognising what it truly means for there simply to be anything—this is how freedom is reified. Reified not in the sense of producing a thing, but in the sense of becoming a part of world. Subjecting oneself to the order of Δίκη (which is the only order of fugal essences) is to be free. Man is both under the power of Δίκη and empowered by her. The most binding force of law sets man free. This is how we can settle my initial qualms: how can we be free if we are forever bound? We can be free then because we are only ever free when we are bound. Not in spite of it.

Grief and Hope are very much a part of the process of the authentic and inauthentic liberation of man and of his authentic and inauthentic binding. This is the ontological link I was searching for earlier. I have said Grief is not something to be escaped. We are now in a position to more fully understand what is meant by this. Grief is part of the process of being; it is what goes to shape the fugal structure, the fugal unity, of a world. More accurately, it is the way in which it is structured. Even more accurately, it is the way in which that structure is torn down and blasted apart. Grief’s robbery is the very worst crime, for, in robbing, Grief commits iniuria. It is paradoxical that the fiercest oppression is the most injural, injurious, the most lawless: when Grief is given flex, man is subdued beneath his essence and is prevented from holding out in it: Δίκη is silenced: α-δικία.

I posited a few connected questions above. Let us recall them: is Grief lawlessness? is Hope lawfulness? is Hope being? Let us now answer them all in the positive with our richer appreciation of how ius is. Grief’s injurious assault upon authentic freedom has the awesome power to combat the gods. The swords of Θέμις and Iustitia are shattered into a thousand pieces and Δίκη buckles under the immense weight of the lost—the auctoritas of Grief. It is, indeed, for Hope to return man to his bondage and to bring his world before him. Hope restores Δίκη to her throne and thus liberates man truly. Hope is being in the same sense that Grief is, only inversely—as Hope, too, is part of the process of being in reshaping and restoring the fugal, iur-al, essences of man’s world.

The Excursive Phase – Hope, Grief and Despair

For all this talk of grief and hope, it is strange that we have not thought to consider despair. As Kierkegaard shows us, there is both to the future and to the past in despair: there is something both to be sought and to be rid of, to be escaped.94 In moments of her grief, Julie certainly despaired so that she wished herself to be dead. Do, then, Hope and Grief play themselves out as despair?

Despair is described by Kierkegaard as a ‘disrelationship’.95 This is a particularly apt description as it is clear that in despair, too, man’s world is brought down around him in the same way we saw with Grief. In despair, the world is insignificant, both in the ontic sense of, ‘nothing really matters’ but also in the ontological, ‘nothing means anything.’ But unlike with Grief, which is essentially outwards towards something no longer present, despair is the despair of the self. The torment of despair is that man is unable to die. ‘When death is the greatest danger, one hopes for life; but when one becomes acquainted with an even more dreadful danger, one hopes for death. So when the danger is so great that death has become one’s hope, despair is the disconsolateness of not being able to die.’96 And because despair is inward, it cannot be said that man is in despair over something else. That is merely the beginning. As Kierkegaard puts it, the young girl who loses her lover is in despair that she is no longer his beloved. If she was, she would have lost herself ‘in the most blissful way’. The torment is that she cannot be rid of herself.97 In grief, the girl despairs. But it is Grief, the destruction of essence and the ascent of Αδικία, which triggers despair. Kierkegaard thought that overcoming despair was the Christian’s advantage over natural man. We can see that it is in fact genuine liberation, achieved with Hope, and in the restoration of the rule of Δίκη, which marks out Da-sein as the measure of humanity. Until Hope restores order, the unruliness of the desperate produces the torment of the impossibility of self-consumption. Rather than playing themselves out in despair, despair plays itself out in the battle between Grief and Hope.


Julie’s is a story of flight. Flight from her past and into her future. This is ambiguous. Julie’s journey is not just a tale of escape from a tragedy which befell her; nor is it just a tale of the movement of man through time, of man’s existence in time, or of man’s being. It is doubtlessly all these things and without a doubt it is also more. When her husband and child are killed, her world is ended by Grief. But though Julie’s experience is tragic, it is the most just. Grief is daunting, overpowering, and undercutting. It seeps into every aspect of man’s world and his perception of it. It destroys his understanding of it. In saying that Julie’s life is the most just, I am, of course, not saying we should aspire to live this way, or that we should all desire Grief. What is just in Julie’s case is that which is absent in Anticlea’s. Hope is given to one, but not the other. Hope is given over to restore Julie’s world. Liberation was in her case achieved. Her suicide is averted and she can make sense, imbue some order, and subject herself to the silent, fugal system of essence.

Her life is also ironic and this represents the greatest irony of freedom, an irony we witness most vividly in connection with the blue lamp. As I recounted at the very beginning of this exploration, Julie, with a newly found ‘freedom’, disposed of all that which comprised her former life. She was, she thought, free for the first time ever. But with an understanding of being, I raised the question of how this can be possible. She is bound to her world and its law, so she cannot be free. This is why she retains the blue lamp: she simply cannot escape her past! What I have endeavoured to show is that Julie is indeed bound to her world. But rather than negating her freedom, this primordial binding is what gave her freedom its possibility. It is in slowly accepting that her liberation is in not being free that Julie can actualise her true self. By understanding the meaning of being, brought about by Grief, and acting truly to herself, Julie experiences the genuine potential of law, justice and liberty—the authors of human happiness.

* The Law, Liberty and Justice of Grief.
* Graduate of Law, University of Westminster
1 M Heidegger, The Essence of Human Freedom (T Sadler tr, Continuum, 2005) (EHF), 94.
2 Haltof points out the irony that, in attempting to withdraw from the world, Julie destroys what was to be a Concerto for the Unification of Europe: M Haltof, The Cinema of Krzysztof Kieślowski – Variations on Destiny and Chance (Wallflower Press, 2004) 126.
3 M Heidegger, ‘The Origin of the Work of Art’ in D Krell (ed), Basic Writings (Routledge, 2003).
4 Although he expressly denies setting up a philosophical message, Kieślowski recognised the importance of freedom ‘on the personal plane.’ ‘And’, he says, ‘that’s why we thought of these films’: K Kieślowski and D Stok (ed) Kieślowski on Kieślowski (Faber and Faber, 1993) 212.
5 B Olivier, ‘Kieslowski’s Three Colours Blue, White and Red: The colours of life’ (2002) 17 South African Journal of Art History 120, 121.
6 R Polt, Heidegger (UCL Press, 1999), 30.
7 At points, Ben-Dor does this, as does Heidegger. I am not saying they are making the error being warned against. Rather, the point is simply that we must recognise and avert the risk of falling into errancy and of forgetting the question of being which Heidegger was at pains to ask.
8 Heidegger, EHF (n 1) 95 (emphasis original).
9 O Ben-Dor, Thinking About Law In Silence with Heidegger (Hart, 2007). See chapter 2 for great detail of ‘Heidegger’s saying’.
10 M Heidegger, Being and Time (J Macquarrie and E Robinson trs, Basil Blackwell, 1962) (BT), 78 - 122.
11 Ibid 67-68.
12 Being-there occurs temporaneously. Each person comes to his world attuned to it by his past, by his historical burden. This past he is always already projecting on the world before any decision is made and he is, as such, always already ahead-of-himself-in-the-world.
13 Heidegger, BT (n 10), 294.
14 The possibility that one may become something.
15 Heidegger, BT (n 10), in part., 312 – 348.
16 Olivier (n 5), 121.
17 The use of the term ‘legislation’ does not import the Kantian meaning of the self-legislation of an original state.
18 K Kieślowski (dir) Trois Couleurs: Bleu (Artifical Eye, 1993).
19 Heidegger, BT (n 10) 210 – 224.
20 Note that to Heidegger, thinking is a constant, hermeneutic cycle: Polt (n 6) 39 – 41.
21 This is interpreted by Olivier in Lacanian or Freudian terms of seeking wholeness with the other, misrecognised as the self and exacerbated by that other’s death: Olivier (n 5) 123.
22 Ibid 125 (citations omitted).
23 P Lioret (dir) Je vais bien, ne t’en fais pas (StudioCanal, 2007).
24 Heidegger, BT (n 10) 156 - 157.
25 Ibid 157 – 163.
26 A Philippopoulos-Mihalopoulos, ‘Mapping the lawscape: spatial law and the body’ (2012) University of Westminster School of Law Research Paper No 12-06, 3.
27 Heidegger, BT (n 10) 237.
28 Scientific understandings are explored, among other understandings of grief, such as the psychoanalytical, historical, the artistic and visual, in J Archer, The Nature of Grief (Routledge, 1999), esp. chapters 2 and 3.
29 R Burton, The Anatomy of Melancholy 6th edn. (6th edn, Tudor Publishing, 1651; 1936 edn), 225-6 as cited in Archer, (n 27) 1.
30 Extract from Epitaphium Alterum in W Cowper, Cowper’s Poetical Works (Ward, Lock & Co, c 1884), 368. My translation: ‘Yet he is dead / —and I shall die.’
31 F Holl, Hushed (1877). An image of this painting, and those below, can be found on http://www.tate.org.uk.
32 F Bramley, A Hopeless Dawn (1888).
33 Archer (n 28) p. 1.
34 This word being understood widely: bereavement is a form of separation, as is being separated from some non-human element of life.
35 Olivier (n 5) 121 – 122.
36 Can we find hope?
37 G F Watts, Hope (1886). Image from http://www.tate.org.uk/servlet/ViewWork?workid=16034 (accessed 26/02/2012).
38 Aesop, Fables of Aesop (S A Handford tr, Penguin, 1954), 158.
39 Homer, The Odyssey (R Fagles tr, Penguin, 2004), 255 – 256.
40 M Heidegger, The Essence of Truth (T Sadler tr, Continuum, 2004) (ET), 61.
41 Olivier, (n 5) 120.
42 Ibid, 126.
43 Kieślowski and Stok (n 4) 215.
44 See in particular Heidegger, EHF (n 1) 4 – 27.
45 ‘The intuition that already thinks and understands haunts, dormant, without words yet capable of hearing, waiting for thought to respond further to it.’: Ben-Dor (n 9) 2.
46 Olivier (n 5) 122.
47 Heidegger, ET (n 40) 6 – 13.
48 Politeia—the Republic.
49 Alitheia—litheia denotes hiddenness, untruth. This negative is negatived with an alpha to give us unhiddenness as truth.
50 Greek orthography has been retained so as to emphasise the particular meaning being sought.
51 Alithes.
52 Heidegger, ET, (n 40) 53.
53 The Greek and an English translation can be found ibid, 18 – 19, 23 – 24, 29 – 31 and 58.
54 Ibid 24 – 26.
55 Ibid 28.
56 Ibid 28.
57 Ibid 43 (emphasis original).
58 Ibid 44 – 45.
59 Ibid 45.
60 Ibid 53.
61 Ibid 66.
62 Ben-Dor (n 9) 157.
63 Heidegger, EHF (n 1) 115.
64 Ibid 115.
65 Ibid 94.
66 Ben-Dor (n 9) 79.
67 For example, J Penner, D Schiff, and R Nobles (eds), Jurisprudence & Legal Theory: Commentary and Materials (Butterworths, 2002) or M D A Freeman, Lloyd’s Introduction to Jurisprudence (8th edn, Sweet & Maxwell, 2008).
68 Ben-Dor (n 9) 5.
69 Ibid 4.
70 Ibid.
71 Ibid 103 (emphasis removed).
72 Ibid 88.
73 Ibid 106.
74 Ibid 105.
75 Ibid 108 – 109.
76 Ibid 111 – 114.
77 Ibid 114.
78 Ibid 119.
79 Ibid 130.
80 Ibid 135.
81 Ibid 121.
82 Ibid 122.
83 Ibid 134.
84 Ibid 136.
85 dike.
86 Ibid 141 and 152 – 3.
87 Ibid 153.
88 Ibid 154 (emphasis added).
89 adikia.
90 adikon.
91 Ibid 148.
92 Themis.
93 Dike.
94 S Kierkegaard, ‘The Sickness unto Death’ in W Lowrie (ed), Fear and Trembling and The Sickness unto Death (Princeton University Press, 1968), 146 – 154.
95 Ibid 149.
96 Ibid 151.
97 Ibid 152 – 153.