A Spirit of the Common: Reimaging the Common Law with Jean-Luc Nancy

Abstract

Drawing on an important period of consolidation for the English common law in the early modern period, and the work of contemporary French philosopher Jean-Luc Nancy, this paper reconfigures an understanding of the common law. With a particular focus on Nancy’s work on ontology and community, the paper understands “the common” to be the first question of law. In this account, law comes to be associated, not with the liberal “self” – the supposed bearer of our much celebrated human rights – but, with the on-going, and inoperative, relations that constitute lives lived in common. This radical re-reading of the “common law” offers a corrective to the abstracted and reified language of rights, seeking to return the common law to the ontological, experiential and communal tropes prominent in early modern common law thinking.