Kangaroo Courts and the Rule of Law: The Legacy of Modernism 0415598273, 9780415598279

Kangaroo Courts and the Rule of Law -The Legacy of Modernism addresses the legacy of contemporary critiques of language

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Kangaroo Courts and the Rule of Law: The Legacy of Modernism
 0415598273, 9780415598279

Table of contents :
Cover
Title
Copyright
Dedication
Contents
List of Figures
Acknowledgments
1 Introduction
2 The Irony of Law and Literature
The mimetic fallacy
The romantic fantasy
Letting modernism happen – at last
3 1922
Modernism and the crisis of modernity
The romantic turn
Carl Schmitt and the death of the rule of law
4 Enter the Kangaroo
Origin and reception
Introducing Kangaroo
5 The Rule of Law and the Legacy of Modernism
Troubling the rule of law
Two ways to forget history
6 How Kangaroo Rewrote Lawrence
Bakhtin and Lawrence on the ethics of the novel
Text
Texture
7 Reality and Therapy in the Novel
Context: Lawrence’s nightmare and the recovery of memory
Sub-text: The novel as a therapeutic genre
8 Polarity
Antecedents
Analogues
Descendents
9 Thirroul of Law
Narrativity and performativity
Polarity, publicity, and the rule of law
A triangulation
10 Littoral Readings
On the road
On the beach
Bibliography
Index

Citation preview

Kangaroo Courts and the Rule of Law

Kangaroo Courts and the Rule of Law: The Legacy of Modernism addresses the legacy of contemporary critiques of language for the concept of the rule of law. Between those who care about the rule of law and those who are interested in contemporary legal theory, there has been a dialogue of the deaf, which cannot continue. Starting from the position that contemporary critiques of linguistic meaning and legal certainty are too important to be dismissed, Desmond Manderson takes up the political and intellectual challenge they pose. Can the rule of law be re-configured in light of the critical turn of the past several years in legal theory, rather than being steadfastly opposed to it? Pursuing a reflection upon the relationship between law and the humanities, the book stages an encounter between the influential theoretical work of Jacques Derrida and Mikhail Bakhtin, and D.H. Lawrence’s strange and misunderstood novel Kangaroo (1923). At a critical juncture in our intellectual history – the modernist movement at the end of the First World War – and struggling with the same problems we are puzzling over today, Lawrence articulated complex ideas about the nature of justice and the nature of literature. Using Lawrence to clarify Derrida’s writings on law, as well as using Derrida and Bakhtin to clarify Lawrence’s experience of literature, Manderson makes a robust case for ‘law and literature’. With this framework in mind he outlines a ‘post-positivist’ conception of the rule of law – in which justice is imperfectly possible, rather than perfectly impossible. Desmond Manderson is Future Fellow at the Australian National University where he is jointly appointed in the ANU College of Law and the Research School of Humanities and the Arts. His interdisciplinary scholarship in law and the humanities spans legal theory, history, literature, art and philosophy.

Kangaroo Courts and the Rule of Law

The Legacy of Modernism

Desmond Manderson

First published 2012 by Routledge 2 Park Square, Milton Park, Abingdon, Oxon OX14 4RN Simultaneously published in the USA and Canada by Routledge 711 Third Avenue, New York, NY 10017 A GlassHouse Book Routledge is an imprint of the Taylor & Francis Group, an informa business © 2012 Desmond Manderson The right of Desmond Manderson to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. British Library Cataloguing in Publication Data A catalogue record for this book is available from the British Library Library of Congress Cataloging in Publication Data A catalog record for this book has been requested ISBN 13: 978-0-415-59827-9 (hbk) ISBN 13: 978-0-203-12363-8 (ebk) Typeset in Baskerville by Keystroke, Station Road, Codsall, Wolverhampton

To McGill, with love to all my friends there – intra, trans and interdisciplinary

Contents

List of Figures Acknowledgments

ix xi

1 Introduction

1

2 The Irony of Law and Literature

9

The mimetic fallacy 10 The romantic fantasy 17 Letting modernism happen – at last 20 3 1922

25

Modernism and the crisis of modernity 26 The romantic turn 34 Carl Schmitt and the death of the rule of law 41 4 Enter the Kangaroo

52

Origin and reception 52 Introducing Kangaroo 58 5 The Rule of Law and the Legacy of Modernism

68

Troubling the rule of law 69 Two ways to forget history 77 6 How Kangaroo Rewrote Lawrence Bakhtin and Lawrence on the ethics of the novel 92 Text 96 Texture 98

90

viii Contents

7 Reality and Therapy in the Novel

112

Context: Lawrence’s nightmare and the recovery of memory 113 Sub-text: The novel as a therapeutic genre 119 8 Polarity

134

Antecedents 136 Analogues 142 Descendents 147 9 Thirroul of Law

158

Narrativity and performativity 160 Polarity, publicity, and the rule of law 163 A triangulation 168 10 Littoral Readings

178

On the road 178 On the beach 182 Bibliography Index

187 207

List of Figures

1.1 Garry Shead, Thirroul, oil on composition board, 91.5 3 121 cm, 1992. Reproduced by kind permission of the artist. 4 3.1 Otto Dix, Der Schutzengraben (The Trench), oil on canvas, 220 3 250 cm, 1920–23. Lost Art Collection, Sterling and Francine Clark Art Institute, Williamstown Mass. © Otto Dix Estate/SODRAC (2011). 31 3.2 Otto Dix, Lustmord (Sex Murder), oil on canvas, 165 3 135 cm, 1922. Original missing; image kindly provided by Neue Galerie New York and reproduced from Eva Karcher, Otto Dix 1891–1969, ‘Entweder ich werde berühmt – oder berüchtigt’, Cologne: 1992, 70. © Otto Dix Estate/SODRAC (2011). 32 3.3 Gerard David, The Judgment of Cambyses (The Flaying of Sisamnes), oil on panel, 182.2 cm 3 159.4 cm, 1498. Groeninge Museum, Stedelijke Musea, Brugge. Image and permission to reproduce gratefully acknowledged. © Lukas – Art in Flanders VZW. 40 3.4 Magnus Zeller, Der Redner (The Orator), oil on canvas, 152.4 3 198.12 cm, 1920. Los Angeles County Museum of Art, Los Angeles. Image and permission to reproduce from Art Resource Inc. gratefully acknowledged. © Estate of Magnus Zeller/SODRAC (2011). 42 4.1 D.H. Lawrence, Bookplate from Phoenix: The posthumous papers of D.H. Lawrence, New York: Viking, 1938. Photograph © Lysanne Larose, 2011. 52 4.2 Garry Shead, Lawrence and Kangaroo, oil on composition board, 91 3 121 cm, 1992. Reproduced by kind permission of the artist. 58 8.1 Garry Shead, The Wave, oil on composition board, 91 3 121 cm, 1992. Reproduced by kind permission of the artist. 140 10.1 Arthur Streeton, From my camp (Sirius Cove), oil on plywood, 28 3 21.5 cm, 1896. Art Gallery of New South Wales, bequest of Mrs Elizabeth Finley 1979. Image and permission to reproduce from the Art Gallery of New South Wales gratefully acknowledged. 183

Acknowledgments

This book began when I presented a paper to the Legal Intersections Research Centre (LIRC) at the University of Wollongong in 2006. While flying back to Australia – back to Wollongong and Thirroul where I used to live – I decided it was about time I read the one book I knew had been written about the place: DH Lawrence’s Kangaroo, a Penguin paperback first edition of which I had just picked up for £1 in Portobello Road. Of course, £1 was worth a lot of money in those days but still it was a pretty good investment. I was astonished at how intimately the book spoke to all my concerns about law and literature, and about the rule of law in a post-positivist age. I rewrote the paper I was to give, on the plane. In addition to LIRC, versions of this paper were delivered as a keynote address to the Rights, Ethics, Law & Literature International Colloquium organised by Professor Melanie Williams at the University of Wales, Swansea, at the Association of Law Culture and the Humanities Annual Conference in Washington DC and as a seminar to the faculty of law at McGill University. I am immensely grateful for the feedback and response I received there. I am grateful also to my discussions with Roger Berkowitz over the years. His fine book The Gift of Science has been a constant provocation to me, which I hope he will take for the praise it is. Over the past year or so Richard Mohr, Andre Furlani, Rod Macdonald, Colin Perrin and Peter Goodrich have all read detailed drafts and provided extensive feedback – indeed, on occasion quite above and beyond the call of duty. Their generosity and acuity has done much to save this book from some of its more egregious errors and omissions. I remain intensely aware of its many and serious imperfections, its dogmatism and its crudeness, for which I am entirely responsible. I can only say that if this book functions as a polemic, an inducement to response and to resistance, it will have done its job. Modified versions of parts of this book have appeared in ‘Mikhail Bakhtin and the Field of Law and Literature’ in (2012) 8 Journal of Law, Culture, and the Humanities (including parts of chapters 2 and 6), ‘Between the Nihilism of the Young and the Positivism of the Old – Justice and the Novel in D.H. Lawrence’ in (2012) 5 Law and Humanities (including parts of chapter 4, 6, 7, 9), ‘Modernism, Polarity, and the Rule of Law,’ in (2012) 24 Yale Journal of Law and Humanities (including parts of chapters 3, 5, 8, 9), and ‘Modernism and the Critique of Law and Literature,’ in

xii Acknowledgments

(2011) 35 Australian Feminist Law Journal (including parts of chapters 2 and 3). None of these articles corresponds simply to a particular chapter; each takes a specific theme explored at various points in the book and presents them as a coherent topic. I am most grateful to these journals for the interest they showed in my work and for their kind permission to republish it in this book. McGill University has always been a wonderful place to work and its law faculty shows an inspiring commitment to richly various legal scholarship. The stimulation of the university and the people in it, both at the Faculty of Law and through the Institute for the Public Life of Arts and Ideas, has meant a very great deal to me. In addition, I have in the past year been lucky enough to enjoy the subtle research assistance of Lilia Kraus, without whom this book would have stumbled at the final hurdle. I also wish to thank my good friend Colin Perrin whose intelligence and support at Routledge made all the difference, and to Melanie Fortmann-Brown for her skilful editorial assistance. And though it goes without saying, I will say it anyway: on this long journey, the love and support of Jackie and Laurence made every day possible. This work has taken me too long. I hope it is the better for it but I don’t know whether I am. Nonetheless, I have learnt a very great deal in researching and thinking about this book. As I set about turning my notes into a text it grew and grew and spun and turned. I started by situating my reading of the novel in Lawrence’s oeuvre, and then that in the literature of the time and then that in the whole context of modernism and the end of the Great War. Each circle exposed me to a more complex and, I thought, a more interesting web of associations and resonances. This book is an effort to make sense of that web. I have never been more conscious of Derrida’s warning that il n’y a pas de hors-texte: behind every context is another and another, and no place to stop without an arbitrary and indiscriminate violence. So, painfully conscious of that violence, I stop. Desmond Manderson McGill University, Montreal & Australian National University, Canberra March 2012

Chapter 1

Introduction

The sea too was very full. It was nearly high tide; the waves were rolling very tall, with light like a menace on the nape of their necks as they bent, so brilliant. Then, when they fell, the fore-flush in a great soft swing with incredible speed up the shore, on the darkness soft-lighted with moon, like a rush of white serpents, then slipping back with a hiss that fell into silence for a second, leaving the sand of granulated silver. . . . Incredibly swift and far the flat rush flew at him, with foam like the hissing, open mouths of snakes. In the nearness a wave broke white and high. Then, ugh! across the intervening gulf the great lurch and swish, as the snakes rushed forward, in a hollow frost hissing at his boots. Then failed to bite, fell back hissing softly, leaving the belly of the sands granulated silver.1 – D.H. Lawrence, Kangaroo

The little seaside town of Thirroul, Dharawal in the local aboriginal language, sits with the ocean on one side of it and cliffs on the other, 40 miles south of Sydney. I used to live there. This, this, is what the breaking waves are like: what they feel like, what they sound like, their intensity. But the author was not an Australian. David Herbert Lawrence visited the town with his wife Frieda for six weeks in the winter of 1922. It scarcely seems credible that in six weeks he drafted a novel of 150,000 words: veritable torrents of Lawrence. Everything he had seen and thought and heard seems captured here, eloquent and half-digested, from the sounds of the ocean and the silence of the bush to the modes of speech and the brittle humour of those who lived next to them. But Kangaroo is not just a stunning evocation of place. I want to bring this novel – ultimately, indeed, this very passage – to bear on the relationship between literature, justice and the rule of law. The rule of law is a global issue of both theoretical and practical importance. One aspect which has long been of interest to me, and which underscores the discussion of this book, involves the question of what it means to talk about justice in the context of formal legal judgments. This is a critical aspect, of course, of the rule of law: the notion of how judicial decision-making should be understood, the extent to which and in what ways we are right to think of it as constrained, and whether ‘the rule of law’ thus furthers or, on the contrary, inhibits the realisation

2 Introduction

of justice. Justice, it surely goes without saying, involves much broader issues than this, including questions of social, distributive and collective justice. My focus here is the relationship between rules, judgments and justice as one central component of what we mean when we talk about the rule of law. The rule of law is in crisis: on that point, many scholars agree.2 On the one hand, it is imperiled by the resurgence in our politics of a Hobbesian conception of untrammelled sovereignty which insists that the State’s executive power should or must be given free rein in the treatment of those who are considered the nation’s enemies – that is, that the rule of law can and must be ignored by an executive power prior and superior to it.3 9/11, terrorism, security, immigration and refugees provide relatively familiar examples of the phenomenon. On the other hand, the rule of law is said to be imperiled by those many critiques, including postmodernism, relativism and post-colonialism, which have steadily undermined our belief in the orthodox assumptions of legal positivism, according to which rules and laws are clear, certain, objective and therefore capable of constraining such power.4 All this is relatively familiar too. Some indeed allege that these two dimensions, the one political and the other theoretical, are mutually enabling: the undermining of meaning by the latter facilitates its cynical manipulation by the former.5 Eventually, even something as objective as where someone was born collapses in a rhetorical and ideological slurry of claims and counter-claims.6 The theoretical ‘left’ is accused of facilitating the political ‘right’. By working so avidly to destabilise texts and institutions, key movements in contemporary legal theory and philosophy – not just in the recent past but since the dawn of modernism 100 years ago – seem fatally to undermine the tenets of the rule of law. Many scholars, among whom Brian Tamanaha is exemplary,7 simply reject what has been called the ‘post-modern’ critique of the rule of law. They argue that some version of positivism must be maintained if the rule of law is to continue as a bulwark against abuses of discretionary power. Important challenges to conventional approaches to meaning and certainty in law are thus either ignored altogether or attacked on purely normative grounds;8 derided or dismissed just because the rule of law could not withstand such a critique. But this dialogue of the deaf between those who care about the rule of law and those who are interested in cultural, social and legal theory cannot go on – it shows a wilful blindness in the former and dooms the latter to irrelevance. Instead, I start from the position that the critiques of ‘rules’, language and meaning that have been accumulating not just since 1968 but for 100 years or more, cannot be wished away. The challenge – a real political as well as intellectual challenge – is to address more seriously their implications for the rule of law. In rising to this challenge I want to address a major fault-line in contemporary writing in law and the humanities between writers who have been influenced in some ways by Heidegger on the one hand and by Derrida on the other. That is a pretty crude generalisation but it will do. The shared heritage and orientation of these philosophers, their shared distance from the analytic tradition, have largely concealed the fact that they suggest profoundly divergent responses to questions

Introduction 3

about the nature of legal judgment and the future of the rule of law. I want to sharpen the debate and clarify an under-appreciated distinction. The pragmatism that I take from Derrida gives us resources through which to re-imagine the rule of law while Heidegger’s does not. In particular, there seems to me powerful echoes in the latter of a jurisprudential tradition in which the idea of rules would be superseded or perfected by an entirely unbound and unlimited justice. Indeed, as we will see, this idea of justice as something that transcends and opposes the rule of law is common across a wide spectrum of legal writing. We hear it in the cultural study of law, where ‘literature’ is so often the cavalry which arrives to oppose and complete the law by incorporating those ‘essential human insights lost to formal thought’.9 In a lot of other legal theory too, such as in the critical legal studies movement, the word ‘politics’ performs a similar function; ‘politics’ which solves the problem of justice that the various critiques have shown that a structure of legal rules cannot. More recently the word used has been ‘ethics’; again too often a black box which points to something outside of the parameters of legal rules but which can, mysteriously, redeem the law and finally achieve justice.10 Throughout this book, I use the terms ‘romantic’ and ‘romanticism’ to identify this appeal to some transcendent idea or ideal capable of overcoming, exceeding or curing the law. There are then two foils in this book: positivism on the one hand, and the romantic impulse against which it has so often been pitted on the other. Kangaroo Courts asks what it means – particularly in relation to the rule of law – to cleanse our palette of both. In fact these themes and controversies are not new. They converged at a moment in our intellectual and social history that remains critical for any understanding of them: modernism, specifically in the context of the aftermath of the Great War of 1914–18. Modernity and modernism are related, but they are not the same thing. This book considers what has often been called ‘the crisis of modernity’ and attempts to show how modernism – the outpouring of creativity in thought and in the arts which responded in various ways to that crisis – has continuing implications for how we understand the relationship between judgment and the rule of law, and between law and literature. And here, as will become apparent, the influential work of Mikhail Bakhtin and D.H. Lawrence, serve as my lodestars. Neither has received much attention in legal studies. Yet they speak directly to the problem of justice and of judgment in the wake of modernism, and they each endeavour to show the importance of literature in leading us through the very impasse which remains evident today – even in something as mundane as the rule of law. No less than Lawrence in the wake of the Great War, we still face the terrible problem of what to do once we can no longer believe in our old habits of thought: for belief has died though the habit of believing lingers on. This problem is not to be faced by attempting, through an act of will, to resuscitate our old beliefs or romantic notions; but rather by working out how to keep going without them. Lawrence wanted to know if the twentieth century had rendered politics outmoded or irrelevant. I want to know if the rule of law has likewise been rendered ‘quaint’, ‘outmoded’11 or irrelevant.

4 Introduction

Kangaroo Courts and the Rule of Law: The Legacy of Modernism thus reflects my efforts to bring together three questions in legal scholarship which have become increasingly urgent in the last few years: a substantive question – what is the future of the rule of law?; a theoretical question – what is the difference between two main threads in what is now called ‘law and the humanities’?; and a methodological question – is the study of law and literature still relevant? These questions are critically important and interrelated. Each gives us resources to better understand and answer the others. The fundamental question seems to me to be whether we can recast the rule of law in light of the critical turn of the past century, rather than being steadfastly opposed to it. This book tries to build a distinct conception – a truly modernist conception, and ultimately a literary conception – of a post-positivist and post-romantic rule of law. In the process I hope to change how we understand the practice of law and literature, and to reframe what we understand to be the goals of legal judgment. D.H. Lawrence offers an uncanny point of entry into all these interrelated issues of politics, philosophy and writing – indeed a subterranean warren that secretly connects them. That Lawrence was an unusually beautiful writer is not in doubt. But Lawrence’s fertile visit to Australia coincided with an explosive outburst of writing about politics, about psychoanalysis and about literature that placed Lawrence at the heart of the currents of change and anxiety transforming all these

Figure 1.1 Garry Shead, Thirroul (D.H. Lawrence Series12)

Introduction 5

fields. Kangaroo, written in 1922 and published the following year, is the strange and misunderstood apotheosis of this work and this moment: it brings together a theory of literature with a theory of politics and a theory of psychology at a critical juncture in the history of all three: on the very cusp of modernism in literature and just when the search for a way to break through the impasse of modernity was most keenly and widely felt. He saw the crisis of literature and the crisis of authority as interconnected, and he was right. Chapter 2 provides a preliminary overview of the domain of law and literature and argues for its reconfiguration. In some ways the rest of the book is a case study intended to expand the methodology introduced here. Chapter 3 sets Lawrence’s work against ‘the crisis of modernity’ which engulfed the European imagination at the end of the Great War. This crisis, as an aesthetic, a religious, a legal and a political phenomenon, Lawrence saw all too clearly and felt all too keenly. In a very real way, the crisis was for Lawrence personal. Kangaroo, which I introduce in Chapter 4, was the novel he wrote that best attempts to come to terms with it. Chapter 5 sees recent debates about judgment, justice and the rule of law as the aftershock of this cataclysm. In its thorough-going rejection of positivism, recent work whether influenced by Derrida’s ‘Force of Law’13 or by Heidegger and Levinas14 hearken back not only to a shared philosophical lineage via Nietzsche but to all those writers – Simmel, Weber and Collingwood as well as Schmitt, Lawrence and Bakhtin – who during and after the War already saw the limitations and blind spots of positivist thought. At least some of these writers, then and now, came to dismiss the rule of law as a perversion of justice. Yet, while Derrida and Heidegger offer a sceptical argument against the positivist rule of law and both render it vulnerable to attack, there is a crucial difference between them. Although not everyone will agree, this difference lies in Heidegger’s romanticism and transcendentalism as opposed to Derrida’s pragmatism and humanism: the enchantment of the one and the disenchantment of the other. Kindred in many ways, these two strands of contemporary anti-positivist legal theory offer very different resolutions to the problem posed by the critique of the rule of law. Chapters 6 and 7 argue that D.H. Lawrence is a perfect interlocutor between these two trajectories, for Lawrence was neuralgically poised between his romantic temperament and heritage, and his experience of the modern world. No one was more torn between the unquenchable desire for enchantment and the undeniable reality of disenchantment. As a young man he was steeped in German Romanticism, and more particularly the post-Nietzschean New Romanticism whose relationship to Heidegger’s thought is well known. Much of Lawrence’s writing – the more political of the non-fiction pieces and the ‘leadership novels’15 in particular – shows the enduring influence of romanticism on him. But while Kangaroo faithfully depicts those ideas, it recoils from them. Kangaroo may be read as a commentary on the loss of certainty and of belief in orthodoxy, a loss which the Great War had profoundly and disturbingly instilled in Lawrence and his

6 Introduction

generation. The novel may be read as a commentary on the romantic seductions of authority as they both attract and repel its characters. Kangaroo does not disparage the yearning and the despair that grounds the romantic attack on rules: Lawrence lived it and understood it. That is what makes the book so interesting and so relevant. But in the end Lawrence shies away from a politics that appeals to the mystical, a law that unleashes the transcendental. The experience of the Great War, as Kangaroo makes explicit, had made Lawrence as allergic to the new romanticism as he was to the old patriotism. In Chapter 6, I explore the Kehre or turn that Lawrence undergoes in the pages of Kangaroo. With the aid of Bakhtin’s theories of the novel, I argue that literature itself, Lawrence’s understanding of it and the nature and style of his writing, were critical forces in this change of heart. In Chapter 7, I further develop this argument in order to show the ways in which the modernist novel embodies and realises a distinctive relationship to the outside world which allowed Lawrence to explore and critique his own experiences of the war and his own ideas in particular ways. In and through Kangaroo, Lawrence begins to intimate an alternative vision of judgment and justice that was decisively influenced by the currents of post-war modernism and by the perspective of literature. The novel, in its form, style, language and syntax, and in the auto-critique intrinsic to its dialogic and poly-vocal structure, provides the reader and the writer with a transformative vision of justice. Kangaroo records this transformation on the page. The novel does not talk about justice – does not, indeed, mention it at all. Instead, it provides the reader with a literary experience of justice, which the author lived through writing the book, and which changed him as much as it changed his readers. This experience shattered the romantic dogmatism that is the book’s principal foil and hints at ways in which we might still find some meaning in the rule of law despite our having lost faith in the old and rigid ways of defining it. Chapter 8 attempts to describe what kind of alternative path Lawrence, albeit tentatively, imagines. The Lawrence of Kangaroo is most emphatically not a cryptofascist, or a little Englander, or a socialist. He is a writer and the literary experience of the novel is central not only to its design but to its outcome and to the ideas about law and justice it suggests. Lawrence’s views foreshadow Derrida’s themes on the relationship between literature and justice. But Lawrence’s invocation of the key term ‘polarity’, which he gleans from Coleridge and ultimately from Heraclitus, both clarifies this argument and serves more sharply to distinguish his position from that of the romantics and the positivists alike. In the notion of polarity – of the continuance rather than the dissolution or resolution of contradiction – we can discern traces of an alternative understanding, a very modernist understanding, that represent the multi-vocal experience and unresolved contradictions of human discourse not just as the fate of law but as its most important asset. Lawrence’s ‘polarity’ presents judgment in politics, law and literature as genuinely committed to undecidability, corrigibility and constant renewal. Chapter 9 then connects these philosophical and literary ideas back to an idea of the rule of law that is most emphatically neither positivist nor romantic.16 If we

Introduction 7

might understand the orthodox movement of legal thought (both in the twentieth century and the twenty-first) as the effort to heal the relationship between law and justice in some way, polarity refuses to either amputate the relationship or to harmonise it. Polarity instead sees their relationship as antagonistic but nonetheless productive. A rule of law which embraces the spirit of polarity recognizes as inescapable and irrevocable the contradictory directions in which justice pulls, and therefore the necessary imperfection of our decisions. In line with other writers on politics who have been influenced by deconstruction, such as Richard Beardsworth and Simon Critchley,17 I argue that this openness to conversation, revision and to judgment as a process of learning through discourse, does not destroy the rule of law but gives it a new honesty, a new dignity and a new legitimacy. These qualities the old positivism has long forfeited and the new romanticism cannot provide. Like the lapping waves on Thirroul beach, ceaseless movement and chronic instability do not mark the collapse of the rule of law. It is its – and our – predicament and virtue. Law and literature emerges transformed by the insights of modernism and by Kangaroo and, in turn, transformative of our ideas about justice and the rule of law. It provides us with a way to talk about these profoundly important issues, in the absence of old beliefs and myths about them. Due to his intense engagement with the place in which he briefly lived, through the novel’s unusual form, and in its striking meditations on power and authority, Lawrence’s brief sojourn in Australia offers us a theory of justice born of the crisis of modernity and forged in the practice of literature.

Notes 1 D.H. Lawrence, Kangaroo, The Cambridge Edition of the Works of D.H. Lawrence, ed. B. Steele, Cambridge: Cambridge University Press, [1923] 2002, 340. 2 E.g. B. Tamanaha, Law as a Means to an End: Threat to the Rule of Law, New York: Cambridge University Press, 2006; E. Kennedy, Constitutional Failure: Carl Schmitt in Weimar, Durham, NC: Duke University Press, 2004, 3; D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar, Oxford: Oxford University Press, 1997, 218. 3 G. Agamben, State of Exception; trans. Kevin Attell, Chicago: The University of Chicago Press, 2005; M. Gani (ed.), Fresh Perspectives on ‘The War on Terror’, Canberra: ANU Press, 2008; K.J. Greenberg and J.L Dratel (eds), The Torture Papers: The Road to Abu Graib, Cambridge: Cambridge University Press, 2005. Other material on the ‘emergency’ in law, e.g. T. Campbell, Prescriptive Legal Positivism: Law, Rights and Democracy, London: Routledge-Cavendish, 2004. 4 B. Tamanaha, On the Rule of Law: History, Politics, Theory, Cambridge: Cambridge University Press, 2004. See for classic statements of the CLS version of these critiques, the symposium issue of Stanford Law Review 36, 1984. 5 J. Balkin, ‘Deconstruction’s Legal Career’, Cardozo Law Review 27.2, 2005, 719–40 at 719; J. Balkin, ‘Transcendental Deconstruction, Transcendental Justice’, Michigan Law Review 92.5, 1994, 1131–86. 6 J. Corsi, Where’s the Birth Certificate? The Case that Barack Obama is not Eligible to be President, Washington: WND Books, 2011. 7 B. Tamanaha, Law as a Means to an End.

8 Introduction 8 In addition to Tamanaha, see William Scheuerman’s work on Carl Schmitt, in particular W.E. Scheuerman, Carl Schmitt: The End of Law, Lanham MD: Rowman & Littlefield, 1999; and W.E. Scheuerman, ‘Legal Indeterminacy and the Origins of Nazi Legal Thought’, History of Political Thought 17.4, 1996, 571–90. See also J. Gardner, ‘The Legality of the Law’, Ratio Juris 17.2, 2004, 168–81 at 178; A. Marmor, ‘The Rule of Law and Its Limits’, Law and Philosophy 23.1, 2004, 1–43; T. Allan, Constitutional Justice: A Liberal Theory of the Rule of Law, Oxford: Oxford University Press, 2001; J. Waldron, ‘Is the Rule of Law an Essentially Contested Phenomenon?’, Law and Philosophy 21.2, 2002, 137–64; B. Tamanaha, Law as a Means to an End; J. Balkin, ‘Deconstruction’s Legal Career’. 9 M. Williams, Secrets and Laws, London: UCL Press, 2005, 38. 10 M. Diamantides, Levinas, Law, Politics, London and New York, Routledge-Cavendish, 2007; E. Levinas, Autrement qu’être ou au-delà de l’essence, Paris, Kluwer, 1974; E. Levinas, Otherwise than Being: or Beyond Essence, trans. A. Lingis, Pittsburgh, Duquesne University Press, [1974] 1998. This critique I develop at greater length in D. Manderson, Proximity, Levinas, and the Soul of Law, Montreal and Kingston, McGill-Queens University Press, 2006. For all its strengths, Susanna Lindroos Hovinheimo seems to treat ethics in just this redemptive but inexplicable fashion: Justice and the Ethics of Legal Interpretation, London, Routledge, 2012. 11 A.R. Gonzales, ‘Decision re Application of the Geneva Convention re Prisoners of War’ (Memorandum for the President #7), 25 January 2002, in K.J. Greenberg and J.L Dratel (eds), The Torture Papers: The Road to Abu Graib, Cambridge: Cambridge University Press, 2005, 118–19. See also D. Cole, Justice at War: The Men and Ideas that Shaped America’s War on Terror, New York: New York Review Books, 2008. 12 Garry Shead, Thirroul, oil on composition board, 91.5 3 121 cm, 1992. Reproduced by kind permission of the artist. 13 J. Derrida, ‘Force of Law: The Mystical Foundation of Authority’, Cardozo Law Review 11, 1990, 919–1045. Final version in J. Derrida, Acts of Religion, ed. G. Anidjar, New York: Routledge, 2002, 228–98. 14 See, for example, work by Mark Antaki, Marianne Constable, Richard Weisberg and P. Nonet, ‘Antigone’s Law’, Law, Culture and the Humanities 2.3, 2006, 314–35. 15 Leadership novels: D.H. Lawrence, Kangaroo; D.H. Lawrence, The Plumed Serpent, London: Wordsworth Editions, [1926] 1995; D.H. Lawrence, Aaron’s Rod, Charlston, SC: Nabu Press, [1922] 2010. 16 Nor, as in Richard Weisberg’s references to a Nietzschean ‘good code’, some purée of the two: R.H. Weisberg, ‘It’s a Positivist, It’s a Pragmatist, It’s a Codifier! Reflections on Nietzsche and Stendhal’, Cardozo Law Review 18, 1996, 85–96; R.H. Weisberg, ‘Text Into Theory: A Literary Approach to the Constitution’, Georgia Law Review 20, 1985, 939–94; R.H. Weisberg, ‘Nietzsche’s Hermeneutics: Good and Bad Interpreters of Texts’, Cardozo Legal Studies Research Paper No. 99, 2004. Online. Available HTTP: (accessed 5 July 2011). 17 R. Beardsworth, Derrida and the Political, London: Routledge, 1996; S. Critchley, Infinitely Demanding: Ethics of Commitment, Politics of Resistance, New York: Verso, 2008.

Chapter 2

The Irony of Law and Literature

Indeed, practically all metaphors for style amount to placing matter on the inside, style on the outside. It would be more to the point to reverse the metaphor. The matter, the subject, is on the outside; the style is on the inside . . . To treat works of art [as statements] is not wholly irrelevant. But it is, obviously, putting art to use – for such purposes as inquiring into the history of ideas, diagnosing contemporary culture, or creating social solidarity . . . A work of art encountered as a work of art is an experience, not a statement or an answer to a question. Art is not only about something; it is something. 1 – Susan Sontag, ‘On Style’

Before I launch into the textual and historical analysis that will take me several chapters, let me stand back a bit. My argument here has particular ramifications for the law and literature movement. I want to demonstrate in this chapter how, despite its enormous successes in the past generation, this movement continues to be plagued by two enduring weaknesses: first, a concentration on substance and message and, secondly, a salvific belief in the capacity of literature to cure law or perfect its justice. The first fails to question the aesthetic ideal, which goes back to Plato, that the purpose of art is mimetic, that is, to accurately reflect the world. This concern with ‘what’ a particular piece of literature talks about rather than with its voice or style or form, I call the ‘mimetic fallacy’. The second fails to question the aesthetic ideal, central to the notion of romanticism which I refer to throughout this book, that the purpose of art is to heal the world’s wounds.2 The idea that art can save the day or complete the law, I call the ‘romantic fantasy’. In this chapter I will try to show how even some of the best recent work in the field falls into one or both of these traps. Too often in opening a dialogue with law we fail to capture the real experience or worth of literature – a worth irreducible to either the morality it ‘stands for’, or to the coherence or harmony it promises. Indeed, the aesthetic ideals of modernism, which I begin to draw on in this chapter and then explore in more detail in the next, stand exactly against these two claims. Instead, modernism asks us to understand art or literature as an exercise in style, form and language, and in the diversity of voices and perspectives it opens to us. In both ways we might say that modernism rejected the upright aesthetic ideologies

10 Kangaroo Courts and the Rule of Law

of previous eras and opened up the claims of truth and perfection to the destabilising force of irony. While this might seem to weaken the value of the relationship between law and literature – to undermine its claims to find in literature the truth and the salvation of law – I think the opposite is the case. Instead, modernism changes our focus. Now we are asked to pay attention to questions of form, style and genre and to the tapestry of distinct and incommensurable voices the art of the twentiethcentury weaves. Now we begin to appreciate literature as a site of questions not of answers, of the creation of textual doubt and ambiguity not certainty. This is not where its relevance to law ends but where it begins: for justice too might be re-configured not as an object or a closure but instead as a process, an experience and an opening. Ultimately I think that the rule of law needs this idea of literature. But we must first see more clearly what modernism did to our understanding of both. The more you look at it the more the field of law and literature, like a lot of legal theory for that matter, seems to have remained unswayed by the winds of modernism.

The mimetic fallacy Over the past 20 years the law and literature movement has been transformed from an amateur hobby into an intellectual discipline. James Boyd White’s outstanding contributions to its development are well known, and his work did much to draw the attention of scholars and students to the literary nature of legal texts, and to the necessary influence of literature upon them and us. Since then each of the two dimensions of his argument – literature as a way of understanding legal subjects3 and the literary as a way of understanding legal language4 – have been multiply enriched, sometimes from surprising quarters. Many writers have explored the law’s roots in, and enduring if sometimes antagonistic fascination with, rhetoric, myth and literature,5 while a range of continental theorists have been called on to further nourish these discussions.6 Others have been approaching the subject in the opposite direction, as it were, using selected literary texts to enrich our thinking about law and justice.7 In recent years this approach has begun to draw not only on literature but on the protean forms of contemporary cultural production including films, television and the visual arts.8 What is it about a particular work, a film or a story, though, that not only illustrates a particular idea but in some sense proves it to readers? We must be wary of cherry-picking a single poem or story simply because it offers a poetic formulation of this or that point. A different story or film might illustrate quite the contrary, after all. In that regard, the very word ‘literature’, larded as it is with an implicit cultural hegemony, only begs the question. Many writers on law and literature still treat their chosen texts as vessels through which to convey a particular fact or facts about the world. The novel is treated as a dose of social or political medicine sugarcoated in a narrative that sheds light on what it is really like to inhabit the legal

The Irony of Law and Literature 11

problem that the writer is discussing. Perhaps this is a function of the law’s hegemony over literature. Particularly in the hands of scholars within and hence answerable to the discipline of law, literature finds itself continually being translated into terms with which the law is familiar: the language of facts, of proof, and of generalisation and reduction. That which cannot be accounted for in this way – in other words, precisely the elements that make literature ‘literary’ and distinct from other modes of speech – is set aside. The ‘and’ in ‘law and literature’ implies an application and a certain submission.9 Plot and truth I am far from dismissing this strategy. Literature can persuade us of the truth of the world-view it presents not only because the beauty of the writing moves us, but because a novel, for example, affords us unusual depth of understanding into the perspectives and the lives it explores. A novel can transform the way we look at something or someone, providing us with a ‘rich and concrete vision that does justice to human lives’.10 Since it is beyond doubt that legal structures constantly ask of us that we pay attention to the implications of our acts in the lives of others – think, for example, of the doctrine of the duty of care – this justice is of great importance to law.11 Yet over time the result has been that literature has been reduced to various ratio decidendi: Charles Dickens defends imagination against utilitarianism and compassion against legal formalism; Richard Wright and E.M. Forster teach us what it is like to be an oppressed minority in a repressive society; Franz Kafka warns us against the horrors of modern bureaucracy or economy; and so on.12 Over and over again, writers who are very different from each other in terms of their theoretical and philosophical orientation use literature to provide evidence in support of some specific truth-claim. No doubt this is to some extent unavoidable. But one is left anxious about the dangers of treating literature in such an instrumental fashion. Indeed, behind the substantive problem of law and literature – why this novel? – lurks a normative problem – why this novel? If we are interested in a series of propositions or truth-claims about the world, why should we privilege literature at all? Is this really what Dickens or Kafka is ‘about’? Might there not be other stories that offer a different, even an opposite, truth? And if so, who chooses the ‘correct’ work of literature to illustrate a particular argument, and on what basis? Why is Kafka a better authority on modern institutional life than, say, Max Weber or Mary Douglas? At times the effort to shoehorn literature so that it resembles a headnote verges on the farcical. In a famous interchange in the pages of the Harvard Law Review, Robin West claims that Kafka’s stories, such as ‘The Hunger Artist,’ portray the tragic and alienated results of a world in which orthodox legal principles of autonomy and consent are fully realised.13 Richard Posner flatly responds that one can draw no such lesson from Kafka.14 West insists that Kafka is ‘about’ law and Posner

12 Kangaroo Courts and the Rule of Law

responds that law is ‘about’ rules and there are no rules in Kafka.15 In the course of this debate, West and Posner, despite their diametrically opposed positions as to what Kafka really means, share certain assumptions ‘about’ literature. Both are convinced that Kafka does really mean some definite thing in particular. Both focus exclusively on the plots of these stories in order to draw out their conclusions. In the case of Posner, in particular, this leads to some truly awful potted summaries which only a Hollywood producer – or a judge accustomed to reading digests and case notes – could mistake for literary analysis. But West is no less reductive in her own way. At the same time, the debate between West and Posner undermines these assumptions. Despite themselves they show that the real strength of literature lies not in its message but in its openness to multiple interpretations, and to the dialogue with different readers that it inaugurates. Moreover, they unfortunately demonstrate through their discussion just how much of what matters about ‘literature’ escapes a purely substantive and instrumental analysis. In neither case is there any discussion of form, language, style or character – the very things which distinguish literature from a textbook or a law review article. This is not to say that a work of literature never means anything at all but that the effort to reduce it to a lesson – ‘tendentiously looking for support for one ethical or political position or another’ as Posner sharply says16 – seems somehow to miss the point. The literature of literature is all the while slipping through our fingers. West concludes with a plaintive cry for law and literature. Posner insists, and I agree, that he and I live in different worlds . . . There must be a way to cure our mutual ignorance – there must be a way to talk across the descriptive and normative divide. I thought literature might provide that bridge.17 If literature is the ‘bridge between worlds’ that West wishes it to be, and I think it is, it is surely not because of ‘what’ a particular piece of literature says – the ‘mutual ignorance’ it cures, as she puts it – but how. Yet that is precisely what so much writing on law and literature fails to examine. Martha Nussbaum’s Poetic Justice exhibits some of the same failings. This work has been an enormously influential defence of law and literature, and I am a great admirer of both its poetry and its justice. Nussbaum argues for the political and legal relevance of the realist novel as the carrier of that ‘rich and concrete vision’ of the lives of others. According to Nussbaum, by positioning readers as ‘judicious spectators’ who come to care about these individual lives as if they were our own, the novel heightens our sensitivity to the fundamental equality of all human beings, and therefore to the ‘special degree of attention’ owing to those who have ‘suffered unequal disadvantages’ in life.18 Nussbaum’s project is thus to defend the role of the novel in public life. It develops in readers ‘the ability to imagine what it is like to live the life of another person who might, given changes in circumstance, be oneself or one of one’s loved ones’.19

The Irony of Law and Literature 13

But I am not sure that Nussbaum does justice to the distinct character and power of literature. In the first place, one might question whether this acclaimed empathy really helps us exercise judgment at all. In John Galsworthy’s multivolume The Forsyte Saga, for example, our empathy is directed towards some of the most desiccated and heartless exemplars of late Victorian capitalism. As none other than D.H. Lawrence remarked, empathy here seems fatally to undermine our capacity for judgment. In the first volume there is a pitiless irony which might be read as a critique of capitalist alienation. But by the end of the great ‘saga’ the irony has all but disappeared. In extending his pity even to those wretches like Soames who besmirch all they touch, Galsworthy ends up embracing what he set out to scourge.20 Certainly he extends and encourages our empathy – but to what end? Nussbaum’s argument that literature affords us access to the truth of other lives is, I think, more deeply flawed. I would have thought that the essence and value of the novel lies not in its complete identification with the inner lives of others but with the incompleteness of that identification. Mikhail Bakhtin distinguishes between the author, whose voice we hear, and the ‘hero’, about whom the voice speaks. The ‘hero’ is given meaning by being observed from beyond the horizon of his own consciousness, as it were. This distance, this objectivity, far from being an ethical flaw, is an ethical necessity. One must come to understand that it is the other, as an other capable of being justifiably consummated, who constitutes the hero of all the positively valuable determinations of the world as a given . . . It is about the other that all the stories have been composed, all the books have been written, all the tears have been shed; it is to him that all the monuments have been erected; it is only with others that all the cemeteries are filled; it is only others who are known, remembered, and recreated by productive memory.21 In the sense that we are all authors, it is our responsibility to help give meaning and form to the lives of others. This exercise is by no means accomplished by the mere fusing of our consciousness or perspective with theirs. The self, in its life and of course after its death, does not ask the questions that a narrative form imposes. We guide our conduct instrumentally, pragmatically, perhaps morally, but we direct ourselves towards the future and not the past, to the part and not the whole. Such a comprehensive view – a consummation and a justification as Bakhtin says – cannot be given except by the author, never the hero, and from beyond the horizon of our own limited self-consciousness. For Bakhtin the soul is not merely revealed by the novel (or the narrative function which we continually exhibit in relation to others in our daily lives) but created by it. ‘What the other rightfully negates in himself, I rightfully affirm and preserve in him, and in so doing, I give birth to his soul.’22 So narrative is ethical not because we see what the hero sees but because we see what the hero, within the spatial and temporal limits of his own consciousness, cannot.

14 Kangaroo Courts and the Rule of Law

Having merged with Oedipus, having lost my own place outside him, I cease to enrich the event of his life by providing a new, creative standpoint, a standpoint inaccessible to Oedipus himself . . . Within the bounds of a consistently prosecuted ‘expressive’ theory, co-experiencing with or empathizing into a life is simply another experience or a repetition of that life without its having been enriched by any values transgradient to it.23 From Bakhtin’s perspective, Nussbaum’s expressive theory of the novel as a kind of transparent window onto the interior lives of others sells its ethical responsibility gravely short. Above all, there can be no doubt that Nussbaum is extraordinarily selective in the works she chooses to discuss. Her literary choices are strongly oriented towards the very groups and persons that she already thinks we ought to single out for special protection. Charles Dickens’ Hard Times speaks to us of the injustice of poverty, E.M. Forster’s Maurice of the injustice meted out on the basis of sexual orientation, and Richard Wright’s Native Son of the injustice of racial discrimination.24 Each time the characters are brought forth as representatives of those whose disadvantages and discrimination ought to arouse our compassionate imagination; and each time I think it is fair to say that this was part of the author’s purposes. Certainly that is true of Dickens, whose novels were avowedly political and reformist. It is equally true, I think, of Forster who consciously ‘makes a case for equal sexual liberty’ through the story he tells; and also, although perhaps more complexly, with respect to Wright. Surely novels which aim to ‘deal with . . . the most pressing equality issues of our time’25 are a very small and select sub-set of the realm of literature, and hardly makes the case for literature in general. It is hard to see how the vast majority of the canon of English literature fits so neatly into an overtly political reading of the novel as a pedagogical tool for the inculcation of principles of equal concern and respect. Even leaving aside authors such as D.H. Lawrence who avowedly reject Nussbaum’s ideology, what are we to make of William Thackeray’s Vanity Fair, or Emily Bronte’s Wuthering Heights, or James Joyce’s Ulysses, or Virginia Woolf’s To the Lighthouse?26 Does it not at the very least impoverish these books to conscript them into such a single-minded and political reading? If political and social reform is not the reason that most people write novels and it is not the reason that most people read them, then Nussbaum leaves herself open to the charge that she has chosen those books which serve her ideological agenda (worthy as it is) and left the rest. And if she has ultimately chosen her books on the basis of her pre-existing intellectual and philosophical commitments, one wonders why those who do not share her commitments should take their guidance from a sentimental old fool like Dickens, rather than from John Galsworthy or Adam Smith or Milton Friedman.27 In addition to this selectivity, it seems to me that for all the use that Nussbaum makes of them, the characters in these novels might as well be real people speaking about their lives in a documentary. They are introduced and treated as bearers of facts about their condition. Nussbaum is quite explicit about this, describing the

The Irony of Law and Literature 15

novel as a means of eliciting ‘value laden human facts’. Story-telling encourages us to make judgments, she argues, ‘about the industrial revolution, about utilitarianism, about divorce law, about the education of children’.28 A more substantive and evidential approach to literature could hardly be imagined. Although Nussbaum writes of this as ‘literary judging’, every element of the literary seems absent from it. In the hands of Nicola Lacey, for example, the novel provides not evidence of facts about the world as such, but about the cultural representation of the world – the depiction of women and crime in nineteenth-century fiction highlights and helps to constitute shifting attitudes to social and individual identity. Thus Lacey argues that the novel brings into focus the emergence of internal and subjective modes of judgment that were to transform not just fiction but criminal law.29 Lacey is not alone in privileging the novel as a powerful force in the emergence of discourses which have transformed questions of moral responsibility.30 And it is true that the novel, particularly through the nineteenth century, was unusually animated by a set of didactic and moral purposes. But even here, the claim that ‘novels are windows onto the world of criminal justice’31 seems to say both too much and too little. Too much in that it assumes the mimetic authority of the novel to accurately describe the world. And too little in that the focus on plots and outcomes misses, at the level of form and language-use, the very tension between social power and autonomous character which Bakhtin sees as the decisive feature of the history of the novel. Style, form and diversity My criticism of what I have called here the mimetic fallacy – the idea that literature is a straightforward carrier of information – leads me to the conclusion that we need to bring to the task of literary analysis a much greater sensitivity to the dimensions of form and style in works of literature as central elements to our experience and enjoyment of them. Writers on literature have been making this point for a very long time, but it is fair to say that the field of law and literature has not paid much attention. For 100 years, the writers that have written most about literature, and about the novel in particular, have tended to emphasise the same features.32 For Susan Sontag, the obsession with content in the interpretation of art is ‘a hindrance, a nuisance, a subtle or not so subtle philistinism’. Indeed, ‘interpretation’ itself – the compulsion which we might for present purposes call a legal fetish, to reduce an aesthetic experience to a factum and then to formulate a generalisable rule based on it – ‘is the revenge of the intellect upon the world. To interpret is to impoverish, to deplete the world in order to set up a shadow world of “meanings”’.33 While we might wonder whether Sontag’s vision of a completely unmediated access to an aesthetic event is ever really possible, her argument moves towards renewed attention to the role of form in art, towards the sensory experience of seeing or reading, and in place of hermeneutics, an ‘erotics of art’.34 Sontag highlights the importance of form and style in explaining the distinctness and accounting for

16 Kangaroo Courts and the Rule of Law

the power of the work of art. While metaphors for style typically put the style on the outside and the matter on the inside, ‘it would be more to the point to reverse the metaphor’. Style is the soul of the work.35 This is particularly so in relation to the modernists in whom I am particularly interested in this book. One of modernism’s distinctive features was its rejection of the focus on plot and its pursuit instead of what one might call the eternal recurrence of play and form and the priority of voice over event.36 This is what links form with ‘erotics’. The reduction of art to a proposition, while not entirely misplaced, ‘has little to do with what actually happens when a person . . . looks at a work of art appropriately. A work of art encountered as a work of art is an experience’. Despite what Nussbaum says, it does not produce knowledge but rather ‘something like an excitation, a phenomenon of commitment, judgment’.37 Its importance lies in its capacity to produce and extend a desire to act, not by the facts it imparts but by the energy, vitality and expressiveness it conveys. It is not the experience of ideas but the idea of experience which is imparted by the novel; by our encounter and passionate engagement with something singular, autonomous and alive. Thus for Sontag, art does not tell us ‘about’ ‘the’ world: it makes one. The distinction is crucial. First because of the role of formal and stylistic features in making this experience singular, autonomous and alive. Secondly because of the experiential pluralism it accommodates. Thirdly because it is the very irreducibility and singularity of the experience, the constitution of sensibility and engagement itself ‘that nourishes our capacity for moral choice, and prompts our readiness to act, assuming that we do choose, which is a prerequisite for calling an act moral’. Above all, what seems to me missing from mimetic theories of the novel and yet imperative to any proper understanding of its contribution to our ethical life is Mikhail Bakhtin’s account of its ‘poly-glossia’ or polyphony. Since the translation of his major works into English in the early 1980s, Bakhtin has probably emerged as the single most influential figure in the field of literary studies and comparative literature, although he remains rarely discussed in the field of law and literature. For Bakhtin, the novel simply cannot stand for a single position. His idea of ‘doubleness’ draws out both the distinct perspective which each voice and character brings to the novel, and the ways in which their voices at the same time appropriate, quote, modulate and reclaim the voices, terms and language of others. The novel is structured through dialogue and presented as a lengthy exercise in indirect speech: the discourse of the author reporting on the discourse of the narrator reporting on the discourse of various characters reporting on the discourse of each other. The novel is dialogic, not contingently but necessarily; not across any one dimension, but at every level and through their layered interactions.38 It brings to life multiple voices and multiple points of view, the singularity of each voice in the novel coupled with a fundamental other-directedness and commingling. This too seems both distinct from, and at odds with, those who continue to reduce literature to a lesson or a manifesto. This is Lawrence’s point no less than Bakhtin’s. It has been made by writers about literature for most of the past century and it is

The Irony of Law and Literature 17

true even of work as enigmatic as that of Kafka (indeed, Bakhtin’s sense of language as an infinite regress of nested citations lies at the heart of Derrida’s reading of ‘Before the Law’39), let alone in Woolf or Joyce where the problem of multiple voices and perspectives becomes central. This in turn suggests why irony is integral to the novel. What is irony but the play of levels and registers within a text, and the tensions between levels of meaning which thereby undermine the most innocent of speech acts? Irony is the juxtaposition of intentional meaning against a context and causality that remains external to the speaking voice – even, sometimes, to the voice of the author – and thereby destabilises the meaning of a text. Irony cannot be reduced to the content of a novel or the meaning of the words of a text since it is always situated outside that framework and transcends those words. Yet in relation to irony too we find a constitutive feature of the novel strangely lacking in much of the reading of law and literature.

The romantic fantasy Literature as completion This lack of irony brings me to the second problem to which I referred earlier: the romanticism of law and literature. No longer tied to aesthetic theories of mimesis, the romantic poet sought instead ‘the spontaneous overflow of powerful feelings’ through which the accurate depiction of the outer world would be replaced by the accurate depiction of the inner.40 For the Romantics, artistic creation was envisioned as the privileged agent of Hegelian dialectic, through which diametrically opposed aspects – the soul and the world, law and life, love and reason – could be knit together in a more perfect union.41 Indeed, Hegel is generally considered the very apotheosis of romantic philosophy precisely because the dialectic, and the Absolute Spirit it channels, moves us steadily towards a transcendence, an overcoming of difference, and a new plenitude. ‘Romantic philosophy’, wrote M.H. Abrams in his authoritative work on the subject, ‘is thus primarily a metaphysics of integration, of which the key principle is that of the ‘reconciliation’ or synthesis of whatever is divided, opposed, and conflicting’.42 Carl Schmitt, who for reasons that will become apparent in the next chapters is one of the central protagonists of this book, wrote a remarkable book on romanticism in 1919.43 It is a book dripping with contempt for the dreamy naïveté of romantic utopianism. For Schmitt, romanticism is not a matter of things – the sublimity of the mountains or a sunset – still less of politics as such – for the revolutionary and the royalist have each claimed the protection of its mantle. The romantic is a subject not an object.44 What characterises this subject is his refusal, faced with the inevitable conflict and disputes of this world, to make a decision. Instead, the romantic looks for an escape: into commonalities and conversation which will spontaneously heal these differences; into a ‘higher third’ or transcendent realm which will resolve all antipathies (the echoes of Hegel are self-evident); and

18 Kangaroo Courts and the Rule of Law

above all into a world of private and subjective feeling in which decisive political action is repressed for the sake of ‘a metaphysical narcissism’.45 The romantic wants to be mastered, to be ravished, but will do nothing to bring it about. Instead, he retreats to his own feelings in which the reconciliation of the world can be accomplished in a purely aesthetic way. Romanticism is thus not a choice or an action but an affective response to what is going on around it.46 It amounts to a retreat to a self-directed perfectionism, a state of pure possibility ‘without decision, without a final court of appeal, continuing into infinity’.47 ‘Limited reality is empty, a realized possibility, a decision that has already been made; disenchanted, disillusioned, it has the dull melancholy that a lottery ticket has after the drawing.’48 If to be human is to choose, the romantic like Bartleby the Scrivener in Melville’s story, prefers not to.49 Schmitt is not alone in connecting romanticism to romance and the roman, and thus to the role played by fiction and imagination both in rewarding the intensely private feeling of the reader and in absorbing without ever confronting all substantive oppositions and differences.50 With Schmitt’s opposition between politics and literature in mind, perhaps we can begin to see why the field of law and literature, even in work as astute as that of Ian Ward, should continue to be infused with a highly romantic worldview, the problem of difference solved by rhetorical claims to balance or transcendence. W.H. Auden’s September 1 1939, for example, written on the day that World War II broke out, is a notoriously problematic poem. In later years the poet was so ashamed of it that he said it was ‘infected with an incurable dishonesty’.51 How indeed are we to take seriously its infamous last line – ‘We must love one another or die’ – except as a counsel of irony or despair?52 What, after all, could be less true or less decisive? Yet Ward is not alone in reading it straight, as the bromide by which romantic humanism, in particular the recourse to literature, will unite law’s ‘reason’ and literature’s ‘fancy’.53 In the work of Ian Ward we see the romantic impulse very clearly: he thinks we can ‘rebalance’ the dichotomy of legal ‘sense’ and literary ‘sensibility’54 and thus complete the Enlightenment project of ‘justice’. In the name of a strikingly inclusive rhetoric – ‘justice and compassion’, ‘genuine democracy and the philosophy of universal love’ and much more besides – everyone from J.S. Mill to Nietzsche, Heidegger and Derrida are welcomed into the broad church of his project.55 Above all, Ward’s work shows the enduring power of the romantic dream in which the poet’s higher ‘sensibility’ will dissolve our oppositions and tensions and usher in a new world order of ‘justice’. In many other writers we see versions of the same dream. Literature becomes for legal discussions a supplement in the strict sense of the ‘other’ of law that will cure it by supplying the ‘essential human insights lost to formal thought’.56 As Bradin Cormack puts it, we maintain the tenacious dichotomy that has limited the field’s interdisciplinary potential ‘by perpetually casting the relation as some version of that between law and life, rule and exception’.57 Literature is imagined as both the opposite of law and its salvation. Within law’s hegemonic expectation that literature prove itself useful in law’s terms, literature is relied on in the same way that equity

The Irony of Law and Literature 19

used to be. It is law’s rescue and completion,58 its recipe for a perfect Aristophanic love.59 Literature as incompletion I am well aware that this picture of recent scholarship is by no means complete. A lot of recent work has begun to see literary and legal ideology through the lens of history or psychology as mutually constitutive forces rather than suppletive opposites. Such work has argued that Shakespeare, for example, was a force in the emergence of an island rhetoric of English sovereignty over the seas; or that Blackstone’s imagery of the common law as a ‘Gothic castle’ was not mere metaphor but indicative of a fundamental moment in the emergence of literary and legal modernity.60 That is why I think the historical situation of Lawrence’s literature in relation to the politics he writes about is of critical importance to his relevance. In Wai Chee Dimock’s recent book we find a persuasive argument for literature not as the completion of justice but rather as its incompletion. For Dimock, literature not only critiques justice, but points towards our fundamental inadequacy to realise it. Literature itself confesses and demonstrates this inadequacy not only in its subject matter but through its excesses of signification and its interpretive openness. Dimock draws our attention to how often the novel multiplies and contradicts perspectives, interrogates and casts doubt on its own judgments.61 While the dream of justice, and of Kant, is to ‘knit together’ guilt and pain: what the novel achieves, fitfully but also quite faithfully, is the obverse of that phenomenon: a sundering of that fated couple, guilt and pain . . . Unreflexive of guilt, unpunitive of guilt, and most troubling of all, unexhausted by guilt, pain will henceforth occupy a special place in the novel.62 On such a view, while literature may well interrogate law and justice, it is nonetheless ruthlessly unassimilable to it.63 This seems much closer to the twentiethcentury’s experience of literature – a literature of fragmentation and indeterminacy, of voice and singularity, in which a kind of justice is achieved not by unification or redemption but by the sundering of a specious unity. ‘It is precisely the diversity of speech, and not the unity of a normative shared language, that is the ground of style’ in literature.64 This is why Bakhtin was so interested in the carnivalesque novel, for it depicts a life-world irreducible to any one scheme of justice. Imperfection, diversity and incompleteness are literature’s antidote to the romantic fantasy of balance and unity. Irony again turns out to be an essential component of this understanding. For Bakhtin the necessary consequence of the novel’s doubleness and polyphony is to continually ‘bring . . . different languages in contact with one another’.65 Irony resists any final closure. Now it is true that Schmitt sees irony as the essential pose of the romantic in that it distances his feeling from any commitment or responsibility to act. But as he carefully points out, romantic irony is directed towards the world and never towards the self.66 A self-critical irony

20 Kangaroo Courts and the Rule of Law

destroys the romantic horizon of one-ness and purification. It preserves the possibility, through the slightest juxtaposition and allusion, of new and unforeseen meanings by which to revisit the past, to re-open a memory, to cast doubt upon a judgment. Irony disrupts causality, certainty and law. It opens interpretation to an authority beyond the characters and beyond the author, transversal to time, subversive to power.67

Letting modernism happen – at last The two problems I have pointed to – the substantive or mimetic fallacy and the salvific or romantic fantasy – result in a strange paradox. Legal positivism clings to a time before the crisis of modernity shook law’s claims to the certainty and objectivity of the written text. Yet much of the work of ‘law and literature’, although steadfastly pitted against this theory, clings no less to a time before the crisis of modernity shook literature’s claims to a determined and complete textuality. In each discipline it is as if we remain wedded to the nineteenth century, as if the crisis and divorce of meaning by modernism never happened. Ironically – and doubly so since irony is what neither pay much attention to – law’s study of law and law’s study of literature are united by shared textual and interpretive assumptions. Under legal orthodoxy’s demand for a substitute that satisfies the same functions as the original – that is, for a legal system that will achieve the same ends if by different means – the field of law and literature has sought to replace one pure theory of law with another, to replace a parthenogenic whole with an aristophanic one. The two projects become mirror images of one another, products of the same time and the same world-view. The crisis of modernity has touched neither. We think of law or justice as a destination; as a place or a result which we have either reached, or not. But literature is a journey; an activity, a process, a way of speaking that acts on us and through us. To reduce literature to some moral lesson is to fail to see what it is really about. We remember how we were and how we felt when we read a particular novel much more than we remember what it was about. It transforms us by becoming an agent in our lives rather than a principle we memorise or an end-point we reach. The field of law and literature has typically responded by transforming literature itself into an end-point. In that way, ‘law and literature’ tends to reduce chosen works of literature to information about certain policies and certain goals, just as justice is thought to be so reducible. As we have seen this approach is ultimately self-defeating because it misses the experiences and ambiguities that bring us to literature in the first place. If we were to begin thinking of legal judgment as a journey and not a destination, we would begin to see how law and literature are already connected to each other, already speaking not about the same thing, but in the same mode as it were. Kangaroo is a case study. It does not talk about how literature changes us – it shows us, because it records how Lawrence himself changed under the very pressure of the experience of literature that writing the novel instilled in him. Kangaroo proves

The Irony of Law and Literature 21

that literature is a mode of doing justice, and justice, in turn, is a mode of doing literature. It has been said of Lawrence’s work, and of Kangaroo in particular, that ‘the form of the novel has to take the shape of the search’. I will argue that this is true of justice too: it must take the form of a search.68 Law does not and cannot provide us with answers and certainties but with questions and uncertainties. Such an idea of justice and of literature as enobling a ceaseless quest is entirely unfathomable to those who would reduce either or both of them to movements of resolution or to mere problem-solving tools. But this connection between literature and justice would surely find sympathy with Lawrence at least, who fought his whole life to ‘extricate himself from the limited role assigned him as a novelist: that of a man credited with a great imaginative understanding inside the confines of his art but whose truth is immediately disqualified the moment he attempts to extend its relevance into the living world’.69 This is another reason why Lawrence is such a promising candidate for our attention. Here is a writer whose historical and philosophical position make him uniquely suited to explore issues of justice and politics; and a writer, moreover, who was acutely sensitive to the problem of explaining why anyone should pay attention to a novel. Lawrence was also searingly engaged throughout his work with the whole literary and theoretical tradition in which he situated himself.70 Yet, as far as I know, not a single scholar of law and literature has written a word about D.H. Lawrence. For all its flaws, Kangaroo is both the most jurisprudential of his novels and the most animated, indeed driven, by the question of what literature as a mode of human experience might contribute to our understanding of these themes. In short, Lawrence’s Kangaroo will prove to be ‘law and literature’ avant le lettre.

Notes 1 S. Sontag, ‘On Style’, in Against Interpretation and Other Essays, New York: Picador, 2001, 15–36, at 17–21. 2 M.H. Abrams, The Mirror and the Lamp: Romantic Theory and the Critical Traditions, Oxford: Oxford University Press, 1953. 3 See J.B. White, Heracles’ Bow: Essays on the Rhetoric and Poetics of the Law, Madison: University of Wisconsin Press, 1985. See also J.B. White, Justice as Translation, Chicago: The University of Chicago Press, 1990. 4 J.B. White, The Legal Imagination: Studies in the Nature of Legal Thought and Expression, Boston: Little, Brown & Co, 1973. 5 Peter Goodrich and many who have followed in his footsteps – Adam Gearey, Melanie Williams, Peter Rush and some of my own work amongst many others. P. Goodrich, Oedipus Lex: Psychoanalysis, History, Law, Berkeley: University of California Press, 1995; P. Goodrich, Law and the Postmodern Mind: Essays on Psychoanalysis and Jurisprudence, Ann Arbor, MI: University of Michigan Press, 1998; P. Goodrich, Legal Discourse: Studies in Linguistics, Rhetoric, and Legal Analysis, New York: Palgrave Macmillan, 1987; P. Hanafin, A. Gearey and J. Brooker (eds), Law and Literature, Oxford: Blackwell Publishing, 2004; A. Gearey, Law and Aesthetics, Oxford: Hart Publishing, 2001; A.T. Kenyon and P.D. Rush (eds), An Aesthetics of Law and Culture: Texts, Images, Screens, Oxford, Elsevier, 2004; D. Manderson, Songs Without Music: Aesthetic Dimensions of Law and Justice, Berkeley: University of California Press, 2000.

22 Kangaroo Courts and the Rule of Law 6 J. Derrida ‘Before the Law’, in J. Derrida, Acts of Literature, ed. D. Attridge, New York: Routledge, 1992, 181–220; J. Derrida, ‘Force of Law: The Mystical Foundation of Authority’, Cardozo Law Review 11, 1990, 919–1045; J. Derrida, Acts of Religion, ed. G. Anidjar, New York: Routledge, 2002; P. Legendre, Law and the Unconscious: A Legendre Reader, ed. P. Goodrich, London: Macmillan, 1997; E. Levinas, Totality and Infinity, trans. A. Lingis, The Hague: Martinus Nijhoff, 1969; P. Ricoeur, Interpretation Theory: Discourse and the Surplus Meaning, Fort Worth, TX: TCU Press, 1976; O. Abel, Paul Ricoeur: la promesse et la règle, Montreal, QC: Renaud-Bray, 1996; D. Manderson, Proximity, Levinas, and the Soul of Law, Montreal and Kingston: McGill-Queens University Press, 2006, amongst others. 7 B. Thomas, Cross-examinations of Law and Literature: Copper, Hawthorne, Stowe, and Melville, Cambridge: Cambridge University Press, 1991; R. West, ‘Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner’, Harvard Law Review 99, 1985, 384–428; I. Ward, Shakespeare and the Legal Imagination, Oxford: Butterworths, 1999; K. Dolin, Fiction and the Law: Legal Discourse in Victorian and Modernist Literature, Cambridge: Cambridge University Press, 2009; M. Aristodemou, Law and Literature: Journeys from Her to Eternity, Oxford: Oxford University Press, 2000; M. Nussbaum, Poetic Justice, Boston: Beacon Press, 1995; N. Lacey, Women, Crime and Character: From Moll Flanders to Tess of the D’Ubervilles, Oxford: Oxford University Press, 2008. 8 Law and film: W. MacNeil, Lex Populi, Stanford CA: Stanford University Press, 2007; A. Sarat, L. Douglas and M. Umphrey (eds), Law on the Screen, Stanford CA: Stanford University Press, 2005; L. Moran, E. Loizidou, I. Christie and E. Sandon (eds), Law’s Moving Image, Abington: Routledge-Cavendish, 2004. For examples of visual arts, see A. Young, Judging the Image: Art, Value, Law, London: Routledge, 2005; C. Douzinas and L. Nead, Law and the Image: The Authority of Art and the Aesthetics of Law, Chicago: The University of Chicago Press, 1999; O. Ben-Dor, Law and Art: Justice, Ethics and Aesthetics, Abington: Routledge-Cavendish, 2011. 9 S. Felman, ‘To Open the Question’, Yale French Studies 55/56, 1977, 5–10, at 6–9. Online. Available HTTP: (accessed 5 July 2011). 10 M. Nussbaum, Poetic Justice: The Literary Imagination and Public Life, Boston: Beacon Press, 1995, 81. 11 See D. Manderson, Proximity, Levinas, and the Soul of Law. A particularly good example of the use of literary language in developing a persuasive legal argument can be found in Chester v Council of the Municipality of Waverley (1939) 62 C.L.R. 1 per Evatt J (diss.) [Chester]. 12 M. Nussbaum, Poetic Justice; R. West, ‘Authority, Autonomy, and Choice’. 13 R. West, ‘Authority, Autonomy, and Choice: The Role of Consent in the Moral and Political Visions of Franz Kafka and Richard Posner’, Harvard Law Review 99, 1985, 384–428 at 384. 14 R. Posner, ‘The Ethical Significance of Free Choice’, Harvard Law Review 99, 1985, 1431–4. 15 Ibid, 1433. 16 Ibid, 1435. 17 R. West, ‘Submission, Choice, and Ethics’, Harvard Law Review 99, 1985, 1449–56 at 1455–6. 18 M. Nussbaum, Poetic Justice, 81–7. 19 Ibid, 5. 20 D.H. Lawrence, ‘Introduction to These Paintings’, in E.D. McDonald (ed.), Phoenix: The Posthumous Papers of D.H. Lawrence, New York: Viking, 1936, 551–86 at 542. As to the loss of irony, there are complex reasons why this is so but the same phenomenon can be observed in almost any American television series or comedy. As our empathy for the characters builds up, our interest in their emotional life begins to take over from the

The Irony of Law and Literature 23

21 22 23 24 25 26

27

28 29 30

31 32

33 34 35 36 37 38 39 40 41

plot-lines or themes of the series. Almost invariably a series that goes on too long succumbs to a fatal dose of sentimentality and a loss of ironic distance: M*A*S*H, Buffy and Grey’s Anatomy are three typical instances of the phenomenon. See also J. Galsworthy, The Man of Property: First of the Trilogy (The Forsyte Saga), London: Penguin, [1906] 1969; J. Galsworthy, To Let, vol. 1921, part 1, New York: C. Scribner’s Sons, 1921; D.H. Lawrence, ‘John Galsworthy’, in Selected Literary Criticism, ed. A. Beal, London: Heinemann, 1955, 118–27. M.M. Bakhtin, ‘Author and Hero in Aesthetic Activity’, in M. Holquist and V. Liapunov (eds), Art and Answerability: Early Philosophical Essays, trans. V. Lipunov, Austin: University of Texas Press, 1990, 4–256 at 111. Ibid, 129. Ibid, 71. C. Dickens, Hard Times, ed. P. Schlicke, Oxford: Oxford University Press, [1854] 2008; E.M. Forster, Maurice, London: W.W. Norton & Co Ltd, [1972] 1993; R. Wright, Native Son, New York: Perennial Library/Harper & Row, [1940] 1966. M. Nussbaum, Poetic Justice, 97–9. W.M. Thackaray, Vanity Fair: A Novel Without a Hero, ed. J. Carey, London: Penguin Books, [1847] 2001; E. Bronte, Wuthering Heights, ed. I. Jack, Oxford: Oxford University Press, [1847] 2009; J. Joyce, Ulysses, London: Penguin Books, [1922] 2000; V. Woolf, To the Lighthouse, ed. D. Bradshaw, Oxford: Oxford University Press, [1927] 2006. C. Dickens, Hard Times; J. Galsworthy, The Man of Property; A. Smith, The Wealth of Nations: Books 1 to 3, ed. A. Skinner, London: Penguin Books, [1776] 1982; A. Smith, The Wealth of Nations: Books 4 to 5, ed. A. Skinner, London: Penguin Books, [1776] 2004; M. Friedman, Capitalism and Freedom, Chicago: University of Chicago Press, 2002. M. Nussbaum, Poetic Justice, 82–3. N. Lacey, Women, Crime and Character. For example, D. Wahrman, The Making of the Modern Self, New Haven, CT: Yale University Press, 2004; L. Hunt, Inventing Human Rights: A History, New York: W.W. Norton, 2007; I. Watt, The Rise of the Novel: Studies in Defoe, Richardson, and Fielding, Berkeley: University of California Press, 1957; L. Rodensky, The Crime in Mind: Criminal Responsibility and the Victorian Novel, Oxford: Oxford University Press, 2004. N. Lacey, Women, Crime and Character, 43. D.H. Lawrence, Selected Literary Criticism, ed. Andrew Beal, London: Heinemann, 1955; M.M. Bakhtin, The Dialogic Imagination: Four Essays by M.M. Bakhtin, trans. C. Emerson and M. Holquist, ed. Michael Holquist, Austin: University of Texas Press, 1981; R. Goldthorpe, Sartre: Literature and Theory, Cambridge: Cambridge University Press, 1986; S. Sontag, Against Interpretation and Other Essays, New York: Picador, 2001; M. Kundera, The Art of the Novel, New York: Harper Collins, 2000, notably chapter 1. S. Sontag, ‘Against Interpretation’, in Against Interpretation and Other Essays, New York: Picador, 2001, 3–14 at 5–7. Ibid, 12–14. S. Sontag, ‘On Style’, 17; R. Queneau, Exercices de Style, Paris: Gallimard, 1982. I am indebted to my student Ian Dahlman’s research into legal realism and legal surrealism for helping me distil this point. S. Sontag, Against Interpretation, 21. W. Harris, ‘Bakhtinian Double Voicing in Eliot and Dickens’, ELH 57, 1990, 445–58. J. Derrida, ‘Before the Law’, in Derek Attridge (ed.), Acts of Literature, New York: Routledge, 1992. This is of course a radically oversimplified characterisation of Abrams’ analysis: The Mirror and the Lamp, esp. chapter 1. One of Abram’s great achievements was to show us how the philosophical currents of the nineteenth century were connected to its corresponding aesthetic currents: M.H.

24 Kangaroo Courts and the Rule of Law

42 43 44 45 46 47 48 49 50 51

52

53 54 55 56 57 58 59

60 61 62 63 64 65 66 67 68 69 70

Abrams, Natural Supernaturalism, New York: W.W. Norton, 1971; M.H. Abrams, The Mirror and the Lamp. M.H. Abrams, Natural Supernaturalism, 182. C. Schmitt, Political Romanticism, trans. G. Oakes, London: Transaction Publishers, [1919] 2011. Ibid, 3. Ibid, xxxiv–xxxv, 139, 80–8. Ibid, 17. Ibid, 19. Ibid, 69. H. Melville, Bartleby the Scrivener, Brooklyn, NY: Melville House Publishing, [1853] 2010. C. Schmitt, Political Romanticism, 16. W.H. Auden, ‘September 1, 1939’, in J. Wain (ed.), The Oxford Anthology of English Poetry: Blake to Heaney, Oxford: Oxford University Press, 2005, 696–8; J. Haffenden (ed.), W.H. Auden?, London: Routledge, 1997, 443; I. Ward, Justice, Humanity and the New World Order, Aldershot: Ashgate, 2003, 161: the romantic fallacy is constant within the book. Williams, drawing in particular on Barbara Herrnstein Smith’s analysis, discusses the poem with much greater subtlety though here too the tendency towards a substantive approach is strikingly present in her failure ever to even quote the poem let alone to analyse specifically its formal and stylistic features: M. Williams, Secrets and Law, chapter 1, e.g. 15. I. Ward, Justice, Humanity, 25; M. Nussbaum, Poetic Justice, 88. Ibid, 25, 88, and many other places. Ibid, 33, 59. M. Williams, Secrets and Laws, 38. B. Cormack, A Power to Do Justice: Jurisdiction, English Literature and the Rise of Common Law, Chicago: University of Chicago Press, 2007, 2. W.C. Dimock, Residues of Justice: Literature, Law, Philosophy, Berkeley: University of California Press, 1996. Plato, The Symposium, ¶ 189d–193d, in C. Gill (ed.), trans. C. Gill, London: Penguin Classics, 2003, 22–7. The idea of law and literature as a married couple that complete each other can be seen in J.N. Turner and P. Williams (eds), The Happy Couple: Law and Literature, Annandale, NSW: Federation Press, 1994. B. Cormack, A Power to Do Justice; S. Chaplin, The Gothic and the Rule of Law, 1764–1820, Houndmills, UK: Palgrave Macmillan, 2007. W.C. Dimock, Residues of Justice, e.g. 26–33. Ibid, 19. Ibid, 95. M.M Bakhtin, ‘The Discourse in the Novel’, in M. Holquist (ed.) The Dialogic Imagination: Four Essays by M.M. Bakhtin, trans. C. Emerson and M. Holquist, Austin: University of Texas Press, 1981, 259–422, at 308. Ibid, 305, 361. C. Schmitt, Political Romanticism, xxxvi, 65. See e.g. S. Felman, ‘To Open the Question’; S. Felman, Literature and Psychoanalysis: The Question of Reading, Baltimore: The John Hopkins University Press, 1982; P. Fussell, The Great War and Modern Memory, New York: Oxford University Press, 1975, chapter 1. J. Worthen, D.H. Lawrence and the Idea of the Novel, London: Macmillan, 1979, 151. R. Swigg, Lawrence, Hardy, and American Literature, London: Oxford University Press, 1972, 284–5. See D.H. Lawrence, Selected Literary Criticism, and his early correspondence with Jessie Mathews in J. Boulton (ed.), The Letters of D.H. Lawrence, Volume I, September 1901–May 1913, Cambridge: Cambridge University Press, 1979.

Chapter 3

1922

I am young, I am twenty years of age; but I know nothing of life except despair, death, fear, and the combination of completely mindless superficiality with an abyss of suffering. I see people begin driven against one another, and silently, uncomprehendingly, foolishly, obediently and innocently killing one another . . . Our knowledge of life is limited to death. What will happen afterwards? And what can possibly become of us?1 – Erich Maria Remarque, All Quiet on the Western Front

This is a book about a book and how it still speaks to us. It is also a book about a time and how it still resonates in us. The year is 1922: the year that D.H. Lawrence wrote Kangaroo and that T.S. Eliot’s The Wasteland and James Joyce’s Ulysses were both published. So too was Max Weber’s posthumous masterpiece Economy and Society.2 The same year Mikhail Bakhtin first embarked on his great work on the history of the novel. With the publication of Political Theology, Carl Schmitt dramatically changed his direction and cast his die. Mussolini seized power. Something unusual was in the air in 1922; something fevered and intense and gravely troubled. This was not unusual for Lawrence – he was always fevered and intense and gravely troubled. But for just a moment Lawrence stood on the same side of history rather than grimly against it. This chapter is in three sections: first, I will say something about the dimensions of the crisis of thought and feeling which the end of the First World War aroused and to which the many creative works in the immediate post-war period were a distinctive reaction. In the next section I hope to show how this crisis related not just to questions of art and culture but to questions of law and politics – in particular to a reaction to the problem of legal judgment strongly tinged by romanticism and invested with an alternative version of modern legal history. Indeed, as has been ably established, in Weimar Germany the early 1920s was a remarkable intense period for the legal and political theory which is central to this book.3 In 1920 Hans Kelsen’s major work on sovereignty and law appeared. Walter Benjamin’s ‘Critique of Violence’ followed in 1921, along with Carl Schmitt’s The Dictator. In the final section I will focus on Schmitt’s 1922 work Political Theology in which he took on all three of these works (including his own).4 All these books address the relationship between political

26 Kangaroo Courts and the Rule of Law

authority and legal judgment, and the limits or otherwise imposed by the latter on the former. Carl Schmitt’s uncompromising rejection of the liberal rule of law can be seen in terms of both this wider legal historiography and the post-war crisis that it mirrored. In Chapter 4 I want to situate Lawrence in relation to this crisis and propose his novel Kangaroo as our guide to it and through it. Chapter 5 will return us to the question of the rule of law and attempt to demonstrate that, in uncannily similar ways, the crisis of the early twentieth century has not yet been resolved. That will set the stage for my effort in the remainder of the book to present Lawrence’s writing, particularly in Kangaroo and his other works from that time, as a striking response to the most important problems of his time.

Modernism and the crisis of modernity What was in the air in 1922 was modernity, modernism and the modern. Now these are all sweeping terms whose use is contentious and divergent. Their periodicity and their relevance take on quite different inflections in different places, cultures, disciplines, and arts. Modernity might be said to encompass the monumental changes in society and in belief that the Enlightenment set in motion and that accelerated and ramified with the industrial revolution right through the nineteenth century.5 Modernism is by no means merely the affirmation of these changes. On the contrary, it refers to the paroxysms which ensued when the worlds of the arts and ideas began to depict, understand, and respond to them. Some would date modernism as early as the publication of Rimbaud’s Un Saison en Enfer in 1873, with its ruthless rejection of romance and its ringing final sentence: ‘One must be absolutely modern’.6 Well before the First World War, certainly, Sigmund Freud and Henri Bergson, Cézanne, Malevich, Kandinsky and the Blue Rider School, Stravinsky’s Firebird Suite and Rite of Spring and Schoenberg’s Second String Quartet had all broken with key tenets of aesthetic and social convention. Virginia Woolf famously wrote that ‘on or about December 1910, human character changed’.7 In the teens of the new century, cubism and dadaism further accomplished in aesthetic terms the fracturing of the previous century’s social and class stability – even complacency – to which Woolf alludes. Meanwhile, in a few short years, starting perhaps from the failed Russian Revolution of 1905, political turmoil had pulverised the empires of Europe with the force of an imploding star. In different ways all these events challenged the normative assumptions and framework of the European establishment, its blithe progressivism and its arrogant imperialism. In modernism we see how the forces of modernity (including its secularism, its industrialisation, its specialisation, its rationalism) steadily undermined the authority of God and government, the neutrality and logic of science and reason, and the objectivity of representation – in painting, in literature, in music, in philosophy, in psychology, and in politics no less. Now the response of artists and thinkers to these transformations and doubts was not uniform. For some this shattering of established ways of knowing or being was a matter of description, for others it provoked invention or celebration,

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mourning, fear or nihilism. The expressionists seem to respond with despair to this new world; the futurists and the constructivists embraced it as a land of unfettered imaginative possibility; the dadaists, cubists and modernist writers with a certain whimsy. But regardless of their affective orientation, certain key features emerge. Modernism signifies a commitment to individual over social good, a sense of rootlessness and exile, and, coupled with an emphasis on the varieties and uncertainties of individual subjectivity, the most comprehensive critiques of representation and the most radical experiments in form.8 Again Rimbaud presaged much that was to follow when he wrote Je est un autre.9 The fractured subjectivity, the formal inventiveness, the linguistic restlessness, the uncertain searching that lies close to the heart of all his poetry seems not far from the mark. Modernism represented and was a response to ‘the shock of the new’.10 Both were traumatically intensified by the Great War. Throughout Europe (and again with quite different implications in different countries) the Great War was an infected wound that gave the lie to the previous century’s conceit that European civilisation had triumphantly united the forces of reason, science and humanity. Easier said than done. As Paul Fussell writes, even the grandiloquent names of the War’s noble-sounding ‘battles’ – the Somme, Verdun, Paschendaele, Gallipoli and the rest – merely disguised, beneath the illusion of their continuity with past military exploits, the tragedy of a loss of life that was at once unfathomable, banal and futile.11 The power of Erich Maria Remarque’s classic record of his experiences in the War, All Quiet on the Western Front, does not lie in his depiction of the violence and pain of war, but in the powerful way in which he depicts its timeless futility. An abyss without purpose faced all those who went to die and to watch others die.12 What was glorious about leaving millions of men to rot in foetid trenches year upon year, periodically slaughtering them for notional gains (well over a million casualties on the Somme, over 60,000 on the first day alone)?13 Did the logic of reason allow this? Did the power of technology enable it? Was this what religion sanctified, what democracy supported, where civilisation led? Shells, gas clouds and flotillas of tanks – crushing, devouring, death. Dysentery, influenza, typhus – choking, scalding, death. Trench, hospital, mass grave – there are no other possibilities.14 The British war poets had seen all this, none more so than Wilfred Owen, who in a shocking reversal of the story of Abraham and Isaac, imagined the War as the betrayal of young men by their elders: Then Abram bound the youth with belts and straps, And builded parapets and trenches there, And stretchèd forth the knife to slay his son. When lo! an Angel called him out of heaven, Saying, Lay not thy hand upon the lad, Neither do anything to him, thy son.

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Behold! Caught in a thicket by its horns, A Ram. Offer the Ram of Pride instead. But the old man would not so, but slew his son, And half the seed of Europe, one by one.15 There is something appalling not just in the image of wilful arrogance conjured by this poem, but in the relentless logic which continues to play itself out, blindly destroying its own seed not all at once but ‘one by one’. And a pall likewise hangs over all of post-war poetry. In T.S. Eliot’s Wasteland and Ezra Pound’s Cantos, the smoldering ashes of our illusions hang like ‘smoke over Troy’.16 The Great War had traumatically shown that the problem of the modern world lay in man, and that a greater knowledge of it, a greater organisation of it, a greater technological competence, was likely to do more harm than good. The War came to a world of moral and technological over-confidence, unmasking its inner contradictions and its hollow rhetoric. Ernest Hemingway wrote that ‘abstract words such as glory, honor, courage, or hallow were obscene besides the concrete names of villages’.17 The War was the final and resounding blow struck against the naïve faith of modernity in its systems, ideology and leaders: They were supposed to be the ones to help us eighteen-year-olds to make the transition, who would guide us into adult life, into a world of work, of responsibilities, of civilized behavior and progress – into the future . . . In our minds the idea of authority – which is what they represented – implied deeper insights and a more humane wisdom. But the first dead man that we saw shattered this conviction . . . And we saw that there was nothing left of their world. Suddenly we found ourselves horribly alone – and we had to come to terms with it alone as well . . . Our knowledge of life is limited to death. What will happen afterwards? And what can possibly become of us?18 Much later, of course, George Orwell wrote of all this as the emerging conflict between technology and humanism: of the problem of social relatedness in the era of scientific progress, of the deadening effect of industry, rationality and positivism on art, emotion, and community.19 Max Weber, too, in the last few years before he died in 1920, became increasingly disillusioned with the implications of the rationalist and specialised tendencies of the West that he had done so much to identify. His later works and lectures seem to call for the revival of an ‘ethics of conviction’ and even extolled the necessity of a kind of charismatic leadership which he had previously characterised as irrational.20 In his posthumous Economy and Society, also published in 1922, Weber defines modernity in terms of a shift from normative to instrumental modes of social action and justification, but paints a distinctly bleak picture of a ‘polar night of icy darkness’ in which the increasing rationalisation of human life traps individuals in an ‘iron cage’ of rule-based controls.21

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Rational calculation . . . reduces every worker to a cog in this bureaucratic machine and . . . he will merely ask how to transform himself into a somewhat bigger cog . . . This passion for bureaucratization drives us to despair.22 Indeed, by 1917 ‘the crisis of modernity’ was already shorthand for a comprehensive loss of faith in the foundations of the modern world. R.G. Collingwood that year wrote of the ‘crisis of civilization’ as a rupture, catastrophically magnified by modernity, in the framework of logical positivism that ‘belittles what one cannot share and destroys what one cannot understand’.23 George Simmel’s final lecture, delivered shortly before he died in war-torn Strasbourg in September 1918, likewise spoke of the deep-seated ‘conflict of modern culture’ between life and form, rigidity and flow, rules and experience, in which the classical impulse to prioritise form as such is rejected root and branch.24 ‘Life, in its flow, is not determined by a goal but driven by a force’, he wrote, while the guns of the Western front continued to bring home the depth of the error we make in treating the latter as if it were the former. In sociology as in poetry, philosophy as well as literature, the crisis of modernity articulated a widespread loss of conviction in moral, religious or social certainty. The forces of materialism and industrialisation had exposed the illusory conceits of these alternative creeds without replacing them. This was what Weber meant by the ‘disenchantment of the world’:25 the German word Entzauberung suggests the end of magical thinking. How else to explain the obsession of the late and postVictorians with séances and mediums and ghosts, or the bizarre fairy-mania which, immediately after the War, led the Theosophical Society and well-known figures like Sir Arthur Conan Doyle to treat as genuine ‘spiritual emanations’ photographs of fairies – quite obviously cut-outs from a picture book – cavorting with two girls in an arcadian scene? Conan Doyle, the father of Sherlock Holmes, that shining light of Victorian rationality, published The Coming of the Fairies in 1922.26 How are we to explain such delusions except as the last desperate efforts of a society to find evidence of a mystical reality, to turn back from the corruption of the War to a radical and fantastic ignorance masquerading as innocence?27 In E.M. Forster’s A Passage to India (1924), the ambiguous and traumatic events of the Marabar Caves give a palpable physical dimension to this psychic crisis: [Mrs. Moore] had come to that state where the horror of the universe and its smallness are both visible at the same time – the twilight of the double vision in which so many elderly people are involved. If this world is not to our taste, well, at all events there is Heaven, Hell, Annihilation – one or other of those large things, that huge scenic background of stars, fires, blue or black air. All heroic endeavour, and all that is known as art, assumes that there is such a background, just as all practical endeavour, when the world is to our taste, assumes that the world is all. But in the twilight of the double vision, a spiritual muddledom is set up for which no high-sounding words can be found; we

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can neither act nor refrain from action, we can neither ignore nor respect Infinity. Visions are supposed to entail profundity, but – Wait till you get one, dear reader! The abyss also may be petty, the serpent of eternity made of maggots . . .28 In short, Mrs Moore lived in a world she no longer knew or understood. In the forbidding and disorienting caves, she found she could no longer rely on either a mundane or a sublime compass. On the precipice of the twentieth century, Moore lost her moorings, and heard only the echoes of a deep nothingness. The great romantics such as Wordsworth or Coleridge believed that imagination ‘reveals itself in the balance of reconciliation of opposite or discordant qualities . . . rich in proportion to the variety of parts which it holds in unity’.29 I suggest that the War had trampled that amiable dream of harmony or synthesis – of the overcoming of difference and conflict between peoples and between, say, art and science – once and for all. Thus the two visions that had underpinned the previous century – the materialist vision of mechanical and rational progress, and the romantic or immaterialist vision of harmony and balance – could be neither sustained nor reconciled. The result was a widely felt sense of ethical and social freefall.30 The nineteenth-century novel, for example, had operated under an implied compact which granted the narrator an omnipotent knowledge and the depiction of a single and objective reality, in exchange for an ultimate resolution. In short, sense and sensibility: literature as a social science. A great deal of writing in law and literature still assumes this world-view, with its insistence on an aesthetic pleasure which attests to social reality. But the Great War struck it dead – destroyed literature’s over-confident regard for its own universality, objectivity, order and completeness. Instead, literary modernism moved in another direction. It began to pursue a wary obsession with the deep subjectivity and incommensurability of individual voices and perspectives, and can be seen as part of this same pattern of fraught response to and disenchantment with the promise of order, rules, reason and progress. The great modernist texts of the post-war period, not just Ulysses and The Wasteland of 1922 but also, for example, To the Lighthouse, seek a new accommodation amongst these terms in a faithless and fallen world. These works reveal a struggle, not just in the world but in their authors as they try to find a voice and to make sense of the world. Dickens, Eliot, Trollope, Balzac, Tolstoy and the rest are too confident, too objective, altogether too omniscient for that; whatever failings or incomprehension they explore are their characters, not their own. The vertiginous disenchantment, external and internal, physical and psychological, brought on by the menacing failure of the promise of rationalism and the promise of romanticism can perhaps be seen most clearly in the emotional and subjective phenomenology of Expressionism. There is a line of affective horror which leads from Edvard Munch’s The Scream (1893) right up to the work of German post-war artists like George Grosz, Egon Schiele and Otto Mueller. Otto Dix, notably, experienced and documented modern warfare during his years as a machine gunner on the Western Front. He combined chillingly realist portrayals

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of it with a Nietzschean ecstasy in the primal liberation from conventional morality which the modern War unleashed.31 His great series of war-time etchings, Der Krieg, exposed the reality of modern warfare with a clinical eye. In Der Schutzengraben or Trench (1920–23)32 and later works on the same motif, the depiction of atrocity is fused with an hallucinatory sublime, as if the romantic landscapes of Caspar Friedrich were constructed out of a mountain of corpses. Taken together these works helped to destroy forever the romantic illusions of soldiering that had held sway in the European imaginary for a thousand years. But what was to replace them? In Lustmord (1922) – indeed there are three works about ‘sex murder’ from that year alone – the personal implications of the Great War’s violence and degradation, its objectification, mechanisation and alienation, are brought home in the most intimate and pitiless fashion. Dix’s work does not aim to depict the pained psychology of the post-war world, but rather through this disturbing

Figure 3.1 Otto Dix, Der Schutzengraben (The Trench)33

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Figure 3.2 Otto Dix, Lustmord (Sex Murder)34

objectivity to produce it. He stands as the prophet of a new era, in which all the old connections between nations, morals, responsibilities and norms have been (as Lawrence would say) reduced to dust. Dix’s ‘new objectivity’ exposes the desolation, alienation and degradation of modernity, along with the terrifying liberties of a world endowed of such capacities and shorn of all anchors or limits. In La Valse (1920), another masterwork of post-war modernism, Maurice Ravel challenges us to wonder whether the most romantic of nineteenth-century musical

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forms – the most progressive, the most elegant, the most civilised – could still be taken seriously. The intense irony of Ravel’s music lies in its juxtaposition of older forms and traditions with modernist disenchantment. As the waltz swirls faster and faster, increasingly manic and out of control, the sense of contradiction becomes ever stronger, until finally the effort of sustaining the illusion of such a world brings the whole edifice crashing down. The metaphor of dance is not inapt in its implications of movement without progress. Schoenberg described his fractured music as ‘a death dance of principles’.35 And here is Klaus Mann: The stock market danced. The members of the Reichstag hopped about as if mad. The poets were convulsed with rhythmic spasms. The cripples, the prostitutes, the beggars, the reformers, the retired monarchs and astute industrialists – all of them swayed and skipped. They danced the shimmy, tango, fox trot and St Vitus’ dance. They danced despair and schizophrenia and cosmic divinations.36 In the aftermath of the War, and in every sphere, the crisis of modernity and the question of positivism and its ‘other’ were imbued with an intense and panicked urgency. In every sphere the disorienting loss of faith in both this world and the next, the human and the divine, in reason and in love, was crucial. The great writers of modernism were united in their sensitivity to the death dance of principles around them. Lawrence was by no means alone in his interdisciplinary interest in these questions or in perceiving the connections between all these spheres.37 But Kangaroo is an unusually ambitious attempt to engage with literary, political and psychological modernism all at once. Lawrence was the canary of the crisis, uniquely sensitive to its many registers. For Lawrence was a child of romanticism; it told in his intellectual formation, notably in the time he spent in Germany before the War, but equally in his social and religious background. Like Nietzsche, he was the rebellious son of a family of Dissenters and, throughout his early work, the threads of a communitarian and millenarian spirit are everywhere apparent. ‘Down among the uneducated people’, Lawrence wrote about his own upbringing, ‘you will still find Revelation rampant’.38 The Rainbow portrays the intimacy of working-class communities and the weight of the modern world as it bears in on them. In its metaphors and style it exhales the rhythms of the Bible and the immanence of a mighty God. Lawrence was deeply religious and yet this foundation was being swept away from beneath his feet. Lawrence was also deeply English and – as we will see and as Kangaroo addresses quite specifically – this too was taken from him. The Englishman became the exile, the preacher’s son the pantheist. What is interesting is not just that Lawrence made those choices but what it cost him to make them. If the crisis of modernity was a loss of the foundations of the known world then he is emblematic not just in communicating for us exactly what this catastrophe felt like but in the deeply personal manner in which it affected him.39

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Although Anne Wright identifies Women in Love as Lawrence’s ‘crisis book’, it was merely one moment in his on-going and deepening search for some new moorings to save him from the rudderless impasse of modernity. The need to find a deeper and truer order than that provided by modern civilisation and which can be linked to something like spiritual and temporal love, certainly haunts both The Rainbow (1915) and Women in Love (1916). But without doubt his experiences in the last years of the War profoundly intensified this sense of loss; it would take him five years, until he wrote Kangaroo, to come to terms with it. In a letter written in 1917 he wrote, ‘I feel as if the whole thing were coming to an end – the whole of England, of the Christian era . . . The world is gone, extinguished, like the lights of last night’s Café Royal’. And in another, written to Lady Ottoline after witnessing the Zeppelin raids on London (a passage which eventually found its way into Kangaroo), he sees the technological violence of the twentieth century as auguring a total erasure: ‘So it seems our cosmos is burst, burst at last, the stars and moon blown away . . . So it is the end – our world is gone, and we are like dust in the air’.40 In 1918 he wrote to his friends the Garnetts: I suppose you think the war is over that we shall go back to the kind of world you lived in before it. But the war isn’t over. The hate and evil is greater now than ever. Very soon war will break out again and overwhelm you. It makes me sick to see you rejoicing like a butterfly in the last rays of the sun before the winter . . . Europe is done for.41 The War years ‘changed his life forever’.42 Not because it gave him a hatred of the mob and democracy (he already had that) but because it radically undermined his ability to believe in any structures, principles or ideologies at all. Lawrence was in fact one of the very first writers to see that the end of the Great War was only the beginning of the terrible problems that this loss of belief and this truly desperate search for an alternative way of thinking about politics, justice and personal relations would engender in the years to come, and of which the looming battles between fascism and communism were merely symptoms.

The romantic turn Reactionary modernism After the War, one notable response was therefore to turn one’s back on mechanical modernity and adopt a renewed and uncompromising romanticism. In Lawrence’s work, not least in the early parts of Kangaroo, we can see the threads which connected him to the writers and philosophers from the German tradition in which he was immersed,43 no less than to the millennial and eschatological religious tradition of radical Inner Light hermeneutics that had been central to Lawrence’s upbringing: apocalyptic, ‘right-angled’, and committed to ushering in a new world of unity and perfection, of love not of law.44 This religious feeling, as M.H. Abrams and others

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make clear, was itself central to the origins and structuring architecture of romantic thought.45 Now as I previously noted, romanticism can be understood in terms of the search for a lost unity of purpose and in the reconciliation or synthesis of opposites. This led, so Schmitt argued, to a purely aesthetic response to conflict or difference, a ‘metaphysical narcissism’,46 and a chronic inability, faced with the reality of conflict, to take decisive action. But from the turn of the century, in a world which increasingly seemed to be losing its connection to nature, art and tradition, the search for a new harmony, a new Eden or a new Jerusalem,47 very often took the form of a deep antagonism to modernity. The romantics are thus increasingly distinguished by the opposition of art to science, feeling to reason, pre-modern to modern ideals, and the soul to the material world. This is how Leo Strauss explained it: German philosophy ultimately conceived of itself as a synthesis of the premodern ideal and the ideal of the modern period. That synthesis did not work: in the second half of the nineteenth century, it was overrun by Western positivism, the natural child of the enlightenment . . . She saw no way out except to purify German thought completely from the influence of the ideas of modern civilization.48 Certainly we can see this version of romanticism as no longer simply the bringing together of opposites but as involving a choice between them. The belief in the resolution and perfection of our differences and contradictions led in the end to the repudiation of modernity. In its stead, the romantic aesthetic articulates an appeal to the sublime and thus to the transcendent, to a power above and beyond social reality which would redeem the world. In different artists and thinkers this power took different forms – sometimes it appears as the divine, often as nature, often as individual genius; but in each case the promised land is to be reached with the aid of an external and unlimited force operating outside of established norms and the normal. The genius in Kant or Goethe, Nietzsche’s ‘superman’, Weber’s charismatic are all similar figures of transcendence. So is Nature and the Artist, one the high priest of the other, in Wordsworth or Shelley or Coleridge or Friedrich. What is sometimes termed reactionary modernism49 involves this turn away from the mundane world of laws and limits and towards overcoming it through a wholly unregulated mastery – a faith, as M.H. Abrams calls it, in ‘Natural Supernaturalism’. Carl Schmitt for his part defines romanticism as ‘subjectified occasionalism’.50 He is referring here to the Catholic doctrine which maintains that finite beings have no efficient causality of their own; whatever happens in the world comes about only through the continuing intervention of God. This emphasises precisely the transcendent element I am identifying here as essential in the late romantics. They made a choice to purify their thought from the straitjacket of modern civilisation, and placed their faith in agents of salvation that would transcend the limits of the mundane world.

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Law and the crisis of modernity One critical arena of this debate can be seen in the controversy that was already brewing across Europe, most notably in Weimar Germany, on the relationship between justice and the rule of law. This disagreement reflects different approaches to the tension between justice as an idea and actual legal judgments such as we find in rule-application or judicial decision-making. In legal terms, the crisis of modernity was the crisis of positivism, that is a loss of faith in a structure of pure logic, objective rules and abstract a priori reason as realising the highest ideals of legal organisation. We have already seen in Collingwood, in Simmel and in Weber, the sense of panic which this loss of faith provoked in the aftermath of the Great War and which led to a radical appeal to romanticism understood as a return to spiritual, immaterial, natural or organic ideals, and to their realisation through overcoming modernity. Just why the problem posed by politics, power and legal positivism was central to the crisis of modernity and to the reactionary modernism it provoked can be seen in a recent history by Roger Berkowitz.51 In The Gift of Science Berkowitz analyses the German positivist tradition from the late seventeenth century up to the enactment of that pinnacle of legal system, the Bürgerliches Gesetzbuch (BGB) of 1900. Leibniz, Svarez, Savigny and Jhering are all evaluated in terms of their contribution to the evolution of a distinctly ‘modern’ approach to law. ‘Modernity’, he argues, involves abandoning God as the foundation and origin of law. We see this first in Leibniz, though he remains a transitional figure in many ways, and then with increasing force throughout the development of German positive law. With the absence of God, ‘law’ ceases to be a coherent entity. ‘Previously knowable only through a free and active insight into an incalculable yet manifest sense of divine and human justice’,52 law, argues Berokowitz, has now lost its independent existence ‘outside of its posited existence in rules, norms, and conventions’.53 This creates a problem for law’s authority: without God – or nature, or tradition, for that matter, or any natural supernaturalism – who is to say what justice really is, or whence derives the authority of law to bind its subjects? In legal modernity, the answer went by the name of science: Instead, positive law must [now] seek to justify its authority, a task complicated by the loss of law’s traditional foundations in natural law, religion and custom. And yet, denied its natural authority, positive law cannot eschew justification; on the contrary, it is law whose need for justification is palpable. Science, as the modern approach to giving reasons and justifications, comes to be both a symptom of positive law and more importantly, an essential component of law itself.54 ‘Science’ is used compendiously here to suggest a way of thinking that claims to provide empirical, verifiable and, above all, objective truth about a particular subject matter, grounded in certainties of logic, reason and human knowledge. Science is the opposite of faith: it is proof, not belief; human, not divine. This was

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what was intended to give back to law the certainty and the foundation that had been taken away from it: [L]aw too must have a reason posited for it if it is to exist. Law, in other words, does not exist in and of itself as a natural or traditional insight into what is right and fitting . . . Law is subordinated to its reasons and justifications.55 Instead of authority, mere justifications; instead of justice, mere law; instead of Recht or droit, a coherent body of eternal principles, gesetz or lois, a vast and constantly expanding list of rules produced and changeable by human will. This is the story of positive law from Leibniz to the BGB. One could easily expand this perspective and see the emergence of similar patterns of modern justification as ideas of religious or customary authority waned. In classical music, for example, we see at the time of the Enlightenment the decline of improvisation as a central aspect of musical performance and its replacement by increasingly detailed instructions in order to bind performers ever more tightly to the dead composer’s unceasing will. Here too authority shifts from the present to the past and from the spirit to the letter of the law. The locus of meaningmaking moves from the creative interpreter (whether a musician or a judge) to the original author (whether a legislator or a composer).56 To take another example which may serve to bring home the depth and breadth of the social transformation to which Berkowitz points, Gottfried Leibniz reminds me of the witchcraft theorists of the late fifteenth century. The notorious authors of Malleus Maleficarum (1486),57 confronted by the crisis of faith that the steady development of scientific empiricism had occasioned and which was soon to engulf the universal church in Humanism and Protestantism, attempted precisely to prove the existence of God by finding, in the testimony of confessed witches, empirical witnesses to the material existence of the devil. Like Leibniz, they seem like men of faith, but in fact they are proto-scientists who can no longer believe in God (or law, or justice, as Berkowitz would add) without reasons and physical evidence.58 The Reformation itself was part of this great, historical transition from faith to science and from authority to reason. An alternative jurisprudential history Indeed, the romantic notion of justice as appearing against the law rather than through it has strong resonances throughout our cultural history. Superman, for example, which also emerged in America in the inter-war years59 and likewise against a background of geopolitical crisis, similarly lauds a figure of vigilante justice who subscribes to no law and to whom the social and physical constraints of the world do not apply. Yet this monstrous figure is heroic precisely because his actions transcend laws, whether those of physics or of society. The promise of ‘truth, justice, and the American way’, of defeating ‘evil and injustice’ (the legal definition, no less, of Superman60) is achieved not through law but outside of it, not through

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debate but through insight, not through co-operation or discussion or reflection but through solitary action. Superman, Spiderman, Batman and so on: in each case the utter isolation of the hero and his alienation from all normal avenues of support throws him back entirely on his own devices. Superman and all those who have followed in his footsteps do not promise justice by thinking in terms of rules or democracy. Instead, they answer the call of the singular circumstances before them. It is their character and their power rather than their role or their training or their community that ensures that they are capable of bringing justice where law and society are at their most impotent. In ‘The Myth of Superman’, Umberto Eco asserts that the superhero responds only to specific injustices and so leaves untouched the structural underpinnings of legality, bureaucracy and capitalism.61 According to Eco, Superman’s commitment to individual justice bespeaks an institutional passivity. He thus becomes an agent of American ideology, softening its excesses but leaving intact its structures. This is not an adequate reading. The superhero’s preparedness to act against and despite due process and law is surely an implicit – indeed, increasingly an explicit – critique of the established order’s ability to achieve justice at all.62 At the same time, by eschewing any structural solutions to structural problems and instead resorting to some deus ex machina to swoop down and rescue us from them, Superman and his ilk present a gesture of desperation against the mainstream world rather than either acceptance or reform of it. The dream of isolated transcendence – of a saviour who comes from outside or beyond – is an example of Schmitt’s ‘subjectified occasionalism’. Although rightly associated with romanticism, it stretches far back into our cultural and legal memory. The Wild West presents a very similar figure. The gunslinger, the vigilante or the cowboy imposes justice rather than law and he does so through the nobility of his character rather than through any knowledge he may possess or any structure he may embody.63 By forceful will and decisive action, he conquers a wildness in which knowledge does not exist and in which the structures and systems of civilisation are not yet born, riding off into the sunset as soon as they emerge. This dream of a unique and unaccountable decision-maker responding only to the immediate problem before them runs – it need hardly be said – directly counter to the rule of law, which seeks to encode the qualities and outcomes of decisionmaking, to expel the quality of vengeance from it, to regularise its judgments and to disperse its violence institutionally. The distinction which first Levinas and then Derrida drew between accountability and responsibility is acutely relevant here.64 The former is a defensive manoeuvre that enables us to justify our action or our inaction by reference to established rules and procedures. The latter thinks of our obligations to others as inherently uncodifiable, unpredictable and grounded in the singularity of personal relationship. Accountability is an external structure of justification, predictable and limited. Responsibility is an internal structure of obligation, unpredictable and unlimited. The tragic predicament of all these figures of outlaw justice is that they are accountable to no one, and responsible for everyone.

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This logic, according to which law comes from and remains answerable to justice rather than the other way around – a logic which, as Constable notes, legal positivism inverts65 – is deeply rooted in the Western legal tradition. For the premodern world was suffused by the image of Christ. Christ is represented as the giver and arbiter of justice and the archetype for the judge.66 The image and the teaching of Christ employs the language of love and of inspiration, not of commandments, rules or authority. That was what made Christ an outlaw and the Old Testament’s jurisprudence different from the New. In his magisterial study of images of justice in the Middle Ages, Robert Jacob demonstrates how often the artwork that adorned the courts, tribunals and cathedrals of Europe in the Middle Ages depicted justice and the trial as an intimate drama centred around two figures: Christ, to whom the judge must ultimately answer; and the judge himself who is responsible for what transpires before him and whose soul is on trial. The lineaments that bind Christ and judge together, the parallel juxtaposition of tribunal terrestre et tribunal celeste, are explicitly represented in many of these images. In the Middle Ages, then, legal judgment was intensely personal and dynamic. Just as Christ appears as the model of one whose character was the guarantee of justice, the principal criterion for the judge lay in his goodness and character, and in the divine insight he accessed. As Jacob notes, the medieval judge therefore occupied an exalted, but at the same time a vulnerable, office. Judgment was tied to his personal capacity and the achievement – or failure – of justice was his ineluctable personal responsibility: There is, once again, the germs of an exalted conception of the office of the judge, superior in dignity even to that of the clergy. But it carries with it this necessary counterpart: that, on the other hand, a simple weakness, a human failure in the work of justice would lead the magistrate to his destruction.67 We see this most sharply in works such as Gerard David’s celebrated diptych, The Judgment of Cambyses, which depicts with clinical precision the flaying alive of a corrupt judge, his skin turned into the upholstery on which his son would sit as judge. The paintings were hung in the town hall of Bruges pour encourager les autres.68 It is exceptionally hard to imagine an image like this being considered appropriate to a courtroom now. I doubt whether modern judges would find its message congenial. Modernity has reduced the moral authority of the judge as the price for reducing his moral complicity in the decisions he takes. The empiricist and secular revolutions of Europe replaced divine with human authority; as Richard Mohr notes, the image of Christ that typically emblazoned the literal or figurative seat of judgment was replaced by the coat of arms.70 The crucial shift to secular authority led to the modern obsession with the construction of hierarchical institutions and interpretative norms in which the role of the judge would be specific, circumscribed and subservient. Thus the promise of justice was replaced by the guarantee of law, and divinely inspired insight into the former transformed into rote obedience to the latter. The spirit of justice was replaced by the letter of the law. Judges and

40 Kangaroo Courts and the Rule of Law

Figure 3.3 Gerard David, The Judgment of Cambyses (right panel)69

government became technicians in a structure that, as much as possible, was to run automatically, like a machine. The rule of law, though in some respects going back to Aristotle, has been very much a modern project. Rules and procedures, checks and balances, were modern attempts to replace a vision of justice as deriving from God with a vision of justice as deriving from Man. In the early years of the twentieth century and then, as we have seen, with increasingly far-reaching ramifications after the Great War, many writers, artists and thinkers were virulently opposed to the legal and social history of positivism and rejected in almost identical terms its obsession with mechanics, systems, tech-

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nology and rules. In the writings of the German New Romantics we can observe the same fusion of nature, tradition, custom, religion; the same belief in justice as hierarchical and leadership as manifest. Diederichs writes of the ‘longing of the soul towards unity’; Lagarde and Langbehn each condemn the loss of the divine and the sacrifice of the spirit of justice for the law. Schemann, to take another example, exemplifies a ‘scholar who since his youth had considered science distasteful and looked upon values derived from technology and science as blasphemous manipulations of the forces of nature’.71 The juridical effects of this revolt against modernity were both radical and conservative. As George Mosse memorably argued, ‘the crisis of German ideology’ – another aspect, of course, of the crisis of modernity – was given much of its force as well as its direction by the very vagueness of its philosophical abstractions: But was it not a contradiction to believe simultaneously in a revolutionary yet conservative change? By no means, as long as there was a metaphysical foundation, as long as one’s doctrine of revolution did not call for new and radical social and economic reforms. Man did not advance progressively, discarding his traditions as they became useless; rather he was bound by eternal laws that had been established in the past and embodied in tradition . . . [The new Germany] had to revive and make operative in a new age the traditions of medieval messianism.72

Figure 3.4 Magnus Zeller, Der Redner (The Orator)73

42 Kangaroo Courts and the Rule of Law

Carl Schmitt and the death of the rule of law In the Weimar Republic, the question of law and politics, reason and emotion, was of pivotal importance even amongst those who were not so easily swayed by the appeal of the New Romantics. Take Magnus Zeller’s The Orator (1920). The political figure at the centre of the painting seems to reflect a desire for Dionysian release and a yearning for leadership which draws the crowd towards him like a magnet. In Zeller’s expressionist hands, the painting’s angular force and sculptural fullness, its suffering faces and outstretched arms, suggest a mixity of Cézanne and Braque only with emotional states instead of fruit. The work provides a direct parallel not only with the mood of post-war Germany but with Lawrence’s Kangaroo. Neither depict a specific event, but both manage to capture a raw craving while at the same time, precisely by nakedly exposing it, serving as a subtle critique. The cavernous mouths and skeletal hands of the crowd stretch towards the figure, seeking something which the orator is only too pleased to provide; but in the end nothing is clearer than the hubris of the orator himself. The only craving which is satisfied is his whose satisfaction feeds on and feeds the unending hunger and desire of the crowd. In The Orator’s dynamic of mutually constitutive power and need, each enables and so perpetuates the eternal emptiness of the other. No writer better shows the implications for the rule of law of this resurgent romantic spirit than Carl Schmitt. This is surely a shocking remark. His Political Romanticism is a vitriolic diatribe against political romanticism.74 Schmitt has nothing but contempt for the romantic because in the ‘real world’ conflict is unavoidable and irreconcilable. Decisions and legal judgments made by human beings must choose between oppositions, between, as he would later say, friend and enemy.75 This, says Schmitt, the romantic will not countenance and thus turns his face away from the world and his nose upturned to the helpless heavens. ‘Viewed romantically’, Schmitt concludes in another caustic remark, ‘injustice is only a dissonance that is aesthetically resolved in a sacred music, an endless feeling of the higher life’.76 Yet Schmitt clearly fits into the pattern of anti-modernist legality I have traced here. There is a paradox. The jurisprudence of the New Romantics appears to reinstate decision and to glorify action. At first glance this seems exactly the opposite of Schmitt’s claim that the romantic is incapable of decision. But in the tradition we have been surveying the decision is transcendent – it comes from outside the quotidian world, unpredictable and unconstrained, opposed to all merely human institutions and social structures. Schmitt diagnoses the romantic as attempting to escape the logic of political reality by appealing to a ‘higher third’ or transcendent power that would, in the name of History or Absolute Spirit or Nature, accomplish ‘the romantic suspension of antitheses by means of another higher factor’.77 And that is exactly the move – the romantic move – that Schmitt makes. For Schmitt, rule-bound liberal structures are incapable of protecting themselves from threats to their existence. In his most famous sentence, he writes ‘sovereign is he who decides on the state of exception’.78 Faced with a crisis in the political or juridical

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order, society needs, in the interests of its own preservation, to transcend the normal rules of judgment – the positivistic legal system with all its controls on decisionmaking and political action – and rely on the untrammelled decision-making power of the sovereign. Schmitt is involved in a debate here directly with Hans Kelsen. In 1920 Kelsen had defended the objectivity and rationality of positivism by focusing on precisely this point. For Kelsen, the sovereign is a mere abstract and formal notion, a figurehead which must furthermore be ‘repressed’ if we are to have a government of laws and not of men.79 Schmitt rejected this position as unworkable and naïve. He insisted not only that the sovereign could not and should not be repressed, but that it was a personal and not a formal position whose authority was original, charismatic and underived from any institutional structure. 80 The key element for Schmitt in the legal system is not its rules and systems, but that which exceeds and transcends them. Schmitt’s decisionist philosophy is thus the apotheosis of late romanticism. If he dismissed political romanticism as ‘the sovereignty of the ego’,81 his solution merely substituted the egotism of the sovereign. Indeed, Schmitt is abundantly clear that his goal in thus elevating sovereignty to a position of total transcendence is to assure ‘total peace . . . tranquility, security and order’82 and, in his later work in particular, to eliminate all difference and bring about a pure and homogeneous society. Schmitt is passionately committed to this world of order and stability.83 But this in no way abandons the romantic dream of perfect justice and a world of harmony. On the contrary, Schmitt merely relocates to a new place the transcendent power that will at last realise it – the human god, as Hobbes put it, of the sovereign. The critical year in the development of Carl Schmitt’s thinking is 1922. In 1921 he wrote Die Diktatur, a study of the Roman institution of dictatorship written against the backdrop of the constant crises of the Weimar Republic and Article 48 of its Constitution which gave to the President of the Republic extensive emergency powers. Schmitt attempted to justify an idea of emergency powers that authorised the executive to transcend the rule of law, in an extensive but temporary way, so as to preserve and restore legal order.84 There can be no normality without someone to decide when a state of exception exists that must suspend that normality. ‘Commisarial dictatorship’ for Schmitt was a necessary but containable feature of the liberal Rechtstaat, and he sharply distinguished it from ‘sovereign dictatorship’, its pathological cousin, in which the power of the dictator is used not to uphold and return to the legal order but to institute by his own will something entirely new. That Schmitt was, from the start, a determined opponent of the separation of powers and liberal visions of a pluralist society, is not in dispute.85 But for those who read him as it seems he would like to be read – the staunch defender of the Republic against liberals who were their own worst enemies – Schmitt in 1921 still seems to be working within the legal framework of the Weimar Constitution. His belief in the exigency of dictatorship is limited by his understanding of the legal structures that authorise and contain it. 1922 was Schmitt’s road to Damascus. The publication that year of Political Theology marked a decisive rejection of the liberal rule of law. By now his suspicion

44 Kangaroo Courts and the Rule of Law

of liberalism – corrupted by science, technology and objectivity, and incapable of articulating or protecting social values – had hardened into contempt. Instead, he sees in the illimitable power of the exception the redemption of politics and the foundation of sovereignty.86 Justice was henceforth not found in legal structures but their exceptions; not in legal forms of decision-making but on the contrary in the spontaneous voice of the people and the force of a leader who would, like Marcus Zeller’s Orator, draw forth, distil and magnify it: [Schmitt] seems to celebrate the very merging of the normal and exceptional moments that in Die Diktatur he analyzed as politically pathological . . . Schmitt simply rejects the possibility of limits of task or time – imposed by someone other than the dictator – that were central to the distinctions he elaborated in The Dictator.87 So Schmitt increasingly came to think that the situation of the ‘emergency’ – a moment or a context which the legal structure could not define or foresee and which threatened its survival – required acts of sovereign power which could not be contained by any legal structure. As opposed to his analysis of Roman law the previous year, Schmitt had now come to believe that, neither when to decide whether there was an emergency, nor what to do if there was one, could be resolved by even the best of rules. They required judgment and decisive action in the singularity of a unique and, by definition, unforeseeable situation. For Schmitt, the twentieth century called for a Political Theology which would have at its core not structures but politics, not law but theology, under the leadership of a divinely inspired and sovereign diktatur. The language of theology reflects Schmitt’s urgent search for ‘theistic and transcendental conceptions and the formation of a new concept of legitimacy’.88 In a telling metaphor, Schmitt declares that ‘the exception in jurisprudence is analogous to the miracle in theology’89 – the product of transcendent inspiration entirely contrary to all established rules and norms. A miracle is a new reality that springs to life literally ‘against the law’. Indeed, we can see here how close are Schmitt’s ties to the deeply conservative Catholic philosophers that had shaped his early thinking, and whose links to the Christological tradition of transcendent justice I have previously noted. Schmitt’s voice is perhaps the last gasp of the counter-reformation.90 The romanticism of this thinking resides in Schmitt’s resort to a transcendent figure who will solve the problem not only of legal order but of belonging and of justice.91 Romanticism, as Schmitt pointed out, does not have a particular object. It is instead characterised by a certain kind of subject – a certain affective relationship to the world around them. The romantics do not yearn for the triumph of individual will any more than the triumph of nature. Rather they yearn for triumph itself – for the visitation of a god-like mastery over the world that would save us from our fallen nature. But that is exactly what is so striking about Schmitt. In that desire and yearning, in ‘the pathos of authority’,92 Schmitt abjectly partakes. Schmitt is an Expressionist. He does not depict ideas so much as emotional states.

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What seems to unite all his work are the feelings that give rise to it: the fear of the crisis around him, the desire to be mastered, and the yearning for a purifying peace. The order which he seeks and which only the charismatic leader can impose is the order of purity and harmony in a revived collective life from which conflict and disagreement have been purged by extra-legal authority.93 Expressionism is said to emerge from a ‘diachronic world vision’ that in response to crisis rejects ‘tepid half measures’ and seeks for ‘the outermost, the pure, the extreme case’.94 That is explicitly Schmitt’s approach in Political Theology.95 It was, I think, Schmitt’s last-ditch romanticism and his emotional reaction to the contingent social problems around him that increasingly drew him to extreme and flawed solutions. During the 1930s, notoriously, he strongly allied himself with the Nazi state and was deeply implicated, amongst other things, in the removal of Hans Kelsen from his professorship at the University of Cologne. One cannot read Schmitt’s cheerleading of the Third Reich now without feeling soiled. Yet these scandalous misjudgments are foreshadowed in Schmitt’s own critique of romanticism. Romantic politics, he argued, is notable for its ideological plasticity which is always in the service of affective or emotional pleasure. The desire for a world beyond the world, for a perfect resolution to human conflict and social pluralism, leads the romantic, Schmitt argued, to a place of acute political vulnerability. The last sentence of Political Romanticism reads as follows: ‘Everything that is romantic is at the disposal of other energies that are unromantic, and the sublime elevation above definition and decision is transformed into a subservient attendance upon alien power and alien decision.’96 What could better describe Schmitt’s own intellectual history? The critique of modernity which Schmitt directed towards legal positivism in 1922 had two dimensions. It was both a response to positivism’s own logical limits (which gave Schmitt’s arguments their analytic force) and a response to the moral and psychological abyss of the Great War (which gave his arguments their emotional appeal). That was the problem that modernism presented in its sharpest and most painful form: what to do about the pitiless success of our modern machine-life, and the pitiful failure of our modern spirit-life? It became clear from that moment onwards that reactionary modernism, the romantic nostalgia which Schmitt so perfectly exemplifies,97 would do two things. First, it would reject any trace of instrumental rationality in favor of an unqualified return to unconstrained romantic intuitionism; and secondly, it would defend the rightness of untrammelled decision-making rather than the mere correctness of limited rule-following. Obviously this left no place for any conventional understanding of the liberal Rechtstaat.98 The constant threat of the exception and facticity of the decision together rendered the rule of law purely optional and subject to the vicissitudes of the charismatic leader’s own judgment. Schmitt’s Nazi apologia ‘The Fuhrer Protects the Law’ makes this entirely clear. Undoubtedly the article shows how far Schmitt’s thinking had gone in this direction, defending as it does the Rohm purge of 30 June 1934 in which Hitler ordered the murder of seventy of his opponents and rivals, and then authorised it by a retrospective decree proclaimed the following

46 Kangaroo Courts and the Rule of Law

day. But Schmitt’s outspoken support of these events went far beyond mere lip service or opportunism. Schmitt was under no pressure to write the article and indeed he rushed it into print, in the pages of his own journal, barely a month after the purge.99 Here Schmitt explicitly connects the legality of the sovereign’s actions to his responsibility to realise justice above and beyond the constraints of the written law. ‘Due process’, says Schmitt, is ‘the national poison’.100 Such a conclusion was not simply a product of the derangement of Nazism. It was implicit throughout Schmitt’s romantic transcendent anti-positivism. As we will see in the next chapter, the central figure in Kangaroo is a romantic leader on Schmittian lines. He too wants to smash the rule of law. For Ben Cooley, the eponymous Kangaroo, it stands in the way of the coming millennium and its goal of instituting a ‘non-instrumental’ account of law and society. He wants to replace the impoverishment of rules and procedures with his own untrammelled insight into justice and the ‘common good’. Yet there must be law, and there must be authority. But law more human, and authority much wiser. If a man loves life, and feels the sacredness and the mystery of life, then he knows that life is full of strange and subtle and even conflicting imperatives. And a wise man learns to recognize the imperatives as they arise – or nearly so – and to obey . . . Man again needs a father – not a friend or a brother sufferer, a suffering Saviour. Man needs a quiet, gentle father who uses his authority in the name of living life, and who is absolutely stern against anti-life. Cooley declares, ‘I offer no [rules]. I offer myself, my heart of wisdom, strange warm cavern where the voice of the oracle steams in from the unknown; I offer my consciousness, which hears the voice; and I offer my mind and my will’.101 So must we replace the sterility of positive law with the singularity of unique decisions to be determined by the self-appointed guardian102 of the law: an orator, a dictator – a Kangaroo Court? That, in its starkest form, is the question that modernism faced.

Notes 1 E.M. Remarque, All Quiet on the Western Front, London: Heinemann, [1929] 1976, 224. 2 M. Weber, ‘Economy and Society’, in C. Camic, P.S. Gorski and D.M. Trubek (eds), Max Weber’s Economy and Society: A Critical Companion, Palo Alto, CA: Stanford University Press, [1922] 2005. 3 G. Agamben, Homo Sacer: Sovereign Power and Bare Life, ed. W. Hamacher and D.E. Wellbery, trans. D. Heller-Roazen, Stanford, CA: Stanford University Press, 1998; G. Agamben, State of Exception, trans. K. Attell, Chicago: The University of Chicago Press, 2005; W.E. Scheuerman (ed.), The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer, Berkeley: University of California Press, 1996; W.E. Scheuerman, ‘Legal Indeterminacy and the Origins of Nazi Legal Thought’, History of Political Thought 17.4, 1996, 571–90; W.E. Scheuerman, Carl Schmitt: The End of Law, Lanham MD: Rowman & Littlefield, 1999; W.E. Scheuerman, ‘Revolutions and Constitutions: Hannah Arendt’s Challenge to Carl Schmitt’, in D. Dyzenhaus (ed.) Law as Politics: Carl Schmitt’s Critique of Liberalism, Durham: Duke University Press, 1998,

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4

5 6

7 8

9 10 11 12

13 14 15 16 17 18 19 20 21 22 23

252–80; D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar, Oxford: Oxford University Press, 1997; E. Kennedy, Constitutional Failure: Carl Schmitt in Weimar, Durham, NC: Duke University Press, 2004. H. Kelsen, Das Problem der Souveranitaat und die Theorie des Volkerrechts, Tubingen: MohrSiebeck, 1920; W. Benjamin, ‘Zur Critik der Gewalt’, Archiv fur Sozialwissenschaften und Sozialpolitik, 1921; C. Schmitt, Die Diktatur, Berlin: Duncker & Humblot, [1921] 1994; C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, Cambridge Mass.: MIT Press, [1922] 1985. R. Kosseleck, Futures Past: On the Semantics of Historical Time, trans. K. Tribe, Cambridge, Mass.: MIT Press, 1985. A. Rimbaud, Un saison en enfer, Paris, Livre de poche, 1998 [1873]; Susan Harrow, ‘Debris, Mess, and the Modernist Self: Rimbaud from Poesies to the Illuminations’, in The Material, the Real and the Fractured Self: Subjectivity and Representation from Rimbaud to Reda, Toronto, University of Toronto Press, 2004, 11–61. V. Woolf, Mr. Bennett and Mrs. Brown, London: Hogarth Press, 1924. See P. Stansky, On or About December 1910: Intimate Bloomsbury and its Intimate World, Cambridge, Mass: Harvard University Press, 1997. D. Luban, ‘Legal Modernism’, Michigan Law Review 84.8, 1986, 1656–95; R. Unger, Passion: An Essay on Personality, New York: Free Press/Simon & Schuster, 1984, 33–8; C. Greenberg, ‘Modernist Painting’, in G. Battcock (ed.), The New Art: A Critical Anthology, rev. edn, New York: Dutton, [1966] 1973, 67–8; M. Fried, ‘Introduction’, in Three American Painters: Kenneth Noland, Jules Olitski, Frank Stella: Fogg Art Museum, 21 April–30 May 1965, Princeton, NJ: Garland Publishing Co, 1978; S. Cavell, ‘Music Discomposed’, in Must We Mean What We Say?, Cambridge: Cambridge University Press, 1969, 180–212 at 207. Letter to Paul Demeny, 15 May 1871, in A. Rimbaud, Complete Works, Selected Letters, A Bilingual Edition, trans. W. Fowlie, Chicago: University of Chicago Press, 2005, 374; see Graham Robb, Rimbaud, New York: Picador, 2001. R. Hughes, The Shock of the New, New York: McGrew-Hill, Inc., 1980. P. Fussell, The Great War and Modern Memory, New York: Oxford University Press, 1975, 9. Everything in the book, including the present tense in which it is written and the banality of the episodes, the author recounts leads up to the terrible last page in which the narrator himself is killed on a pointless day like every other pointless day in the last weeks of the war. E.M. Remarque, All Quiet on the Western Front. P. Brewer, The Chronicle of War: A Year-by-Year Account of Conflict from 1854 to the Present Day, London: Carlton Books, 2007. E.M. Remarque, All Quiet on the Western Front, 239. W. Owen, ‘The Parable of the Old Men and the Young’, in War Poems and Others, London: Chatto and Windus, [1916] 1973. Hugh Kenner quoted in P. Fussell, The Great War, 326. Hemingway quoted in P. Fussell, The Great War, 21. E.M. Remarque, All Quiet on the Western Front, 10 and 224. G. Orwell, The Road to Wigan Pier, Oxford: Benediction Classics, [1937] 2007, 158. D. Dyzenhaus, Legality and Legitimacy, 12–15. See e.g. M. Weber, ‘Politics as a Vocation’, in Gerth and Mills (eds), From Max Weber: Essays in Sociology, Oxford: Oxford University Press, [1946] 1958, 77–128. M. Weber, Economy and Society I, ed. G. Roth and C. Wittich, Berkeley: University of California Press, 1978, 241–71. Ibid, p. lix. See R.H. Collingwood, ‘Truth and Contradiction [1917]’ and ‘What “Civilization” Means’, in R. Murphy (ed.), Collingwood and the Crisis of Western Civilization, Exeter: Imprint Academic, 2008, 105, 142, 233.

48 Kangaroo Courts and the Rule of Law 24 G. Simmel, The Conflict of Modern Culture and Other Essays, trans. K.P. Etzkorn, New York: Teachers College, 1968, e.g. 23. 25 M. Weber, ‘Ueber einige Kategorien der verstehenden Soziologie’, Logos: Inter-nationale Zeitschrift für Philosophie der Kultur 4, 1913, 253–94; M. Weber, ‘Some Categories of Interpretive Sociology’, trans. E. Graber, The Sociology Quarterly 22.2, 1981, 151–80, quoted in B.B. Koshul, The Postmodern Significance of Max Weber’s Legacy: Disenchanting Disenchantment, Hampshire: Palgrave Macmillan, 2005; H. Greisman, ‘Disenchantment of the World’, British Journal of Sociology 27, 1976, 497–506; R. Svedberg, The Max Weber Dictionary: Key Words and Central Concepts, Palo Alto, CA: Stanford University Press, 2005, 63. 26 A.C. Doyle, The Coming of the Fairies, Lincoln, NE: University of Nebraska Press, [1922] 2006. For more on the Cottingley Fairies, see P. Smith, ‘The Cottingley Fairies: The End of a Legend’, in P. Narváez (ed.) The Good People: New Fairylore Essays, Lexington: The University Press of Kentucky, 1991, 371–405. 27 See R.G. Collingwood, The Philosophy of Enchantment: Studies in Folktale, Cultural Criticism, and Anthropology, ed. D. Boucher and W. James, Oxford: Oxford University Press, 2005. 28 E.M. Forster, A Passage to India, London: Folio Society, [1924] 2000, 184. 29 M.H. Abrams, The Mirror and the Lamp: Romantic Theory and the Critical Traditions, Oxford: Oxford University Press, 1953, 220–1. 30 See A. Wright, Literature in Crisis 1910–1922, London: Macmillan, 1984. 31 See O. Peters (ed.), Otto Dix, Munich: Prestel, 2010. 32 Trench/Der Schutzengraben (1920–23, oil on canvas); 1930 Staatliche Kunstsamlungen Dresden (confiscated 1937 and probably destroyed 1940): WVZ Loffler 1923.2. 33 Otto Dix, Der Schutzengraben (Trench), oil on canvas, 220 3 250 cm, 1920–23. Lost Art Collection, Sterling and Francine Clark Art Institute, Williamstown Mass. © Otto Dix Estate/SODRAC (2011). 34 Otto Dix, Lustmord (Sex Murder), oil on canvas, 165 3 135 cm, 1922. Original missing; image kindly provided by Neue Galerie New York and reproduced from Eva Karcher, Otto Dix 1891–1969, ‘Entweder ich werde berühunt – oder berüchtigt’, Cologne: 1992, 70. © Otto Dix Estate/SODRAC (2011). 35 Quoted in E. Kennedy, Constitutional Failure: Carl Schmitt in Weimar, Durham, NC: Duke University Press, 2004, 7. 36 K. Mann, The Turning Point, quoted by K. Muller, ‘The Charleston and the Prosthetic Leg’, in O. Peters (ed.) Otto Dix, 165. 37 I am grateful for this point, as indeed for very many points of elaboration and correction, and for his encyclopedic knowledge of modernist and post-modern literature, to the very generous conversations I have had with Professor André Furlani. 38 D.H. Lawrence, Apocalypse and the Writings on Revelation, ed. M. Kalnins, London: Penguin Books Ltd, 1922, 62. 39 P. Fjågesund, The Apocalyptic World of D.H. Lawrence, Oslo: Norwegian University Press, 1991, 53. 40 Ibid at 29–31. 41 D.H. Lawrence’s Letters, quoted in P. Delany, D.H. Lawrence’s Nightmare, Hassocks, Sussex: Harvester Press, 1979, 385. 42 D.H. Lawrence, Kangaroo, The Cambridge Edition of the Works of D.H. Lawrence, ed. B. Steele, Cambridge: Cambridge University Press, [1923] 2002, 222. 43 K. Asher, ‘Nietzsche, D.H. Lawrence and Irrationalism’, Neophilologos 59, 1975, 1–16 at 5–6. 44 M.H. Abrams, Natural Supernaturalism, New York: W.W. Norton, 1971, 30–48. See M. Detmold, The Law of Love, Adelaide: Detmold, 1996. 45 M.H. Abrams, Natural Supernaturalism; D. White, Early Romanticism and Religious Dissent, Cambridge: Cambridge University Press, 2007. 46 C. Schmitt, Political Romanticism, xxxv.

1922 49 47 W. Blake, ‘Jerusalem: The Emanation of the Giant Albion’, in D.V. Erdman (ed.) The Complete Poetry and Prose of William Blake, New York: Anchor Books/Random House, Inc., [1804] 1988, 144–258. 48 L. Strauss, ‘On German Nihilism’, Interpretation 26, [1941] 1999, 353–78 at 371. 49 Jeffrey Herf, Reactionary Modernism: Technology, Culture and Politics in Weimar and the Third Reich, Cambridge: Cambridge University Press, 1984. 50 C. Schmitt, Political Romanticism, 17. 51 R. Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition, Cambridge, Mass.: Harvard University Press, 2005. 52 R. Berkowitz, The Gift of Science, p. 24. See also throughout the Introduction and first chapter, e.g. xiv–xvi, 6. 53 Ibid, xvi. 54 Ibid, 156. Italics added. 55 Ibid, 51. 56 See D. Manderson, ‘Fission & Fusion: From Improvisation to Formalism in Law and Music’, Critical Studies in Improvisation 6, 2010, 1–10; and for further aspects of this transformation, see D. Manderson, ‘Et lex perpetua: Dying Declarations and Mozart’s Requiem’, Cardozo Law Review 20, 1999, 1621–48. 57 M. Summers (ed.), The Malleus Maleficarum of Heinrich Kramer and James Sprenger, London: John Rodker, [1486] 1928. 58 See W. Stephens, Demon Lovers: Witchcraft, Sex, and the Crisis of Belief, Chicago: University of Chicago Press, 2002; D. Manderson, ‘Possessed: Drug Policy, Witchcraft, and the Crisis of Belief’, Cultural Studies 19, 2005, 36–63. 59 Action Comics #1 (1938). 60 See the discussion of Learned Hand J’s definition of Superman in Detective v Bruns, 111 F.2d 432 (1940); P. Coogan, ‘The Definition of the Superhero’, in Super/Heroes: From Hercules to Superman, Haslem et al. (eds), Washington, DC: New Academia Publishing, LLC, 2007, 25–36 at 25. 61 U. Eco, ‘The Myth of Superman’, Diacritics 2, 1972, 14; collected in U. Eco, The Role of the Reader, Bloomington: Indiana University Press, 1979, 107–24. 62 See R. Peasley, ‘Superheroes, “The Moral Economy”, and “The Iron Cage”’, in Haslem et al. (eds), Super/Heroes: From Hercules to Superman, Washington, DC: New Academia Publishing LLC, 2007, 37–50 at 49–50. One might see more recent films in which the superhero’s critique of human institutions is more strongly elaborated: see, e.g., V for Vendetta (2004). 63 On the cowboy as a symbol of the minimal state and individualist social theory, see W. Wright, The Wild West: The Mythical Cowboy and Social Theory, London: Sage, 2001. See also S. Lubet, Murder in Tombstone: The Forgotten Trial of Wyatt Earp, New Haven, CT: Yale University Press, 2004. 64 J. Derrida, Gift of Death, trans. D. Wills, Chicago: University of Chicago Press, 1996; D. Manderson, Proximity, Levinas, and the Soul of Law, Montreal and Kingston: McGillQueens University Press, 2006, chapter 7. 65 M. Constable, Just Silences: The Limits and Possibilities of Modern Law, Princeton, NJ: Princeton University Press, 2007, 14. 66 R. Jacob, Images de la Justice, Paris: Le Leopard d’Or, 1994. 67 Ibid at p. 70 (translation mine). «Il y a là, à nouveau, les germes d’une conception exaltée de l’office du juge, supérieur en dignité au ministère même des autorités religieuses. Mais elle porte en elle sa nécessaire contrepartie. C’est qu’à l’inverse, la simple faiblesse, la défaillance humaine dans l’œuvre de justice conduirait le magistrat à sa perte.» 68 G. David, The Judgment of Cambyses, Groeninge Museum, Bruges, 1498; see R. Lippens, ‘Gerard David’s Cambyses and Early Modern Governance’, Law and Humanities 3.1, 2009, 1–24.

50 Kangaroo Courts and the Rule of Law 69 Gerard David, The Judgment of Cambyses (The Flaying of Sisamnes), oil on panel, 182.2 cm 3 159.4 cm, 1498. Groeninge Museum, Stedelijke Musea, Brugge. Image and permission to repoduce gratefully acknowledged. © Lukas-Art in Flanders, VZW. 70 R. Mohr, ‘The Christian Origins of Secularism and the Rule of Law’, in N. Hosen and R. Mohr (eds), Law and Religion in Public Life, London: Routledge 2011, 34–52. 71 G. Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich, New York: Grosset and Dunlap, 1964, e.g. 4–6, 54, 33, 92, 98. 72 Ibid, 281. 73 Magnus Zeller, Der Redner (The Orator), oil on canvas, 152.4 3 198.12 cm, 1920. Los Angeles County Museum of Art, Los Angeles. Image and permission to reproduce from the Art Resource Inc. gratefully acknowledged. © Estate of Magnus Zeller/ SODRAC (2011). 74 See also B. Rosenstock, ‘Capra Contra Schmitt: Two Traditions of Political Romanticism’, Theory & Event 8.4, 2005. 75 C. Schmitt, The Concept of the Political, trans. G. Schwab, Chicago: University of Chicago Press, [1927] 1996. 76 C. Schmitt, Political Romanticism, 161. 77 Ibid, 80–8. 78 C. Schmitt, Political Theology, 5. 79 H. Kelsen, Das Problem der Souveranitaat und die Theorie des Volkerrechts, Tubingen: MohrSiebeck, 1920, 21, cited in C. Schmitt, Political Theology, 73–4. 80 C. Schmitt, Political Theology, pp. 11–12; see G. Agamben, State of Exception, 80–3. 81 C. Schmitt, Political Romanticism, 65. 82 C. Schmitt, Concept of the Political, 46. 83 Paul Hirst on Carl Schmitt’s Decisionism in C. Mouffe (ed.), The Challenge of Carl Schmitt, London: Verso, 1999. 84 C. Schmitt, The Dictator, 1921. 85 See D. Dyzenhaus, Legality and Legitimacy, 85; F. Cristi, ‘Hayek and Schmitt on the Rule of Law’, Canadian Journal of Political Science 17, 1984, 521–35 at 529. 86 C. Schmitt, Political Theology. See also C. Schmitt, The Concept of the Political, Chicago: University of Chicago Press, [1927] 2007. 87 J. McCormick, ‘The Dilemmas of Dictatorship’, in D. Dyzenhaus (ed.) Law as Politics: Carl Schmitt’s Critique of Liberalism, Durham: Duke University Press, 1998, 217–51 at 223. 88 C. Schmitt, Political Theology, 51. 89 Ibid, 36. 90 See the last chapter of Political Theology; C. Schmitt, Roman Catholicism and Political Form, trans. G.L. Ulmen, Westport, CT: Greenwood Press, [1923] 1996; C. Schmitt, Political Theology II, trans. M. Hoelzl and G. Ward, Cambridge: Polity, 2008. 91 C. Schmitt, Political Romanticism, 73. 92 Schmitt quoted in E. Kennedy, Constitutional Failure, 77; see generally on the question of Schmitt’s counter-reformation Catholicism, at 49, 77, 175. 93 C. Schmitt, Concept of the Political; D. Dyzenhaus, Legality and Legitimacy, e.g. p. 97; on the role of homogeneity in Schmitt’s thinking, as early as the 1920s, see A. Lefebvre, ‘The Political Given: Decisionism in Schmitt’s Concept of the Political’, Telos 132, 2005, 83–98. 94 From Wolfgang Rothe, Expressionismus, quoted in E. Kennedy, Constitutional Failure, 42. 95 C. Schmitt, Political Theology, 12–13. 96 C. Schmitt, Political Romanticism, 162. 97 D. Dyzenhaus, ‘Introduction’, in D. Dyzenhaus (ed.), Law as Politics, 1–11. 98 For an early commentary to this effect, see G. Dahm, ‘Review of Schmitt’s Ueber die Drei Arten des Rechtswissenschaftlichen Denkens’, Zeitschriftflier die Gesamte Staatsrechtswissenschaft 95, 1935, 181.

1922 51 99 C. Schmitt, ‘Der Führer schützt das Recht’, Deutsche Juristen-Zeitung 39, 1 August 1934, 945–50. 100 Ibid, quoted in E. Kennedy, Constitutional Failure, 24. 101 D.H. Lawrence, Kangaroo, 113. 102 The word is particularly loaded in the context of Schmitt’s corpus: see Der Hüter der Verfassung (The Guardian of the Constitution) (Weimar, 1931); in ‘Der Führer schützt das Recht [The Leader Protects the Law]’, Deutsche Juristen-Zeitung 39.15, 1 August 1934, 945–50, Schmitt also refers to the Führer as Hüter.

Chapter 4

Enter the Kangaroo

Mr. Cooley came at once: and he was a kangaroo. His face was long and lean and pendulous, with eyes set close together behind his pince-nez: and his body was stout but firm . . . An extra-ordinary man. This pure kindliness had something Jehovah-like in it.1 – D.H. Lawrence, Kangaroo

Origin and reception In the awful abyss opened up by the devastation of the Great War, many writers were sucked into the vortex of this romanticism of anti-modern transcendence. W.B. Yeats sought to establish a fascist movement in Ireland.2 Ezra Pound openly supported Mussolini.3 One might also mention Spengler, Jünger, Heidegger or Freyer. Lawrence is generally thought to number among them. As a romantic child of the apocalypse, Lawrence at times craved just such a humbling purification – a second Flood that would wash the world clean. So perhaps in this regard it is not Igor Stravinsky’s Rite of Spring (1914) which was the true harbinger of modernism but rather his Firebird Suite (1910; rescored for orchestra 1919). Like the mythical phoenix, the question for the twentieth century was not so much the birth of the new but rather what could possibly endure the infernal fire which had so conclusively reduced the old to cinders. Indeed, the Phoenix was a symbol of annihilation and renewal that Lawrence claimed as his very own.4 As Leo Strauss put it, the crisis of modernity was marked by ‘the nihilism of the young and the positivism of the old’.5 This nihilism, this loss of the idea of principles as such, was central to Lawrence’s traumatic reaction. The firebird was, for Lawrence at least, a quintessentially romantic and antimodern symbol both in its mystical embrace of the Dionysian, the anti-Apollonian it represents; and in its promise of an ultimate rebirth and reconciliation between feeling and reason, law and love. The Phoenix is a symbol of both a clean slate purified by fire, and of a new unity forged out of the ashes of conflict. It represented, for Lawrence, the promise of transcendence. Kangaroo, however, while perfectly comprehending the attraction of these ideas, develops a provisional response far more rooted in the distinguishing features of

Enter the Kangaroo 53

Figure 4.1 D.H. Lawrence, Phoenix6

early post-war modernism. Aesthetic and political questions are integrated in a vision which attempts to respond to the crisis of modernity without reverting either to nineteenth-century realism or positivism, or to nineteenth-century transcendence or romanticism. Against Kangaroo Many people would be deeply sceptical of such a reading. Although undoubtedly one of the canonical writers of twentieth-century English literature, Lawrence has attracted a fierce barrage of criticism. As Jane Davis puts it, unlike many modern novelists, Lawrence is not difficult to understand; he is difficult to take.7 He is also difficult to define. Although he was defended as a realist by F.R. Leavis and a romantic by Frank Kermode, he has also been assailed from both perspectives and from many others; as a poor student of character, a poor student of history and a poor student of women. He has been accused of narrative incompetence, structural incoherence and hopeless didacticism.8 Much of the hostility to Lawrence has dwelt on the startling reactionary political ideology which appears to contaminate so much of his later work9 and that forms the spine of the three so-called ‘leadership novels’, Aaron’s Rod before and The Plumed Serpent10 after Kangaroo. Lawrence was by no means the only writer to flirt with extremism. But especially caustic treatment has been meted out to Lawrence’s ‘authority-longing’, his nihilistic, incoherent ‘rantings’, his ‘Nietzschean ideologising’ and ‘spiteful demands for authoritarianism’.11 Mark Spilka calls him a ‘sex-mad homosexual fascist’.12 He probably

54 Kangaroo Courts and the Rule of Law

didn’t mean it as a compliment. For Bertrand Russell – not the most unbiased of observers given the bitter split between the two in 1915 – Lawrence suffered from ‘a megalomaniac’s baulked will, a small-minded egotism’ which, if that were not enough, ‘led directly to Auschwitz’.13 T.S. Eliot was scarcely less dismissive. Lawrence embodies all the errors of romanticism, its tendency ‘for a writer of genius to conceive of himself as a messiah’, its emotionalism, its unbridled individualism, its cult of personality . . . The point is that Lawrence started life wholly free from any restriction of tradition or institution, that he had no guidance except the Inner Light, the most untrustworthy and deceitful guide that ever offered itself to wandering humanity.14 Lawrence died in 1930, and even the obituary-writers found themselves torn between the artist – ‘a magnificently equipped craftsman . . . a man possessed’ – and the preacher – ‘without commonsense, humour, tenderness or understanding of human character’.15 For all his poetic strengths when it came to birds, beasts and flowers,16 one might well conclude that D.H. Lawrence is not the man to lecture us about justice or the rule of law. Few of his books have been treated as scathingly as Kangaroo. One contemporary reviewer’s praise is so faint as to be barely discernible: One wishes that one might close here and cancel forever from one’s mind the memory of Mr Lawrence’s latest novel, Kangaroo . . . He has not the kind of background or information that could justify even so fragmentary a venture into the fields of sociology, economics, or psychology . . . But though the construction of Kangaroo is bad, the characters unreal, the dialogue and reflections vulgar and wearying beyond belief, we are every now and then reminded by a passing phrase that Mr Lawrence is still living and still potential.17 Kangaroo is typically characterised as slapdash and rambling. Its structure is ragged. Whole chapters appear cobbled together from the pages of The Bulletin, Australia’s leading weekly magazine, whose mixture of scurrilous wit and hysterical opinion – strongly nationalistic and overtly racist – Lawrence found weird and compelling.18 Much of the rest involves nothing but the Lawrence-character’s own musings. As Lawrence himself concedes: Chapter follows chapter, and nothing doing. But man is a thought-adventurer, and his falls into the Charybdis of ointment, and his shipwrecks on the rock of ages, and his kisses across chasms, and his silhouette on a minaret: surely these are as thrilling as most things . . . If you don’t like the novel, don’t read it. If the pudding doesn’t please you, leave it, leave it.19 What is Kangaroo? Is it a story, or a diary or journalism? What can something so rambling and eclectic possibly say to us?

Enter the Kangaroo 55

The novel’s reception in Australia was, if anything, less sympathetic than elsewhere. ‘Even from genius’, wrote Raymond Mortimer, ‘certain things are inadmissible’.20 The story, which imagines a right-wing political conspiracy amongst disaffected war veterans, was quickly dismissed as ‘preposterous’, ‘far-fetched’, ‘fantastic’ – contrived right-wing frippery grafted improbably onto a scenic Australian backdrop,21 like one of those hoary old Australian Christmas carols that substitute sun for snow and replace reindeers with brolgas or kangaroos. Lawrence’s treatment of Australia itself, the land and the people alike, was promptly dismissed as the trite impressions of a tourist.22 Even Frank Kermode, a generous and perceptive critic, was exasperated by Kangaroo’s undigested politico-philosophical meandering: ‘His eye did not fail him, and there are fine records of the weird Australian landscape; but at times he seems to write on and on without any real notion of what he wants to do’.23 In defence of Kangaroo These criticisms have not, of course, been unanimous. Lawrence has always attracted a devoted following.24 In recent years, a more nuanced analysis of his writing and his politics has emerged. I have made use of much of this scholarship in this book. But Kangaroo itself remains stubbornly immune from recuperation. It is, of all his novels, the least fashionable and the one which has garnered the least critical attention. To those who condemn its politics, I want to show how Lawrence embodies in it a theory of justice against that same politics. To those who condemn its style, I want to show how Lawrence embodies in it a theory of literature. Almost 100 years after its first publication, some of the attacks on Kangaroo now seem implausible.25 Sour criticism; perhaps even sour grapes. No doubt, particularly at the time, Australian critics did not take kindly to the idea that the ‘great Australian novel’ – that colonial chimera – could be written in six weeks by an Englishman on a busman’s holiday. But the notion that Lawrence did not know what he was talking about seems unconvincing. As if his remarkable ability to conjure a distinct Australian voice and place and light were not enough, Lawrence’s plot was hardly the ludicrous concoction that Australians at the time asseverated. Some writers have suggested that in fact Lawrence had stumbled upon a real-life conspiracy during his time in Australia.26 That is probably going too far but at the very least Lawrence’s description of extremist politics was closely connected to existing currents and strangely prophetic of future events. The vehemence with which early reviewers responded to Kangaroo might suggest that he had intuited and exposed a raw nerve in the emphatically innocent body politic of the young Australian nation. That which most surprises me is the charge that Lawrence did not understand Australia or Australians. While Lawrence was highly critical of the cultural aridity of 1920s Australia (a criticism which hardly seems outrageous) and of the belligerent egalitarianism of Australians (ditto), from this distance the book seems to me astonishingly perceptive in its descriptions of the land, the ocean, the people, the

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language and the ways of life. Reading Kangaroo now, the most striking aspect of Lawrence’s evocation of Australia is its acumen. His ability to have absorbed so much in such a short time, writing like a madman all the while, seems uncanny to me. I think Lawrence must have been in some ways a sort of idiot savant. He intuitively tuned in to the frequencies that were vibrating in the ether all around him, and channelled them right onto the page. The other charges against Lawrence and Kangaroo are more complex. It has taken people a long time to appreciate that irresolution, contradiction and disorder are not weaknesses in the book but essential to its style and vision. Kangaroo is an unusual book, perhaps even an experimental one. It is the exploration of his modernism and his response to the disorientation of war. Lawrence’s experimental approach to form was in turn essential to what he wanted to say about literature and ultimately about politics and justice. As for the politics of leadership, which is certainly central to Kangaroo, Lawrence is said to betray a fascination with charismatic figures of power, and with the erotic charge of absolutism and obedience. Maybe so, but Lawrence’s quest in Kangaroo seems to have been to understand this fascination and not simply to defend it. It is surprising how many otherwise good readers miss the fundamental distinction between therapy and advocacy. Furthermore, it is a mistake – the great mistake in Lawrence criticism – to read Lawrence’s position on these questions as static and uniform. While Lawrence portrays the seductions of authority honestly, his opinion changes significantly by the end of the book. This should not surprise anyone. Lawrence did not think of a story as the handing over of some truth or other from writer to reader, but rather as a process by which the writer learns something through writing just as the reader learns through reading. ‘Lawrence concentrated on the pursuit of an experience with all the slow, intricate, laborious, elements of his own nature. He grew within the novel in a devious way which is the despair of the formalists.’27 Lawrence’s conception that writing is a way of learning through imaginative experience and not a mere report on what one knows, is central to his vision of literature, of ethical relationships, and, I shall argue, of justice. Kangaroo provides a forum for Lawrence to seriously work through ideas. At the same time, Kangaroo stands at a critical moment in the history of this fascination with romantic anti-modernism. The coup d’état that brought Mussolini to power took place while Lawrence was completing Kangaroo (though after he had left Australia). Lawrence had just spent over two years in Italy where he had experienced the rise of fascism first hand – and with, it should be noted, great alarm. Yet, like many a romantic seeking a way out Weber’s ‘iron cage’ of modernity, he felt strongly the lure of authoritarian solutions to the institutional crises which grew out of the Great War. For these reasons, his response holds a particular interest for us. As Michael Bell writes: It is not apparent, however, that such a massive phenomenon is most completely understood through the eyes of its opponents, particularly judging with hindsight. By finding it so completely distasteful, progressive thought may

Enter the Kangaroo 57

misappreciate (sic) the appeal of fascism and has indeed proved vulnerable to complementary forms of collective and totalitarian idealism. Part of the interest of Lawrence was to have engaged this question so inwardly and to have recognized the kind of spiritual and emotional vacuum which political demagogues offer to fill.28 The lure of these ‘complementary forms of collective and totalitarian idealism’ has not dissipated in relation to contemporary legal problems. On the contrary, they are resurgent. As Leo Strauss said, ‘one cannot refute what one has not thoroughly understood. And many opponents did not even try to understand the ardent passion underlying the negation of the present world and its potentialities’.29 Lawrence therefore gives us a remarkable perspective on this idealism – the inside dope, as it were. If the political backdrop to Kangaroo is singular, the literary context is equally so. The Great War produced a revolution in aesthetic no less than political and intellectual discourses: The Wasteland and Ulysses mark great breaks with literary tradition. But Kangaroo, written in the same year, is unique because it sits in the midst of – and exemplifies – a quite prodigious body of writing which Lawrence produced addressing the nature and value of literature. These essays were eventually gathered together in the posthumous volume Phoenix, which ‘probably more than any single other modern book, impressed itself upon a generation of readers as the way to think about literature’.30 Studies in Classic American Literature, also rewritten in 1922, pursued similar themes, particularly in his essay on Moby Dick.31 As if that were not enough, Lawrence was at the same time engaging with the work of Freud and developing a theory of psychology and the unconscious in response to it, publishing Psychology of the Unconscious in 1921 and Fantasy of the Unconscious, again in 1922. Quirky as these essays are, Lawrence could rightly claim to be ‘the first writer to embody in artistic form the intimations of psychoanalysis with his own singular and authentic vision’.32 As a novelist, he is a psychoanalyst. I will return in a later chapter to the implications of these reflections on psychology for his understanding of the novel and of politics. Suffice it to say that, since Defoe and Fielding, literature has always set psychology against philosophy or history and this opposition forms part of the distinct register of truth it has claimed.33 Kangaroo is the most jurisprudential of D.H. Lawrence’s novels. I want to shed light on it by exploring the dialogue that emerges between it and the non-fiction essays that he was producing at the same time, particularly those on the theory of the novel.34 While there can be no doubt as to the connections between the thinking that emerges in Nietzsche, in Heidegger and in Lawrence,35 these connections have led too many critics to miss the ambiguities and irresolution of Lawrence’s work. In the 1920s and 1930s, Lawrence’s characteristically Nietzschean hostility to conventional morality led to his violent rejection by humanist critics such as Eliot, Russell and Tindall. Those who then attempted to resuscitate his work, such as F.R. Leavis and Huxley, did so largely by attempting to re-position him within the orthodox humanist tradition. What we have in Lawrence is something more

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ambiguous and complicated than that, not a morality in the conventional sense of rules or codes but an ethics36 sensitive to relational complexity. Lawrence insisted that the novel ‘is incapable of the absolute’.37 In Kangaroo we can see how this approach was influenced by his growing understanding of the ethics and justice of literature itself. As Milan Kundera wrote much later, the amorality of the novel – its contextual specificity, its psychological depth, its refusal to reduce life to the application of some pre-existing rules of conduct – is its morality.38 Already we can see, I think, how literature might in this way pose a problem for something like ‘the rule of law’. But this is to get ahead of ourselves, to read the end of Kangaroo before its beginning. The narrative voice we encounter on the first pages of Kangaroo was influenced by the work of Friedrich Nietzsche,39 and steeped in the turn-of-the-century tradition of German romantic and post-romantic writing.40 In the aftermath of the Great War, Lawrence and that tradition were beginning to confront precisely the kinds of questions that would lead within a very few years to both the sophisticated philosophical transcendentalism of Martin Heidegger and to the crude political demagoguery of Nazism.41 At their heart lie questions of structure and judgment, emotion and reason – law and justice – which remain exemplary problems for writers on law today.

Introducing Kangaroo A novel of ideas Kangaroo tells the story of Richard Lovatt Somers, a visiting English essayist of some small renown, whom a group of returned soldiers tries to recruit to the cause of a right-wing take-over in Australia. They yearn simultaneously for violence and for order; their leader is a would-be dictator, born Benjamin Cooley and known to one and all as Kangaroo. His righteous authority is his creed. ‘I want to keep order. I want to remove physical misery as far as possible. That I am sure of. And that you can only do by exerting strong, just power from above . . . I should try to establish my state of Australia as a kind of Church, with the profound reverence for life, for life’s deepest urges, as the motive power . . . [T]here must be law, and there must be authority. But law more human, and authority much wiser.’ ‘Why, the man is like a god, I love him,’ concludes Lovatt.42 It is unclear exactly what ideology animates Kangaroo and his band of vigilantes, the so-called ‘Diggers’ – a term which narrowly referred to returned soldiers but broadly and more powerfully connected all Australians to the experience of their troops in the trenches of the Great War.43 It has something to do with the ability of a true leader to act wisely outside of the rules, to realise that the unity of the people transcends vested interests, and to receive the allegiance of his subjects not by dint of any democratic legitimacy or any compliance with established rules or procedures, but by virtue of his natural and manifest authority. Indeed, natural

Enter the Kangaroo 59

Figure 4.2 Garry Shead, Lawrence and Kangaroo44

leadership and wisdom – aristocracy in the original sense of the word – are set squarely against the orthodox faith in rules and institutions, democracy and bureaucracy. Jack Callcott is Cooley’s lieutenant and Somers’ conduit to Kangaroo. He says: ‘If you’re an officer, you study what is best, for the cause and for the men. You study your men. But you don’t ask them what to do. If you do you’re a washout . . . When you’ve been through the army, you know that what you depend on is a general, and on discipline, and on obedience. And nothing else is the slightest bit of good . . . [T]he ideal of democratic liberty is an exploded ideal. You’ve got to have wisdom and authority somewhere, and you can’t get it out of any further democracy’ . . . ‘There’s quite a number of us in Sydney – and in the other towns as well – we’re mostly diggers back from the war –we’ve joined up into a kind of club – and we’re sworn in –and we’re sworn to obey the leaders, no matter what the command, when the time is ready – and we’re sworn to keep silent till then.’45 As Callcott gleefully remarks, this is ‘red-hot treason’.46 Kangaroo and his followers embody a spirit of anti-democratic unity based on a principle of charismatic leadership that acts spontaneously out of an innate sense of justice and wisdom.

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For the Diggers, the leader’s nature and the demands of justice must not be subjected to the restraints of a procedural system – like democracy – or to the deterministic application of established principles of rationality – like the law.47 Throughout, there is a constant slippage between the author and his main character. Both, for example, are the author of a scathing critique entitled Democracy.48 Indeed Anaïs Nin remarks that Somers was the most ‘undiluted’ selfportrait that Lawrence ever penned.49 At any rate Australia, with its culture of antiauthoritarianism, its belligerent egalitarianism, and its inbred resistance to rule, was in some ways an unusual test case for Lawrence; a confrontation with ideals which were anathema to him. His attitude to the place was marked by a kind of fascinated horror. But in Australia nobody is supposed to rule, and nobody does rule, so the distinction falls to the ground. The proletariat appoints men to administer the law, not to rule . . . [emphasis added] And this was what Richard Lovatt Somers could not stand. You may be the most liberal Englishman, and yet you cannot fail to see the categorical difference between the responsible and the irresponsible classes. You cannot fail to admit the necessity for rule . . . Somers was a true Englishman, with an Englishman’s hatred of anarchy, and an Englishman’s instinct for authority.50 [emphasis in original] Kangaroo appeals to Somers’ sense of categorical distinctions: between democracy and responsibility, ‘administering the law’ and ruling wisely, following the rules and justice, artificial legitimacy and innate authority – between a failed and corrupt modernity and a resurgent romantic idealism. No less did Lawrence believe in categorical distinctions between people themselves. ‘It meant a new recognition of difference, of highness and of lowness, of one man meet for service and another man clean with glory, having majesty in himself, the innate majesty of the purest individual.’51 The mystery of lordship. The mystery of innate, natural, sacred priority. The other mystic relationship between men, which democracy and equality try to deny and obliterate. Not any arbitrary caste or birth aristocracy. But the mystic recognition of difference and innate priority, the joy of obedience and the sacred responsibility of authority.52 The Diggers coupled this romantic focus on heart and nature with a profound post-war hostility to the disenchanted and segmented polar night of Weberian rationality. We are close here to the New Romantics, a term coined around 1900 by Eugen Diederichs to characterise the great outpouring of German writing, which at the end of, and against the grain of, the nineteenth century was contemptuous of ‘mechanism and positivism’ and offered as its counterpoise the ‘longing of the soul towards unity’.53 Strongly influenced by German romantic philosophy, similar

Enter the Kangaroo 61

cultural movements took shape all across Europe. Karl Fischer’s Wandervogel youth movement is not so different, for example, from Douglas Baden-Powell’s boy scouts, although with an emphasis on culture rather than Empire.54 From a certain angle some of Lawrence’s romantic fantasies about indigenous peoples, particularly in The Plumed Serpent,55 have more than a touch of the boy scout about them. In all three settings we see ideals of community, unity and instinctive leadership, the vaunting of nature and the natural world, and the use of pseudo-primitive rites in order to inculcate an innate virility uncontaminated by modernity or its machines, individualism and institutional structures. Lawrence’s work in the leadership novels channels a deep current of mysticism and romanticism with broad political and social resonances. Well prior to the emergence of National Socialism, the New Romantics ‘defended the justice of a hierarchical social order in which leadership qualities were of prime importance’.56 Kangaroo’s nemesis, presented much more sketchily, is Willie Struthers, a communist trade union organiser. He too is radical in his sympathies and his ambitions; he too opposes the tyranny and emptiness of ‘machine-civilisation’.57 But (like Marxism itself) Struthers represents in some ways the logical end-point of the democratising, equalising forces that civilisation unleashed. For Struthers, the radical equality of persons ought to govern our politics. The politician’s role is not to lead but to incarnate the social will – merely to ‘do what he is told’ by the popular will, to ‘administer the law’, and so on. Struthers is directly contrary to Kangaroo here: the job of the leader is to follow. Both these figures believe in love as a political force, but their love is of different kinds. For people like Kangaroo, love is vertical, patriarchal: it rains down like a blessing from le bon père du famille upon his subjects, and rises up again like a mist of reverence.58 ‘You’re such a Kangaroo’, says Somers, ‘wanting to carry mankind in your belly-pouch, cosy, with its head and long ears peeping out. You sort of figure yourself a Kangaroo of Judah, instead of a Lion of Judah: Jehovah with a great heavy tail and a belly-pouch.’59 Ultimately, however, Kangaroo, like all such charismatic leaders, needs less to bestow love on his subjects than to receive it. As Kangaroo lies dying, it is his last, pitiable, request. ‘Say you love me, Lovatt . . . Say you love me.’ The passage is painful but also very funny: Jack looked at Richard and made him a sharp, angry sign with his brows, as if bidding him comply. ‘You love our one-and-only Kangaroo all right, don’t you, Mr Somers?’ he said in a manly, take-it-for-granted voice. ‘I have an immense regard for him,’ muttered Richard. Kangaroo pronounces himself murdered by indifference; and duly dies.60 For people like Struthers, love is horizontal, fraternal. It flows between subjects themselves: mateship, brotherhood, solidarity, a radical equality that does not obey a leader but is merely reflected in one. The trust that Struthers believes will transform the world exists between the same inconsequential ‘ants’ which, according to

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Kangaroo, need only trust him. That is the distinction between the romantic cult of authority and the Marxist cult of equality that aimed to dismember it. [Kangaroo:] Man needs a quiet, gentle father who uses his authority in the name of living life, and who is absolutely stern against anti-life. I offer no creed. I offer myself, my heart of wisdom, strange warm cavern where the voice of the oracle steams in from the unknown; I offer my consciousness, which hears the voice; and I offer my mind and my will.61 [Struthers:] And that’s what we’ve got to knuckle under to, is it? They’re the upper classes? Them and a few derelict lords and cuttle-fish capitalists. Upper classes? I’m damned if I see much upper about it, mates. Drop ’em in the sea and they’ll float butt-end uppermost, you see if they don’t . . . Workers we are, mates, workers we must be, and workers we will be, and there’s the end of it.62 As early as 1922, then, Lawrence was acutely aware of how important this particular conflict of world-views was to be for the history of the twentieth century.63 Lawrence, however, did not see the conflict simply as a battle or a choice between fascism and communism: many people saw that and as a result many people made terrible choices. But Lawrence saw and wrote about these ideologies as desperate and parallel manifestations of a deeper crisis within modernity itself. And he recognised, because of his own experience, that the crisis was at heart not just a social or a political but a psychological one – a crisis of belief in belief itself. The language of a new synthesis, of an organic or cyclic approach to history, and of a Messianic and transformative fire cuts across the political right and left in the 1920s and 1930s. It tapped directly into Lawrence’s tradition and background, and responded directly to his own sense of the loss that modernity had wrought. J.M. Murry and Anais Nin write, with some justification, that ‘Lawrence was alone in the depth of his prescience of the crisis of humanity which has developed since his death’.64 A peculiar history? Yet strangely he chose to set the battle between vertical and horizontal principles in, of all places, New South Wales. Early critics supposed this to be the mere grafting of an improbable intrigue onto an exotic locale.65 More recently, Robert Darroch, amongst others, has claimed that in some way – no one can quite explain how – Lawrence managed to obtain inside information about the activities of a similar group actually operating in secret at the time of his visit.66 The evidence now seems pretty clear that Darroch stretches beyond plausibility the number of encounters Lawrence could have had with supposed members of such a group.67 The connections that Darroch draws between Sir Charles Rosenthal’s King and Empire Alliance and Kangaroo’s Diggers, William Scott and Jack Callcott, Jack Garden (communist secretary of the Sydney Trades and Labor Council) and Willy

Enter the Kangaroo 63

Struthers certainly do not establish that he knew or was writing specifically about these people. Ultimately, the claim for any strictly factual basis to the novel falls afoul not only of Lawrence’s own denials, but Frieda’s. She, after all, read Lawrence’s draft every night while they were living in Thirroul and would certainly have known if it were closely based on events that took place while they were in Australia.68 Kangaroo is not a roman à clef. At the same time, the cavalier dismissal of the argument that Lawrence had managed to discern a great deal of the political undercurrents and tensions of Australian society seems to me ingenuous. Indeed, nothing makes me more suspicious than the self-congratulatory tone reserved for the question by Australian critics, both then and later. In an early review in the Brisbane Standard, Robert Samuel Ross praises the book but says the plot is ‘farfetched, fantastic . . . I had a sense of foreign machinations from unpronounceable parts of the world transplanted into Australia’.69 Such a xenophobic reaction shows precisely the complacency of Australian society that disgusted Lawrence. Australian history was hardly without its share of conspiracies, its power plays, hypocrisies and lies. It too had been forged, tempered and betrayed in the years of the Great War; indeed, these elements of its recent history were already central to the founding myth of the Australian body politic, of which the brutal birth-pangs of the army at Gallipoli was to become the defining moment. Soon, hundreds of cenotaphs were erected in small towns all over the country to commemorate young men from local communities who had gone to the Great War and died there. The first was erected in 1920 in Thirroul, New South Wales. The cult of the diggers had already begun. Surely then the antipodes were not so removed from the currents of a broader intellectual life as to render them immune from the gusts of modernism and reaction sweeping the world. A very Australian insistence on Australian purity and innocence lies behind the protest that ‘machinations’ are ‘foreign’ and ‘unpronounceable’ and hence unimaginable, impossible. The argument over whether Kangaroo was or was not modelled on Major General Sir Charles Rosenthal, General Sir John Monash or even Bertrand Russell,70 or whether the riot that Lawrence describes in Sydney ever actually took place, misses a critical distinction. The novel does not describe actual events of Australian political life in 1922, but does reflect the broader currents of its political discourse. A secret right-wing group led by army officers, with views very close to Kangaroo’s Diggers, did in fact come close to mounting a coup against a left-wing government in Sydney – ten years after the publication of Kangaroo.71 I would have thought it much less likely that this was mere coincidence – a ridiculous chimera of Lawrence’s imagination that just happened to happen – than that Lawrence, whether in Australia or, as some suppose, through conversations on the boat from Ceylon to Perth, had learnt about the extreme right-wing and left-wing tendencies of Australian politics which, if not active at the time in the precise way that Lawrence presented them, were nonetheless already brewing. This would be just another instance of Lawrence’s uncanny ability to absorb the flavour and meaning, the currents, styles and feeling, of the places that he visited. That, rather than

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some abstract commitment to a formalism untainted by journalism – an idea which even a careless reading of Kangaroo would show to be nonsense – constitutes his ‘literary method’.72 Critics argue that a right-wing coup d’état ‘would run utterly against the political current of the period. Their business would have been to counteract left-wing attempts, as they saw it, to overturn established law and order, not to create a disorder of their own’.73 But such a remark stupendously misses the connection between post-war reactionary politics and the strain of anti-democratic romanticism which Lawrence well understood and which, of course, led to the rise of fascist parties in Germany, Italy, Spain and across the world. It is criminally naïve to think of right-wing politics – then, or now for that matter – as simply equivalent to the support of the status quo. While it was not until some years later that this falsity was revealed in Australia as elsewhere, we have seen that its origin lay in the Great War and the crisis of modernity itself. I am fairly sure that there was no ‘well organised secret army’ in the New South Wales of 1922.74 I am far from convinced, however, that Lawrence did not talk to men who wished there were, or detect the early stirrings of such activities, or rightly perceive in groups like the King and Empire Alliance the political inclinations which he ascribed to them.75 No doubt what Lawrence sensed in the subterranean political life of Australia was only a fantasy, and his novel is a thought experiment about that fantasy. But it will not do to dismiss all this as the mere imaginings of Lawrence’s tortured psyche.76 Even in Australia, dear innocent fairy-dell (and oh yes, narrow-minded, racist and genocidal) Australia, it was by no means his fantasy alone. In warning us of the consequences of giving flesh and blood to it, Lawrence foresaw the whole trajectory of twentieth-century history. What was this history after all if not that of the barbaric consequences of fantasies come to life?

Notes 1 D.H. Lawrence, Kangaroo, The Cambridge Edition of the Works of D.H. Lawrence, ed. B. Steele, Cambridge: Cambridge University Press, [1923] 2002, 107–11. 2 C. Nixo, Lawrence’s Leadership Politics and the Turn Against Women, Berkeley: University of California Press, 1986, 6. 3 Ibid, 7. 4 E.D. McDonald (ed.) Phoenix: The Posthumous Papers of D.H. Lawrence, New York: Viking, 1936. 5 L. Strauss, ‘On German Nihilism’, Interpretation 26, [1941] 1999, 353–78 at 355. 6 D.H. Lawrence, Bookplate from Phoenix: The posthumous papers of D.H. Lawrence, New York: Viking, 1938. Photograph © Lysanne Larose, 2011. 7 J. Davis in K. Brown (ed.), Rethinking Lawrence, Milton Keynes: Open University, 1990, p. 181. 8 R. Burden, Radicalizing Lawrence: Critical Interventions in the Readings and Reception of D.H. Lawrence’s Narrative Fiction, Amsterdam and Atlanta: Rodopi Bv Editions, 2000, 11–12, 244–5. 9 On Lawrence’s fascism, see A. Guttmann, ‘D.H. Lawrence: The Politics of Irrationality’, Wisconsin Studies in Contemporary Literature 5, 1964, 151–63.

Enter the Kangaroo 65 10 D.H. Lawrence, Aaron’s Rod, Charlston, SC: Nabu Press, [1922] 2010; D.H. Lawrence, The Plumed Serpent, London: Wordsworth Editions, [1926] 1995. 11 K. Widmer, ‘Lawrence and the Nietzschean Matrix’, in J. Meyers, D.H. Lawrence and Tradition, Amherst: University of Massachusetts Press, 1985, 115–31 at 123–4. 12 R. Rylance, ‘D.H. Lawrence’s Politics’, in K. Brown (ed.), Rethinking Lawrence, Milton Keynes: Open University, 1990, 163. 13 Ibid. 14 T.S. Eliot, After Strange Gods, New York: Harcourt Brace and Co, 1934, 64. 15 J.C. Squire, ‘Observer’, in W.T. Andrews (ed.), Critics on D.H. Lawrence, London: Allen & Unwin, 1971, 333. 16 D.H. Lawrence, Birds, Beasts and Flowers!: Poems by D.H. Lawrence, Santa Rosa: Black Sparrow Press, [1923] 2001. 17 A. Gregory, ‘Dial, January 1924, lxxvi, 66–72’, quoted in R.P. Draper (ed.), D.H. Lawrence: The Critical Heritage, London: Routledge, 1970, 216–23. 18 Thus Chapter XIV, ‘Bits’: ‘The Bulletin was the only periodical in the world that really amused him . . . So he rushed to read the ‘bits’. They would make Bishop Latimer forget himself and his martyrdom at the stake’, D.H. Lawrence, Kangaroo, 269. 19 D.H. Lawrence, Kangaroo, 284. 20 B. Steele, ‘Introduction’, in D.H. Lawrence, Kangaroo, The Cambridge Edition of the Works of D.H. Lawrence, ed. B. Steele, Cambridge: Cambridge University Press, [1923] 2002, li. 21 B. Steele, ‘Introduction’, pp. liii–liv. Note C. Atkinson, ‘Was there Fact in D.H. Lawrence’s Kangaroo’, Meanjin, September 1965, 87; J. Alexander, ‘D.H. Lawrence’s Kangaroo: Fantasy, Fact, or Fiction’, Meanjin, June 1965. See also A.D. Hope, ‘D.H. Lawrence’s Kangaroo’, in W. Ramson (ed.), The Australian Experience, Canberra: ANU Press, 1974, 157–73. 22 For criticism of Lawrence’s weak sense of Australia and claims the description of the coast and bush are only ‘peripheral’ elements of the book, see W. Friedrich, Australia in Western Imaginative Prose Writings, Chapel Hill: University of North Carolina Press, 1967, 226–35. For Lawrence’s unfavorable treatment of Australia, see J. Heuzenroeder, ‘D.H. Lawrence’s Australia’, Australian Literary Studies 4, 1970, 319–33. 23 F. Kermode, ‘The Novels of D.H. Lawrence’, in S. Spender (ed.), D.H. Lawrence: Novelist, Poet, Prophet, New York: Harper & Row, 1973, 77–89 at 88. 24 R. Dataller, ‘Elements of D.H. Lawrence’s Prose Style (1953)’, in W.T. Andrews (ed.), Critics on D.H. Lawrence, London: Allen & Unwin, 1971, 53; M. Smaels, ‘Water, Ships and the Sea: Unifying Symbols in Lawrence’s Kangaroo’, University Review 37, 1970, 46–57; M. Wilding, ‘Between Scylla and Charybdis: Kangaroo and the Form of the Political Novel’, Australian Literary Studies 4, 1970, 334–48. 25 Do I have a 21st-century eye just by virtue of living in it? With some amazement I realise I was born at a moment equidistant between the Thirroul Lawrence lived in and the Thirroul I lived in myself. What in the constitution of the gaze is governed by experience and what my memory and tradition? Why, in short, does time pass so quickly? 26 R. Darroch, D.H. Lawrence in Australia, South Melbourne: Macmillan, 1981; J. Davis, Lawrence at Thirroul, Sydney: Collins, 1989. 27 A. Nin, D.H. Lawrence, An Unprofessional Study, Denver: Swallow, 1964, 11. 28 M. Bell, D.H. Lawrence: Language and Being, Cambridge: Cambridge University Press, 1992, 150. 29 L. Strauss, ‘German Nihilism’, 362. 30 See J. Remsbury, ‘Real Thinking: Lawrence and Cezanne’, Cambridge Quarterly 2, 1967, 117–47, at p. 117; D.H. Lawrence, ‘Surgery for the Novel – Or a Bomb’, Literary Digest International Book Review, April 1923, 5–6; D.H. Lawrence, ‘Art and Morality [1925]’, in E.D. McDonald (ed.), Phoenix, 521–6; D.H. Lawrence, ‘Morality and the Novel [1925]’,

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31 32 33 34 35 36

37 38 39 40

41 42 43

44 45 46 47

48 49

in E.D. McDonald (ed.), Phoenix, 527–32; D.H. Lawrence, ‘Why the Novel Matters [1925]’, in E.D. McDonald (ed.), Phoenix, 533–8; D.H. Lawrence, ‘The Novel and the Feelings [1925]’, in E.D. McDonald (ed.), Phoenix, 755–60. D.H. Lawrence, Studies in Classic American Literature, New York: Viking Press, 1964. A. Gregory, ‘Review’, Dial, 1924. See J. Lepore (2008) ‘Just the Facts, Ma’am’, New Yorker, 24 March 2008. Online. Available HTTP: (accessed 28 June 2011). See Lawrence’s essays on the subject, cited above at note 30. A. Fernihough D.H. Lawrence: Aesthetics and Ideology, Oxford: Clarendon Press, 1993; M. Bell, D.H. Lawrence: Language and Being, Cambridge: Cambridge University Press, 1991. See Z. Baumann, Postmodern Ethics, London: Blackwell, 2000; E. Levinas, Autrement qu’être ou au-delà de l’essence, The Hague: Martinus Nijhoff, 1974; E. Levinas, Otherwise than Being: or Beyond Essence, trans. A. Lingis, Pittsburgh: Duquesne University Press, 1998; E. Levinas, Ethique et infini: Dialogues avec Philippe Nemo, Paris: Fayard, 1982; D. Manderson, Proximity, Levinas, and the Soul of Law, Montreal and Kingston: McGill-Queens University Press, 2006. B. Steele (ed.), Study of Thomas Hardy and Other Essays, Cambridge: Cambridge University Press, [1923] 1985, 179; see also 172. M. Kundera, Testaments Betrayed: An Essay in Nine Parts, trans. L. Asher, London: Faber & Faber, 1995. The influence of Nietzsche on Lawrence is well known: see C. Milton, Lawrence and Nietzsche: A Study in Influence, Aberdeen: Aberdeen University Press, 1987; see F. Nietzsche, Thus Spake Zarathustra, trans. R.J. Jollingdale, London: Penguin Books, 1969. See K. Widmer, ‘Lawrence and the Nietzschean Matrix’, in J. Meyers, D.H. Lawrence and Tradition, Amherst: University of Massachusetts Press, 1985, 115–31; M. Brunsdale, The German Effect on D.H. Lawrence and His Works 1885–1912, Berne and Frankfort: Peter Lang, 1978; A. Fernihough, D.H. Lawrence: Aesthetics and Ideology, Oxford: Clarendon Press, 1993. P. Bourdieu, The Political Ontology of Martin Heidegger, Palo Alto, CA: Stanford University Press, 1991. D.H. Lawrence, Kangaroo, 107–12 at 114. Of uncertain origin and probably related to mining, the term was being used specifically to refer to Australian and New Zealand Army Corps (ANZAC) soldiers by 1916: see W.H. Downing, J.M. Arthur and W.S. Ramson, W.H. Downing’s Digger Dialects, ed. J.M. Arthur and W.S. Ramson, Oxford: Oxford University Press, [1919] 1990. It had become entrenched (so to speak) in the Australian vernacular and imagery by the end of the First World War, by which time it referred not only to Australians and New Zealanders generally, but appealed to the mythology of undying ‘mateship’ forged among their infantry during the war. In short order it thus acquired distinct ideological and nationalistic overtones. The concept continues to have emotional and political resonance in both countries. Garry Shead, Lawrence and Kangaroo, oil on composition board, 91 3 121 cm, 1992. Reproduced by kind permission of the artist. D.H. Lawrence, Kangaroo, 89–92. Ibid, 95. The distinction can be seen in Max Weber’s typography of authority: see M. Weber, ‘Law and State’, in M. Rheinstein (ed.), Max Weber on Law in Economy and Society, trans. M. Rheinstein and E.A. Shils, Cambridge, Mass.: Harvard University Press, 1954; M. Weber, Economy and Society, G. Roth & Wittich, 1978, 653–8; D. Trubek, ‘Max Weber on Law and the Rise of Capitalism’, Wisconsin Law Review 3, 1972, 720–54. D.H. Lawrence, ‘Democracy’, in E.D. McDonald (ed.), Phoenix, 699–718. A. Nin, An Unprofessional Study, 89.

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67 68 69 70 71 72

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D.H. Lawrence, Kangaroo, 21–2. Ibid, 303. Ibid, 107. G. Mosse, The Crisis of German Ideology: Intellectual Origins of the Third Reich, New York: Grosset and Dunlap, 1964, 52–4. R. Baden-Powell, Scouting for Boys: A Handbook for Instructors in Good Citizenship, ed. E. Boehmer, Oxford: Oxford University Press, [1904] 2004. D.H. Lawrence, The Plumed Serpent. G. Mosse, The Crisis of German Ideology, 98. D.H. Lawrence, Kangaroo, 348. There is evidence for the solipsistic nature of Kangaroo’s love throughout the text; see in particular 145–52. See J. Humma, Metaphor and Meaning in D.H. Lawrence’s Later Novels, Columbia: University of Missouri Press, 1990, 94. D.H. Lawrence, Kangaroo, 210. Ibid, 337. Ibid, 113. Ibid, 310–12. And see, for example, J. and J. Sparrow, Radical Melbourne: A Secret History, Carlton North: Vulgar Press, 2001. J.M. Murry, ‘Unprofessional Essays 1956’, quoted in A. Nin, An Unprofessional Study, 10. Note C. Atkinson, ‘Was there Fact in D.H. Lawrence’s Kangaroo’, 87; J. Alexander, ‘D.H. Lawrence’s Kangaroo: Fantasy, Fact, or Fiction’, Meanjin, June 1965. See also A.D. Hope, ‘D.H. Lawrence’s Kangaroo’, in W. Ramson (ed.), The Australian Experience, Canberra: ANU Press, 1974, 157–73. R. Darroch, D.H. Lawrence in Australia, South Melbourne: Macmillan, 1981; M. Cathcart, Defending the National Tuckshop: Australia’s Secret Army Intrigue of 1931, Melbourne: McPhee Gribble Penguin, 1988; and A. Moore, The Secret Army and the Premier: Conservative Paramilitary Organisations in New South Wales, 1930–32, Sydney: University of New South Wales Press, 1989. For critics, see: P. Eggert, ‘Lawrence, the Secret Army, and the West Australian Connexion’, Westerly xxvi, 1982, 12–26; D. Ellis, ‘Lawrence in Australia: The Darroch Controversy’, D.H. Lawrence Review xxi, 1989, 167–74; J. Davis, D.H. Lawrence at Thirroul, Sydney: Collins, 1989; and B. Steele, ‘Kangaroo: Fact and Fiction’, Meridian, 10 (1991), 1934; and ‘Kangaroo: The Darroch Thesis’, Meridian 11.1, 1992. See also J. Davis, ‘Place, Pastoral and the Politics of the Personal: A Semi Genre-based Exploration of D.H. Lawrence’s Kangaroo’, Ph.D. thesis, University of Wollongong, 1992, 4–23. J. Davis, D.H. Lawrence at Thirroul, 93. D. Ellis, ‘Lawrence in Australia: The Darroch Controversy’. B. Steele, ‘Introduction’, iv. R. Maud, ‘The Politics in Kangaroo’, Southerly 17, 1956, 67–91 at 67. A. Moore, The Secret Army and the Premier. I am referring here to the debate between Steele and Moore: A. Moore, ‘Anticipating the Cambridge Kangaroo: A reply to Bruce Steele’, Meridian 11, 1992, 31. Steele appears to underestimate the radicalism of Kangaroo, particularly in its self-conscious mixing of fact and fiction, for example in its use of extracts from the Bulletin magazine. P. Eggert, ‘D.H. Lawrence’s Reception in Australia’, Rananim 3.3, November 1995. Online. Available HTTP: (accessed 28 June 2011). See B. Steele’s dismissive survey of the Darroch controversy in his Introduction to D.H. Lawrence’s Kangaroo. A. Moore, ‘Anticipating the Cambridge Kangaroo’, 31. B. Steele, ‘Introduction’; R. Maud, ‘The politics in Kangaroo’.

Chapter 5

The Rule of Law and the Legacy of Modernism

A knife is not a knife unless it has some ability to cut. The law to be law must be capable of guiding behavior, however inefficiently. Like other instruments the law has a specific virtue which is morally neutral in being neutral as to the end to which the instrument is put. It is the virtue of efficiency; the virtue of the instrument as instrument. For law this virtue is the rule of law.1 – Joseph Raz, ‘The Rule of Law and Its Virtue’ All law is ‘situational’ law.2 – Carl Schmitt, Political Theology

We are not done with modernism, nor it with us. In both its normative and descriptive dimensions, we are still struggling with the critique of modernity. What to do about the pitiless success of our modern machine-life, and the pitiful failure of our modern spirit-life? Standard conceptions of the rule of law continue to rely in some important way on positivism’s approach to judicial method, putting its faith in the tenets of modernity. And, on the other hand, the critics of modernity continue to confront it, putting their faith by and large in some version of romanticism: the appeal to some external force, beyond the law, which will either unite and synthesise these oppositions – as is the case in early romanticism and still dominates the field of law and literature – or to a kind of passion that will triumph over these oppositions – as is the case in late romanticism and in what is sometimes called ‘reactionary modernism’. Either way, what we see is a vision of transcendence and a belief in the possibility of legal salvation. Yet it seems to me that the distinct implications of the modernist moment for how we are to understand legal judgment – what it changed that cannot be unchanged, what it dismantled that cannot be reconstructed – has been largely forgotten by both sides. After modernism, is it even possible any longer to believe in either side? What would a reconciliation of contradictory viewpoints look like? Even in legal texts which would appear to demand such a thorough-going reflection, there has been a tendency to conflate modernity and modernism rather than seeing one as a response to the other.3 Carl Schmitt and Hans Kelsen are again quite exemplary here: in continuing to fight the Enlightenment and the Reformation one last time it does not seem to have

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occurred to them that modernism – the time in which they were actually living – might provide a new perspective on these questions. So my task now is to show that the crisis of modernism is still being played out and still being side-stepped in legal theory. This chapter will take us away from the historical and textual analysis of the surrounding chapters in order to provide some necessary legal context. In the first part of this chapter I attempt to show the conventional connection between the rule of law and positivism, and the origin of the critiques of positivism in the crisis of modernity. Despite the critical question of their relationship, in general the supporters of the rule of law and the critics of positivism have had nothing to say to each other. On rare occasions where there has been an attempt to bring these two quite different traditions together, as in recent work by Roger Berkowitz on the origins of positivism, Brian Tamanaha on the rule of law, or William Scheuerman on Schmitt, the second part of this chapter will argue that their work has been marred by a blinkered analysis of that history. A closer attention to that history will show us (contra Tamanaha) the seriousness of the challenge the modernist moment poses to the rule of law, but will also permit us to see (contra Berkowitz) that more than one reaction is available.

Troubling the rule of law Positivism Put simply, positivism claims that objective meaning can be derived from established legal rules such that judges and other interpreters are able to apply them in a predictable and pre-determined fashion – not all the time, of course, but enough of the time to be treated as typical of the nature of interpretation. In the ‘normal case’, as H.L.A. Hart insists in his 1957 locus classicus on the subject, the meaning of the rules is inflexible of application and neutral in origin. It is just what the words mean. [T]o insist on the utilitarian distinction is to emphasize that the hard core of settled meaning is law in some centrally important sense and that even if there are borderlines, there must first be lines. If this were not so the notion of rules controlling courts’ decisions would be senseless as some of the ‘Realists’ – in their most extreme moods – and I think on bad grounds – claimed.4 This claim as to ‘the hard core of settled meaning’ embodies both a theory of interpretative method and a theory of interpretative legitimacy; it seeks to explain what judges ‘do’ and why they should do it. In his oft-quoted remarks on taking office as Chief Justice of the High Court of Australia in 1952, the great jurist Sir Owen Dixon unites these descriptive and normative features. It may be that the court is thought to be excessively legalistic. I should be sorry to think that it is anything else. There is no other safe guide to judicial decisions

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in great conflicts than a strict and complete legalism . . . The court and the legal profession stand as the necessary foundation of any community . . . Lawyers are often criticized because their work is not constructive. It is not their business to contribute to the constructive activities of the community, but to keep the foundations and framework steady. The authority of the courts of law administering justice according to law is a product of British tradition and it is for us to maintain it. There is I believe a general respect for the Queen’s courts of justice which administrate justice according to law, and I believe that there is a trust in them. But it is because they administer justice according to law.5 That repeated use of the phrase ‘administering . . . administrate . . . administer justice according to law’ tells us that justice plays a circumscribed and specific part in this conception of law. Whatever else it might mean in other contexts, in the context of legal institutions it means the neutral application of pre-existing rules. A judge who departed from his duty in this respect – who was tempted for whatever reason to dispense justice but not administer it ‘according to law’ – would be undermining the ‘foundations and framework’ of law. Admittedly the rule of law is a broad and somewhat nebulous concept. Procedural theories insist that the rule of law is to be understood as principles concerning the process or method by which decisions are made without limiting in any way the content of those decisions; substantive theories, on the other hand, insist that the rule of law, properly understood, must protect particular interests and rights.6 Ronald Dworkin, for example, expands the idea of the rule of law to include a wide range of ‘substantive’ or rights-based guarantees.7 Dworkin has been particularly critical of writers who distinguish between the rule of law and justice. The rule of law . . . does not distinguish, as the rule-book conception does, between the rule of law and substantive justice; on the contrary it requires, as part of the ideal of law, that the rules in the rule book capture and enforce moral rights.8 Either substantive or procedural approaches may in turn range from narrow to broad conceptions of what kinds of legal practices or rules the rule of law demands. Most famous – or infamous, depending on your perspective – was that of the New Delhi Declaration of the International Commission of Jurists. The Rule of Law is a dynamic concept for the expansion and fulfillment of which jurists are primarily responsible and which should be employed not only to safeguard and advance the civil and political rights of the individual in a free society, but also to establish social, economic, educational and cultural conditions under which his legitimate aspirations and dignity may be realized.9

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But these broad and substantive visions of the rule of law are suppletive. While they reflect an expanding circle of expectations implicit in ‘the rule of law’, they add to the central features which all share, most importantly, a commitment to protecting values of predictability and certainty in the law. This much was evident as far back as Aristotle, who clearly distinguished rule by ‘the best men’ from rule by ‘the best laws’ – exactly the choice that the medieval, vigilante or romantic traditions invert. The intrusion of subjectivity and discretion into decision-making was for Aristotle precisely the unwelcome influence of ‘a wild animal’ – meaning a human being – whose ‘appetite’ and ‘passion’ would undermine the process of pure reason.10 For Aristotle then, the neutral application of prior laws by a process of pure deduction was necessary to a sound polity. As the rule of law took shape in the eighteenth and nineteenth centuries, and under the influence of contemporary politics and history, it came to express other concerns too – the tripartite division of powers, habeas corpus, and law’s equal application to all persons. But it never lost its primordial interpretative concerns. So in A.V. Dicey, the greatest of nineteenth-century writers on the rule of law, we see a growing emphasis on the sanctity of individual and private rights, and of the importance of ‘equality before the law, or the equal subjection of all classes to the ordinary law of the land’. Nonetheless, his primary definition of the rule of law still centred on ‘the absolute supremacy or predominance of regular law as opposed to the influence of arbitrary power’ such as by the exercise of discretion in interpretation.11 This idea of the rule of law reached its quintessential statement in Friedrich Hayek. [S]tripped of all technicalities this means that government in all its actions is bound by rules fixed and announced beforehand – rules which make it possible to foresee with fair certainty how the authority will use its coercive powers in given circumstances, and to plan one’s individual affairs on the basis of this knowledge.12 Not all writers have equated this approach to rules with justice. Joseph Raz, for example, drawing on Hayek, defines the rule of law as embodying two propositions: that all people, including governments, should be ruled by ‘the law’, and that this ‘law’ should be capable of guiding their actions.13 In this way too the objective prior existence of determinate legal rules is what guarantees law’s certainty, generality and equality.14 Raz argues that telling people in advance the consequences of their actions (be those consequences marriage, pension, fine or death) guides their behaviour and so helps the law accomplish its purposes regardless of whether those purposes are morally bad or morally good. The rule of law, says Raz, is like the sharpness of a knife: it makes law effective but it does not make law good. The rule of law gives law the clarity which allows it to achieve its ends, whatever they may be. ‘Thus the rule of law is the inherent virtue of law but not a moral virtue as such.’15 Nonetheless, for most writers in this tradition, the rule of law is itself the expression of justice at least as it is to be found in the law and as such far from ‘morally

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neutral’. For Aristotle, this is simply what justice means. ‘When men seek for what is just they seek for what is impartial; for the law is that which is impartial.’16 In Hayek, the point is not definitional but normative. The certainty which comes of always and only applying ‘rules fixed and announced beforehand’ allows individuals to ‘plan [their] own affairs’ and so is a necessary element of their freedom, even within law’s constraints. Lon Fuller makes a similar point in emphasising that such laws can, while laws which fail to meet these criteria cannot, form part of the practical reasoning that guide’s men’s conduct.17 But he goes much further in defending the substantive good that comes of adhering to a procedural rule of law, arguing that the clarity and logical consistency upon which the rule of law places such a premium makes it harder to enact ‘evil’ laws and exposes the corruption of the legal system. A government which is committed to the rule of law cannot just throw dissidents into jail when it finds them a nuisance. It must articulate, clearly, prospectively and publicly, the general principles that have been breached by their actions. ‘If the Rule of Law does not mean this’, says Fuller, ‘it means nothing’.18 As Colleen Murphy argues, this exposes to public scrutiny and resistance the government’s own actions, a resistance which in the real world is increasingly countered by resort to extra-legal means. That is when we conduct thought experiments in which we try to imagine in sufficient detail a dictator pursuing unjust ends by means of a legal system that is fully compliant with the Fullerian account of the rule of law, at a certain point our imagined case loses any plausibility. As Jeremy Waldron writes . . . ‘those who reflect seriously on humanity’s experience with tyranny know that, in the real world, this problem of the scrupulously legalistic Nazi is at best a question about the efficacy of cosmetics’. That is, it is only if we think of the rule of law as something ‘cosmetic’ that it is compatible with the pursuit of deeply immoral ends. Thus, it is unsurprising that historically there has always been a fundamental tension between the rule of law and repressive rule or the pursuit of unjust ends.19 The rule of law in this way promotes justice substantively as well as procedurally.20 Rules, practices, procedures. No matter how expansive – or how limited – the notion of the rule of law becomes, the core principles which are shared by all these writers are deeply bound up in positivist theories of legal certainty. These theories form either the necessary condition of what it means to do justice ‘according to law’ or the sufficient condition which exhausts the relationship of justice to legal judgment. Justice either begins with the rule of law or ends with it. And similarly the rule of law either begins with fixed, announced and objective rules – or ends with them.

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– and the origins of its critique Yet at the same time the critique of this claim for a rational, abstract and certain objectivity has only multiplied with the passing years: from Realists21 and Marxists22 to feminists in the 1970s, race theorists and critical legal studies in the 1980s, and post-structural theories in the 1990s. And in some respects all these critiques build on the crisis of modernity and the rejection of the positivist project by Schmitt, the New Romantics and the reactionary modernists. Hart famously distinguishes the ‘core’ of legal meaning from the ‘penumbra’, in which the rules do not give us a clear answer to a problem of legal interpretation. As David Dyzenhaus notes, Hart’s penumbra, like Hans Kelsen’s grundnorm, opens up ‘a mini-state of emergency’ within positivist theory because it is ‘not resolvable by law’.23 Indeed, Hart makes explicit its political as opposed to legal content, which is to say its exceptional and emergency character. He insists that, while a decision-maker could well resolve a penumbral problem by considering the ‘purposes’ of the law, those purposes would not necessarily be either legal or moral. The word ‘ought’ merely reflects the presence of some standard of criticism; one of these standards is a moral standard but not all standards are moral. We say to our neighbour, ‘You ought not to lie,’ and that may certainly be a moral judgment, but we should remember that the baffled poisoner may say, ‘I ought to have given her a second dose.’24 As Dyzenhaus argues, the rule of law can survive only if the boundary between core and penumbra can be maintained inviolate. As we saw in Chapter 3, Schmitt’s transition in 1922 from dictator to theologian reflected his understanding that it could not. Now it might be argued that Schmitt’s critique of the rule of law is relevant only in ‘the state of exception’. Certain elements of Political Theology lend themselves to such an interpretation. He argues that ‘the decision that a real exception exists cannot therefore be entirely derived from a norm’ but must be the result of a ‘decision that frees itself from all normative ties and becomes in the true sense absolute’. In other words, he argues that rules and the rule of law cannot tell us ‘whether this normal situation actually exists’.25 At the same time he is careful to emphasise that this normal situation, in which rules and practices function in a predictable way, is both the aim and the standard of the legal order. Like Kelsen or Hart, one might conclude from this that the exceptional circumstances that override normal legal principles are, well, exceptional: discretionary freedom in one realm would not undermine standard constraints of legal interpretation in the other. But the better view is surely that Schmitt’s critique of the rule of law went much further. In The Dictator, Schmitt ‘argues that the omnipresent possibility of a gap between legal norms and the manner in which they gain realization in the concrete world is precisely where the essence of dictatorship lies. An analysis of the problem of dictatorship is crucial for acknowledging that the realization of a legal norm rests

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unavoidably on forms of (normatively unregulated) discretionary action’.26 But in Political Theology, the anomalous moment of dictatorship becomes pervasive. Since the power of the sovereign is not limited to ‘he who decides in the state of exception’ but precisely ‘he who decides on the state of exception’, it reveals an ever-present potential for free decision that permeates the legal system. 27 Since there is no norm that can determine in advance the existence of an exception, legality is at every moment vulnerable to being overridden in the unpredictable name of necessity or of justice. In Political Theology Schmitt is explicit about this broader implication. All law is ‘situational’ law. The exception reveals most clearly the essence of the legal authority. The decision parts here from the legal norm, and . . . authority provides that to produce law it need not be based on law.28 So the exception is not a marginal feature of legal order. On the contrary, it reveals the essence of all law once the façade of liberal legality is stripped away. Combined with his decisionism, that is, his recognition that norms do not exist without the particular judgments of particular agents, Schmitt concluded that the state of emergency, far from being an anomaly capable of being contained within, and defined by, the legal structure, ultimately white-anted it. In Law and Judgment, his first work of legal theory, written in 1912, Schmitt had already insisted that ‘all existing legal concepts are indeterminate legal concepts’ – the ascription of a consequence by a concrete legal actor precedes the norm and does not simply follow it.29 Already then, Schmitt thought that the power of decision was not capable of normative curtailment. Far from being limited to a civil war or invasion, Schmitt thought that an emergency lurked within every judgment. Coiled within each and every moment of legal judgment or interpretation lay a fundamental indeterminacy constituted by ‘the concrete exception’30 and incapable of being foreseen or limited by a structure of rules. That, accompanied by his romantic hostility to the moral poverty of positivism, led Schmitt not only to reject the rule of law as illogical but to embrace that rejection with uncompromising rigour. The sovereign emerges as a Christological figure, anomic, ecstatic, original and personal. He does not follow the law: he performs miracles.31 But it is important to recognise that this vision, while it gives voice to a normative argument and a historical one, is also analytic. Schmitt was addressing the inherent problem of what he saw as the endemic undecidability of the law, by binding all law to the violence of the decision and then safeguarding that violence in the singular figure of the sovereign who both belongs to the law and yet transcends it.32 In Political Theology, although less clearly in The Concept of the Political, this transcendence is defended in the name of the law. The pure decision recognises and responds to the state of exception, Schmitt argues, but at the same time it acts in the interests of legal order although it is not derivable from a rule of any kind.33 ‘In a legal sense’, writes Schmitt, ‘there is still order in it even though it is not a legal order’.34 Thus the sovereign acts freely in the name of Recht or droit or spirit of the law and cannot be

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subject to its gesetz or loi or letter. For Schmitt the Rechtstaat or positivist rule of law, committed as it is to an anti-theology governed exclusively by ideas of objectivity, neutrality and due process, was the ‘national poison’ which refused to face up to the necessity of this higher and finer law.35 The liberal rule of law, like liberalism itself, was a form of lying – in dishonestly denying the ultimate and inescapable sovereign power of the decision-maker – and a form of cowardice – in giving up on the power to do justice instead of law.36 If a practical illustration were required, the history of Article 48 of the Constitution of the Weimar Republic evidences the power of the exception to comprehensively devour the structure of norms it is meant to protect. In the period from 1918–33 it was invoked hundreds of times by politicians of all persuasions in a multitude of circumstances including not only escalating violence, but general strikes, economic collapse and political stalemates. In 1932 it was used to legitimate a federal coup against the socialist Prussian government; in evidence before the Constitutional court, Schmitt defended the broad interpretation of the power given under the Article.37 Of course, consequent on Hitler’s elevation to the Chancellorship and the Reichstag Fire of 1933, parliament was suspended and the whole of the Third Reich unfolded, in constitutional terms, as a single extended state of exception.38 That the same questions continue to bedevil liberal legalism is surely evident from recent debates on the subject. In the last ten years the issue of the state of exception has become central. States all around the world have had increasing recourse to the language of emergency and exception to justify practices contrary to the rule of law: discretionary detention, denial of habeus corpus, unappealable executive decision-making. These practices defend, on the grounds of necessity and inevitability – subjective judgments masquerading as objective realities – an executive power of decision that has the ‘force of law’ but is not law, uttered in the name of the law and contrary to it.39 In his work on State of Exception Giorgio Agamben likewise argued that the legal exception was in fact the new rule.40 A global environment of growing and endemic instability, particularly since the 9/11 attacks on the United States, has given new credence to debates on the preservation of liberal ends through non-liberal means. 147 countries have declared states of emergency since 1996.41 Many more, in accordance with Agamben’s claim, have implicitly carved out zones of lawlessness or ‘juristic black holes’ in the treatment of particular classes of people or actions.42 We are witnessing the revival of both Schmittian polemics and the circumstances that give rise to it. From Schmitt to Derrida Recent scholarship on deconstruction43 seems to uncannily resuscitate, if perhaps further generalise, these ideas. As opposed to more specific political critiques (Marxism, for example, or feminism, or critical legal studies) deconstruction articulates, again from an analytic as well as a normative perspective, a general theory of the impossibility of a purely objective and predetermined interpretation of anything. In this sense, deconstruction’s claim to be ‘post-modern’ is a recognition

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that it is not so much the repudiation of modernism but its apotheosis. According to Derrida, justice embodies two impulses, equally strong and diametrically opposed: equal treatment and singular respect. Justice expresses an aspiration towards ‘law or right, legitimacy or legality, stabilisable and statutory, calculable, a system of regulated and coded prescriptions’44 and at the same time wishes to find a unique and singular response to the particular situation and person before us. Justice is both general and unique; it involves treating everybody the same and treating everybody differently; applying the law indifferently and predictably – and not.45 If we could draw a cordon sanitaire between justice and law – or at least, as Sir Owen Dixon put it, ‘justice according to law’ – then this would not present a problem. We could avoid thinking about justice when we were only applying the law; we could avoid thinking about difference when we were only trying to treat everybody the same; we could apply the rules in court and talk about justice over lunch. This is of course the strategy, if not the eating habits, of many positivist theories of interpretation and judgment.46 One response to this would be to argue, as did Fuller, that a legal system which was not struggling towards justice – and therefore struggling with its own incoherence – would not be a legal system capable of grounding an obligation to obey.47 Another response would point out that, while the rule of law obliges us to follow the rules, every legal decision requires us to make a judgment as to the applicability of prior general norms in the inevitably different and singular circumstance before us. We must always decide if this unique case is ‘the same as’ or ‘different from’ the past, but that is the very choice that the past cannot possibly help us with. Schmitt made the same point in 1912. It does not matter whether we are talking about legislation or judicial interpretation. The unavoidable passage of time between the enunciation of a norm and its application, and the unavoidable uniqueness of the present judgment by comparison to any prior instance, inevitably opens up a space for decision – an abyss between then and now.48 The decision might be obvious. Perhaps much of the time it is. But it cannot be made without a moment of reflection. This is what Derrida means when he says that the judge cannot properly make a decision without first destroying or suspending it in order to reinvent it. And once in a while that reflection will cause us to change our mind, to re-configure our understanding of what the rule in question was ‘really’ about. Once in a while, we will see before us an exception. That state of exception cannot be limited in advance to predictable aspects – ‘hard cases’ or ‘grey areas’ – since it is in the nature of time and circumstances to transform easy cases into hard cases unexpectedly. Uncertainty is built right into legal interpretation. The judge cannot fall back on the established law to answer this question; it would be circular reasoning to do so since the question is precisely whether the established law does or does not apply here and now. Instead, the judge must have recourse to something beyond the rules, some element of justice which, as we have seen, we thought we could set aside. Accordingly, an element of incalculability, irreducible to formal rules, necessarily enters into legal thinking, unsettling our established categories of thinking and forcing us to question

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what rules mean at the very moment we apply them. Neither justice nor law is capable of being reduced to ‘juridical-moral rules, norms or representations, with an inevitable totalising horizon’,49 some one-way track by which the past could stop us thinking about the future. My point has been to show that the analytic point goes all the way back to the early part of the twentieth century – a liberal structure cannot, simply by relying on the idea of rules, protect law, realise justice or make decisions. The deconstructionist approach is hardly so very different from what was said by Lon Fuller in 1956. Responding to Hart, he too insisted that it is just not possible to apply a rule without being forced, in some measure, to consider its meaning in relation to a greater set of principles that are themselves, by a logic of infinite regression, incapable of reduction to a transparent form of words.50 And it is not so very different than what was said by Schmitt either. As Schmitt already argued in 1922, the paradoxical choice and conflict that judgment opens up is as intrinsic to law as it is necessary to justice. The boundary between core and penumbra, rule and exception, judge and sovereign, law and emergency, consul and dictator, is in an immanent state of collapse. Indeed, Derrida’s reflection that there is a ‘general strike’ at work in all legal interpretation and that this is ‘a stroke of luck for politics’51 closely echoes Schmitt’s formulations many years before.52 As we have seen, such a position poses a severe challenge to the rule of law.53 As H.L.A. Hart wrote, ‘if it were not possible to communicate general standards of conduct which multitudes of individuals could understand, without further direction, as requiring from them certain conduct when occasion arose, nothing that we now recognize as law could exist’.54 Brian Langille makes the same point. [If] language is indeterminate, unstable, subject to manipulation and incapable of expressing rules and principles which constrain judges . . . the law is a failure on its own terms and the virtues of the rule of law are impossible to secure.55

Two ways to forget history Right after the Great War, the critique of modernity strained and challenged our assumptions as to the capacity of rules and institutions, mechanisms and procedures to govern our life. This critique engendered the return to a romantic holism, the appeal an instinctive, responsive and unbounded justice which we find in Auden and Lawrence and even to some extent Schmitt. Its echoes can be heard in Fuller and Nonet, in contemporary Heideggerians, and in the transcendental language sometimes associated with Derrida. Neither is that all. In the same way we have seen how the belief in the curative power of literature still influences a great deal of writing in law and literature. And in the elegiac sense of loss and betrayal which colours almost all of the work of the critical legal studies movement from the 1980s, we likewise recognise a language saturated with romanticism. The almost routine appeal to politics or community shows an unerring faith that, not in law but beyond it, an unbounded justice can serve as the remedy for the failure of legal judgment.

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In this regard, Roberto Unger is paradigmatic. The very last words of Knowledge and Politics capture precisely the combination of despair and need that marks out his early work, and that of critical legal studies more generally, as legal romanticism – ‘Speak, God’.56 I do not wish to suggest that everyone writing over the past decades has been guilty of slipping into solipsisms. Unger is one who has proven himself acutely sensitive to the weakness of his own assumptions. In Politics and in Passion he moves, on similar lines to this book, away from the transcendent justifications that peppered his previous work and towards a ‘critique of nostalgia’ that specifically attempts to account for the anti-foundationalist demands of modernism.57 Unger’s sensitivity to the nostalgia implicit in his own rhetoric, and to the historical and aesthetic context of his own thinking, strikes me as unusual. It is by no means clear to me, however, that Unger’s appeals to ‘solidarity’, ‘politics’, or ‘democracy’ escape the romantic lure of an ultimate resting point for justification, or only transpose it to a secular key.58 So too in a number of very recent scholarly enterprises, particularly those inflected by Derridean or Levinasian ethics, we find a similar kind of black box in which the non-law or non-rules, unbounded and for the most part indefinable, can lead us to achieve justice (another indefinable place-holder) once and for all.59 All of these very different modes of legal thought have in common the ultimate appeal to some transcendent holism – sometimes it goes by the name of literature, sometimes politics, sometimes ethics, sometimes God – which is said to be capable of healing the antinomies of legal thought. This aspect remains, it seems to me, a rhetorical staple of the discipline that is both romantic and endemic. The critique of modernity that grounds all these utopian gestures has not gone away; but in much of the legal academy it has been ignored. There is a wilful blindness here. Neither the positivist dismissal of the critique of modernity nor the romantic surrender to the critique of modernity pay much attention to history and in particular to the history of modernism which I have tried to show is central to understanding what is at stake. Two examples of recent work which do try and place the argument for or against positivism in this historical context, but which in the end do so inadequately, will suffice to prove the point. The loss of instinct Roger Berkowitz’s work is both explicitly historical and at the same time exemplary in revealing some of the potential implications of the romantic critique of law and justice. His approach draws strongly on the work of Heidegger and Philippe Nonet, and similar echoes and arguments are found throughout the work of several recent writers.60 Berkowitz argues that ‘the gift of science’ is a poisoned chalice that ultimately cannot provide law with the certainty, the decision-making capacity, and the justification it seeks. He draws from this several important conclusions that concern not change, but loss. In the first place, we have lost our sense of the relationship between law and justice. Indeed, the plea to re-forge that relationship

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runs through The Gift of Science from the very first sentence: ‘Justice has fled our world’.61 This justice is posed throughout as ‘transcendent’.62 The scientific objectivity that modern law promises but fails to deliver suppresses precisely ‘the legal idea of justice . . . in its connection with transcendence . . . the beautiful dream of transcendence’.63 What is meant by this crucial term implies an idea of justice which goes beyond the specific rules and principles in place for the moment and allows us instead to recognise the ‘ethical unity’ of law which lies behind them and which should never be subjugated to them.64 Justice as law’s ‘ethical unity’ appears to transcend individual or conflicting interests in favour of the unification of the community. Active thinking . . . is irreducible to rules or laws . . . Similarly, justice demands that man think and in thinking transcend the limits of his unique self and enter into an ethical community with others. The dream of justice, in other words, is the dream of transcendence.65 Instead, ‘since positivist lawyers deny that laws can be justified by transcendent principles and values, they seek law’s reason in societal norms like fairness, equality, and efficiency’.66 These are bad words for Berkowitz because they reduce law to an instrument for specific and contingent human purposes. Leibniz begins the process of justification and reason-giving that reduces law to a servant of the hereand-now; Jhering, the villain of the piece, entrenches this view. Leibniz’s introduction of the principle of sufficient reason into jurisprudence promised to give law the scientific grounds for its authority that it so dearly desires . . . Similarly, law too must have a reason posited for it if it is to exist. Law, in other words, does not exist in and of itself as a natural or traditional insight into what is right and fitting . . . Law is subordinated to its reasons and justifications.67 [But] whereas Savigny and Leibniz imagine that Recht has its organizing principle in a transcendent unity that connects the individual to a more-thanhuman whole, Jhering answers emphatically: ‘NO! My friends, the truth does not lie outside of the world, she lies in the world . . .’ Jhering gives up on the dream of a transcendent Recht.68 So the second loss to which Berkowitz wishes to draw our attention is ‘that law might actually be – that it might actually have an existence – outside of its posited existence in rules, norms, and conventions’.69 Here we begin to see the powerful shadow of Heidegger, which clearly forms the philosophical spine of these suppositions, as read through Philippe Nonet’s influential work on Heidegger and law, to which Berkowitz is deeply indebted.70 Law is ‘more than human’. It is not just our tool to fashion and justify as we wish. On the contrary, it ‘exists in and of itself’ preceding and unrelated to human needs or social ambitions. It is the emanation of an ‘already presupposed ethical world’.71

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The third loss is the ‘loss of insight’ which would have helped us recognise and realise this unified and ethical law. This insight is described as ‘natural’ while the ‘scientific knowing of law’ – in language which might recall that of Sir Edward Coke – is ‘artificial’.72 On this view, true judgment occurs through an ‘insightful activity of justice’73 which, as the word implies, is not to be articulated and still less to be justified. It is a truth to be divined and done. If one asks who is to be trusted with carrying out this insightful activity, one immediately confronts a fourth loss to which the gift of science has condemned us – the loss of authority. For Berkowitz, authority, like insight, is natural and intrinsic. It is the opposite of a modern word like ‘legitimacy’ that, by reference to written rules or social structures, makes judges answerable for each and every one of their decisions. Indeed, we need this constant questioning and justification of decisions precisely because ‘law loses its natural claim to authority’.74 Legitimacy is a social construction that emphasizes accountability.75 Authority, like justice and insight, does not require justification. It just is and is known to be.76 We find ourselves remarkably close then to what Lawrence called ‘the mystery of lordship’.77 In the modern world, to claim this mantle of authority and insight might appear to lead to judgment based on nothing but a ‘lawless caprice’.78 To Berkowitz, on the contrary, we are close to the only possible foundation for law – referred to, in various places, in terms of ‘nature’ or ‘tradition’ or ‘religion’: Law is therefore freed from its traditional mooring in custom and insight . . . As law retreats behind reasons and grounds, it loses its natural connection to any ideas of truth and justice.79 Ultimately, ‘the natural connection with the divine’80 underpins Berkowitz’s argument. Our ‘incalculable yet manifest sense of divine and human justice’ grants this authority, provides this insight, ordains this inhuman unity and imparts this transcendence. The greatest loss is the loss of God. Berkowitz clearly states that ‘the impulse to think deeply and critically about whom we have become need not and should not be confused with the romantic longing for a return to a glorified past’.81 I do not find this disclaimer plausible. Berkowitz is an advocate, an orator ‘striving to rejuvenate an idea of justice rooted in the ethical activity of thinking’.82 He wants to bring us back to the natural, necessary and manifest relationship between law and the divine which draws us towards his ‘beautiful dream of transcendence’. A word like ‘natural’ is used here, as it is used in Heidegger, not simply as a description of the way people once conceived their relationship to authority, but as a justification for it. To write of law’s ‘natural connection to ideas of truth and justice’83 is not merely to write about a connection that was once in some societies supposed to be natural; it means that the connection is indeed found in nature. By the same token, the word ‘loss’ as it is used throughout The Gift of Science implies a normative claim. Berkowitz never discusses the loss of a belief in insight as a source of law, for example. His claim

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is that this insight itself – a mode of apprehension of the real – has been lost. According to The Gift of Science, the loss of insight or God or authority amounts to the loss of something vital that we need to rediscover.84 Nothing could be clearer, it seems to me, than that the very ideas of insight, transcendence and natural authority that mark the pre-modern approach to law, are the foundation of Berkowitz’s own. A feeling of longing and of nostalgia pervades the book, just as, in the influential work of Philippe Nonet, there ‘would seem to be a mourning, or, rather, melancholic longing for a lost utopia, a world without the things the law decides’.85 There is a sleight of hand here, a crucial amnesia. Berkowitz gives us dichotomies, one side of which he subjects to a very careful historical critique – law, positivism, rules, social policy – while its counterparts – nature, authority, justice, nature, tradition, insight, community – are not analysed at all. Instead, these words are offered up as a vision, a dream, made all the more attractive precisely because they have been shorn of history or social context. This is ‘the aestheticisation of politics’ against which Walter Benjamin warned us. On one side, history; on the other, myth.86 Nostalgia, likewise, contrasts a hard-eyed history of the present against the romance of a half-remembered past. Of course, this strategy of selective imprecision both intensifies the longing and fortifies the anger. It surely must count as a ‘romantic longing for a return to a glorified past’.87 The problem is that Berkowitz stops his history in 1900, the very apotheosis of German positivism. By doing so he reproduces in both tone and argument the history of what came next – the critique of modernity and the crisis of positivism. In the early years of the twentieth century and then, as we have seen, with increasingly far-reaching ramifications after the Great War, German New Romanticism echoed word for word Berkowitz’s response to the legal and social history of positivism and rejected in almost identical terms its obsession with mechanics, systems, technology and rules. Berkowitz recounts the history of German positivism and in the process merely re-enacts, denuo e de novo, as it were, the emergence and sometimes the excesses of German New Romanticism.88 Berkowitz’s arguments for the transcendence of law and justice as an ‘ethical whole’, or an entirely unbound and ‘free’ justice, or a ‘free and active insight into an incalculable yet manifest sense of divine and human justice’,89 forgets the telling fact that we have been there before. Nietzsche’s Übermensch, Lawrence’s phoenix, Weber’s prophet, Zelling’s orator, Schmitt’s dictator, and, before you know it, it’s the fall of the Weimar Republic all over again. Judgment in all these cases becomes a game played with invisible trumps, in which one just leaps over the gap between rules and particulars, between then and now, by reference to some unarticulable thing beyond the ‘inevitable totalising horizon’ of rules.90 Faster than a speeding bullet, able to leap tall buildings in a single bound.91 Like the accusation leveled by T.S. Eliot at Lawrence, such a judge requires ‘no guidance except the Inner Light, the most untrustworthy and deceitful guide that ever offered itself to wandering humanity’.92 Derrida’s account of justice seems likewise, at least at first blush (though not, as I will argue later, on closer inspection), to reprise the romanticism

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of the reactionary modernists. If, for both analytic and normative reasons, justice involves ‘madness’, ‘a moment of undecidability’93 in which the judge merely intuits what true justice demands,94 referable to nothing but his own manifest sense of it – where does that leave us? The critique of the critique of positivism On the other hand, which is to say as a defence of positivism in the face of this crisis, the work of Brian Tamanaha has most conspicuously addressed the history of the debate between the rule of law and its critique. In Law as a Means to an End: Threat to the Rule of Law he identifies ‘relativism and post-modernism’ as one of the gravest threats to the survival of the rule of law. Many observers, to repeat the challenge, take Legal Realism and postmodernism to have taught that the aforesaid distinction between an objective perspective and a subjective perspective is, at a deep level, illusory . . . The threat posed to the rule of law by this set of ideas cannot be overstated. If judges substantially base their legal decisions . . . upon their personal views, then the rule of law ideal would be a fraud . . . Furthermore, when the total body of judges is made up of individuals who hold divergent personal views, the formal rule of law in the sense of stability, certainty, predictability, and equality of application, cannot be sustained.95 Tamanaha identifies the problem but it seems to me that he does not begin to deal with the arguments we have been rehearsing. He acknowledges that these schools have been widely misunderstood, going on to claim that ‘neither . . . den[ies] that there is a real and meaningful difference between instructing judges to render decisions objectively, dictated by the law, versus instructing judges to make whatever decisions they think right’.96 While it is true that these schools have been misunderstood, and it is equally true (as this book will argue) that they do not advocate anything like merely arbitrary decision-making, Tamanaha wrongly neuters the critique by setting up a false dichotomy. On the one hand, ‘objective’ decision-making and on the other, ‘willful judging’ which ‘instrumentally manipulat[es] the legal rules to reach a particular end’.97 For Tamanaha, those are the only options. Again, there is some truth to this. Sceptics, Marxists and critical legal studies writers amongst them, have argued that elite and sectional interests have always fundamentally ‘manipulated the law to achieve their ends’. It is certainly not clear to me that this view is misplaced, but it is fair to say it is now so common and cynical an attitude that ‘groups that take an instrumental view of judging strive to secure the election or appointment of judges they expect will interpret the legal rules to favor their ends’ in a way that poses dangers to the legitimacy of the legal system.98 Throughout his book, Tamanaha presents a clear choice between ‘achieving an end’ and ‘following the rules’ and his argument is that the rule of law can only survive if we do the latter.

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A legal system requires that judges render decisions according to the applicable rules, not according to their own political views or preferences . . . There is no doubt that the task of achieving purposes or ends . . . is more complicated, far more uncertain, and far less ascertainable than strictly applying legal rules to an existing situation.99 What is bizarre about Tamanaha’s argument, particularly in light of the historical context I explored in the last chapter, is his attempt to unite the positivist ideal of judicial ‘objectivity’ with the entirely opposite appeal to deeper ideals of justice in which ‘divine and natural law and . . . the wisdom of custom and tradition were thought to provide correct principles for morality, law, and life’. Tamanaha is right to see the demise of a ‘non-instrumental’ vision of law as ‘an enduring, bedeviling legacy of the Enlightenment’.100 In Lawrence and Schmitt, for example, this loss was central to their critique of modernity. But for all these writers, legal positivism or formalism was merely the post-Enlightenment attempt to find a substitute for this deeper and older vision. The development of law’s structural, systemic and linguistic objectivity – legal positivism – was a creature of modernity and a hollow substitute for some steadily lost underlying religious or customary sense of the common good or justice. To run the two together is to combine two entirely opposite ways of thinking about judges. The romantics’ and the New Romantics’ desire to return to this non-instrumental vision of law meant rejecting positivism, not embracing it. Indeed, regardless of the question of history, it is implausible to defend formalism as the means of advancing a non-instrumental approach to law in this way. As we have seen in writers like Raz, formalism is typically seen as the means by which law becomes effective as an instrument; it provides the certainty that ensures that the instrument of law is ‘sharp’ and able to achieve whatever goals are set for it. From the dramatic period in the aftermath of the Great War up until the present day, the preservation of justice or serving the public good have been seen as implacably opposed to the application of the ‘letter of the law’. Tamanaha’s failure to see the ways in which positivism in fact makes possible the instrumental approach to law he decries, and how appeals to justice and the public good work against this positivism, hopelessly muddles his argument. Furthermore, the central dichotomy that Tamanaha draws between ‘objective’ and ‘wilful’ judging misses the point. Neither the modernists nor the postmodernists, the legal realists nor the moralists thought that there was any such distinction. In Llewellyn or Derrida or Fuller, the inability of rules to entirely control the decision of the judge is unavoidable. There is no hard-and-fast ‘rule’ which judges either choose or refuse to apply. The problem is what the law ‘really means’ in a particular never-before circumstance and a particular never-before time. Tamanaha is blind to the real critique of modernity, which lies in the necessary limitations of rule-bound reasoning and the need to deal with those limitations without succumbing to merely arbitrary or ultroneous decision-making. This blindness is nowhere more apparent than in Tamanaha’s treatment of Karl Llewellyn,

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whom he describes as doing ‘open penance’ for the part he played in promoting relativism at the expense of the ‘ethical treatment of law’.101 Llewellyn actually said something quite different. If these modern jurisprudes are forgetting that the goal of law is justice, and forgetting also that judges and other officials must not be free to be arbitrary, then they need correction at once and, if need be, with a club . . . And I for one am prepared to do open penance for any part I may have played in giving occasion to the feeling that modern jurisprudes or any of them had ever lost sight of this. I do not think any of them ever has. They seem to me singularly effected one and all with zeal for justice, and with zeal for improving the legal techniques of doing the law’s business.102 This is hardly a recantation. In tone, whose light irony should not be ignored,103 and in content it is a forceful defence of his work against the scandalous accusation that in acknowledging the evident defects of legal positivism, the Realists were advocating merely arbitrary or wilful decision-making. And later on, Llewellyn shows just how carefully he was committed to finding a way past the false dichotomy between the objective and the arbitrary to which he was responding and that Tamanaha merely rehashes. It is a fact in our legal system that judges are by no means free to be arbitrary, and our vital need that they shall not be free to be arbitrary has been caught into these rationales or doctrines about ‘laws and not men’, and about ‘rules determining cases’. But it is also a fact that our legal system does adjust to the individual case and to changes in our conditions and institutions; and that fact means that judges and other officials are free to some real degree to be just and wise, and that we have a vital need that judges and other officials shall continue to be to some real degree free to be wise and just. That fact happens, however, not to have been caught into an equally familiar, equally sharp, or equally precious rationale or doctrine. Yet it needs to be; it is no less a vital part of our legal system and of our judges’ duty.104 Tamanaha’s partial view of legal history, his failure to grapple with the critique on its own terms, reduces his argument – and all of the others that I have seen in this area – to a willed blindness. His essential position appears to be that the critique of positivism and formalism ought not to be allowed because it would strike a mortal blow to the rule of law. But that does not take seriously the modernist critique; it only hopes it will go away. The real question seems to me to be how to face the critique and not how to shirk it. Yet the problem of whether the rule of law can indeed survive modernism’s critique remains. William Scheuerman, despite a very careful and critical reading of the work of Carl Schmitt, suffers from the self-same problem. He condemns ‘the obvious ills of a discretionary judiciary unregulated by the letter of the law’105 but

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never confronts the claim, on which Schmitt based his whole jurisprudence, for the pervasive reality and necessity of that discretion. Even when Schmitt appears to suggest nothing much more controversial than a kind of conventionalism similar to that of Karl Llewellyn or Stanley Fish, Scheuerman responds that Schmitt ‘is unlikely to provide perfectly unambiguous answers to difficult legal cases’ and ‘says nothing about how legal indeterminacy might be combated’.106 But that is to provide a normative rejoinder to Schmitt’s conceptual point (that is, the unavoidability of indeterminacy) – and a purely tautological rejoinder to his normative point (that is, that the exception is an opportunity for action).107 Tamanaka and Berkowitz are two sides of the same coin. Both positivism and its romantic other forget the history of which they are a part and thereby ignore the real issues they raise. Are these two versions of forgetting the crisis of modernity – and thus being condemned forever to repeat it – our only choices? I hope not. I believe that the history of modernism might point us to a third possibility for legal theory. Such a possibility would embrace the critique of modernity but would also find a way of addressing it without simply abandoning the rule of law altogether. Our efforts in this regard will take us back from modern law to literary modernism.

Notes 1 J. Raz, ‘The Rule of Law and its Virtue’, Law Quarterly Review 93.2, 1977, 195–211 at 226. 2 C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, Cambridge MA: MIT Press, [1922] 1985, 13. 3 P. Fitzpatrick, Modernism and the Grounds of Law, Cambridge: Cambridge University Press, 2000, seems to fall into that trap. As a result, modernism as such is hardly discussed in the book that bears its title. For a closer attention to modernism as such see R. Unger, Passion: An Essay on Personality, New York: Free Press/Simon & Schuster, 1984; and D. Luban, ‘Legal Modernism’, Michigan Law Review 84, 1986, 1656–95. 4 H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’, Harvard Law Review 71.4, 1958, 593–629 at 614–15. 5 Sir O. Dixon, ‘Address Upon Taking the Oath of Office, 21 April 1952’, Common Law Reports 85, 1952, xiv–xv. 6 P. Craig, ‘Formal and Substantive Conceptions of the Rule of Law’, Public Law 1997, 467–87; B. Tamanaha, On the Rule of Law: History, Politics, Theory, Cambridge, Cambridge University Press, 2004. 7 R. Dworkin, A Matter of Principle, Cambridge, Mass: Harvard University Press, 1985. 8 Ibid, 12. 9 New Delhi Declaration, 10 January 1959; J. Raz, ‘The Rule of Law and its Virtue’, in The Authority of Law, Oxford: Oxford University Press, 1979, 210–32 at 210 describes it as a ‘perversion of the rule of law’. 10 Aristotle, Politics: A Treatise on Government, trans. H. Rackham, London: Loeb Classical Library, 1932, ¶ 1286a, 110. 11 A.V. Dicey, Introduction to the Study of the Law of the Constitution, London: Macmillan and Co Ltd, 1902, 203. 12 F.A. Hayek, The Road to Serfdom, London: George Routledge & Sons, 1944, 54. 13 J. Raz, ‘The Rule of Law and its Virtue’, 210. 14 See C. Stewart, ‘The Rule of Law and the Tinkerbell Effect’, Macquarie Law Journal 4, 2004, 135–64 at 135, 137.

86 Kangaroo Courts and the Rule of Law 15 J. Raz, ‘The Rule of Law and its Virtue’, 226. 16 Aristotle, Politics, 1287a, 112. 17 L. Fuller, The Morality of Law, revised edn, New Haven, CT: Yale University Press, 1969, pp. 33–94; C. Murphy, ‘Lon Fuller and the Moral Value of the Rule of Law’, Law and Philosophy 24, 2005, 239–62 at 241–2. 18 L. Fuller, The Morality of Law, revised edn, New Haven, CT: Yale University Press, 1969, 20. 19 C. Murphy, ‘Lon Fuller’, 252. 20 Though Fuller’s principal discussion of the rule of law takes place in the discussion ‘King Rex’ in Morality of Law, the argument for the morality of the rule of law also finds its place in ‘Fidelity to Law’. See Colleen Murphy, ‘Lon Fuller and the Moral Virtue of the Rule of Law’. 21 K.N. Llewellyn, Jurisprudence: Realism in Theory and Practice, Union, NJ: Lawbook Exchange, 2000; K.N. Llewellyn, The Bramble Bush: On Our Law and its Study, New York: Oceana Publications, [1930] 1996; J. Frank, Law and the Modern Mind, New York: Brentano’s, 1930; Scandinavian legal realists too: H.L.A. Hart, ‘Scandinavian Realism’, The Cambridge Law Journal 1959.2, November 1959, 233–40; J. Bjarup, ‘The Philosophy of Scandinavian Legal Realism’, Ratio Juris 18.1, 2005, 1–15. 22 F. Carrigan, ‘A Blast from the Past: The Resurgence of Legal Formalism’, Melbourne University Law Review 27.1.1, 2003, 163–88; see also Cameron Stewart. 23 D. Dyzenhaus, ‘Introduction’, in D. Dyzenhaus (ed.), Law as Politics: Carl Schmitt’s Critique of Liberalism, Durham: Duke University Press, 1998, 1–22 at 12. 24 H.L.A. Hart, ‘Separation of Law and Morals’, 613. 25 C. Schmitt, Political Theology, 6–13. 26 W.E. Scheuerman, Carl Schmitt: The End of Law, Lanham, Md: Rowman & Littlefield, 1999, 585. 27 D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar, Oxford: Oxford University Press, 1997, 42. 28 C. Schmitt, Political Theology, 13. 29 See C. Schmitt, Gesetz und Urteil. Eine Untersuchung zum Problem der Rechtspraxis [Law and Judgment: An Investigation into the Problem of Legal Practice], Munich: C.H. Beck, [1912] 1968, discussed in W. Scheuerman, ‘Legal Indeterminacy and the Origins of Nazi Legal Thought’, History of Political Thought 17.4, 1996, 571–90 at 574–77; W. Scheuerman, Carl Schmitt, 113–40. 30 Quoted in W. Scheuerman, ‘Legal Indeterminacy and the Origins of Nazi Legal Thought’, 587. 31 G. Agamben, State of Exception, trans. K. Attell, Chicago: The University of Chicago Press, 2005, 80–5; C. Schmitt, Political Theology, 36. 32 C. Schmitt, Political Theology, 54–5. 33 See C. Schmitt, Political Theology; see also S. Weber, ‘Taking Exception to Decision: Walter Benjamin and Carl Schmitt’, Diacritics 22, 1992, 5–18. 34 C. Schmitt, Political Theology, 13; see Paul Hirst on Carl Schmitt’s Decisionism, quoted in C. Mouffe (ed.), The Challenge of Carl Schmitt, London: Verso, 1999. 35 See F. Cristi, ‘Hayek and Schmitt on the Rule of Law’, Canadian Journal of Political Science 17, 1984, 521–35, p. 529; E. Kennedy, Constitutional Failure: Carl Schmitt in Weimar, Durham, NC: Duke University Press, 2004, 24. 36 H. Bielefeldt, ‘Carl Schmitt’s Critique of Liberalism: Systematic Reconstruction and Countercriticism’, in D. Dyzenhaus (ed.), Law as Politics, 23–36 at 25–7; and R. Howse, ‘From Legitimacy to Dictatorship – And Back Again: Leo Strauss’s Critique of the Anti-Liberalism of Carl Schmitt’, in D. Dyzenhaus (ed.), Law as Politics, 56–91 at 61–3. 37 D. Dyzenhaus, Legality and Legitimacy, provides an excellent and detailed analysis of the issue and the court ruling.

The Rule of Law and the Legacy of Modernism 87 38 That this was the end of the rule of law was already comprehensively established in the writings of Neumann and Kirchheimer in the early 1930s. W.E. Scheuerman (ed.), The Rule of Law Under Siege: Selected Essays of Franz L. Neumann and Otto Kirchheimer, Berkeley: University of California Press, 1996. 39 G. Agamben, State of Exception, 31, 37–8. 40 Ibid, 9. Agamben is saying no more here than was previously said by W. Benjamin, ‘Theses on the Philosophy of History’, in Illuminations, trans. H. Zorn, London: Pimlico, [1940] 1999, 253–64. 41 S. Humphreys, ‘Legalizing Lawlessness: on Giorgio Agamben’s State of Exception’, European Journal of International Law 17.3, 2006, 677–87, 683. 42 R. (on the application of Abbasi et al) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598 at para. [32]; Lord Steyn, ‘Guantanamo Bay: The Legal Black Hole’, 27th F.A. Mann Lecture, British Institute of International and Comparative Law, Lincoln’s Inn Old Hall, London: 25 Nov. 2003. Online. Available HTTP: (accessed 5 September 2011). But see F. Johns, ‘Guantanamo Bay and the Annihilation of the Exception’, European Journal of International Law 16, 2005, 613–35. 43 D. Cornell et al (eds), Deconstruction and the Possibility of Justice, New York: Routledge, Taylor & Francis, 1992; A. Hunt, ‘The Big Fear: Law Confronts Postmodernism’, McGill Law Journal 35.3, 1990, 507–40; J. Balkin, ‘Deconstruction’s Legal Career’, Cardozo Law Review 27, 2005, 719–40; J. Derrida, ‘Force of Law: The Mystical Foundation of Authority’, Cardozo Law Review 11.5, 1990, 919–1045. 44 J. Derrida, ‘Force of Law’: The Mystical Foundation of Authority’, Cardozo Law Review 11.5, 1990, 919–1045 at 959; final version in J. Derrida, Acts of Religion, ed. G. Anidjar, New York: Routledge, 2002, 228–98. 45 J. Derrida, ‘Force of Law’, 961. 46 H.L.A Hart, ‘Positivism and the Separation of Law and Morals’, 593; J.L. Coleman and B. Letier, ‘Chapter 14: Legal Positivism’, in D. Patterson (ed.), A Companion to Philosophy of Law and Legal Theory, 2nd edn, Oxford: Wiley-Blackwell, 2010; J.L. Coleman, ‘Negative and Positive Positivism’, Journal of Legal Studies 11.1, 1982, 139–64; T. Campbell, Prescriptive Legal Positivism: Law, Rights and Democracy, London: RoutledgeCavendish, 2004; J. Raz, The Authority of Law, Oxford: Oxford University Press, 1979; J. Raz, ‘The Rule of Law and its Virtue’. 47 L. Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, Harvard Law Review 71.4, 1958, 630–72. 48 R. Beardsworth, Derrida and the Political, London and New York: Routledge, 1996, p. 110; G. Postema, ‘On The Moral Presence of Our Past’, McGill Law Journal 36(4), 1990, 1153–80. 49 J. Derrida, Spectres of Marx: The State of the Debt, the Work of Mourning, and The New International, trans. P. Kamuf, New York: Routledge, 1994, 28. 50 L. Fuller, ‘Positivism and Fidelity to Law: A Reply to Professor Hart’, 630. 51 J. Derrida, ‘Force of Law’. 52 See also J. Derrida, The Beast and the Sovereign, trans. G. Bennington, Chicago: University of Chicago Press, 2009. 53 H.L.A. Hart, Concept of Law, Oxford: Clarendon Press, [1961] 1994; H.L.A. Hart, ‘Positivism and the Separation of Law and Morals’; J.D. Heydon, ‘Judicial Activism and the Death of the Rule of Law’, Australian Bar Review 23.2, 2003, 110–33. 54 H.L.A. Hart, Concept of Law, 121. 55 B. Langille, ‘Revolution Without Foundation: The Grammar of Scepticism and Law’, McGill Law Journal 33, 1988, 451–55. 56 R. Unger, Knowledge and Politics, New York, Free Press: 1975, 295. 57 R. Unger, Passion: An Essay on Personality, New York: Free Press, 1986; R. Unger, Politics: A Work in Constructive Social Theory, 3 vols, Cambridge: Cambridge University Press,

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60

61 62 63 64 65 66 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83 84 85 86 87

1987; Drucilla Cornell, ‘Beyond Tragedy and Complacency’, Northwestern University Law Review 81, 1987, 693–717; M. Stone, ‘The Placement of Politics in Roberto Unger’s Politics’, in Robert Post, (ed.), Law and the Order of Culture, Berkeley: University of California Press, 78–101. See, in particular, M. Stone, ‘The Placement of Politics, 78–101. M. Diamantides, Levinas, Law, Politics, London and New York: Routledge-Cavendish, 2007; E. Levinas, Autrement qu’être ou au-delà de l’essence, Paris: Kluwer, 1974; E. Levinas, Otherwise than Being: or Beyond Essence, trans. A. Lingis, Pittsburgh: Duquesne University Press, [1974] 1998; S. Lindroos Hovinheimo, Justice and the Ethics of Legal Interpretation, London: Routledge, 2012. This critique I develop at greater length in the final chapter of D. Manderson, Proximity, Levinas, and the Soul of Law, Montreal and Kingston: McGillQueens University Press, 2006. M. Constable, Just Silences: The Limits and Possibilities of Modern Law, Princeton, NJ: Princeton University Press, 2007; M. Constable, The Law of the Other: The Mixed Jury and Changing Conceptions of Citizenship, Law, and Knowledge, Chicago: University of Chicago Press, 1994; P. Nonet, ‘Antigone’s Law’, Law, Culture and the Humanities 2.3, 2006, 314–35; P. Nonet, ‘What is Positive Law?’, Yale Law Journal 100.3, 1990, 667–700; P. Nonet, ‘Technique and Law’, in R. Kagan, M. Krygier, K. Winston and S. Brainbridge (eds), Legality and Community, New York: Rowman, 2002, 49–66. For critique on the implications of Heidegger in Nonet, see the responses in Yale Law Journal and Law, Culture and the Humanities. R. Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition, Cambridge, Mass.: Harvard University Press, 2005, ix; see also, amongst many examples, xiii, and 159–60. Ibid, e.g. at x, xiii, xv, 90, 139 and passim. Ibid, 159–60. Ibid, 108. See, perhaps, M. Detmold ‘Farewell Lecture Series: The Law of Love’, 1996. R. Berkowitz, The Gift of Science, x. Ibid, xiii. Ibid, 51. Ibid, 139. Ibid, xvi. Ibid, e.g. x, xx, 11, 28. See P. Nonet, ‘Antigone’s Law’ and ‘Law as Technique’. R. Berkowitz, The Gift of Science, xii, 51, 139. Ibid at pp. 24, 107. See E. Coke, Prohibitions del Roy (1607) 12 Coke 63. R. Berkowitz, The Gift of Science, 16. Ibid, 7. Ibid, x. Ibid, e.g. 7. D.H. Lawrence, Kangaroo, 107, 374. R. Berkowitz, The Gift of Science, xvi. Ibid, 52. Ibid, 159. Ibid, xiv; see also 159. Ibid, xiv. Ibid, 52. Ibid, 6, 107, 108, amongst a host of similar phrases. A. Norris, ‘Heideggerian Law Beyond Law? Technique, Recht, and Phusis’, Law, Culture and the Humanities 2.3, 2006, 341–8. According to Roland Barthes, amongst others, myth is precisely the synthesis of conflicting claims through linguistic or semiotics structures: ‘Myth Today’, in Mythologies, New York: Hill and Wang, 1972, 109–60. R. Berkowitz, The Gift of Science, xiv.

The Rule of Law and the Legacy of Modernism 89 88 See P. Menard, ‘The New Don Quixote’, in J. Borges, Ficciones, ed. A. Kerrigan, trans. Emece Editores, New York: Grove Press, 1962, 45–56. 89 R. Berkowitz, The Gift of Science, 24. See also throughout the Introduction and first chapter, e.g. xiv–xvi, 6. 90 J. Derrida, Spectres of Marx, 28. 91 The connection between Nietzsche’s Übermensch and Siegel and Shuster’s Superman (1932, first published in Action Comics #1 (1938)) is of course often noted. For the connection between the superhero and historical approaches to theories of law and judgment, see D. Manderson, ‘Trust Us Justice: 24 and the Law’, in A. Sarat (ed.), Imagining Legality: Where Law Meets Popular Culture, Mobile: University of Alabama Press, 2011, and above, Chapter 3 notes 114–19. 92 R. Montgomery, The Visionary D.H. Lawrence, Cambridge: Cambridge University Press, 1994, 226. 93 J. Derrida, ‘Force of Law’. 94 See on this point the recent attention paid to notions of the ‘implicit’ or ‘unwritten’ Constitution in both the Australian High Court and the Supreme Court of Canada: G. Williams, Human Rights Under the Australian Constitution, Oxford: Oxford University Press, 1999; H. Patapan, Judging Democracy: The New Politics of the High Court of Australia, Cambridge: Cambridge University Press, 2000; Reference re Remuneration of Judges of the Provincial Court of Prince Edward Island [1997] 3 S.C.R. 3; Reference re Secession of Quebec, [1998] 2 S.C.R. 217. 95 B. Tamanaha, Law as a Means to an End: Threat to the Rule of Law, New York: Cambridge University Press, 2006, 236. 96 Ibid, 237. 97 Ibid, 237–44. 98 Ibid, 5–7. 99 Ibid, 227–9. 100 Ibid, 23. 101 K. Llewellyn, ‘On Reading and Using the Newer Jurisprudence’, Columbia Law Review 40.4, 1940, 581–614, quoted in B. Tamanaha, Law as a Means to an End, 73–4. 102 K. Llewellyn, ‘On Reading and Using the Newer Jurisprudence’, 603. Italics mine. 103 The question of tone is worth bearing in mind as we read those wry words ‘open penance’. Later in the same article, Llewellyn makes a point of emphasising that one of the contributions of ‘modern Jurisprudence’ was the reintroduction of ‘satirical and ironical writing’ into the Law (612). Llewellyn is well known for his contributions to the field writing under a pseudonym: D.J. Swift Teufelsdröckh, ‘Jurisprudence, The Crown of Civilization – Being Also the Principles of Writing Jurisprudence Made Clear to Neophytes’, University of Chicago Law Review 5.2, 1938, 171–83. The connection between Swift and satire is obvious; the adoption of the surname is a clear reference to Thomas Carlyle, Sartor Resartus: The Life and Opinions of Herr Teufelsdröckh, Oxford: Oxford University Press, [1834] 1987, itself a parodic account of a fictitious philosopher. 104 K. Llewellyn, ‘On Reading and Using the Newer Jurisprudence’, 587. 105 W.E. Scheuerman, ‘Legal Indeterminacy and the Origins of Nazi Thought’, 579. 106 Ibid, 589. 107 See also W.E. Scheuerman, Carl Schmitt, 113–40.

Chapter 6

How Kangaroo Rewrote Lawrence

The artist usually sets out – or used to – to point a moral and to adorn a tale. The tale, however, points the other way, as a rule. Two blankly opposing morals, the artist’s and the tale’s. Never trust the artist. Trust the tale.1 – D.H. Lawrence, ‘The Spirit of Place’

D.H. Lawrence was thoroughly saturated by New Romanticism’s critique of modernity. We hear powerful strains of it in novels like The Rainbow and Women in Love, in non-fiction writing including ‘The Crown’ and ‘Democracy’ from the war years,2 and most particularly in Aaron’s Rod, Kangaroo and The Plumed Serpent, the three so-called leadership novels of the post-war years. The essential feature of this romanticism lay, as it did in William Wordsworth and Samuel Taylor Coleridge 100 years before, in its renewed focus on the inner self, on emotion, nature and spirit. This vision drew heavily on metaphors of organic as opposed to mechanical design in which the parts of a system do not function singly or discretely but are recomposed and re-configured spontaneously into a new and generative whole.3 The rejection of all that was seen as being mechanical, institutional, segmented and abstract extended to a critique of these elements within philosophy and legal philosophy too. Ultimately, as Abrams shows, romanticism was an ideology of synthesis and unity: faced with human conflict between values or ideals, between individual and community, general and singular, abstract and specific, reason and emotion, and in this case between positive law and natural justice, the romantics sought a rebalancing which would allow us to transcend all these differences and emerge into a renewed world of perfect harmony. Combined with Christian notions of messianic transfiguration and Enlightenment notions of human progress, the central geometric trope of romanticism was not the line or the circle but the spiral, in which ‘the system of knowledge can be regarded as completed only when it returns to its [first] principle’ purified, improved and unified into an organic and mutual whole.4 The political and legal implications of this would have us leave behind the sterility of mere rules and procedures, and realise justice by the exercise of the natural virtues of individual judgment, wisdom and insight. So in Lawrence there is a

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visceral hostility to industrialism, mechanism, liberalism and democracy, and a repertoire of images of the natural world, of abjection and rebirth, fusion and synthesis – the crown, the phoenix and the serpent. Yet despite the connections drawn by writers such as Fernihough and Bell,5 it seems to me that Lawrence ultimately rejects the ontology of Nature and of Being that we find in the New Romantics and ultimately in Martin Heidegger.6 Kangaroo is Lawrence’s most careful exploration of the social and political implications of New Romanticism, but we see, by its end, a remarkable turn away from it.7 Lawrence was part of the history that Berkowitz rehearses and deeply sympathetic to the romantic backlash that seemed its alternative. But in Kangaroo he rejects both ‘modern conceptions of social justice’ built on rules, procedures and systems and the ‘beautiful dreams’ of ‘transcendence’ and unity.8 Later in the book I will begin to articulate the features of a ‘third way’ which will bring us back to the insights of modernism and to the relationship of law and literature. But in this chapter and the next I must first demonstrate the logic that led Lawrence to turn away from the romantic response to the crisis of modernity. I want to show how that logic is absolutely implicated by the idea and the practice of literature. In the opening pages of Kangaroo, Lawrence makes many remarks on the necessity for authority and rule and for the incapacity of the masses to understand themselves.9 But in the person of Kangaroo, Somers confronts the embodiment of this authority; his philosophical idealism does not survive the encounter. Now it is not just others who will suffer ‘the mystery of lordship’, but he himself. And faced with that possibility, the ‘man by himself’ becomes real, undeniable – and rebellious.10 Lawrence is too sensitive to the contradictions and conflicts in our humanness to fall for the romance of irenic transcendence. Lawrence may feel drawn to it, but ‘only [to] trip and recover [his] balance for a moment’.11 This is, in part, simply the resistance of Lawrence’s own fierce individuality. He yearned for an ultimate freedom from all belonging at least as often as he yearned to lose himself in some great sublimation of self to all. Indeed, much of Kangaroo records the agonised and honest oscillation within Lawrence’s own mental state, like a fly, as he said, caught in the ointment, slipping free and falling back.12 Lawrence is no fonder than others of his generation of ‘treacly’ democracy13 and the unthinking masses, of equality and efficiency, of rules that attempt to forestall judgment by procedure. Yet, despite all that Lawrence and the German New Romantics have in common, the singularity of the self is the final sticking point in his refusal to lose himself in ethical oneness with the Diggers. ‘That is the beginning and end, the alpha and the omega, the one absolute: the man alone by himself, alone with his own soul, alone with his eyes on the darkness which is the dark god of life.’14 Why did Lawrence turn his back on the romantics in this way? To me, this is the crucial question: what did he see and how did he respond to it? I believe that the answer lies in the novel itself – generally, in his thinking about it, and specifically, in his writing of it. Explaining this argument will take me the next two chapters. In this chapter I look at internal evidence from the novel. I first go back to Lawrence’s contemporary, Mikhail Bakhtin, to introduce a general argument for the way in

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which the literature of modernism destabilises the assumptions about meaning, authority, perfection and closure which, albeit in different ways, lie at the heart of both the Enlightenment project and the romantic one. The novel’s ‘dialogic imagination’ terminally deflates their ambitions. In the second half of this chapter, I further explore the implications for meaning and perspective to be drawn from the very language and style of the novel. In ‘Text’, I discuss textual evidence both from the history of the composition of Kangaroo, and from the metaphors he uses in it, to demonstrate that the writing of the novel was the active agent that led to a shift in Lawrence’s thinking. And in keeping with my argument that law and literature must look not to the content but to the style of the literary tradition, I argue in ‘Texture’ that the experimental modernism of Lawrence’s approach to language in Kangaroo also pits him against the romantic and reactionary tendencies of his thinking and sets him on a different path.

Bakhtin and Lawrence on the ethics of the novel Lawrence’s book is fiction, and that, as it happens, makes all the difference. It has nothing to say about political or social forces, or about the actual conditions that bring about social change. As a political thriller, Kangaroo is undeniably a failure. The book is a ‘thought-adventure’;15 ‘a queer show’16 in which nothing much happens. Instead, with the distinctive specificity that the novel allows, Lawrence investigates the psychology of individuals.17 Yet this is ultimately its strength, for Lawrence explores here not politics as such but the allure of politics, the dreams which are the undertow of our beliefs. The novel explores the impulse to politics, what motivates our ambitions and draws us to the seductions of particular totalising ideologies, and the origin of these desires in our relations with others both as those relationships draw us towards and drive us away from one another.18 As Michael Wilding rightly observes, the whole drama of Kangaroo involves the effort of society to recruit the author to a cause – not the other way around.19 In this sense, the novel is neither political nor apolitical but anti-political. Its ultimate refusal to reduce individuals to statistics or probabilities or to unify their aspirations behind a collective ‘we’ shows a commitment to the singular and irreducible in human relations that stands against the game of politics that both Kangaroo and Struthers play, albeit in different ways. This literary opposition to ideology itself justifies our understanding Kangaroo in terms of a theory of justice, irreducible and opposed to politics. Lawrence saw in the form and experience of the novel a powerful counterpoise to politics, to ideology, and to their shared tendency to generalise. Over and over again, in the non-fiction essays contemporaneous with Kangaroo, he insisted on the novel as an exploration of human relations and experiences which could not be reduced to principles, rule, or generalisations. It seems to me it was the greatest pity in the world when philosophy and fiction got split. They used to be one, right from the days of myth. Then they went

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and parted . . . So the novel went sloppy, and philosophy went abstract-dry. The two should come together again – in the novel. You’ve got to find a new impulse for new things in mankind, and it’s really fatal to find it through abstraction. No, no; philosophy and religion, they’ve both gone too far on the algebraical tack.20 For Lawrence then, the novel attends to the singularity of human relations. ‘The novel is the highest example of subtle inter-relatedness that man has discovered. Everything is true in its own time, place, circumstance, and untrue outside of its own place, time, circumstance’.21 Lawrence is not alone in this view: read Sartre22 or Kundera23 or any of the other twentieth-century writers on literature and you will find the same understanding born of the same aesthetic experience: that the amorality of the novel, its refusal to finally judge but only to understand the uniqueness of human relations, is its morality. Just when Lawrence was turning his mind to the meaning and nature of the novel, Mikhail Bakhtin was beginning to formulate his own monumental work on the question. Bakhtin’s theory of the novel was written in the 1920s and 1930s under breathtakingly difficult circumstances.24 In 1929, the year his pivotal work on Dostoevsky was published, Bakhtin was arrested in Soviet Russia and sent into internal exile in Kazakhstan. Apart from a tract on communal farming techniques, he published nothing under his own name for the rest of the Stalinist era. The authorship of much of his other work is ambiguous and contested and some texts were lost or destroyed in the hardship of famine and war. Bakhtin’s reputation in the West only began to develop with the second edition of Dostoevsky in 1963, the belated publication of Rabelais in 1965, and the English translation of The Dialogic Imagination: Four Essays in 1981.25 Composed under brutal conditions and working in almost complete intellectual isolation, Bakhtin’s work nonetheless confirms and mirrors Lawrence’s pre-occupations. Via a rich theoretical vocabulary, Bakhtin outlines the ways in which the novel structurally privileges multiple layers of meaning and points of view and is inherently committed to a formal and linguistic indeterminacy. I will return at several points throughout the rest of this book to Bakhtin’s recognition of what is both distinct and distinctly ethical in the novel. Bakhtin sharply distinguished the novel from other literary forms, such as the epic, or indeed, poetry. Although the argument is no doubt overstated and shows in particular a rather limited appreciation of poetry’s potential, it nonetheless clarifies what Bakhtin saw as the unique genius of the novel. In terms of their temporal orientation, the genres are strongly contrasted. The epic is never set in a continuous present, but in a distanced and mythic past in which meaning and event have already and forever been determined. Some of D.H. Lawrence’s early novels, such as The Rainbow, seem to evoke such a world, and it is as well to understand that Bakhtin’s arguments refer to ideal-types and tendencies – elsewhere he refers to the novel’s two differing ‘stylistic lines’ of development – and not to unfailing characteristics.26 But from the classic examples of Rabelais and Cervantes on, the

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history of the novel engages a real world of uncertainty, becoming and flux. The novel, whether set in the past, present or future of its author or reader, seems still to be unfolding as we read it, in a context in which its significance and evaluation have not yet been settled. The novel appears in a zone ‘of proximity and contact’,27 fragmented and incomplete. Indeed, at the very birth of the novel, Don Quixote depicts precisely the collision between epic forms and social reality and shows with comic force the incurable impoverishment of the former.28 This engagement with the world becomes even more recursively layered in Part II, where the fictional character Don Quixote keeps meeting, for example, other fictional characters who have read about him after the (non-fictional) publication of Part I. The world of the text and the text of the world thus intersect and confront one another. This is what Bakhtin means by emphasising, by way of contrast, the epic’s utter isolation from ‘personal experience, from any new insights, from any personal initiative in understanding and interpreting, from new points of view’.29 The distinction between epic and novel is even more marked in its approach to language. The ideal-type of the epic, and even the ideal-type of the poem, speaks in a coherent and ‘normatively shared’ language, a voice of authority and instruction. The characters within it do not have voices of their own but are mediums through which authority is ventriloquised. On the contrary, the novel gives distinctive voices to each of its participants (including simultaneously its characters, narrator and author) and sets these voices against each other. The novel is inherently fragmentary and double-voiced.30 The most powerfully developed feature which Bakhtin recognises in the novel is its heteroglossia or polyphony, its inherent multiplication of voices and perspectives. For Bakhtin, the hybridity of utterances and registers is a feature of communication itself. Because what we say is always directed towards another, language always attempts to accommodate, appropriate or transform ‘the alien conceptual system of the understanding receiver’. So in speech – the parallels with Levinas are striking – ‘one always anticipates an answer, one always speaks in another’s language’.31 The novel accentuates the layered and multiplied ‘heteroglossia’ of dialogue and turns this hybridity into the grounds of its own style and structure. Irony, metaphor, dialogue, indirect speech, quotation, citation and repetition all position ‘the speaking person and his discourse’ at the very heart of the novel. The novelistic hybrid is an artistically organized system for bringing different languages in contact with one another . . . The more broadly and deeply the device of hybridization is employed in a novel . . . the more reified becomes the representing and illuminating language itself, until it finally is transformed into one or more of the images of languages the novel contains.32 As Bakhtin shows, the novel’s capacity for polyglossia is to be found not just because it preserves the distinct voices of different characters, nor even in the dialogue the novel establishes between them. The play of multiple discursive (and social and philosophical) levels is intrinsic to the genre in a unique way. In addition

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to the unique voice of a character in, say, a novel by Dickens or Dostoevsky, there is the voice of the narrator behind all such voices, and behind the narrator the voice of the author, and innumerable ways of speaking behind and interlaced with each of these: the voices and languages of the society of the time, the discourses of memory, of social context, of conventional wisdom, of proper and improper speech, and even the voice of the literary tradition itself. One might say, in legal terms, that the novel is always hearsay. In each and every sentence of the novel we hear not one but multiple voices already playing off each other, being appropriated, quoted and reflected back by the character, the narrator, the author, and so forth. Thus the novel is always and inevitably ‘double-voiced’: at every single moment different registers within it cite and play and battle one another, sometimes intentionally and sometimes not.33 Bakhtin provides many examples, such as this one from Dickens, that bring home the subtlety of this dialogic tension. Mr Merdle came home from his daily occupation of causing the British name to be more and more respected in all parts of the civilised globe capable of the appreciation of world-wide commercial enterprise and gigantic combinations of skill and capital. For, though nobody knew with the least precision what Mr Merdle’s business was, except that it was to coin money, these were the terms in which everybody defined it on all ceremonious occasions, and which it was the last new polite reading of the parable of the camel and the needle’s eye to accept without inquiry.34 As Bakhtin rightly notes, such a characterisation layers a character’s self-image directly atop the narrator’s parodic mixture of the discourse of conventional wisdom with a ‘ceremonial epic tone’ all of which take place ‘in concealed form, that is, without any of the formal markers usually accompanying such speech, whether direct or indirect’.35 Bakhtin draws our attention to a singularly thick form of dialogism. He emphasises not only how the voices of characters or participants in a novel (or a world) differ one from another, but how they evince an internal instability, transformed and acted upon by the contexts in which speech takes place and the audience and perspective to which speech is always already addressed. ‘The dialogic imagination’ presents not just a mosaic of voices, multiple but authentically distinct. Without denying this distinctiveness, Bakhtin insists at the same time upon their transformation under the communicative pressure of their contexts of utterance. Bakhtin thus emphasises the generic imperatives of the novel. The whole trajectory of its historical development leans towards problematising not only traditional sources of authority – as for example when Bakhtin emphasises the role of the carnivalesque and of the figures of the rogue, the clown and the fool in the novelistic tradition after Rabelais – but the novelist’s own authority and own limits of understanding.36 The novel’s specific gravity comes from its internal dialogism and necessarily double-voiced register, its attention to the limits and effects of language and its orientation towards an external reality which it strives

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and always fails to capture. One can almost imagine that he has Joyce’s Ulysses in mind,37 although he does not mention it. And Lawrence’s work, as we will see later on, is replete with just such Bakhtinian instability.

Text In his well-known work around the time of Kangaroo, D.H. Lawrence argues that there is a tension between the morality and the relativity of the novel. Famously, he pits the moral purpose of the artist against the amoral force unleashed by the ‘tale’ itself.38 He might have been thinking of Bakhtin’s focus on temporal reality and heteroglossia, and of the power of style to resist a normative or ideological closure. Certainly, Lawrence no less than Bakhtin takes Anna Karenina as a prime example of a novel in which the tension between the morality and the tale is sharply etched. Tolstoy, the pious old moralist, is no match for the life force and sympathy of his own creation.39 If Tolstoy kills Anna off, Anna ultimately survives him. In reading the novel, we are witnessing the transformation of the author’s own preconceptions under the assault of the experience of writing it. But perhaps Lawrence had in mind his own transformative experience in writing Kangaroo. The shift away from reactionary modernism in the course of the novel is not just an intellectual or political decision: it is recorded by – constituted by – even caused by – Lawrence’s creative experience itself. The Bakhtinian heteroglossia and anti-authoritarianism, the Lawrentian amorality, the psychological specificity and fragmentary disunity of the novel, are not merely features of the novel as a finished product but forces that create it. Lawrence didn’t rewrite Kangaroo; Kangaroo rewrote Lawrence. He does not master literature but is mastered by it. We have striking textual evidence for the claim that Lawrence’s creative experience accounts for the intellectual metamorphosis that occurs in the second half of Kangaroo. This change takes place after Chapter X and corresponds to a pause in Lawrence’s writing. In the original manuscript, in the pages leading up to this chapter, Somers is offered the leadership of the Diggers by Jaz, and there follows a further meeting with Cooley. But in the published version, no such offer is made and Somers’ meeting with Kangaroo concludes with the realisation that he is ‘a thing, not a whole man. A great Thing, a horror’.40 ‘I am sorry if I have been foolish,’ he said, backing away from the Thing. And as he went out of the door he made a quick movement, and his heart melted in horror lest the Thing Kangaroo should suddenly lurch forward and clutch him. If that happened, Kangaroo would have blood on his hands . . . Kangaroo had followed slowly, awfully, behind, like a madman. If he came near enough to touch! Somers had the door opened, and looked round. The huge figure, the white face with the two eyes close together, like a spider, approaching with awful stillness. If the stillness suddenly broke, and he struck out!

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‘Good-night!’ said Somers, at the blind, horrible-looking face. And he moved quickly down the stairs, though still not apparently in flight but going in that quick, controlled way that acts as a check on an onlooker.41 In the original version as recorded in Lawrence’s notebooks, Somers’ wife, Harriett, expresses her incredulity at Jaz’s suggestion, saying of her husband, ‘him a leader, this pathetic little man?’ So we begin to see how the heteroglossia of the novel, the internal dialogue between views it enacts, was already working not just on the characters in Lawrence’s novel but on Lawrence himself. Bruce Steele’s careful introduction to the Cambridge edition of Kangaroo illustrates the interpellative power of this dialogue. He explains the book’s change of direction with the remark that, in the original version, ‘Harriett scotched the idea . . . Harriett had already given all this the lie’.42 Even such a steely textualist thus appears to conclude that Harriett the character convinces Lawrence the author not only to refuse Jaz’s offer but to prevent it ever being made at all. And so, in the final version, Harriett’s argument with Somers seems embedded in the chapters themselves, not least in the revised Chapter IX, which inserts before the crucial meeting with Kangaroo, now completely re-oriented, an ironic reflection on the parallels between marital and political leadership entitled ‘Harriett and Lovatt at Sea in Marriage’. Lovatt Somer’s projections of absolute unity and absolute mastery are displaced, with equal futility, onto his personal relations. The delusion of power is revealed as a folly which Harriett is quite capable of ‘scotching’ wherever it manifests itself. The critical moment is Chapter X itself. In the original draft, it was to build on Lawrence’s fantasy of political leadership. Instead, Chapter X begins the whole process of Somers’ renunciation of politics. In the following chapter, he is offered positions of influence by both Struthers’ Socialists and Kangaroo’s Diggers, and rejects both, leading to the cataclysmic break with Kangaroo. That Lawrence had planned for his alter ego to lead the revolution is confirmed not only by the original versions of the previous chapters, so radically changed after Lawrence’s break, but by Frieda, who read the draft every night. But how Chapter X first unfolded cannot now be known. Lawrence not only rewrote it after a break – a crisis perhaps – but tore the original version out of his notebooks and destroyed it.43 A more dramatic statement of Lawrence’s change of heart and the struggle which the novel itself imposed on his vision can scarce be imagined. Lawrence tried to write a novel of transcendental triumph, a novel which would reflect the ideals of the New Romantics and would fully realise his own desire for authoritarian completeness, unity and rebirth. But he couldn’t do it – the tale defeated the moral. The particularity of the novel’s imagination and the diversity of its points of view rebelled against a romantic purity of inclusion as much as a positivist purity of exclusion.

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Texture Unfolding metaphors Richard Lovatt Somers does not begin with this view. He learns it over the course of the novel, and we can trace the transformation through Lawrence’s shifting use of metaphors of landscape. As Rebecca West notes, place, for Lawrence, is invariably a metaphor for the workings of his own mind. ‘He was writing about the state of his own soul at that moment, which . . . he could render only in symbolic terms; and the city of Florence [or in this case Sydney] was as good a symbol as any other’.44 Fiction, including not only the exploration of character but environmental metaphors, are agents of transformation in Lawrence’s understanding of himself and his ideas. Thus the Australian wilderness is initially portrayed as deathly, alien and terrifying.45 And the vast, uninhabited land frightened him. It seemed so hoary and lost, so unapproachable. The sky was pure, crystal pure and blue, of a lovely pale blue colour: the air was wonderful, new and unbreathed: and there were great distances. But the bush, the grey, charred bush. It scared him . . . It was so phantom-like, so ghostly, with its tall pale trees and many dead trees, like corpses, partly charred by bush fires: and then the foliage so dark, like greygreen iron. And then it was so deathly still. Even the few birds seemed to be swamped in silence. Waiting, waiting – the bush seemed to be hoarily waiting. And he could not penetrate into its secret. He couldn’t get at it. Nobody could get at it. What was it waiting for?46 Sydney – civilisation – resides on the surface, with the menacing bush all around and behind it, ready to take it over on a moment’s notice. ‘There was the vast town of Sydney. And it didn’t seem to be real, it seemed to be sprinkled on the surface of a darkness into which it never penetrated’.47 The Australian ocean likewise suggests something infinite, unfathomable, terrifying – beautiful but eery.48 And from time to time, on the left hand, they caught sight of the long green rollers of the Pacific, with the star-white foam, and behind that the dusk-green sea glimmered over with smoky rose, reflected from the eastern horizon where the bank of flesh-rose colour and pure smoke-blue lingered a long time, like magic, as if the sky’s rim were cooling down. It seemed to Somers characteristic of Australia, this far-off flesh-rose bank of colour on the sky’s horizon, so tender and unvisited, topped with the smoky, beautiful blueness . . . As soon as night came, all the raggle-taggle of amorphous white settlements disappeared, and the continent of the Kangaroo reassumed its strange, unvisited glamour, a kind of virgin sensual aloofness.49 Yet, after the break at Chapter X,50 the strange otherness of the Australian bush becomes revived as a trope for the incomprehensible yet beautiful aloneness of a

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single human being. ‘The soft, blue, humanless sky of Australia, the pale, white unwritten atmosphere of Australia. To be soulless and alone, by the Southern Ocean, in Australia.’51 But it is wonderful, out of the sombreness of gum-trees, that seem the same, hoary for ever, and that are said to begin to wither from the centre the moment they are mature – out of the hollow bush of gum-trees and silent heaths, all at once, in spring, the most delicate feathery yellow of plumes and plumes and plumes and trees and bushes of wattle, as if angels had flown right down out of the softest gold regions of heaven to settle here, in the Australian bush. And the perfume in all the air that might be heaven, and the unutterable stillness, save for strange bright birds and flocks of parrots, and the motionlessness, save for a stream and butterflies and some small brown bees. Yet a stillness, and a manlessness, and an elation.52 Not that Lawrence ever becomes at home; quite the contrary. The bush never loses its uncanny menace or its strangeness for him. But these elements become welcome and meaningful. The bush is both an ambiguous and a developing symbol. Somers’ thinking about it changes or develops as his acquaintances . . . persuade him of the inadequacy of a love worked entirely through the spirit or ‘consciousness’; that is, through the ‘white man’s will’ . . . Lawrence’s renderings of the bush with its attendant imagery make it a brilliantly forceful symbol for the way that the unconscious self (as Lawrence perceives it) informs and enriches our conscious lives and for the way that our negation of this self makes ‘bits’ of us.53 This treatment of the non-human landscape of Australia as redemptive yet untamable, so alien to the ordered English mind and landscape, becomes quite rapturous on the last few pages. If to begin with ‘poor Richard Lovatt wearied himself to death struggling with the problem of himself, and calling it Australia’,54 by the end of the novel he can depart a little closer to peace because his encounter with the place has transformed his understanding of our relationship with transcendence: it has become for him a non-lieu or aporia: an element whose unreachability is to be respected, not conquered. Lawrence refuses to be seduced by the promises of any man to truly possess that insight and authority that he and his alter ego, Somers, seek. ‘The dark God’ which lies in the pit of man is neither intellectual nor shared, and cannot form the basis of a political philosophy. It remains dark matter: unknown and unknowable, categorically not a unity but a singularity. For Lawrence, an absolute otherness drives us on, and this otherness is in some ways the very opposite of either the socialist or authoritarian transcendence against which it is pitted. Lawrence wants to be left alone with his dark and unfathomable God. And he wants nothing to do with any God capable of taking institutional form. ‘Let’s get off it, and be men, with the gods beyond us. I don’t want to be godlike, Kangaroo. I like to know the gods are beyond me . . . I want to be a man, with the

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gods beyond me, greater than me. I want the great gods, and my own mere manliness’.55 Even if we accept the transcendence of the gods, then, they remain incomprehensible to us – gods and law do not belong together. ‘The God must be unknown’, he writes. ‘Once you have defined him or described him, he is the most chummy of pals . . . And once you’ve chummed up with your God, you’ll never be alone again, poor you.’56 The beauty of the bush and the beauty of the gods lie alike in their remaining untouched and beyond our understanding.57 They are out of our reach, strange and unvisited, distant and aloof, and that is what matters. Indeed, in the central chapter concerning Lawrence/Somers’ experience in the War, his great beard is itself figured as a kind of bush whose loss would be a loss of manhood. ‘Say, Dad,’ said this fellow, as they sat in the train coming up, ‘all that’ll come off to-morrow – Qck, Qck!’ – and he made two noises, and gave two long swipes with his finger round his chin, to intimate that Richard’s beard would be cut off to-morrow. ‘We’ll see,’ said Richard, smiling with pale lips. He said in his heart, the day his beard was shaven he was beaten, lost. He identified it with his isolate manhood.58 Lawrence’s plea for the uncanniness of the gods and the uniqueness of their relationship with each isolated self, which appeared initially to predispose him towards the Kangaroo’s dream of the sublime as the basis of a more perfect and holistic political order, ultimately turns him against the violent appropriation implicit in all such dreams. The arrogance of the New Romantics lay precisely in their belief that such sublimity, ‘humanless, unwritten, soulless’, could nevertheless be accessed by the right people – the poet, the orator, or the dictator – in the building of a New Jerusalem. In this metaphorical and political shift, we see the truth of Lawrence’s own description of his method: ‘One sheds one’s sicknesses in books – repeats and presents again one’s emotions, to be master of them’.59 And indeed he did: his mother in Sons and Lovers; his country in Women in Love; and perhaps his political theology in Kangaroo. Style and form The way in which Lawrence’s use of metaphors trace an unfolding shifting thinking brings us close to his own understanding of the nature of the novel and its distinctive relationship to language. In and via the novel, Lawrence rejects the claim, common to all romanticisms, of an over-arching ideal, a spiral teleology, or a transcendent unity. In his concurrent essays, Lawrence insists that such a rejection is in fact the defining feature of modern literature. The novel is a great discovery . . . The novel is the highest form of human expression so far attained. Why? Because it is so incapable of the absolute. In a novel, everything is relative to everything else, if that novel is art at all. Every

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Commandment that ever issued out of the mouth of God or man, is strictly relative: adhering to the particular time, place and circumstance. And this is the beauty of the novel; everything is true in its own relationship, and no further.60 In Bakhtin, of course, this relativity is elevated to a fundamental aesthetic principle, but also to a fundamental ethical principle.61 For Bakhtin, as for Lawrence, the fragmentation and inadequacy of the hero in the novel marks a fundamental break from the epic form’s depiction of both hero and world as parthogenetically whole. ‘There always remains in [the hero of the novel] unrealized potential and unrealized demands . . . an unrealized surplus of humanness . . . The epic wholeness of an individual disintegrates in a novel.’62 What makes this break-up of identity so ethical in Bakhtin is the way the novel thus continues to force its characters to grow and change in an unfinished opening to the world. Lawrence points to the relativity, the context-dependence of the novel. Bakhtin sees this as an intrinsic and necessary feature not only of the novel, but of language itself. In all discourses, meaning inheres neither in individual utterance nor in systemic structure, but only in the dynamic and endless translation that occurs between specific speakers and specific contexts.63 Kangaroo’s form almost obsessively stalks its content. It is a book of fragments, and in ‘Bits’, a chapter that might at first blush be taken to be another oddly extended digression, Lawrence excerpts freely from the Bulletin, a nationalist and irreverent Australian magazine that was a cornucopia of such odds and ends.64 ‘Bits’ is Lawrence’s metaphor for who we are. Indeed, as Robert Burden argues, the fragmentation of the text (on both a structural level and between its different voices) is one of the formal means by which Kangaroo’s style undoes the ideologies of transcendence and of masculinity that it superficially appears to defend.65 It is fair to say that critics are divided on just this point, between those who see the writing as didactic and the form as incoherent, and those who see the tension between these aspects as the whole point of the novel. The fragmentation between ideology and reality the book enacts is Lawrence’s direct effort to come to terms with the alienation and dislocation of modernity.66 It is not just that there is no ideological coherence to the world; people are, for the most part, no more than an assemblage of ‘bits’ themselves. True, there is a great deal of arrogant elitism in Somers’ view. ‘The bulk of people haven’t got any central selves. They’re all bits’,67 he writes, comparing the ‘man in the street’ to the facets of a spider’s eye. ‘He’s only a bit, and he’s only got a minute share of the collective soul’.68 ‘God is God and man is man and the man in the street is a louse.’ Let the men in the street – ugh, horrid millions – crawl the face of the earth like lice or ants or some other ignominy.69 Somers distinguishes himself from these insects and insists, repetitively, manically, maddeningly, on his individuality as he denies it to them.

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The man by himself . . . Each man to himself! . . . The man by himself – that is the absolute – listening – that is the relativity – for the influx of his fate, or doom . . . The man by himself. The listener. But most men can’t listen any more. The fissure is closed up. There is no soundless voice.70 But in the manic repetitiveness of this passage, the refrain of singularity – ‘the absolute’ as Lawrence has it – becomes increasingly haunted by ‘the relativity’ of listening. ‘The man by himself ’ becomes a listener, which is to say something developed in response to others. To criticise Richard Somers as lacking a coherent core of selfhood, as some have done, misses the point (on which Lawrence and Freud agreed): this experience of one’s self-identity as a puzzle, as often lost as found, is part of the novel’s earnest flavour, and part of the puzzle which Somers finds in Australia too, where identity is, he says, always being set aside or withheld in the interests of geniality.71 As he wrote in a celebrated letter to Edward Garnett, ‘You mustn’t look in my novel for the old stable ego of the character’.72 For Lawrence, lack or fragmentation, experienced as a battle within the soul between contradictory elements, is what he means by identity.73 Kangaroo is nothing but the record of this battle within Lawrence, waged on a particular beach at a particular time, ‘and the record was taken down for this gramophone of a novel’.74 So too in Bakhtin the ethical achievement which we call the soul and which, in terms of the history of the novel, he associates with the figure of the ‘hero’ is not an individual creation or a given but constituted for us by others. This dialogue of listening gives our lives meaning in the very specific sense that meaning can only take place outside and even against the grain of – in Bakhtin’s phrase, ‘transgradient to’ – our own experience of it. Our self-image, on the contrary (and here Bakhtin seems to foreshadow Lacan), is the most constant but the most delusory of companions. So the novel does no more than dramatise an ethical truth of social relations: the valuations and perspectives of others, the narratives they form about us and the memories they preserve of us, give meaning to our lives. We cannot do it ourselves because we cannot see ourselves and our lives from beyond our own horizon. And in that sense the plurality of perspectives and the battle over identity they enact is ‘a gift that is unmerited and unexpected’.75 The presentation of identity as an endless war within us, which does so much to undercut the alleged monologism of the book, is more densely nested still. The battle for Lawrence’s soul is waged not only within D.H. Lawrence, and within the character of R.L. Somers who represents him, but between them, since the relationship between author and creation is itself ambiguous and shifting. Somers, Lawrence and Somers/Lawrence are all neither-one-nor-two. When Somers, for example, promises not to reveal the Diggers’ conspiracy to the world, did Lawrence too? – and did either of them keep their promise? The question of identity in Kangaroo is even more complicated than that, since Lawrence’s alter ego is sometimes Richard, sometimes Lovatt, and sometimes Somers: three different selves who do not always speak with one voice. ‘Perhaps it was difficult to locate any definite Somers, any one individual in all this ripple of animation and

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communication’.76 One might perceive the same internal diversity amongst David and Herbert and Lawrence, not to mention Bert.77 So now we have not one or two identities but six or seven, and an exhausting range of possible relationships between them. The novel is continually marked by internal dialogues amongst these identities. Indeed, one of the most destabilising features of the novel is the way in which the discourses of different characters continually inform and overlap with that of the narrator. Chapter IX, for example, presents an extended metaphor on marriages and boats. But the shifting perspective of the writing is apt to leave one a trifle seasick. Particularly striking is the progress of the marine marital analogy, which is first presented provisionally by the narrator in direct first-person discourse, by degrees adopted by Somers as though overhearing it, and then dramatised in the debate with Harriett, who ridicules it. This then destabilises the narrator’s own voice. He first adopts Harriett’s critique then resists it, like an advocate, only to return at the end of the chapter to Harriett’s tone, mocking Somers’ fantasy and acknowledging his inadequacy.78 This is exactly what Bakhtin means when he draws our attention to the novel as double-voiced and polyphonic. After a page of such internal argument, the narrator remarks, somewhat defensively, ‘I hope, dear reader, you like plenty of conversation in a novel: it makes it so much lighter and brisker’.79 The point is once again a subtle Bakhtinian one. There is no private language – we are always hearing voices in our head, whether those voices have come from other people, like Harriett, or other parts of ourselves. These warring conversations change us. As Lawrence concludes towards the end of Chapter V, ‘Harriett had struck home once or twice, and she knew it . . . But he stuck to his essential position, though he was not so sure of the circumstantial standing’.80 Kangaroo’s fragmented form and voice, which for Bakhtin as we have seen is such an important feature of the novel as such, marks the fragmentation of the world and of the self.81 Its form dismantles the authoritarian appeal to unity – ein kangaroo, ein pouch – for which its central characters avowedly yearn.82 Language and modernism The possibility of our access to an unmediated and coherent truth about the world, which lies at the core of romantic transcendence, comes down to the question of language. The positivists, of course, legal or literary, think that language is capable of skewering the world precisely. The romantics do not believe this and are always seeking a non-verbal and material truth behind our words. But they too think that there is a ‘there’ there; they differ only as to where it can be found. To be sure, Lawrence, like the New Romantics then and now, sets enormous store by instinct and nature: those deep wellsprings of truth and justice called insight and allied with naturalism that transcend the indeterminacy of language. The quest for the soul is, for Lawrence, tied up with solitary attentiveness, aloneness and a silent search for the ‘dark god’ within us. Well before Derrida, Lawrence used the term ‘logocentrism’ as a term of abuse for our obsession with the power of words to reductively

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pin down our experience.83 The body discloses the truth that language masks. One might think, therefore, that the figure of insight (or instinct or nature) allows Lawrence and his characters to gain access to an underlying phenomenological unity or transcendent truth that language obscures. Elements in Lawrence’s work lean towards such a view, and this is why T.S. Eliot was so scathingly dismissive. Lawrence’s faith in the Inner Light leant him perilously towards ‘the cult of personality’.84 A careful reading of Kangaroo, however, distinguishes Lawrence’s treatment of language from the romantics. In a celebrated essay written at the end of his life, Lawrence praised Paul Cézanne, the first and perhaps the most influential modernist of them all, whose work augurs both the introspection and the materiality of twentieth-century art. He praised him for destroying photography’s illusion of neutral objectivity and bringing out the very paintedness of paint (not as the end of representation but on the contrary as its possibility).85 In making words his art in the same way that the modernists made paint theirs, rather than only the things that words or paint represented, Lawrence comes close to Heidegger’s aesthetic theory. As Anne Fernihough articulates, ‘where the discursive mode . . . logocentrically focuses on a supposed signified, assumes the presence of a signified, the differential mode emphasises the painting as painting or the poem as poem’.86 For Heidegger, such a mode not only rescues art from instrumentalism and purposivity, but allows us some possibility of rescuing the world too from the eternal mask of signifier and signified. To be signified is to lose one’s own voice and the solution, for Heidegger and perhaps for Lawrence, is to be able to hear the voice of the signifier at work in it. Both resist a mechanical and instrumental approach to language, hoping thereby to return to art its wonder and at the same time, by forcing us to see the tinted window of language for what it is, to see past it to the ‘shining forth’ of the things themselves.87 In Heidegger, this ‘shining-forth’ rapidly descends to claims, standard amongst the New Romantics, about the ‘organic’ and the ‘natural’ as a phenomenological truth and legitimacy.88 The organic, warns Christopher Norris, was a dangerous mystification of and about language that formed one of the main strands in the emergence of a ‘potent, post-Romantic aesthetic ideology’. It masked a conservatism that stifles change under the rhetoric of tradition or the unfurling of destiny.89 The natural essence of a pair of shoes, for example (which Heidegger claims to be able to discern through or beneath Van Gogh’s paint), is soon extrapolated to claims about the essence and nature of authority, or ethics, or Being itself. In each case, an inner light or in-sight reveals the shining truth of these things more immediate, spontaneous, essential and unified than human language and human reason.90 In the romantics and the post-romantics organicism and nature are the royal roads that transcend Weber’s ‘iron cage’. It is worth noting that the potent appeal of this language has not diminished. In Berkowitz, for example, strongly influenced by Heidegger, the word ‘authority’ and the word ‘law’ are typically accompanied by another word: ‘natural’. To rediscover the true meaning of law and justice, we must return to nature. Authority is

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a ‘natural claim’ or a ‘natural and traditional’ one; it acts upon law’s ‘natural connection to truth and justice’ as a ‘natural’ or ‘natural and traditional’ insight.91 I doubt that I am alone in being astonished at the amount of justificatory work the language of nature performs here. It is treated as something outside discourse, selfevident, authoritative and beyond reproach.92 A ‘natural insight’ is impervious to all critique or interrogation: it just self-evidently is. At the same time, the semantic vagueness of ‘natural’ allows it to stand for a variety of different ideological positions at once, and to slide seamlessly from one to the other.93 In The Political Ontology of Martin Heidegger, Pierre Bourdieu notes that ‘nature’ is the opposite of a cruel and dehumanising industrialism, on the one hand, and of democracy on the other. ‘Natural’ in the sense of ‘pre-industrial’ and ‘natural’ in the context of a ‘natural aristocracy’ perform two completely different functions. It is through a kind of semantic slippage that the one meaning is said to entail the other.94 Thus is ‘the whole’ constructed, like a quilt, out of squares of mismatched fabric. Authority and insight are treated as natural and incontestable, then – but who decides what counts as natural? Who defines nature, and according to what terms? Whose interests are favoured by nature? Who gets to claim its protective mantle and so shield their actions from challenge? And whose questions and judgments, on the other hand, are reduced to the realm of the unnatural, a word which has not lost its power to silence? No doubt the same slippage is at times apparent in Lawrence. In the early pages of Kangaroo, for example, or in a different way in The Plumed Serpent, the primitive past and the aristocratic past are likewise fused and confused in a shared naturalisation. Neither was D.H. Lawrence alone in thinking that authority and politics were somehow natural for men and unnatural in women; or that liberty was natural amongst whites and unnatural in those other races.95 The very word ‘nature’ prevented many people, as it always prevents us, from interrogating the origin, content and purposes of our judgments. It is no wonder that a word like ‘discrimination’ now carries with it a host of negative connotations that it did not have back in the good old days when it referred merely to the capacity to recognise the ‘natural’ distinctions between people. These negative connotations are not a sign that we have lost something true but rather that we have learnt something true about the use of that word by actual persons in actual societies. ‘Nature’ is the answer to no question, but it puts an end to questions. Deconstruction, amongst other critiques, is committed to interrogating such transcendental claims, not indulging them. Ultimately, as Kangaroo develops and above all as the ideology of the narrator is continually brought into tension with Lawrence’s style and the book’s form, Lawrence moves steadily away from the romantics. For him the organic nature of language and of writing was a way of emphasising not its cultural rootedness but rather its autonomous structure. What is organic is separate and unfolds accordingly to its own logic.96 Lawrence cared about the material world and he wished us never to mistake our descriptions of it for its corporeality. But he also cared about language and its independent existence. Therefore, Lawrence uses language in a

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decisively modernist fashion: not to achieve the transparency of an unmediated relationship between signifier and signified, nor to get beyond the signifier to the truth that words betray, but to draw attention to language’s own opacity. In this way the tension between ideology and relationships – between ‘and’ and ‘but’ – which runs right through the novel is enacted at the level of Lawrence’s own style. Surely Susan Sontag is right here to insist on the importance of style to any adequate understanding of the force of art or literature.97 Lawrence’s writing is selfconsciously poetic and operates via the radical proliferation of metaphor, oxymoron and paradox.98 He made profound use of imagery such as the bush and the sea, which were not symbols of intellectual transformation but agents of it. His rhythmic style comes close to music in summoning emotions in its readers sonically and bodily. He uses the repetition of words in order to conjure up an escalating intensity of experience.99 Richard turned and they plunged into the wild grass and strange bushes, following the stream. By the stream the mimosa was all gold, great gold bushes full of spring fire rising over your head, and the scent of the Australian spring, and the most ethereal of all golden bloom, the plumy, many-balled wattle, and the utter loneliness, the manlessness, the untouched blue sky overhead, the gaunt, lightless gum-trees rearing a little way off, and sound of strange birds, vivid ones of strange, brilliant birds that flit round.100 Lawrence’s use of language is precisely iterative. He seeks to multiply meanings and to instill a sense of ambiguity into the most apparently unitary of words.101 When he writes of the ‘most delicate feathery yellow of plumes and plumes and plumes and trees and bushes of wattle’102 each of those plumes conveys différance not sameness.103 As Fernihough writes, ‘there are ways in which the writer can attempt to foreground polyvalence, inviting a particular kind of reading, and it seems to me that this is what Lawrence does wherever we find the insistent repetition with variation which is such a hallmark of his style’.104 For Lawrence, reiteration is a way of subverting any univocal mode of apprehension: it speaks, through the intense irony of repetition, to the unfailingly relative and shattered world. Lawrence further rejects the transparency of language through the presence of his narrator, which, as I have previously noted, works not to authorise a particular reading, but to problematise it. The insouciance of this voice, its casual asides and efforts to speak directly to his readers, import a strikingly modern distance and unreliability into the narrative. Lawrence’s informal narrator regularly casts doubt on the whole enterprise of the novel, creating in his readers a studied awareness of its fictional construction.105 We can’t be at a stretch of tension all the time, like the E string on a fiddle. If you don’t like the novel, don’t read it. If the pudding doesn’t please you, leave it, leave it. I don’t mind your saucy plate. I know too well that you can bring an ass to water, etc.106

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Accordingly, the intrusive narrator does not, as in Victorian novels such as Thackeray’s Vanity Fair, establish a trusting intimacy between author and reader. On the contrary, it estranges them from one another and highlights the artificiality and inadequacy of representation. While Lawrence’s later novels, such as The Plumed Serpent, resort to myth in an effort to overcome this resistance, they do so in a manner which always leaves the reader intensely aware of the author’s own efforts, of the place of the reader in relation to them, and of the texture that is at play not just in the narrative itself but in the lives and consciousness of his characters. This self-reflexivity, which is particularly evident in Kangaroo, continually undermines the novel and the characters’ own actions too. Lawrence’s painterly writing, his use of repetition, metaphor and selfconsciousness, together with the multiplication and subjectivity of voices and narrative positions, ‘introduces wandering into language’107 – the rootlessness and exile that marks the spirit of modernism. In this way, any claim about the unity of the world and our insight into it is constantly being undermined by the flux of language, and the resistance of the material world to it. Both aspects are important to Lawrence’s literary theory and both militate strongly against the tendency in the romantic and reactionary tradition towards idealism and totalisation. In Kangaroo, in particular, Lawrence’s politics is beholden to his art; his thinking and experience of the latter radically transform the former. We do not write literature; under the influence of its distinctive features, it writes us. I will further explore this claim in the following chapter through a closer examination of the story of Kangaroo and the genre of the novel which governs it.

Notes 1 D.H. Lawrence, ‘The Spirit of Place’, quoted from Studies in Classic American Literature, 1924 in D.H. Lawrence, Selected Literary Criticism, ed. A. Beal, London: Heinemann, 1955, 296 and 297. 2 D.H. Lawrence, ‘The Crown’, in Reflections on the Death of a Porcupine and Other Essays, The Cambridge Edition of the Works of D.H. Lawrence, ed. M. Herbert, Cambridge: Cambridge University Press, [1915] 1988, 251–306; ‘Democracy’, in E.D. McDonald (ed.), Phoenix: The Posthumous Papers of D.H. Lawrence, New York: Viking, [1917] 1936, 699–718. 3 M.H. Abrams, The Mirror and the Lamp: Romantic Theory and the Critical Traditions, Oxford: Oxford University Press, 1953, 171–4. 4 The quote is from Schelling with related references to Coleridge, Hegel and Goethe. Ibid, 210–11. 5 A. Fernihough, D.H. Lawrence: Aesthetics and Ideology, Oxford: Clarendon Press, 1993; M. Bell, D.H. Lawrence: Language and Being, Cambridge: Cambridge University Press, 1992. 6 See e.g. P. Bourdieu, The Political Ontology of Martin Heidegger, Palo Alto, CA: Stanford University Press, 1991; J. Derrida, ‘Restitutions of the Truth in Painting’, in The Truth in Painting, trans. G. Bennington and I. McLeod, Chicago: University of Chicago Press, [1978] 1987, 293–329. 7 See K. Widmar, ‘Lawrence and the Nietzschean Matrix’, in J. Meyers (ed.) D.H. Lawrence and Tradition, Amherst, MA: University of Massachusetts Press, 1985; M. Brunsdale The German Effect on D.H. Lawrence and His Works 1885–1912, Berne

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26 27 28

29 30 31 32 33 34

and Frankfort: Peter Lang, 1978; K. Asher, ‘Nietzsche, D.H. Lawrence and Irrationalism’, Neophilologos 59, 1975, 1–16; A. Guttmann, ‘D.H. Lawrence: The Politics of Irrationality’, Wisconsin Studies in Contemporary Literature 5, 1964, 151–63; J. Meyers, D.H. Lawrence and Tradition, Amherst: University of Massachusetts Press, 1985; C. Ferrall, Modernist Writing and Reactionary Politics, Cambridge: Cambridge University Press, 2001; J. Smith, ‘Völkisch Organicism and the Use of Primitivism in Lawrence’s The Plumed Serpent’, D.H. Lawrence Review 30.3, 2002, 7–24. R. Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition, Cambridge, Mass.: Harvard University Press, 2005, x, 108. D.H. Lawrence, Kangaroo, The Cambridge Edition of the Works of D.H. Lawrence, ed. B. Steele, Cambridge: Cambridge University Press, [1923] 2002, 21–3. Ibid, 282. Ibid, 140. Ibid, 279–80. Ibid, 66. Ibid, 281. D.H. Lawrence, Kangaroo, 272. D.H. Lawrence, ‘Letter 2 July 1922’, in W. Roberts, J.T. Boulton and E. Mansfield (eds), The Selected Letters of D.H Lawrence: Vol. IV: June 1921–March 1924, Cambridge: Cambridge University Press, 2002, 244. M. Wilding, ‘“A New Show”: The Politics of Kangaroo’, Southerly 30.1, 1969, 20–40. R. Maud, ‘The Politics in Kangaroo’, Southerly 17, 1956, 67–71. M. Wilding, ‘“A New Show”, 21. D.H. Lawrence, ‘Surgery for the Novel – or a Bomb’, in E.D. McDonald (ed.), Phoenix, 517–20. First published in Literary Digest International Book Review, April 1923. D.H. Lawrence, ‘Morality and the Novel’, in E.D. McDonald (ed.), Phoenix: The Posthumous Papers of D.H. Lawrence, New York: Viking, [1925] 1936, 527–32 at 528. J.-P. Sartre, What is Literature?, London: Routledge, 2001. M. Kundera, The Art of the Novel, New York: Harper Collins, 2000. K. Clark and M. Holquist (eds), Mikhail Bakhtin, Cambridge Mass: Belknap Press, 1984. M.M. Bakhtin, Problems of Dostoevsky’s Poetics, ed. C. Emerson, trans. C. Emerson, Minneapolis, MN: University of Minnesota Press, [1929] 1984; M.M. Bakhtin, Rabelais and His World, Bloomington IN: Indiana University Press, [1965] 1984; M.M. Bakhtin, The Dialogic Imagination: Four Essays by M.M. Bakhtin, trans. C. Emerson and M. Holquist, ed. M. Holquist, Austin: University of Texas Press, 1981. M.M. Bakhtin, ‘Discourse in the Novel’, in M. Holquist (ed.), The Dialogic Imagination: Four Essays by MM Bakhtin, trans. C. Emerson and M. Holquist, Austin: University of Texas Press, 1981, 259–422 at 400 et seq. M.M. Bakhtin, ‘Epic and Novel’, in M. Holquist (ed.), The Dialogic Imagination: Four Essays by MM Bakhtin, trans. C. Emerson and M. Holquist, Austin: University of Texas Press, 1981, 3–40 at 32. See also the discussion of the depiction of violence, pain and death in Rabelais in M.M. Bakhtin, ‘Forms of Time and of the Chronotype of the Novel’, in M. Holquist (ed.), The Dialogic Imagination: Four Essays by M.M. Bakhtin, trans. C. Emerson and M. Holquist, Austin: University of Texas Press, 1981, 84–258 at 168–72. M.M. Bakhtin, ‘Epic and Novel’, 17. Ibid; see also M.M. Bakhtin, ‘Discourse in the Novel’. M.M. Bakhtin, ‘Discourse in the Novel’, 295. Ibid, 361. Ibid, e.g. 270 et seq. C. Dickens, Little Dorrit, ed. D.H. Small and S. Wall, Harmondsworth: Penguin, 2004, 417.

How Kangaroo Rewrote Lawrence 109 35 M.M. Bakhtin, ‘Discourse in the Novel’, 303. 36 Ibid, 400–12; M.M. Bakhtin, ‘Forms of Time’, 159–61. 37 See M.T. Cabrera, ‘Ulysses and Heteroglossia: A Bakhtinian Reading’, Revista Alicantina de Estudios Ingleses 9, 1996, 33–40. 38 D.H. Lawrence, ‘The Spirit of Place’, quoted from Studies in Classic American Literature, 1924 in D.H. Lawrence, Selected Literary Criticism, ed. A. Beal, London: Heinemann, 1955, 296 and 297. 39 D.H. Lawrence, ‘The Novel’, in Reflections on the Death of a Porcupine, Bloomington: Indiana University Press, 1969, 103–17. 40 Ibid, 211. 41 Ibid,. 42 B. Steele, ‘Fiction and Fact’, Meridian 10, 1991, 19–34 at 31. 43 Ibid, 31–2. 44 R. West, D.H. Lawrence, London: Martin Secker, 1930. 45 For the role of metaphor in Lawrence, see F. Becket, D.H. Lawrence: The Thinker as Poet, London: Palgrave Macmillan, 1997. 46 D.H. Lawrence, Kangaroo, 13–14. 47 Ibid, 13. 48 J. Humma, Metaphor and Meaning in D.H. Lawrence’s Later Novels, Columbia: University of Missouri Press, 1990, 96–7. 49 D.H. Lawrence, Kangaroo, 32. 50 J. Davis, Lawrence at Thirroul, Sydney: Collins, 1989, 127; J. Davis, ‘Place, Pastoral and the Politics of the Personal: A Semi Genre-based Exploration of D.H. Lawrence’s Kangaroo’, Ph.D. thesis, University of Wollongong, 1992, 4–23. 51 D.H. Lawrence, Kangaroo, 332. Not coincidentally, the transfiguration works in reverse for the figure of Harriett, Somers’ wife, whose earthbound practicality is initially entranced by Australia and yet, at the end, expresses a visceral revulsion at its ‘reptilian’ alterity: 350. In all things, Somers’ and Harriet’s trajectories are contrary. 52 Ibid, 354. 53 J. Humma, Metaphor and Meaning, 41. 54 D.H. Lawrence, Kangaroo, 28. 55 Ibid, 210. 56 Ibid, 282. 57 Ibid, 375. 58 Ibid, 215. 59 Letter, 26 October 1913, in F. Becket, The Thinker as Poet, 63. 60 D.H. Lawrence, Study of Thomas Hardy and Other Essays, Cambridge: Cambridge University Press, 1985, 179; see also 172. 61 Indeed, one of the things that is most interesting about Bakhtin is the way in which he bases his analysis of the novel on a theory of ethics and a theory of language, of which the novel is an exemplification with far broader significance: see in particular M.M. Bakhtin, ‘Discourse in the Novel’ and ‘Author and Hero in Aesthetic Activity’, in M. Holquist and V. Liapunov (eds), Art and Answerability, trans. V. Lipunov, Austin: University of Texas Press, 1990, 4–256. 62 M.M. Bakhtin, ‘Epic and Novel’, 37. 63 See the discussion of Bakhtin and Women in Love in R. Burden, Radicalizing Lawrence, 156–61. 64 D.H. Lawrence, Kangaroo, Chapter XIV, 269–83. 65 R. Burden, ‘Deconstructing Masculinity II’, in Radicalizing Lawrence: Critical Interventions in the Readings and Reception of D.H. Lawrence’s Narrative Fiction, Amsterdam and Atlanta: Rodopi, 2000, 243–86 at 260–2. 66 Ibid, 243–9; Burden discusses the critical reception in broadly these terms, including Draper, Kermode, Eagleton, Worthen, Kinkney and Daly.

110 Kangaroo Courts and the Rule of Law 67 68 69 70 71 72 73 74 75 76 77 78 79 80 81 82 83

84 85

86 87 88 89 90

91 92 93 94

D.H. Lawrence, Kangaroo, 280. Ibid, 281. Ibid. Ibid, 281–2. See ibid, 36. Letter to Edward Garnett, 5 June 1914, in J.T. Boulton (ed), The Selected Letters of D.H. Lawrence, Cambridge: University of Cambridge Press, 1997, 78. D. Schneider, ‘Alternatives to Logocentrism in D.H. Lawrence’, South Atlantic Review 51, 1986, 35–47 at 40. D.H. Lawrence, Kangaroo, 280. See also his essay on Walt Whitman in Studies in Classic American Literature. M.M. Bakhtin, ‘Author and Hero in Aesthetic Activity’, 100, 101. Lawrence, Kangaroo, 38. D. Schneider, ‘Alternatives to Logocentrism’, 39. Lawrence, Kangaroo, 173–6. I am deeply indebted to Andre Furlani, who really did all the work of this analysis. Lawrence, Kangaroo, 282. Ibid, 100. Ibid, 40. And see also A. Nin, D.H. Lawrence: An Unprofessional Study, Denver: Swallow, 1964, 26. A. Chaudhuri, D.H. Lawrence and ‘Difference’: Postcoloniality and the Poetry of the Present, Oxford: Oxford University Press, 2003; N. Rehan, Rationalism and D.H. Lawrence: A 21st Century Perspective: Unpublished Master’s Thesis, Bozeman, Montana: Montana State University, 2004. Online. Available HTTP: (accessed 30 June 2011); D. Schneider, ‘Alternatives to Logocentrism’; A. Fernihough, Aesthetics and Ideology, e.g. 140, 165. R. Montgomery, The Visionary D.H. Lawrence, 226. A. Fernihough, Aesthetics and Ideology, 37; D.H. Lawrence, ‘Introduction to These Paintings’, in D.H. Lawrence’s Paintings, London: Chaucer Press, 2003, 83–136; see also S. Betsky-Zweig, ‘Lawrence and Cezanne’, in R. Druce (ed.), A Centre of Excellence: Essays Presented to Seymour Betsky, Amsterdam, Rodopi, 1987, 104–26 at 104; J. Remsbury, ‘Real Thinking: Lawrence and Cezanne’, Cambridge Quarterly 2, 117–47 at 117. See M. Levy and J. Moore (eds), The Paintings of D.H. Lawrence, London: Levy Cory Adams and Mackay, 1964. A. Fernihough, Aesthetics and Ideology, 165. M. Heidegger, ‘The Origin of the Work of Art’, in Poetry, Language, Thought, trans. A. Hofstadter, New York: HarperCollins, 2001, 15–86; A. Fernihough, Aesthetics and Ideology, 37, 140–70. M.H. Abrams, The Mirror and the Lamp, 169 et seq. A. Fernihough, Aesthetics and Ideology, 18. T. Eagleton, ‘The Ideology of the Aesthetic’, in P. Hernadi (ed.), The Rhetoric of Interpretation and the Interpretation of Rhetoric, Durham: Duke University Press, 1989, 75–86; C. Norris, Paul de Man, Deconstruction and the Critique of Aesthetic Ideology, London: Routledge, 1988; A. Fernihough, Aesthetics and Ideology. R. Berkowitz, The Gift of Science, 3, 7, 51–2, 108. See the deconstruction of nature/culture in relation to Rousseau: J. Derrida, Of Grammatology, trans. G.C. Spivak, Baltimore: The Johns Hopkins University Press, 1998. A. Fernihough, Aesthetics and Ideology, 32–4, discusses at some length Bourdieu’s analysis of the multiple ideologies embedded in the word ‘natural’. Indeed, see Philippe Nonet on this in ‘Antigone’s Law’, Law, Culture and the Humanities 2.3, 2006, 314–35 at 323–4. P. Bourdieu, The Political Ontology of Martin Heidegger, Palo Alto, CA: Stanford University Press, 1991.

How Kangaroo Rewrote Lawrence 111 95 Examples on both points are of course legion. Here is one: ‘That’s what they are lusting for – to wield the rod again. Slavery for millions. Japan the same. And China, in part, the same. The niggers the same. The real sense of liberty only goes with white blood’, D.H. Lawrence, Kangaroo, 90. 96 A. Fernihough, Aesthetics and Ideology, 20. 97 S. Sontag, ‘Against Interpretation’, in Against Interpretation and Other Essays, New York: Picador, [1964] 2001, 3–14 and ‘On Style’, in Against Interpretation and Other Essays, New York: Picador, [1965] 2001, 15–38. 98 F. Becket, The Thinker as Poet, 19–40. 99 Ibid, 119–24. 100 D.H. Lawrence, Kangaroo, 354. 101 F. Becket, The Thinker as Poet, 178–97; A. Fernihough, Aesthetics and Ideology, 73. 102 D.H. Lawrence, Kangaroo, 355. 103 A. Fernihough, Aesthetics and Ideology, 11, 34, 165, 191. 104 Ibid, 49. 105 e.g. D.H. Lawrence, Kangaroo, 282. 106 Ibid, 284. 107 Quoted in A. Fernihough, Aesthetics and Ideology, 56.

Chapter 7

Reality and Therapy in the Novel

Discourse in the novel is dialogized, permeated with laughter, irony, humor, elements of self-parody and finally – this is the most important thing – the novel inserts into these other genres an indeterminacy, a certain semantic openendedness, a living contact with unfinished, still-evolving and contemporary reality.1 – Mikhail Bakhtin, ‘Epic and Novel’ Humour: the divine flash that reveals the world in its moral ambiguity and man in his profound incompetence to judge others; humour: the intoxicating relativity of human beings; the strange pleasure that comes of the certainty there is no certainty.2 – Milan Kundera, ‘The Day Panurge No Longer Makes People Laugh’

This chapter picks up where the previous one left off. Again, my focus here is on our literary case study. The task I have set myself is to explain exactly how and why literature, in the context of post-war modernism, acted as an antidote to Lawrence’s romanticism. My argument has been that the experience of writing and the distinctive features of the novel as a creative form insistently pulled him in this direction. In this chapter I further develop this thesis paying closer attention now to the narrative and themes of the novel. We thus move from the internal features of the novel – its textual genesis and its metaphorical and stylistic deployment, which concerned us in the previous chapter – to the distinctive ways it marshals our engagement with the external world. Thus Chapter 7 moves from the ‘text’ and ‘texture’ of Kangaroo to its substantive focus. In ‘Context’ I argue that the novel (in Bakhtinian terms, as a historical and emergent tradition) forces the writer to develop his ideas in a specific and individualised context, and that this constant friction between myth and reality drives the writer away from idealised and abstract solutions. The writing of Kangaroo incited, perhaps even compelled, Lawrence to recover and articulate his own actual memories of the Great War, with dramatic consequences for his understanding of them. In ‘Sub-Texts’, again drawing on the theoretical writings of both Bakhtin and Lawrence, I emphasise the important relationship between the genre of the novel and psychology. Viewed as a kind of

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psychoanalytic therapy, Lawrence’s Kangaroo is both exemplary and pioneering. I will show how its commitment to an analysis of action and of relations that focuses on individual and internal motivations, accompanied by its ruthlessly dialogic approach to voice and perspective, forms a battery of therapeutic techniques against the generalities, the objectivities and the ideologies with which Kangaroo begins. As Lawrence himself said, the novel is the greatest instrument of relativity yet created. Along the way, Lawrence’s novel gradually intimates an alternative to the contentious dichotomies that he seemed to confront. The nature of this ‘third path’ will be the subject of the remainder of this book. With a firm understanding of Kangaroo, an appreciation of the distinctive modernism that it explored, and the better sense of the idea of literature in which it was deeply grounded, we will be able to discuss how the novel might serve as a kind of model for an alternative approach to law and justice too.

Context: Lawrence’s nightmare and the recovery of memory As Bakhtin sees it, the novel grew out of the humour and tragedy implicit in the contrast between myth and reality. That is of course the whole significance of Don Quixote. In Rabelais too, a refusal to be enchanted is crucial to the novel’s style and method. He relentlessly purges the genres which surrounded him of any trace of transcendence, both through his absorption in the world of the common people and his empiricism. Against the romantic vision of pleasure, Rabelais, the ‘doktor of physick’, juxtaposes sex and farting. Against the romantic vision of religion, Rabelais juxtaposes gluttonous friars. Against the romantic vision of war, Rabelais juxtaposes detailed descriptions of death, pain and mutilation. At each point, whether his subject is sexual, culinary or military, Rabelais’ scatological humour and forensic irony systematically replace false idealisations with real connections between things and substitutes genuine description for the fake and fanciful actions of romance.3 Many an epic might include the lines ‘And I deliver thee, said the monk, to all the devils in hell; then at one stroke he cut off his head’. Only Rabelais would think to give us more information. [C]utting his cranium above the petrous bone, removing both the bones of the sinciput as well as the sagittal suture, together with the greater part of the coronal bone; by doing so he sliced through both meninges and opened up deeply the two posterior ventricle-cavities of the brain: and so his cranium remained hanging down over his shoulders at the back from the membranes of the pericranium in the form of a doctoral bonnet, black above, red within.4 This is indeed, as Max Weber put it, the disenchantment of the world, a task to which the novel has consistently applied itself with pitiless zeal.

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Kangaroo likewise pits ideological fantasy against the disenchanted reality of life, which the modernists (like Joyce, or Otto Dix for that matter) insisted we could not ignore. Lawrence had some experience with what happens when one is trapped in someone else’s dream. It is called a nightmare.5 In Chapter XII, the long and anguished chapter of that name which immediately follows Somers’ cataclysmic encounter with Kangaroo, Lawrence – all but dropping the mask of fiction – recovers, after a long period of repression, the memories of his experiences during the Great War.6 Frieda and Bert Lawrence sought to sit out the war in Cornwall, but were expelled from there as a security risk. Forced to return to London and then spied on by the intelligence services there, as Richard Aldington confirms, Lawrence became furious at the demeaning, humiliating and hostile treatment he received. ‘It kills me with speechless fury to be pawed by them. They shall not touch me again – such filth’.7 By 1917, Lawrence was ‘feeling that he had been killed: perfectly still, and pale, in a kind of after death. He had always believed so in everything – society, love, friends. This was one of his serious deaths in belief ’.8 This trauma and alienation drove the Lawrences into a self-imposed exile from England which lasted until his death in 19309 and explains why he was in Australia in the first place. ‘The Nightmare’, 50 pages of autobiographical rage, seems an oddly cumbersome digression right in the middle of Kangaroo and is one of the main reasons the novel has been branded incoherent. What does Cornwall have to do with Australia where, as one critic put it, ‘there was no positive provocation to action, no reason for remorse at not acting, and therefore no basis for emotional conflict’?10 Yet, while Somers himself asks why these bitter memories should be rekindled in Australia of all places, answers emerge that again relate Lawrence’s arguments and conclusions to the distinctive characteristics of the novel. From a purely geographic point of view, there was something about the place that allowed Lawrence at long last to confront his experience of the intolerance and petty tyranny unleashed by the war. The coastline of New ‘South Wales’ near Thirroul, where the Lawrences lived, is strikingly reminiscent of Cornwall’s pastures and coal mines, each limned by dramatic sheer cliffs above and by rugged and isolated beaches below.11 And the Australian ethos, with its antagonistic and dogmatic egalitarianism, acted homeopathically, so to speak, upon him. Lawrence remained sympathetic to the mass culture, the democratic spirit, of Australia, and saw in it the extension of his own Midlands. Of course he was bound to admit that they ran their city very well, as far as he could see. Everything was very easy, and there was no fuss. Amazing how little fuss and bother there was – on the whole. Nobody seemed to bother, there seemed to be no policemen and no authority, the whole thing went by itself, loose and easy, without any bossing. No real authority – no superior classes – hardly even any boss. And everything rolling along as easily as a full river, to all appearances . . . There was a difference of money and of ‘smartness’. But nobody felt better than anybody else, or higher; only better-off . . .

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Somers for the first time felt himself immersed in real democracy – in spite of all disparity in wealth . . . And this was what Richard Lovatt Somers could not stand.12 The Great War had showed Lawrence what mass culture may lead to and he was frightened of it. From now on this soulless egalitarianism would be the marker of his displeasure with the very communities which in earlier novels he had sought to revere. For years, Lawrence had been fleeing from these memories and at last, in Australia, confronted them, perhaps because he saw there a strange combination of innocence and intolerance which revived his memories in a safe haven that permitted him to reflect on them. From a narrative point of view, too, Lawrence’s memories of the Great War come to the fore immediately after the episode around which the whole novel turns. Somers has barely managed to escape from the violent clutches of Kangaroo, and stumbles out, horrified, into the dark, foreboding, Sydney night. He was thankful for the streets, for the people. But by bad luck, it was Saturday night, when Sydney is all shut up, and the big streets seem dark and dreary, though thronging with people. Dark streets, dark, streaming people. And fear. One could feel such fear, in Australia.13 The fantasies of Cooley and, for that matter, those of Somers and of Lawrence, summon forth Lawrence’s memory of his own experiences with authority, leadership and the collective will during the Great War. And then he realised that all the time, since the year 1918, whether he was in Sicily or Switzerland or Venice or Germany or in the Austrian Tyrol, deep in his unconsciousness had lain this accumulation of black fury and fear, like frenzied lava quiescent in his soul. And now it had burst up: the fear, then the acute remembrance. So he faced it out, trembling with shock and bitterness, every detail.14 Thus the Aussie Diggers’ jingoistic myths eventually leeched out of Lawrence – in the Bakhtinian manner that the novel demanded of him – a dissenting voice rooted in the everyday world that Lawrence had experienced during the war and which had festered since then like a secret abscess. Kangaroo bursts the boil; he has reminded Lawrence too closely of the ‘stay at home bullies’ who governed England and of the swaggering soldiers whose contempt so bruised him. Lawrence, of course, never fought in the Great War. Frieda and he retreated to Cornwall and attempted to wait it out in seclusion after the personal horrors of 1915, which saw an acrimonious rupture with Bertrand Russell over the question of politics, and the trial and pulping of The Rainbow in which incomprehension of his writing rose to giddy heights of officious sadism. But Cornwall proved no escape. In Cornwall he suffered a series of suspicions, accusations, ignominies and shameful

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encounters with the military authorities. As an outsider with a German wife and a sullen and contrary temperament, Lawrence found himself the object of a distrustful and intolerant gaze. On Christmas Eve, for example, the police come to inform the couple that they must decamp from Cornwall to a kind of house arrest in London. ‘But it’s monstrous! What have they against us? We live here simply – we do nothing at all that they can charge us with. What have we done?’ cried Harriett . . . ‘Have we no rights at all?’ she cried, furious. ‘Be quiet,’ said Richard to her. ‘Yes. It is your duty to serve your country, if it is your country, by every means in your power. If you choose to put yourself under suspicion – .’ ‘Suspicion of what?’ ‘I tell you, I do not know, and could not tell you even if I did know.’ The foul, loutish detectives meanwhile were fumbling around, taking the books off the shelves and looking inside the clock. Somers watched them with a cold eye.15 Lawrence attributes the hysteria and oppression of wartime to ‘the triumph of sordid, rampant, shamelessness’ which he experiences in the cruel diffidence of the bureaucracy and in the hysterical mob patriotism unleashed by the government and the press. This is what democracy leads to, he says – mob rule.16 But the most powerful effect on Lawrence’s life was to give him a taste of the invasive intimacy of oppression: what it feels like to be ‘rejected’ for service, or to have his body looked down on in contempt,17 or to be stripped naked and reduced to bare life.18 Lawrence is violated by power, humiliated by it. ‘Cough,’ said the puppy. He coughed. ‘Again,’ said the puppy. He made a noise in his throat, then turned aside in disgust. ‘Turn round,’ said the puppy. ‘Face the other way.’ Somers turned and faced the shameful monkey-faces at the long table. So, he had his back to the tall window: and the puppy stood plumb behind him. ‘Put your feet apart.’ He put his feet apart. ‘Bend forward – further – further –.’ Somers bent forward, lower, and realised that the puppy was standing aloof behind him to look into his anus. And that this was the source of the wonderful jesting that went on all the time . . . Never again. Never would he be touched again. And because they had handled his private parts, and looked into them, their eyes should burst and their hands should wither and their hearts should rot. So he cursed them in his blood, with an unremitting curse, as he waited.19

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This was perhaps the most traumatic experience of Lawrence’s life, a moment in which the violation of his sense of privacy and identity mingle with homoerotic shame,20 all in the name of – in the name of what? In the name of power, of justice, of right, of community, of necessity. Lawrence’s deeply personal and profoundly intense reaction leaves him with hostility to authority and society itself, no matter how it is articulated and in whose or what name. ‘He would obey no more: not one more stride . . . By God, no. Never while he lived, again, would he be at the disposal of society’.21 One might at this point observe that Lawrence’s grievances are trivial compared to what men endured at the front. One might even condemn Lawrence for his lack of perspective, his painful self-absorption. But Lawrence, as I have said, is not interested in theories of politics, but in the impulse to politics, in the psychological motivation towards certain gestures of power or subservience, belonging or resisting. The novel explores mass hysteria and moral violence, the intrusion of institutions into private life, not through the lens of political context but that of personal illusions, cruelty and arrogance. If power is conceived principally in personal terms, then the intimate humiliation visited upon Lawrence at the recruiting office – his reduction, as Giorgio Agamben might say, from citizenship to animal life22 – might be said to provide a microcosm of, indeed even a small constitutive moment in, the industrial-scale violence in which millions of men were treated as mere biological organisms whose suffering was necessary and useful.23 The question of motivations and dynamics can be seen on the pettiest scale more clearly than on the grandest. The two levels while incommensurable might nonetheless be complicit. The conscription, all the whole performance of the war was absolutely circumstantially necessary. It was necessary to investigate even the secret parts of a man. Agreed! Agreed! But – . It was necessary to put Richard Lovatt and the ugly collier through that business at Derby. Many men were put through things a thousand times worse. Agreed! Oh, entirely agreed! The war couldn’t be lost, at that hour. Quite, quite, quite! Even Richard, even now, agreed fully to all these contentions. But – ! And there you are. But – . He was full of a lava fire of rage and hate, at the bottom of his soul. And he knew it was the same with most men. He felt desecrated. And he knew it was the same with most men.24 Lawrence’s focus on the uniqueness of individual experience and the incommensurability of suffering is precisely what makes the book anti-political. His instinct towards examining the implications of the most minute and insignificant incident is inherent in the novel’s methodological pursuit of the universal in and only in the particular. The recovered memory of the assault on Lawrence’s particular conscience and body explains why Kangaroo turns in his subconscious from a ‘Jehovah-like figure’ to ‘a Thing’. Kangaroo’s claims for his own authority

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serve to bring to the forefront Lawrence’s traumatic experiences with the perils of all such totalising claims. Linking together in this way Kangaroo and the Great War, Lawrence did not find some new figure in which to believe but the impossibility of belief, at least political belief, at all. As he recognised so quickly, the First World War marked his loss of belief in any of the ‘isms’ which had up until then, and indeed thereafter, though with an increasingly blind hysteria and a mounting body count, seemed to promise the perfectability of mankind – whether egalitarianism, capitalism, socialism, patriotism or any other kind of romanticism. This disenchantment was the other side of Lawrence’s critique of modernity: For the idea, or ideal of Love, Self-sacrifice, Humanity united in love, in brotherhood, in peace – all this is dead. There is no arguing about it. It is dead. The great ideal is dead . . . So then, why will men not forgive the war, and their humiliations at the hands of these war-like authorities? Because men were compelled into the service of a dead ideal. And perhaps nothing but this compulsion made them realise it was a dead ideal. But all those filthy little stayat-home officers and coast-watchers and dirty-minded doctors who tortured men during the first stages of the torture, did these men in their souls believe in what they were doing? They didn’t . . . The inspiring motive was the bullying.25 Kangaroo is just another snake-oil salesman touting just another ‘ism’ – egotism perhaps, romanticism certainly – that promises to cure the world. The Great War, as Eric Hobsbawm put it, ended the ‘long nineteenth century’.26 With it died that century’s romantic idealism in all its forms. We were now truly alone. Lawrence surveyed the wreckage and suffered deeply this loss as he attempted to find a way to go on. In light of his experiences, Somers can see little to choose between Struthers and Kangaroo – indeed, of the two, at least Struthers doesn’t want to be God himself. But as we have seen, the question for Lawrence was not communism versus fascism, but on the contrary, the problems of belief and unbelief that both faced and the transcendence and utopianism to which both appealed. Struthers and Cooley both speak in the name of something greater than they; yet Somers sees in their eyes the ‘bullying’ that this unleashes in them, as he has felt it darting at him from the eyes of others. There comes a point at which the only resistance is to the terrible arrogance of such a claim. With a palpable rage, he resists the appeal to some greatness that leads to individual sublimation. In fact, in this spirit of scepticism, Lawrence saves his harshest words for those who attempt to revive ideals whose time has past. To be compelled into service for a dead ideal – which is Lawrence’s reading of the tragedy of Great War – is just a kind of bullying.27 When Somers looked into the face of Kangaroo, entreating love but demanding obedience, he saw exactly the same bullying will which offered Somers exactly the same two choices that had already driven him to leave England: submit to the

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authority I possess and the unity I perceive, or be condemned a traitor. In a farcical reprise of Lawrence’s wartime experiences, Kangaroo and his off-sider Jack Callcott threaten him and tell him to leave the country. Again, the events turn out to be closely parallel: two authorities, two refusals, and two exiles. ‘Then what do you want of me now?’ he asked, very coldly. ‘Some sort of security, I suppose,’ said Jack, looking away at the sea. Richard was silent with rage and cold disgust, and a sort of police-fear. ‘Pray what sort of security?’ he replied, coldly. ‘That’s for you to say, maybe. But we want some sort of security that you’ll keep quiet, before – we let you leave Australia.’ Richard’s heart blazed in him with anger and disgust. ‘You need not be afraid,’ he said. ‘You’ve made it all too repulsive to me now, for me ever to want to open my mouth about it all. You can be quite assured: nothing will ever come out through me.’ Jack looked up with a faint, sneering smile. ‘And you think we shall be satisfied with your bare word?’ he said uglily.28 Having shattered Kangaroo’s dream of unity, Somers must now be banished in order to preserve it. That is the hysterical response of all such dreamers in the aftermath of their inevitable failure: exclusion, purges, exile and death. Under the challenge of the novel’s method, Lawrence’s dream of transcendence exposes his underlying nightmare.

Sub-text: The novel as a therapeutic genre In short, for Lawrence, the novel was therapy: he was the patient and Kangaroo the analyst which reflected back, in a provocative yet passive fashion, his own memories and feelings. Accordingly, we would no more be justified in reading its exploration of romantic absolutism or authoritarian idealism as a political endorsement than in reading a patient’s dreams and fantasies as endorsement. They articulate problems, not resolutions. They reveal emotional states but do not prescribe outcomes. I would even describe Kangaroo as a document of post-traumatic recovery. The novel’s circular movement and gradually ramifying and thickening metaphors slowly allow the reader, as they allow the writer, to approach the traumatic heart of his concerns. In precisely this spirit, ‘The Nightmare’, at the very heart of the novel, brings Lawrence back to the experiences which were the origin of his anxieties, and forces him to face them head on. In the following chapter, ‘Revenge – Timotheus Cries’, as Lawrence finally examines his own feelings about these experiences, a new form of reconciliation hesitantly emerges.29 Lawrence’s contemporaneous writing on psychoanalysis predisposed him to just such a therapeutic method as essential to the methodology of the novel. As Alyse Gregory’s otherwise unflattering review of Kangaroo remarks, Lawrence was ‘the first writer to embody in artistic form the intimations of psychoanalysis with his

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own singular and authentic vision’.30 The urgency and catastrophe of the Great War had driven Lawrence in this hugely ambitious direction. He removed the barrier separating the inner world of the psyche and the outer terrestrial world so that they could meet, without becoming identical. This postwar reconstruction of the novel, and its implications for the nature of art and fiction, is Kangaroo’s story in large part.31 In a way that Lawrence had earlier experimented with, for example in parts of The Rainbow, his narrative focus and language remain fixed on ‘the deeper movements of the subconscious’32 and not on the external events that precipitate them. (That is what makes him an Expressionist in his writing no less than in his paintings.33) Anaïs Nin draws our attention to the ‘inner revolution’ of the book which steadily and radically displaces the book’s still-born outer revolution.34 The changing metaphors and metonyms of the Australian landscape, as I have already noted, operate as an unfolding illumination of the shifts in his self-understanding in a way that would be entirely familiar to anyone familiar with the psychoanalytic process. This inner revolution is tied to three essential features, at least on Lawrence’s understanding, of the novel: its attention to psychology, polyphony and irony. Psychology The novel’s fundamental commitment to the exploration of the psychology of individuals adds complex dimensions of explanation and interrogation to the ideas which, in the person of particular embodied human beings, are given voice. We glimpse the logical and illogical reasons people have for their beliefs. We see the same ideas expressed by different people for different reasons. We see the same person expressing contradictory ideas at different times. We see opposite ideas struggle with each other. The net effect is a real deepening of our understanding.35 Such an understanding of the world (as issuing from flawed and complex vessels characterised by personal and particular motivations) creates a resistance, scepticism and complexity to the generalisations of ideology. The psychological dimension of the novel gives a salutary and earth-bound perspective to our ideas. Lawrence explicitly connects his understanding of the novel to his understanding of the psyche. Indeed, he was a pioneering critic of Freud. In Psychoanalysis and the Unconscious, published the same year as Kangaroo, he excoriated Freud for treating the unconscious as an archive of words and ideas. For Lawrence, Freud does not adequately account for the bodily and entirely non-cerebral nature of our unconscious. ‘It is the sap of our life, of all life’.36 In this, too, there is a close connection between Lawrence and Nietzsche, not to mention Carl Jung, all of

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whom emphasise the mysterious creative power of darkness – Jung’s shadow, Nietzsche’s Dionysus and Lawrence’s ‘dark god’ or lower or phallic self37 – against the rational light of Apollo.38 It was Lawrence’s position that Freud essentially shared the bourgeoisie’s repressive attitude to passion. In novels, too, ‘the certain moral scheme’ in Tolstoy, Dostoevsky and others, which Lawrence calls ‘dull, old, dead’, treats characters as mere puppets of a moral or social order which punishes them for their passion: Anna Karenina and Madame Bovary spring immediately to mind.39 Throughout the nineteenth century, women characters in particular were positioned as ultimately either ruined by society or reconciled to society. In the twentieth century, the realm of interiority becomes a kind of escape from it.40 Lawrence rejects all three of these possibilities. Instead, he ‘tried to conceive the unconscious as it might be constituted in a condition in which repression no longer exists’.41 Lawrence thought there was a clear distinction between he and Freud.42 For Freud, sexual desire is primary and creativity is a product of its sublimation or attenuation – its repression. On the contrary, Lawrence thinks creativity ‘the first motive for all human activity’; not produced by repression but destroyed by it. So for Lawrence culture is not an Apollonian imposition but a Dionysian energy.43 As Lawrence expressed it in Fantasia of the Unconscious, Freud’s unconscious is ‘the cellar in which the mind keeps its own bastard spawn [whilst the] true unconscious is the well-head, the fountain of real motivity’.44 Clearly, Lawrence does not leave this unconscious untroubled. Just like Freud, Lawrence presents the force of this rising sap, this Dionysian energy, this creative force, as it presses us both to love and to violence. Nonetheless, Lawrence was searching in his novels and his essays not for a way of damming up the dark matter of the unconscious but of tapping it. While the whole force of society sought to modify passion by reference to morality, Lawrence wanted to achieve the opposite. And, given the endurance of our dark and passionate self, that was just the problem for which psychoanalysis, Lawrence argued, could not find an adequate response. In his diagnosis of the psychoanalytic predicament, Lawrence showed again his gift for percipience and even prophecy. To make him aware of his own deep discomfiture, his lack of true satisfaction, his poverty of being, is only to increase his pain and his impotence, unless you can give him something new and true to live by. Psychoanalysis without knowing what it is doing, has assumed the responsibilities of a religion without having religious duties to impose or religious satisfactions to offer.45 This is an acute observation. Yet Lawrence is perhaps guilty of too hasty a reading of the writer who is now generally thought to have done more than anyone to subvert the hegemony of conscious rationality. Certainly in his later works, including those written after Lawrence’s death, Freud seems clearly to argue that civilised society has paid too high a price for its sublimation of sexual energy.46 The scientific and positivistic elements of Freud’s thinking were obvious to Lawrence,

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as they were to Bakhtin too. Bakhtin similarly condemned Freud’s efforts to ‘monologize the nature of language’.47 But if Freud was guilty of rationalising repression in one way, he was also working to undo it in another. Freud’s constant recourse to poetry and literature as the reference point for his structuring concepts and most significant ideas had profound implications. Literature operates in psychoanalytic theory as the privileged site for uncovering the unconscious. There is thus in Freud as in any writer a tension between the moral and the tale, the norm and the style, which has been resolved, in recent years, decisively in favour of the latter.48 What Lawrence and Freud have in common now seems more striking than their differences. Above all, for Lawrence as for Freud and later for Jacques Lacan,49 psychoanalysis is intimately tied to literature. The therapeutic process is not prescriptive: by allowing us to trace back our anxieties and our feelings, it is a path of self-discovery through metaphor, language and memory. The same is true of the novel. Imagination allows Lawrence to discover the link between different events. Narrative form allows him to explore consequences and follow trains of thought. Metaphor allows us to understand ourselves in relation to the world around us – and even, as we see with respect to the imagery of the bush, to remake ourselves in relation to it. The reality principle encourages a steady resistance to the ideological seductions of abstractions and myths. And the singularity and specificity of the novel provide a rare opportunity to learn and to change with the writer and with its characters. Lawrence’s intellectual transformation is not just recorded but accomplished by the novel. So, perhaps, is ours. In practice, the novel has been closely tied to the rise of psychology throughout its history. From the eighteenth century onwards, the novel presented itself as a kind of inward ‘truth’ as valid in its own way, though differently constructed, as any history.50 A great number of the early novels made the brazen claim that in fact they were history. Henry Fielding’s famous work is entitled History of Tom Jones, a Foundling. Defoe writes in the Preface to The Life and Strange Surprizing Adventures of Robinson Crusoe, ‘The Editor believes the thing to be a just History of Fact; neither is there any Appearance of Fiction in it’.51 It would be wrong to consider this facetious or a hoax. It is a claim about truth, about the private history, as Laurence Sterne wrote, ‘of what passes in a man’s own mind’.52 Thus the real strength of the novel as it developed in the eighteenth and through the nineteenth century lay in its attentiveness to inner life, psychology, motivation and character as worthy and necessary elements of study. To understand history as a series of facts or forces, without understanding the human nature that motivated and formed them, is to understand nothing at all. This investigation of human psychology has taken different forms at different times. In the eighteenth century, it was the singular individual’s encounter with the world that formed the genre’s focus: Moll Flanders, Robinson Crusoe, Gulliver’s Travels.53 In the nineteenth century, under the influence of that romantic impulse that was Lawrence’s heritage and curse, writers attempt to juxtapose the visions and perspectives of individual characters and ultimately to unite them into a new synthesis. A resolution to the conflict of personalities is attempted, if not explicitly

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in all those books with ‘and’ in the title – Sense and Sensibility, Pride and Prejudice, North and South54 – then implicitly in the omniscient and unhesitating judgment of writers like Dickens and Eliot. Yet these ‘ands’ begin to uncover relationships whose tensions cannot be so resolved or transcended, of which Lawrence’s Sons and Lovers is surely paradigmatic. After the First World War, the fictional character’s journey is no longer so much out into the world or towards a resolution with others. It is an inward journey, ‘to’ some self-understanding, as we see in the classic novels of the 1920s: To the Lighthouse, A Passage to India, or, just as paradigmatically, Ulysses.55 As Frederic Jameson observes, the relationships, particularly between men, in many of these inward journeys, do not unify or resolve tensions but maintain them in a state of perpetual alienation. If Waiting for Godot is the locus classicus of this non-lieu, this failed connection between separate souls, then Kangaroo is an explicit precursor to it.56 In Kangaroo, as in all his novels, Lawrence connects the ideological positions of his characters closely to their psychology; it is the gift of the novel-form to privilege this kind of explanation. In particular, Kangaroo and his supporters are bound together by a code of personal loyalty. As we saw in Chapter IV, Somers too is drawn to the rhetoric of glory, nobility and honor, a ‘recognition of difference’ and ‘the mystery of lordship’.57 This is not just Lawrence being mad. It is stock standard amongst the reactionary modernists such as Schmitt: Something dead, something of little value or valueless, something inferior, cannot be represented. Such a thing lacks the intensified mode of being that is capable of an existence . . . Words such as greatness, nobility, majesty, glory, worth and honor attempt to capture the special nature of an intensive being that is capable of being represented.58 The hatred of a modern world that had shed its lustre and its intensity and ‘in which no great heart could beat and no great soul could breathe’,59 the yearning for the revival of a life of affective intensity, is key to any understanding of Schmitt’s writing. Yet it leads inevitably to violence and paranoia. As we have already seen, reactionary modernism is a species of nihilism. Schmitt for one, though not so explicitly, clearly revels in the potential of an anomic violence that he elevates to a position of supreme authority in his legal order.60 That is what makes Schmitt’s Concept of the Political, with its craving for political enemies, such an emotional book. Likewise, in Kangaroo, Richard Somers is frightened and ultimately horrified to discover that the Diggers’ appeals to love and nobility are cut from the same emotional cloth as the hate they direct towards their enemies, and which binds them together into mythical oneness.61 On the dark side of the claim to nobility lies the urge to eliminate anyone who refuses to acknowledge it. ‘I’m not really against you, am I?’ said Somers. And his own heart answered, yes you are! ‘You are not with me,’ said Kangaroo, bitterly.

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‘No,’ said Somers slowly. ‘Then why have you deceived me, played with me,’ suddenly roared Kangaroo. ‘I could have killed you.’ . . . He had become again hideous, with a long yellowish face and black eyes close together, and a cold, mindless, dangerous hulk to his shoulders. For a moment Somers was afraid of him, as of some great ugly idol that might strike. He felt the intense hatred of the man coming at him in cold waves. He stood up in a kind of horror, in front of the great, close-eyed horrible thing that was now Kangaroo.62 For Kangaroo’s supporters, like the increasingly menacing Jack Callcott, hatred and the Otto Dix-like violence it liberates under the righteous banner of unity lie at the very heart of their desire.63 ‘Tell you what, boy,’ he said in a hoarse whisper. ‘I settled [killed] three of ’em – three!’ There was an indescribable gloating joy in his tones, like a man telling of the good time he has had with a strange mistress – ‘Gawr, but I was lucky. I got one of them iron bars from the windows, and I stirred the brains of a couple of them with it, and I broke the neck of a third. Why it was as good as a sword to defend yourself with, see –’. He reached his face towards Somers with weird, gruesome exultation, and continued in a hoarse, secret voice: ‘Cripes, there’s nothing bucks you up sometimes like killing a man – nothing. You feel a perfect angel after it.’ . . . And his eyes glowed with exultant satisfaction.64 No one before Lawrence had come closer to unravelling the intimate bond between the rhetoric of honour and the bloody violence that gushes forth in its name. Polyphony The novel’s embodiment in multiple characters provides resistance to the claims and arguments of each of them. This spirit of contradiction is essential to all the writing about the novel that Lawrence produced at the time.65 In Kangaroo, we see echoes of this idea time and again. As soon as the Call ceases, the Answer is invalid. And till the Answer comes, a Call is but a crying in the wilderness. And every Answer must wait until it hears the Call. Till the Call comes, the Answer is but an unborn foetus. And so it is. Life is so wonderful and complex, and always relative.66 ‘The dialogic imagination’ was of course the central feature of Bakhtin’s understanding of the novel. Much has been written about this in relation to Lawrence,

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but there has been a tendency nonetheless to understate its operation in his novels.67 While Women in Love is often held up as exemplary in its use of doubled and dialogic speech, the so-called leadership novels are routinely dismissed because of the supposed dominance of the authorial voice within them and the tendentious structure of their plots.68 But this is to adopt a strangely old-fashioned reading of Lawrence’s own authority in his texts. In the nineteenth-century world of George Eliot, the magisterial author acts as a policeman or priest who regulates this polyphonic interaction by imposing a final moral judgment on the opinions and views of his characters.69 In the post-war world of Virginia Woolf, standpoint epistemology is not a claim to authority but highlights instead its frailty. True, the narrator of Kangaroo is highly visible and sometimes didactic throughout the novel. But within a distinctly modernist framework, authority be it narrative, institutional or of any other provenance, is not to be trusted. Indeed, Bakhtin’s point is that this represents the working out of the very history of the novel itself. He emphasises the importance of ‘a plurality of independent and unmerged voices and consciousness’ in dialogue and likewise recognises the way in which these internal dialogues have steadily undermined the power of any pontifical (uninterpretable, monologic, hieratic – positivist, even) authority treated by the text – including that of the text itself! The authorial voice, while it may be omnipotent, is far from omniscient. So the very prominence of Lawrence’s voice in Kangaroo actually problematises his absolute power over the text and situates him instead as merely one amongst many of its fractious characters. In Kangaroo, Lawrence’s narrator, who speaks through the eyes of Somers, descends into the world of his characters and is frequently bloodied and bested by them. It is his vulnerability, sometimes even his foolishness, that is most in evidence and that allows him to be shaken and changed by the multiple voices and contradictory experiences around him. Lawrence’s ability to ironically modulate his own voice, citing his own opinions in contexts that subtly destabilise them, is an achievement of Bakhtinian dialogism which has been insufficiently appreciated by critics. It is perhaps also the case that his ability to capture the voice and tone of Australian life and yet to place it in a context that implicitly satirised it might be one reason for the reluctance of Australian critics to do the novel any favours. They may have thought that it was their cultural authority that was thereby undermined. In Kangaroo, Richard Lovatt Somers’ views, no less than those of other characters, are made the subject of a coruscating critique. Time and again he pricks his own balloon and mocks his own zeal. ‘Blarney – blarney – blarney! He was a preacher and a blatherer . . .’.70 But to hear the argument properly we must pay attention to all the characters, and not just to Somers, Lawrence’s alter ego, for he uses other characters to subject himself to a still harsher critique. 71 In Kangaroo, Harriett’s is the most powerful voice that constantly subverts Somers’ pretensions. On a chilly day at the beach, his hat is caught by a gust of wind and carried into the surf; after it he lumbers – like many a Brit on holiday – and, with much ungainly flailing, rescues it. Bedraggled and chilled, he continues to hector her on the way home.

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‘You’ve got to have an awakening of the old recognition of the aristocratic principle, the innate difference between people.’ ‘Aristocratic principle!’ she shrieked on the wind. ‘You should have seen yourself, flying like a feather into the sea after your hat. Aristocratic principle!’ She shrieked with laughter. ‘There you are, you see,’ he said to himself. ‘I’m at it again.’ And he laughed too. The wind blew them home. He made a big fire, and changed, and they drank coffee made with milk, and ate buns.72 The book is full of such passages, Harriett dishing out the bracing counter-blast Richard so richly deserves. ‘You don’t like people,’ she says to him. ‘You always turn away from them and hate them. Yet like a dog to his vomit you always turn back. And it will be the same old game here again as everywhere else.’73 He laughed, and realized most of what she said was true . . . She looked at him, and somehow she wanted to cry, because he was so silly in refusing to be finally disappointed in his efforts with mankind, and yet his silliness was pathetic, in a way beautiful. But then it was so silly – she wanted to shake him.74 As Lawrence learns, and as Ben Cooley does not, our psychological desire may be for love or glory or unity, but our essential psychological need lies in the beautiful salvation from our most dogmatic beliefs that others give us. Indeed, Milan Kundera argues that humour, one important agent of this reluctant salvation, might be the greatest invention of the European novel.75 Oh, to laugh at ourselves, to see ourselves as others see us, to see our own blindness and the limitations of our view – but the romantic spirit is irenic, not ironic; grave, lacking humility, rarely humorous. In these ways, it affords no distance to allow us a different perspective on the earnest of our own desires. Irony The question of irony, which I have already raised in Chapter 2, is closely connected to this. Now as I noted previously in Political Romanticism, Schmitt condemns irony because it distances the ironist from any commitment or action. Indeed, the point had already been emphatically made by Hegel who dismissed ironic detachment as hypocritical and inauthentic.76 The ironist stays aloof from the beliefs and passions that propel others to engage with the world. There is something to this; although even Schmitt carefully distinguishes irony from self-irony.77 Yet the distancing effect of irony is less than half the story. According to Bakhtin, the novel’s hybridisation of high and low, of narratives of myth and life, of common and stylised language, casts a new and shifting light upon all claims to a transcendent and objective authority, whether legal, political or spiritual.78 The rogue deceives and parodies highfalutin languages; the clown distorts and overturns

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them; the fool naively fails to comprehend them. These three dialogic registers relentlessly subvert monological discourse, but ‘the roots of such dialogues always reach deep down into the internal dialogic essence of language itself’.79 Irony is the ruin of totality. It is a chain reaction of diversity in meaning and language which sweeps away the ground beneath its own feet. For Bakhtin, this structural autocritique, although it undermines literature’s claims to have unlocked the ‘essential human insights . . . of lived human experience’,80 gives it instead its two greatest gifts – doubt and fertility.81 Indeed, as Shoshana Felman argues, the power of irony extends not only into the depths of literature but connects it to psychoanalysis. Since irony precisely consists in dragging authority as such into a scene which it cannot master, of which it is not aware and which, for that reason, is the scene of its own self-destruction, literature by virtue of its ironic force, fundamentally deconstructs the fantasy of authority in the same way and for the same reasons that psychoanalysis deconstructs the authority of the fantasy . . .82 The power of polyphonic juxtaposition and the indeterminacy of irony demonstrate the extent to which all authority, including the literary text’s own authority, is both vulnerable to rhetorical re-accentuation and engineered by just such effects. Paradoxically, Derrida remarks that irony is the ‘invincible resource’ of sovereignty.83 This points us perhaps to the way in which the sovereign’s assertion of total freedom is necessarily juxtaposed to the unstable and provisional nature of all such claims. There is, then, always something ironic about authority’s claims. But Felman’s point, and mine, is that there is nonetheless something anti-authoritarian in both employing and exposing at last that irony. If the sovereign proceeds by way of irony, he also proceeds by concealing it. That is why the strategy of antitotalitarianism equally exploits this invincible resource.84 Irony is ‘a structure of failed resolution . . . an imperfect form of closure, an imperfect form of justification’85 and thus a way, in short, of resisting forever law’s search for interpretative and normative finality. As Wai Chee Dimock has nicely observed, juxtaposition in law is presumed to be causal, whereas in literature it is often ironic and therefore not causal. The role of irony in the novel then necessarily acts as a form of resistance to law’s demands for completion and certainty. One might even say that, through the workings of irony, law and literature reveal themselves as each other’s unconscious: as the unspoken discourse that, remaining unarticulated but nonetheless governing action, subverts their claims to final authority. Irony is thus the unquenchable enemy of both positivism and romanticism. Irony reveals the failure of their projects – of perfection and of closure – while at the same time opening up new and indeed unforeseen possibilities. Schmitt, it seems to me, thinks that the destabilising doubt instilled by irony breeds paralysis; Hegel that it is a mark of inauthenticity. But on the contrary, this instability and constant interpretive openness – the emergent and unstable nature even of our own

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‘authentic’ self – is a force for political empowerment and personal growth. Again, Schmitt’s writing belies his arguments. There is not a scintilla of doubt or irony in his own beliefs. His love of the establishment – of order and the State, and of the violence that will ensure their mutual protection – does not permit it. Hegel famously remarked that women are ‘the everlasting irony in the life of the community’.86 He was thinking of Antigone and he was right, although he managed to draw from his observation entirely the wrong conclusion – that is, the danger of women to the political community rather than their value.87 Perhaps the systematic exclusion of women from political and philosophical discourse has led them – though of course hardly them alone or all of them – to exhibit a scepticism of grand theories and the romance of violence. Perhaps that is why women have by comparison been so important in the discourse of the novel, as readers, as authors and as characters. In its seriousness of purpose and its grand ambition, the transcendentalist impulse has always seemed to me sharply gendered.88 That Harriett and Victoria, women who are purposely left out of the political talk of their husbands, are the most trenchant in their criticism of it, should not lead us to take it less seriously as an aspect of the Lawrence’s, and our, developing thought. In Lawrence, certainly, the ironic voice is very often given to women. As Anais Nin points out in discussing Women in Love, it is always the women who answer back, ‘state the other side of the case, who make him ridiculous, and who put him in the wrong’.89 Lawrence is well aware (many bad readers of him are not) of the extent of his own ridiculousness. ‘Wherever have you been?’ said Victoria. ‘Talking politics and red-hot treason,’ said Jack, rubbing his hands. ‘Till you’re almost frozen, I’m sure,’ said Victoria. Harriett looked at the two men in curiosity and suspicion, but she said nothing. Only next morning when the Callcotts had gone she said to Lovatt: ‘What were you and Mr. Callcott talking about, really?’ ‘As he said, politics and hot treason. An idea that some of them have got for making a change in the constitution.’ ‘What sort of change?’ asked Harriett. ‘Why – don’t bother me yet. I don’t know myself.’ ‘Is it so important you mustn’t tell me?’ she asked sarcastically. ‘Or else so vague,’ he answered. . . . Yet she hated the hoity-toity way she was shut out. ‘Pah!’ she said. ‘A bit of little boys’ silly showing off.’90 We see here a fine example of how Harriett offers a psychological critique of a philosophical claim through the ironic juxtaposition of registers and languages: ‘treason’ on the one hand; ‘little boys’ on the other. She reminds us how, ever since the days of the shamans, personal desires for glory and belonging and power have been sustained by appeals to authority so nebulous as to remain beyond the grasp of many yet apparently capable of being seized by the privileged few.

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‘But that isn’t the same as being disinterested, for all that. [Jack] wants to have his finger in the pie, that’s what he wants.’ ‘To pull out plums? That’s not true.’ ‘Perhaps not to pull out money plums. But to be bossy. To be a Captain once more, feeling his feet and being a boss over something . . .’ He paused, struck. ‘Am I disinterested?’ he asked. ‘Not’ – she hesitated – ‘not when you want just power.’91 Irony holds our great words and promises up, and examines them as we might examine an object. As Slavoj Zizek writes: Herein lies the ethical attitude of psychoanalysis, the reversal baptized by Lacan ‘la traversée du fanatasme,’ going-through the fantasy: in the distance we are obliged to assume towards our most ‘authentic’ dreams, towards the myths that guarantee the very consistency of our symbolic universe.92 Thus the psychological depth of the novel, its polyphonic narrative and its ironic distance combine to ensure that Lawrence ‘goes through the fantasy’, as Zizek puts it, eventually assuming a profound and healthy distance towards his own dreams and myths and a new perspective on his goals and motivations. This ironic distance, while it perhaps threatens to undermine the glory of politics or the absolutism of justice, is a temperament of which we have a real need, in the life of the community and in law, above all.

Notes 1 M.M. Bakhtin, ‘Epic and Novel’, in M. Holquist (ed.), The Dialogic Imagination: Four Essays by M.M. Bakhtin, trans. C. Emerson and M. Holquist, Austin: University of Texas Press, 1981, 7. 2 M. Kundera, ‘The Day Panurge No Longer Makes People Laugh’, in Testaments Betrayed: An Essay in Nine Parts, trans. L. Asher, London: Faber & Faber, 1995, 1–33 at 32–3. 3 M.M. Bakhtin, ‘Forms of Time and of the Chronotype of the Novel’, in M. Holquist (ed.), The Dialogic Imagination: Four Essays by M.M. Bakhtin, trans. C. Emerson and M. Holquist, Austin: University of Texas Press, 1981, 84–258. See M.M. Bakhtin, Rabelais and His World, Bloomington IN: Indiana University Press, [1965] 1984. 4 F. Rabelais, Gargantua and Pantagruel, trans. M.A. Screech, London: Penguin Books, [1532] 2006, 340. 5 P. Delany, D.H. Lawrence’s Nightmare, Hassocks, Sussex: Harvester Press, 1979. 6 See ‘Chapter XII: The Nightmare’, in D.H. Lawrence, Kangaroo, The Cambridge Edition of the Works of D.H. Lawrence, ed. B. Steele, Cambridge: Cambridge University Press, [1923] 2002, 212–59. 7 Letter by D.H. Lawrence to Cynthia Asquith, quoted in R. Aldington, Portrait of a Genius, 205. 8 A letter by D.H. Lawrence, quoted in R. Aldington, Portrait of a Genius, But . . . London: Heinemann, 1950, 199. 9 With the exception of a brief and unhappy visit to England in 1923. 10 R. Maud, ‘The Politics in Kangaroo’, Southerly 17, 1956, 67–71 at 67.

130 Kangaroo Courts and the Rule of Law 11 B. Steele, ‘Introduction’, in D.H. Lawrence, Kangaroo (The Cambridge Edition of the Works of D.H. Lawrence), ed. B. Steele (Cambridge, Cambridge University Press, [1923] 2002), xvii–lvi at xxxiv. 12 D.H. Lawrence, Kangaroo, 21. 13 Ibid, 211. 14 Ibid, 260. 15 Ibid, 242. 16 Ibid, 217, 225, 241, 240. 17 Ibid e.g. at p. 245. 18 Ibid e.g. at pp. 214, 220. 19 Ibid, 254–5. 20 C. Nixo, Lawrence’s Leadership Politics and the Turn Against Women, Berkeley, University of California Press, 1986, 233. 21 D.H. Lawrence, Kangaroo, 256. 22 G. Agamben, Homo Sacer: Sovereign Power and Bare Life, ed. W. Hamacher and D.E. Wellbery, trans. D. Heller-Roazen, Stanford, CA: Stanford University Press, 1998; G. Agamben, State of Exception, trans. K. Attell, Chicago: The University of Chicago Press, 2005. 23 M. Wilding, ‘“A New Show”: The Politics of Kangaroo’, Southerly 30.1, 1969, 20-40 at 23–6. 24 D.H. Lawrence, Kangaroo, 262. 25 Ibid, 263. 26 E.J. Hobsbawm, The Age of Revolution: Europe 1789–1848, London: Abacus, 1962; E.J. Hobsbawm, The Age of Empire: 1875–1914, London: Wedienfeld and Nicholson, 1987. 27 D.H. Lawrence, Kangaroo, 264. 28 Ibid, 292. 29 I emphasise this as opposed to Davis’ much more complacent reading of therapy. 30 A. Gregory, ‘Dial, January 1924, lxxvi’, quoted in R.P. Draper (ed.), D.H. Lawrence: The Critical Heritage, London: Routledge, 1970, 66–72. 31 A. Radford, ‘Strange Gods Beneath the Post-War Rubble in Kangaroo’, D.H. Lawrence Review 31.1, 2002, 51–65 at 60. 32 P. Eggert quoted in R. Burden, Radicalizing Lawrence: Critical Interventions in the Readings and Reception of D.H. Lawrence’s Narrative Fiction, Amsterdam and Atlanta: Rodopi Bv Editions, 2000, 84. 33 See D.H. Lawrence, D.H. Lawrence’s Paintings, intro. K. Sager, London: Chaucer Press, 2003. 34 A. Nin, D.H. Lawrence, An Unprofessional Study, Denver: Swallow, 1964, 93. 35 R. Montgomery, The Visionary D.H. Lawrence, Cambridge: Cambridge University Press, 1994, 115. 36 D.H. Lawrence, Psychoanalysis and the Unconscious, London: Heinemann, 1923, 35. 37 The terms occur throughout Kangaroo. See e.g. 135. 38 K. Asher, ‘Nietzsche, D. H. Lawrence and Irrationalism’, Neophilologos 59, 1975, 1–16 at 2–6. 39 D.H. Lawrence, ‘Letter to Edward Garnett, 5 June 1914’, in W. Roberts, J.T. Boulton and E. Mansfield (eds), The Selected Letters of D.H Lawrence: Vol. IV: June 1921–March 1924, Cambridge: Cambridge University Press, 2002, 78. 40 E. Goodheart, The Utopian Vision of D.H. Lawrence, Chicago: University of Chicago Press, 1963, 20–4. 41 Ibid, 107. 42 R. Burden, Radicalizing Lawrence, pp. 52-56. 43 S. Freud, Psychoanalysis and the Unconscious, London: Heinemann, 1923, 110–11. See S. Freud, Civilization and Its Discontents, London: Penguin Books, 2002.

Reality and Therapy in the Novel 131 44 45 46 47 48

49

50 51 52 53 54 55 56 57 58 59 60 61

62 63 64 65 66 67

D.H. Lawrence, Fantasia of the Unconscious, London: Secker, 1933, 207. Ibid, 187. S. Freud, Civilization and its Discontents. K. Clark and M. Holquist (eds), Mikhail Bakhtin, Cambridge MA: Belknap Press, 1984, 179–206. See J. Derrida, The Post Card: From Socrates to Freud and Beyond, trans. A. Bass, Chicago: University of Chicago Press, 1987; J. Derrida, ‘Freud and the Scene of Writing’, in Writing and Difference, trans. A. Bass, London: Routledge, 2001, 246–91; S. Felman, ‘To Open the Question’, Yale French Studies 55/56, 1977, 5–10. E. Ragland-Sullivan, Jacques Lacan and the Philosophy of Psychoanalysis, Champaign, IL: University of Illinois Press, 1986; C. McCabe (ed.), The Talking Cure: Essays in Psychoanalysis and Language, London: Macmillan, 1981; J.M. Mellard, Using Lacan, Reading Fiction, Champaign, IL: University of Illinois Press, 1991; J-M. Rabate, Jacques Lacan: Psychoanalysis and the Subject of Literature, New York: Palgrave Macmillan, 2001. See J. Lepore, (2008) ‘Just the Facts, Ma’am’, New Yorker, 24 March 2008. Online. Available HTTP: (accessed 28 June 2011). H. Fielding, The History of Tom Jones, ed. R.P.C. Mutter, London: Penguin Books, 1985; D. Defoe, Robinson Crusoe, Oxford: Oxford University Press, 2007. See J. Lepore, ‘Just the Facts, Ma’am’. D. Defoe, The Fortunes and Misfortunes of the Famous Moll Flanders, ed. G.A. Starr, Oxford: Oxford University Press, 2009; J. Swift, Gulliver’s Travels, Oxford: Oxford University Press, 2005. J. Austen, Pride and Prejudice, London: W.W. Norton & Co, 2001; J. Austen, Sense and Sensibility, New York: New American Library, 1961; E. Gaskell, North and South, Hollywood, FL: Simon and Brown, 2011. V. Woolf, To the Lighthouse, ed. D. Bradshaw, Oxford: Oxford University Press, 2006; E.M. Forster, A Passage to India, London: Folio Society, 2000; J. Joyce, Ulysses, London: Penguin Books, 2000. S. Beckett, Waiting for Godot: A Tragicomedy in Two Acts, New York: Grove Press, 1994. E.g. see F. Jameson, The Political Unconscious: Narrative as a Socially Symbolic Act, Ithaca, NY: Cornell University Press, 1981. D.H. Lawrence, Kangaroo, 107, 303. C. Schmitt, Constitutional Theory, quoted in D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar, Oxford: Oxford University Press, 1997, 55. L. Strauss, ‘On German Nihilism’, Interpretation 26, [1941] 1999, 353–78 at 360. G. Agamben, State of Exception, 53–5. See S. Zizek, ‘Superego by Default’, in Metastases of Enjoyment: Six Essays on Women and Causality, London: Verso, 2006, 54–85. Lawrence and Freud are working in the same direction but in very different registers: see S. Freud, Civilization and Its Discontents, London: Penguin Books, 2002; S. Freud, Group Psychology and the Analysis of the Ego, trans. J. Strachey, ed. J. Strachey, New York: W.W. Norton & C, 2010. D.H. Lawrence, Kangaroo, 210–11. See S. Freud, Group Psychology. D.H. Lawrence, Kangaroo, 319. Quoted in F. Becket, D.H. Lawrence: The Thinker as Poet, London: Palgrave Macmillan, 1997, 199. D.H. Lawrence, Kangaroo, 267. D. Lodge, ‘Lawrence, Dostoevsky, Bakhtin: Lawrence and Dialogic Fiction’, in K. Brown (ed.), Rethinking Lawrence, Milton Keynes: Open University, 1990, 92–108; A. Fleishman, ‘Lawrence and Bakhtin: Where Pluralism Ends and Dialogism Begins’, in

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68

69

70 71 72 73 74 75 76

77 78 79 80 81 82 83 84 85 86 87

88

K. Brown (ed.), Rethinking Lawrence, 109–62; R. Fowler, ‘The Lost Girls: Discourse and Focalization’, in K. Brown (ed.), Rethinking Lawrence, 53–66; R. Burden, Radicalizing Lawrence, chapter 3. See e.g. D. Lodge, ‘Lawrence, Dostoevsky, Bakhtin: Lawrence and Dialogic Fiction’, in K. Brown (ed.), Rethinking Lawrence, 92–108; and A. Fleishman, ‘Lawrence and Bakhtin: Where Pluralism Ends and Dialogism Begins’, in K. Brown (ed.), Rethinking Lawrence, 109–62. R. Burden, Radicalizing Lawrence, 161–2. In terms of the theological basis of this moral authority, Eliot’s Adam Bede provides a remarkable example (as does of course Tolstoy’s Anna Karenina): G. Eliot, Adam Bede, ed. C.A. Martin, Oxford: Oxford University Press, [1859] 2008; L. Tolstoy, Anna Karenina, New York: Random House, [1878] 1993. D.H. Lawrence, Kangaroo, 277. Ibid, 89–91. Ibid, 277. Ibid, 68. Ibid, 69. M. Kundera, ‘The Day Panurge No Longer Makes People Laugh’, in Testaments Betrayed: An Essay in Nine Parts, trans. L. Asher, London: Faber & Faber, 1995, 1–33 at 32–3. G.F. Hegel, Hegel’s Lectures on Aesthetics, trans T.M. Knox, Oxford: Oxford University Press, 1988, 68; see J. Miller, Irony and Sincerity: Rethinking Hegel’s Critique of Romantic Aesthetics. Online. Available HTTP: (accessed 2 August 2011). C. Schmitt, Political Romanticism, trans. G. Oakes, London: Transaction Publishers, [1919] 2011, 56. M.M. Bakhtin, ‘Discourse in the Novel’, pp. 305-08. Ibid at p. 405. M. Williams, Secrets and Laws, London: UCL Press, 2005, pp. 38, 105. M.M. Bakhtin, ‘Discourse in the Novel’, in M. Holquist (ed.), The Dialogic Imagination: Four Essays by M.M. Bakhtin, trans. C. Emerson and M. Holquist, Austin: University of Texas Press, 1981, 259–422 at 412. S. Felman, ‘To Open the Question’, 8. J. Derrida, The Beast and the Sovereign, Volume I: The Seminars of Jacques Derrida, ed. G. Bennington, Chicago, University of Chicago Press, 2009, 93. See Y. Grenier, ‘Milan Kundera on Politics and the Novel’, History of Intellectual Culture 6.1, 2006, 1–18. Online. Available HTTP: (accessed 30 June 2011). W.C. Dimock, Residues of Justice: Literature, Law, Philosophy, Berkeley: University of California Press, 1996, 176. G.W.F. Hegel, The Phenomenology of Spirit, trans. A.V. Miller, Oxford: Oxford University Press, 1977, 288. For feminist critiques, see K. Hutchings, Hegel and Feminist Philosophy, Edinburgh: Polity Press, 2002; S. Easton, ‘Hegel and Feminism’, in D. Lamb (ed.), Hegel and Modern Philosphy, New York: Croom Helm, 1987, 30–55; A. Stone and S. Sandford (eds), ‘Hegel and Feminism’, Women’s Philosophy Review 22, 1999, 34–57. See P. Goodrich, ‘Psychology and Paternity’, in C. Douzinas, P. Goodrich and Y. Hachamovitch (eds), Politics, Postmodernity, and Critical Legal Studies: The Legality of the Contingent, London: Routledge, 1994, 147–86; C. Gilligan, In a Different Voice: Psychological Theory and Women’s Development, Cambridge, Mass.: Harvard University Press, [1982] 1993. Indeed, this is precisely Simone de Beauvoir’s criticism of gender relations in Lawrence’s work: transcendentalism becomes a masculine trope of ‘phallic pride’: S. de Beauvoir, The Second Sex, New York: Alfred Knopf, 1953.

Reality and Therapy in the Novel 133 89 90 91 92

A. Nin, An Unprofessional Study, 79–80. D.H. Lawrence, Kangaroo, 95. Ibid, 100. S. Zizek, ‘Superego by Default’, 82. Italics added.

Chapter 8

Polarity

Two forces should be conceived which counteract each other by their essential nature; . . . these forces should be assumed to be both alike infinite, both alike indestructible. The counteraction then of the two assumed forces does not depend on their meeting from opposite directions; the power which acts in them is indestructible; it is therefore inexhaustibly re-ebullient.1 – Samuel Taylor Coleridge, Biographia Literaria It is between these two poles, irreconcilable but indissociable, that decision and responsibilities are to be taken.2 – Jacques Derrida, ‘On Forgiveness’

Chapters 6 and 7 showed how, in his writing about the novel and in Kangaroo, Lawrence rejected from the depths of his own literary method both positivism and romanticism. Lawrence rejected the old beliefs, including in a mechanistic or procedural approach to judgment, which had come to dominate legal models during the nineteenth century. The global codification movement, the Langdellian revolution in legal education, and the common law’s increasingly formalised approach to precedent present just three instances of this trend. At the same time and under that same literary pressure, Lawrence rejected the ‘reactionary modernism’ that turned its back on the modern world and sought refuge in the language of unity, instinct and insight that aspired to reverse our disenchantment and return us to a world of rule-less judgment and transcendent justice. Romanticism is alchemy – a grammar of ‘and’ that by rhetorical force seeks to meld different perspectives or contradictory goals in the crucible of some utopian unity. ‘And is God’:3 the point de capiton or quilting-point4 that binds together wildly disparate elements into an ethical unity, and makes the lamb and the lion lie down together. We see this in Berkowitz, who consistently refers to the ‘grounds and reasons’ of law, arguing that positivism can no longer find either once it abandons religion or nature.5 The failure of science as a ground is therefore necessarily the failure of reason-giving. But in fact the two are different and our responses may be likewise. A similar trope can be seen in relation to Berkowitz’s references to authority. The steady references to authority, justice or insight as ‘natural and

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traditional,’ ‘traditional and religious’ and so on, mix together social practice, history, politics and ethics as sources of justification.6 Each word shores up and expands the implications of the argument so that, for example, a historical observation as to ‘traditional’ nature of claims to kingly authority is taken to imply a normative judgment that such a claim is also ‘natural’. In the process, the deep and immemorial contradictions between the claims of nature and tradition and religion disappear. To believe in one is necessarily to become committed to all. Lawrence faced a very modern predicament. He found himself crippled by the sterility of modern life and institutional mechanisms on the one hand and unsatisfied by the appeal of the New Romantics to an unfettered and fantastic unity on the other. Against the facile complacency of the present and likewise against the obfuscatory romantic promise of ‘and’, Lawrence says ‘but’. It is his antiphilosophy. Of course it was all necessary, the conscription, the medical examinations. Of course, of course. We all know it . . . Yes, you are quite right, quite right in all your contentions. But! And the but just explodes everything like a bomb.7 This repudiation is certainly apparent in Kangaroo, although admittedly the situation is less clear in his next novel, The Plumed Serpent, from which all traces of irony and humour have been ruthlessly expunged. But – we must also ask how Lawrence attempts to move beyond a simple negativity, a pox on both your houses. In what way does he attempt to find ‘something new and true to live by’ to recompense his ‘deep discomfiture, his lack of true satisfaction’?8 Within Lawrence’s anti-politics, behind his buts and his nays, it is possible to glimpse a theory of justice in law which represents neither a return to a past nor a mere acceptance of the present. How might his insights help us with the problem of justice and the rule of law? The key lies in his adoption of the idea of ‘polarity’, through which he defended a vision of human experience maintained and nurtured by contradiction. Lawrence rejected the synthetic urge of the romantics, the dialectic dream of progress and inclusion. He believed that contradictions and oppositions – both within ourselves and in our societies – were the wellspring of understanding and creativity; and he believed, as opposed to the model of the dialectic, that those conflicts could not be combined in a new and greater harmony. Conflict for Lawrence was productive but interminable. In the sections that follow, I first elaborate on the concept of polarity in Lawrence and show the importance of sustained tension and contradiction in his work. I then show how Lawrence was far from alone in these thoughts. In many of his contemporaries, we see broadly similar attempts to turn the reality of conflict and disunity, fragmentation and subjectivity – in other words the very critique of modernity itself – into a productive rather than a destructive feature of human and political life. In the last section, I turn from the past to the (almost) present and from literature to (almost) law. Deconstruction is polarity’s child. Both demonstrate that ineradicable contradictions lie at the heart of our thinking, including our thinking about law and justice. It is this contradiction, this paradox and tension, that makes legal judgment so hard.

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With polarity in mind, we can begin to see more clearly what sets it apart from positivism on the one hand and from transcendental or romantic philosophies of justice on the other (and these are surely the two poles of the current debate in legal theory). Polarity helps us perceive and deconstruction helps us explain the outlines of a third approach, in which the contradictions and tensions inherent in the moment of judging are neither a problem to be solved nor an obstacle to be overcome. They are instead a necessary and valuable feature of legal discourse. That is Lawrence’s modernist legacy.

Antecedents Philosophy The yearning for wholeness that first drew Richard Lovatt Somers to Australia receives in Kangaroo not just a rebuttal but an alternative. Recall that, for M.H. Abrams, romanticism expresses ‘a metaphysics of integration, of which the key principle is that of the “reconciliation” or synthesis of whatever is divided, opposed, and conflicting’.9 This was what led, in Georg Hegel’s dialectic – for Abrams the summa of romantic idealistic philosophy – and in Hölderlin, Blake, Wordsworth and Goethe, to a spiral image of development in which opposites are finally reconciled in ‘the unity of its origin, but a unity which is higher’.10 The spiral is an image, and the dialectic is an idea, of the natural but also of progress and of harmony. In each case the notion of an opposition or a conflict is subsumed within the greater arc of a synthesis that resolves that tension. Lawrence’s identification with the mythical Phoenix fits well with this tradition – the idea of a rebirth out of ashes combines millenarian and eschatological elements, not to mention the memory of the war, in a vision of a genuine fusion and a final unity.11 But as Lawrence’s oeuvre develops, the central framing principle begins to shift towards a different tradition going back to Coleridge and Schelling (and right back to Heraclitus):12 that of polarity. Polarity is the tertium quid13 in that it refuses either to choose between opposites or to harmonise or unify them. Instead, it preserves intact the constitutive and ineradicable fact of their contradiction. ‘Contradiction’, wrote Friedrich Schelling, ‘is life’s mainspring and core . . . If there were only unity, and if everything were at peace, then truly nothing would want to stir’.14 Samuel Taylor Coleridge writes, ‘if all knowledge has, as it were, two poles, which reciprocally presume and demand each other, then these poles must seek each other’.15 Now throughout the romantic period, ideas of duality and separation were made subservient to an ultimate fusion. Coleridge advocates the distinction and contradiction of opposites, ‘both alike infinite, and both alike indestructible’, but what makes his most assuredly a ‘transcendental philosophy’ is his insistence that these poles will ultimately combine in a new entity that perfectly ‘interpenetrates’ and ‘partakes’ of both. 16 Polarity is important only as the first step in the process of reconciling ‘two forces of one

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power’.17 This seems to be the case in much of Lawrence’s early work. ‘The Crown’, first published in 1915, with its crude dualisms and its efforts at a triumphant ‘consummation’, is a particularly weird example.18 There, while Lawrence articulates the power of opposites in heavy-handed symbolism about the lion and the unicorn, the Crown, together symbolises the eternal godhead that the ebb and flow of struggle reaches for.19 But Lawrence was protean, provisional and constantly responsive to the problems thrown up by his own arguments. Even ‘The Crown’ dwells, at least at some points, less on the final consummation than on the energy released through eternal struggle. ‘And there is no rest, no cessation from the conflict. For we are two opposites which exist by virtue of our inter-opposition. Remove the opposition and there is collapse, a sudden crumbling into universal nothingness.’20 That is a very different approach to polarity than that of Coleridge. In The Rainbow, published the same year, Ursula says: ‘If the lamb might lie down with the lion, it would be a great honour to the lamb, but the lion’s powerful heart would suffer no diminishing.’21 Yet by the time Twilight in Italy was published, only 12 months later, Lawrence has introduced a more uncompromising formulation: ‘They are two Infinites, twofold approach to God. And man must know both. But he must never confuse them. They are eternally separate. The lion shall never lie down with the lamb’.22 So Lawrence begins to sound less like the romantics than like earlier writers whose attention to antinomy and paradox had been articulated by the Roman anomalists and in Renaissance theories of concordia discors.23 Lawrence draws on the pre-Socratics such as Heraclitus and Empedocles,24 and may surely have been influenced by Carl Jung’s notions of an eternal struggle between mythic opposites of dark and light. Polarity for Lawrence is not a spiral or a fusion, but an oscillation or alternating current. He conceives of a back-and-forth movement between opposed principles which would be vital and eternal. Polarity does not see forces as either hierarchically ordered (the positivist response), or capable of unification or overcoming (the romantic response), or collapsed into disorder (the nihilist response). Polarity is distinct from all these postures. Take the magnet as a model. Here we have two opposite poles, but what appears at first glance to be an irreconcilable dualism is in fact the energy of two charges whose opposition is mutually constitutive. Like the magnet, the two opposite poles that wage war within a man or an idea or a society remain necessary to one another. Its forces flow within us and between us in order to form the very electrical current that drives us on. Lawrence wrote, ‘I know I am compounded of two waves. I am framed in the struggle and embrace of the two opposite waves of darkness and of light’.25 Polarised light does not mix or meld. It has been separated into its distinct component parts. The energy it releases is fission not fusion. These arguments are developed in particular in Lawrence’s responses to Freud which, you will recall, he was working on at the same time as Kangaroo. I would be foolish to claim for Lawrence’s speculations about the body and the unconscious any scientific plausibility. They are strange books. Nonetheless they articulate a

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very clear current of thinking which clarifies Lawrence’s ideas about the essential role of conflict and opposition in our moral and psychological development. In Psychoanalysis and the Unconscious, he writes of ‘the polarity of the dynamic consciousness . . . the sharp clash of opposition . . . and no possibility of creative development without this polarity’ from the beginning of life.26 In Fantasia of the Unconscious, he even attempts to map these polarities onto the body: the contrast between upper and lower bodies, front and back, man and woman – even sun and water – become corporeal sites of inherent oppositions within us that ignite their own distinct ‘circuits of passion’.27 The first movements of the child, says Lawrence, are both to draw towards and to pull away. ‘There is a great polarity’, concluded Lawrence, ‘in life itself. Life itself is dual. And the duality is life and death’.28 Lawrence’s notion of polarity – like his rejection of unity – derives from his experience of literature itself as a genre that aims not to resolve or overcome tensions but, on the contrary, to dramatise them. The Introduction to Studies in Classic American Literature, again published the same year as Kangaroo, contains one of the most influential passages on the nature of literature written in the twentieth century. But if it be really a work of art, it must contain the essential criticism of the morality to which it adheres. And hence the antinomy, hence the conflict necessary to every tragic conception.29 Fiction Unsurprisingly, the theories of being and writing set out in his work on the unconscious and on the novel find no less expression in Lawrence’s fiction. The language used is very different from his non-fiction writing. Yet clearly, in Women in Love, for example, Ursula and Birkin’s idealised relationship is founded on conflict and resistance; that of Gerald and Gudrun is based on a terrifying sameness, ‘a mutual hellish recognition’ that is a death wish.30 Nonetheless, opposition and difference is here figured as an endless crisis, a crisis of endlessness. In Kangaroo, Lawrence’s approach is more optimistic. Contradiction is presented not as a crisis or as a step towards resolution, but as a human comedy and as valuable in and of itself. Indeed, as we have seen in the previous chapter, the central feature of the discursive structure of the novel is the internal tension within the narrator and within the character Somers, their constant struggles and dialogues over their own identity and their own beliefs. The unsettled disputation in which Somers and Lawrence oscillate between defensive posturing and exasperated confession, under the forceful challenge of Harriett and under the weight of their own self-doubt, forms the emotional spine of the book. The ‘laws of polarity’ are declared only once in Kangaroo. Lawrence there diagnoses power as the movement between two flows, one sympathetic and loving, the other mighty and authoritarian. ‘There is a dual polarity and a dual direction’, he writes. ‘The whole movement is but a polarized circuit. Insist on one direction

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overmuch, derange the circuit, and you have a terrible debacle . . . In the absolute triumph of either flow lies the immediate surety of collapse.’31 But while the language of polarity was perhaps too abstract a term to be made much of explicitly in Kangaroo, the Whitmanseque theme of ‘call and answer’, describing both the backwards-and-forwards form and the discursive themes of the novel, becomes Lawrence’s way of articulating the idea of polarity which nourishes us by contradiction and resistance. A man’s soul is a perpetual call and answer. He can never be the call and the answer in one: between the dark God and the incarnate man: between the dark soul of woman, and the opposite dark soul of man: and finally, between the souls of man and man, strangers to one another, but answerers. So it is for ever, the eternal weaving of calls and answers, and the fabric of life woven and perishing again. But the calls never cease, and the answers never fail for long.32 The invocation of ‘call and answer’ should not be taken to imply some sort of dialectic. We have seen that Lawrence rejects the lure of synthesis or resolution. But neither, I think, is he merely Manichean. A ‘polarised circuit’, around a magnet for example, although produced by two opposite poles, creates energy flows that extend in all directions. That is clearly the upshot of the multiple polarities mapped and overlapped in Fantasia. So too, we are the subject of multiple calls from many persons and our responses in turn stimulate new calls, creating around us not merely an antiphonal exchange, but a polyphonic web. Lawrence’s emphasis on ‘the eternal weaving of calls and answers’, and his multiplication of sites and directions of response, create a sense of a shifting three-dimensional space of echoes. Indeed, the language of call and answer captures both the intense internal dialogue and disputation that marks the text, including not least Somers’ fractious relationship with Harriett, and the tensions of the novel’s broader structure. Throughout Kangaroo, the ideals of ‘listeners’ and ‘answerers’ are no sooner invoked than scorned, no sooner scorned than summoned again, no sooner summoned than distanced with irony or resignation. The narrator and the protagonist are forever ‘sounding the muezzin’, muting the trumpet, and climbing the parapet once again.33 The book itself seems to embody an earnest if perverse commitment: not to resolve its contradictions and tensions but to see in them its main character’s essential aesthetic activity and his life force. The polarity between opposed forces is further figured as a tension between the substantive and the formal elements of the novel, creating ‘an unstable locale between the move to multiply and disseminate meanings, and an alternative move to retrieve and reclaim them’.34 Bakhtin crucially emphasises how the formal instability generated by the novel’s ‘heteroglossia’ and structural incompleteness function as a comprehensive critique of authority as such. Bakhtin insists that literature is not to be understood merely as a forum for the depiction of ideas, but as a relation between multiple formal and substantive levels. One who does not understand these different levels of analysis

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nor the power of their interplay – and it has been a ready failing within the field of law and literature – ‘transposes a symphonic theme on to the piano keyboard’.35 Richard Lovatt Somers, like the New Romantics, believes that ‘we have gone very far in the first direction . . . What Richard wanted was some sort of a new show . . . It meant a new recognition of difference, of highness and of lowness, of one man meet for service and another man clean with glory’.36 That is the moral to which the author keeps trying to point. But the tale – the art and reality of the story – keeps pushing him in quite another direction. It pushes Somers to see that this moral of authority is itself only one partial voice of his polarised self, which slips like a fly in ointment37 between the yearning for solidarity and the desire for solitude. Indeed, as we have seen, Lawrence undercuts his own authority explicitly and continually, describing his alter ego as a fool, an idiot, a blatherer, and even a ‘beastly’ and ‘detestable little brat’.38 At the same time, the ‘tale’ also pushes him to confront another crisis. For the pole of mastery, or authority, or glory, or call-it-what-you-will, cannot abide its existence except as a totality. While the desire for unity is one element of a polarity or double movement within us, it is paradoxically incapable of comprehending that fact. In other words, the part of us that desires mastery or unity cannot tolerate being only a part of us, since that would contradict the desire for mastery or unity itself. To believe in unity or authority is to believe in these things all the way down. Schmitt had early on identified this movement and saw how the total state might become the predominant form of modern political organisation.39 That was the theme elaborated on by Agamben in State of Exception; and given its political imprimatur by Vice-President Cheney’s remark, shortly after 9/11, that we faced not an emergency but a ‘new normalcy’ that will become ‘permanent in American life’.40 So when the Diggers incite a murderous riot in the midst of a communist trade union meeting in town, Somers feels nothing but nausea; a ‘kind of grief, a bitter, agonized grief for his fellow-men’.41 In politics and law, a pure, unchallenged authority is a kind of black hole, an all-consuming thing; it is the anti-matter of polarity. This loss of otherness, and with it this loss of selfhood, always sends Lawrence’s heroes recoiling aghast from the political consequences that seemed to tumble out of their desires. W.H. Auden was surely right in identifying the key problem in Lawrence’s political thought as inhering in his attempt, in the tract Democracy (1919) for example, to recast the collective in terms of a unitary personal image that obscured the plural realities of community. But Kangaroo works through and in the process critiques this ideology and conclusively demonstrates how the collectivist cult of personality is in fact a betrayal of the comradeship between distinct individuals.42 Kangaroo pursues Democracy’s treatise and exposes it as a problem, not a solution. No doubt Lawrence was a weak political thinker because he was incapable of thinking of human interactions in anything other than personal terms. But the personalising effect of literature, while it was a weakness for his politics was a strength for his understanding of justice. His weakness saved him ‘from the most ghastly collectivist errors and the tyrannies embraced by too many

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of his contemporaries and juniors’ – Ezra Pound, William Butler Yeats, Percy Lewis, Diana Mitford, Lawrence of Arabia, Martin Heidegger, Carl Schmitt and Paul de Man, to name a few. In Kangaroo, Somers is entirely at sea – in his politics, in his marriage, on the beach at Thirroul where he briefly lived. And here too the waves serve as a defining metaphor for this oscillation and polarity. Then, when [the waves] fell, the fore-flush in a great soft swing with incredible speed up the shore, on the darkness soft-lighted with moon, like a rush of white serpents, then slipping back with a hiss that fell into silence for a second, leaving the sand of granulated silver . . . A huge but a cold passion swinging back and forth. Great waves of radium swooping with a down-curve and rushing up the shore. Then calling themselves back again, retreating to the mass. Then rushing with venomous radium-burning speed into the body of the land. Then recoiling with a low swish, leaving the flushed sand naked.43 The movement of the waves powerfully evokes Somers’ own polarity, forward and back, again and again, towards and away from the romance of ecstatic belonging. This movement is presented not as a conflict or a problem, but as part of him. The movement and the feeling seems to come directly from the waves

Figure 8.1 Garry Shead, The Wave44

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themselves, just as such movements and pulls are as bodily as our breath in us. Although they ‘seem to sunder life into an irreconcilable dualism [they] are in fact polar opposites . . . We can distinguish them but we cannot divide them’.45 In direct contrast to a romantic metaphysics, Lawrence articulates ‘antitheses, contraries, contradictions’46 – a metaphysics of energy and not of peace. The novel ends with another anxious voyage into the unknown and across a cold, dark sea. Such voyages are our destiny, though we may shirk them or embrace them. The image of the waves on Thirroul beach reminds us of the polarity, the pulls away and back that mark all our experiences and our values. The sound and movement of the waves echoes the ‘call and answer’ whose discourse of resistance, backwards and forwards amongst differing reasons and arguments, never ceasing, never yielding, offers understanding, vitality and development.47 Polarity is not synthesis, not balance, not transcendence: it is opposition. Its forces cannot be compromised since we are committed too much to both. But the unceasing and incurable struggle to which polarity condemns us is our true predicament.48 Polarity in Lawrence provides a vision of disagreement as endemic, irreducible and productive energy.

Analogues Contradiction, polyphony, ambivalence Lawrence was far from alone in these ideas. What is so striking about post-war modernism is the way in which similar ideas kept springing up. In the work of the philosopher R.G. Collingwood, for example, we find striking echoes of Lawrence’s position, similarly intended not to eliminate or overcome these antitheses, but to turn their unavoidable and painful reality from a destructive to a productive aspect of the post-war predicament. As one would say nowadays: not a bug but a feature. Collingwood follows closely on John Ruskin who had insisted that the holding of ‘two contradictory opinions’ is ‘a mark not of weakness but of strength – not of confusion but of a wide and comprehensive view’.49 From Truth and Contradiction (1917) onwards, Collingwood made the pursuit of the political and philosophical implications of this central to his writing.50 Truth was to be understood by the ability to encompass, without reduction or dissolution, conflicting points of view. Collingwood’s dialectic undoubtedly owes much to Hegel and one could argue that in Hegel too there are resources to support the fluidity of Collingwood’s approach. But it seems to me perfectly fair to claim for Collingwood a departure from the transcendence and synthesis that we find in Hegel, the quintessential romantic idealist. Like Lawrence, Collingwood invokes the ‘logic of question and answer’51 so as to insist above all on the contextual and irresolute nature of all truth. Collingwood explicitly, as Lawrence implicitly, positions this ‘supple’ and ‘responsive’ dialogue against both logical positivism on the one hand and the forces of romantic irrationality on the other.52 Weber and, later, Max Horkheimer and Theodor Adorno, saw bureaucratic rationality and logical positivism as profoundly

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dehumanising but ‘escape-proof’ and ‘practically unshatterable’,53 thus setting the stage for the equally one-sided return to romanticism from Nietzsche to Heidegger and beyond. Collingwood, like José Ortega y Gasset, while as critical of the marginalisation of art and emotion by rationality and positivism, remains far more optimistic about the creative potential of dialogue, context and conflict.54 Not, I would say, to ‘split the difference’ but to preserve the difference unsplit. Other intellectual connections are perhaps more surprising, but not less suggestive. In Freud, for example, ‘ambivalence’ expresses a similar idea not of uncertainty as such, or of balance, but rather of a pull of desire in two opposing directions at once. As he writes, ambivalence involves an incommensurability in which the emotions are not diluted but rather held in suspension. Totem and Taboo was first published in 1913.55 And there are furthermore strong connections between all these ideas and the foundations of quantum mechanics which emerged during the inter-war years. Although I am by no means qualified to provide more than a passing reference, the ideas of both Heisenberg (1927) and, more particularly, Schrödinger (1935) similarly involve an acknowledgment of the irreducibility and the power of the existence of simultaneously contradictory states.56 The term ‘superposition’ to refer to this phenomenon of genuine simultaneous contradiction, is the basis of this scientific model of the universe. ‘It’s not that we don’t know which state the cat is in, but that the cat really is in both states at once. Superposition is like Freud’s description of true ambivalence: not feeling unsure but feeling opposing extremes of conviction at once.’57 Polarity, then, is quantum metaphysics. And what of Mikhail Bakhtin? He too insists that interactive and irreducible difference is the essence not just of literature, but of all discourse. He, too, makes the move from ‘dialectical, or partitive, thinking which is still presumed to be the universal norm, to dialogic or relational thinking’.58 The complexity of his position lies in how he understands the novel not just in terms of its heteroglossia or polyphony, but then folds those different voices into each voice itself, each voice necessarily appropriating and repurposing the other voices and styles of discourse around it in order to communicate to them. For Bakhtin, this is a matter of both the layering of language in the novel, and the question of standpoint. Bakhtin specifically rejects any starting point that assumes an ‘epistemological consciousness’ according to which the meaning of any being or life or text or discourse is determined by it alone. On the contrary, the layering and juxtaposition of different discourses, different understandings, is built into the genre. In a novel, all discourse is second-hand and over-heard. It always depicts ‘a consciousness of a consciousness’ – an author reporting on a narrator reporting on a character reporting on another character and so on.59 It is all hearsay. To write a novel is to deploy the interplay of layers of multiple voices and to see them as engaged and transformed without ever losing their singularity. For Bakhtin, ‘literary language is never represented in the novel as a unitary, completely finished off, indubitably adequate language – it is represented precisely as a living mix of varied and opposing voices’.60 The voice of a character, of ‘a day, of an epoch, a social group, a genre,

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a school, and so forth . . . [is] exposed as a contradiction-ridden, tension-filled unity of two embattled tendencies in the life of language’.61 For Bakhtin, all language is essentially dialogic. In addition to its intrinsic heteronomy, it is always positioned in relation to another discourse, another style, with the aid of whose voice it seeks to persuade and move. Every word is directed towards an answer and cannot escape the profound influence of the answering word that it anticipates. The word in living conversation is directly, blatantly, oriented toward a future answer-word: it provokes an answer . . . oriented towards the listeners and his answer.62 ‘Answerability’ (a term he first coined in 1919) parallels the turn to ‘call and answer’ in Lawrence and Collingwood at the same time; it is both an argument for the special place of the novel in aesthetic activity and equally as a paradigm of ethical activity.63 The two fields converge through the primary role of discourse in both. One must come to understand that it is the other, as an other capable of being justifiably consummated, who constitutes the hero of all the positively valuable determinations of the world as a given . . . it is about the other that all the stories have been composed, all the books have been written, all the tears have been shed; it is to him that all the monuments have been erected; it is only with others that all the cemeteries are filled; it is only others who are known, remembered, and recreated by productive memory.64 Such an argument notably foreshadows that of Emmanuel Levinas. Bakhtin was equally allergic to the romantic longing for a wholeness in which like Odysseus, we would find ourselves ‘home at last’. Thus, for Bakhtin, pairs of relationships – self/ other, author/hero, inside/outside, narrator/character – exist against each other as a dynamic activity not as a static contrast. Just so, the flying buttress exists in active tension with the cathedral.65 Walter Benjamin and the missing link The clearest descendent of all these modernist visions (or neuroses) is to be found in the work of Jacques Derrida. This is not so surprising if we recall that ‘Force of Law’, Derrida’s most important text on the relationship of law and judgment, takes as its starting point a close reading of Benjamin’s Zur Kritik der Gewalt. Indeed, Benjamin proves to be the missing link between the Great War, the rule of law and deconstruction.66 But his contribution to the history of ideas here is less easy to map onto what we have been talking about. He was of course one of the great intellectuals of the inter-war period, and one of the most mourned of Nazism’s many victims. In the period immediately following the Great War, he was pondering the very same questions as Carl Schmitt and Hans Kelsen. Benjamin’s ‘Critique of

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Violence’ dates from 1921; Schmitt’s Political Theology was a direct response to its elusive meditations on law and violence.67 Benjamin returned the favour in 1928 with the publication of The Origin of German Tragic Drama, which was likewise addressed to the relationship between exception, decision and sovereignty.68 The complications come because of the impossibility of entirely pinning down Benjamin’s enigmatic writing. Throughout his work there is a messianic and utopian strain which one would not be wrong to connect to romanticism.69 In ‘Critique of Violence’ he acknowledges Schmitt’s ungovernable ‘decision’ as a necessary implication of ‘the curious and at first discouraging experience of the ultimate undecidability of all legal problems’.70 So Benjamin and Schmitt agree that the exception is endemic in legal decision-making and is a function of the indeterminacy of law. The violence of a free decision, not the passive application of a prior norm, is the necessary predicate of all legal judgment. But Benjamin then attempts to distinguish between different manifestations of violence: between lawpreserving violence and law-making violence in the first place, two forms of human power, and then between a pure or divine violence outside of the law which is ecstatic in instead deposing the law and thus making real revolution possible.71 This dream of divine violence finds concrete expression in Benjamin’s distinction between the ‘proletarian general strike’ and the ‘political general strike’.72 While the latter sets out to achieve particular ends and results and thus to transform the status quo in defined and specified ways, the former has no such programme. It seeks only to destroy the established order and make space for something new and as yet unknown. Thus the tiller of violence is taken out of the hands of human instrumentalism and given over to the judgment of history. Clearly, this messianic justice, this pure violence unsullied by calculation, expressive rather than teleological, and coming from outside either present or demanded legal structures, is closely allied to a transcendental instinct and to the anti-modern hostility to calculation and system.73 Like Lawrence’s phoenix, Benjamin’s divine violence is a purifying fire that will augur an unimaginable rebirth. For Benjamin this violence escapes the endless cycle of partisan politics, instrumental impositions justified by ‘pernicious’ myth-making, because it is not a means to achieve an end but an end in itself, an expiation and a possibility.74 But all mythic, law-making violence, which we may call ‘executive,’ is pernicious. Pernicious, too, is the law-preserving, ‘administrative’ violence that serves it. Divine violence, which is the sign and seal but never the means of sacred dispatch, may be called ‘sovereign’ violence.75 Let us look more closely at this last sentence: it holds the key to how and where Benjamin and Schmitt part company. In Benjamin, ‘sovereign’ characterizes a force – it is an attribute of a kind of violence itself. But in Schmitt the word ‘sovereign’ shifts from being a sub-set of violence to being an agent, indeed a personification, of it. In Benjamin, sovereign is an adjective; for Schmitt, it is a noun. By concentrating the inevitable violence of decisions beyond-the-rules onto a particular

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human person, instrumentalism and political violence become indefeasible. Schmitt’s romanticism, his transcendent solution to the problem of indeterminacy, finally reduces everything to human control and operates entirely in the interests of the power of the State; whereas Benjamin’s transcendence remains irreducible to human control and entirely outside the power of the State or the legal order to manage. Sovereign violence for Benjamin is essentially radical and destabilising. Sovereignty for Schmitt is essentially reactionary and authoritarian. The Schmittian sovereign thus appropriates and tames the Benjaminian divine. The difference between the two becomes even more apparent in The Origin of German Tragic Drama, in which Benjamin explores the baroque concept of sovereignty. Benjamin takes from the baroque the idea of a transcendent figure (such as justice or the gods) that escapes the grasp of the State and remains strictly unattainable. In direct response to Schmitt, Benjamin argues that the role of the sovereign is not to seize supreme executive power but rather to refuse it. The sovereign is not he who decides on the state of exception but he who excludes it.76 That is to say, in baroque drama (or art or architecture for that matter) the Prince does not accept omnipotent power, but renounces it as one would a temptation, in recognition of his own limits and imperfections. Benjamin explicitly figures the sovereign as a creature whose capacities and decisions are limited and imperfect; the sovereign’s glory lies in what lies out of his reach. Schmitt just as specifically figures him as a God whose decisions are final and for whom nothing is out of reach.77 Baroque aesthetics was critical to Benjamin’s theorisation of the problem of sovereign decision-making because of its characteristically self-conscious recognition of its own illusions. In theatrical and philosophical terms, Benjamin claimed that the baroque embraced indeterminacy ‘in that it leaves no place for anything resembling a definitive decision. Rather, it is precisely the absence of such a verdict and the possibility of unending appeal and revision that marks the Trauerspiel’. Samuel Weber concludes: Nothing could demonstrate more clearly the distance between this eternal revision and Schmitt’s notion of an absolute and absolutely definitive and ultimate decision. Here, as there, the question of decision, of its power and its status, is always tied to a certain determination of space. Whereas in Benjamin, however, this determination is revealed to be the errant stage of an inauthentic and unlocalizable place, for Schmitt decision can be situated in terms of an unequivocal point.78 Above all, the distance of transcendence from sovereignty and the uncertain value of the violence of judgment implied for Benjamin a provisionality that was constantly being worked out and never settled. The opportunity presented by fluidity, and the impossibility that any merely human authority could foreclose it, appealed to Benjamin in the same measure as it appalled Schmitt. Sovereignty was limited by the spectre of change in Benjamin – and overcame it in Schmitt. While this is not polarity in the sense I have been using the term in this chapter, it is a

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vision that resists the dichotomous trap that I have identified in Kelsen, in Schmitt, and in others. In some ways Benjamin’s vision of a transcendent justice always out of reach is indeed thoroughly romantic. But there is a crucial difference between a transcendent promise – of a harmonised world, of a perfect justice – whose infinite distance from mundane reality renders decision-making ‘errant’ and provisional, and a transcendent reality whose proximity renders decision-making arrogant and ‘unequivocal’. Benjamin sounds closer to the Lawrence who wrote ‘I don’t want to be godlike, Kangaroo. I like to know the gods are beyond me . . . I want to be a man, with the gods beyond me, greater than me. I want the great gods, and my own mere manliness’.79 In this Benjamin has more in common with Lawrence and the modernist tertium quid than with his legal contemporaries. They leave the place of transcendence vacant whereas Schmitt wants to fill it up. As a modernist, Benjamin struggled to come to terms with the tang of the modern world’s uncertainty, subjectivity and rootlessness. Likewise and quite unlike the reactionary modernists of his time, he sought to turn those terms from problems into opportunities, and to escape from linear narratives of triumph that in certain ways trapped both positivism and romanticism. Elsewhere he is explicit in emphasising in a very modern way the necessity of the incomplete and the protean and an openness to uncertainty as the condition of possibility.80 As we shall see in this chapter and the next, these themes attain new significance as modernism’s way past the dichotomous impasse of modernity.

Descendents Aporia and polarity These arguments echo in quite significant ways the themes of deconstruction. Derrida also recognises the power of the undecidable to contaminate all legal judgment; he also emphasises the empty and unfillable space of transcendence, the unattainability of perfection and the inadequacy of human calculations. But his principal contribution may lie in his eschewal of the messianic waiting for justice that we find in Benjamin just because the urgency of the demand for justice ‘does not wait’.81 This was Schmitt’s fundamental point too but Derrida’s response to it is quite different. Schmitt, referencing here Hobbes, says the decision is infallible because it is final. Derrida says it is neither – and a good thing too. Thus Derrida combines Benjamin’s normative openness with Schmitt’s analytic realism. Derrida rejects the distinctions between types of violence that Benjamin attempts in the ‘Critique’, and shows (as deconstruction always shows) their mutual entanglement. Connecting the impossibility of a ground for legal violence, the necessity of that violence, and the inescapability of the decisions that give rise to it, he argues more explicitly than Benjamin for the on-going critique of our interpretative assumptions as the best and only ground for judgment that we possess.82 Such a judgment would in no way attempt to transcend its inadequacies but instead to see them more clearly

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and question them more closely. Here is the disenchanted modernist who will not succumb to the lure of ‘full presence, the reassuring foundation, the origin and end of play’.83 As Beckett put it in one of modernism’s quintessential formulations, we can only ‘try again. Fail again. Fail better’.84 The metaphor of polarity perfectly crystallises what Derrida adds to Benjamin’s provisional openness, and why he thinks that a transcendence or resolution to the problem of judgment cannot be had. Justice as polarity is just what Derrida is getting at in many of his later works, including ‘Force of Law’. The tension between justice as sameness and justice as difference, between law as calculation and justice as the incalculable, describes a predicament that is incapable of yielding to a choice, a compromise, a balance, or a synthesis. ‘Between justice (infinite, incalculable, rebellious to rule and foreign to symmetry) and the exercise of justice as law or right . . . a system of regulated and coded prescriptions’,85 we cannot choose: our belief in these two aspects pull in contrary directions but remain equally important to us. The elements that form this fabric of belief cannot be synthesised into a unity nor can they be prioritised into a hierarchy. We cannot choose between the constitutive opposites that tug at us, but neither can we find a balance, a mean, or a dialectical synthesis between them. The movement of deconstruction, the movement of différance destabilises both terms of an opposition without our ever being able to abandon or resolve either one.86 Similar explorations of interminable energy-giving relationships, called in deconstruction ‘aporia’ and by Lawrence ‘the laws of polarity’, are to be found throughout Derrida’s later work.87 Responsibility and accountability are not opposites or choices: they are incommensurable forces that nag at us.88 In language, too, the goals of communication and expression pull meaning in strictly opposite directions (towards what is shared by language users on the one hand and towards what is unique in each articulation on the other) but paradoxically open wide the warp of language to instability, dialogue and change.89 In his late work on hospitality, Derrida writes of a ‘tension at the heart of the heritage’ between forgiveness as the unconditional pardon of the guilty as such and forgiveness as a conditional grant, as an economy of repentance.90 These two poles, the unconditional and the conditional, are absolutely heterogeneous, and must remain irreducible to one another. They are nonetheless indissociable: if one wants, and it is necessary, forgiveness to become effective, concrete, historic; if one wants it to arrive, to happen by changing things, it is necessary that this purity engage itself in a series of conditions.91 The connection between the idea of aporia and the language of polarity is incontrovertible – ‘two poles, irreconcilable but indissociable’.92 The tension lies ‘at the heart of the heritage’, not only between our ideals, but within them. And within each of the words we use to pursue them, too, for words likewise, as Bakhtin understood, are not the repository of essences but a polarized field of differences, crackling with energy. Derrida’s posthumous The Beast and the Sovereign is likewise

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saturated with descriptions of a relationship characterised by the language of ‘poles’, ‘sudden transitions’, ‘oscillations’ and indeed ‘superpositions’.93 The sovereign is both resolutely alienated from and opposed to the animal or divine in man, and at the same time necessary to how we comprehend it. In relation to justice, polarity is the defining feature – unresolved and unable to be resolved – of our core concepts. We find ourselves making diametrically opposed demands on justice: the application of sameness versus the recognition of difference, fair treatment versus equal treatment, the application of general rules versus the unique treatment of individuals. I think it was the uncomfortable recognition of these ‘irreconcilable but indissociable’ demands – their necessity and their contradictory polarity – that led Justice Harry Blackmun, right at the end of his 25-year tenure on the Supreme Court of the United States, to conclude that capital punishment was incurably flawed. We require the death penalty to be implemented in accordance with a just legal system, Blackmun argued; but, on closer inspection, we cannot ever achieve justice. To be fair, a capital sentencing scheme must treat each person convicted of a capital offense with that ‘degree of respect due the uniqueness of the individual.’ That means affording the sentencer the power and discretion to grant mercy in a particular case, and providing avenues for the consideration of any and all relevant mitigating evidence that would justify a sentence less than death. Reasonable consistency, on the other hand, requires that the death penalty be inflicted evenhandedly, in accordance with reason and objective standards, rather than by whim, caprice, or prejudice . . . But over the past two decades, efforts to balance these competing constitutional commands have been to no avail. Experience has shown that the consistency and rationality promised in Furman are inversely related to the fairness owed the individual when considering a sentence of death.94 Justice, then, requires both ‘consistency’ and ‘fairness’ but the two – the first a demand that the law be general and universal and the second a demand that the law be specific and unique – are in constant and unavoidable contradiction. 95 They pull us in opposite directions. ‘A step toward consistency is a step away from fairness.’96 The moment of legal judgment, above all, is riven by ambivalence, in the Freudian sense, between the obligation to follow the prior rule, general and certain, and the question of its application in this case. There is a superposition, a contradiction here which cannot be balanced or cured. Now this gives no comfort to the positivists who think that the prior rule can be relied upon to simply tell us what to do, since it is precisely what it means to apply a rule to a particular and necessarily new set of circumstances that the prior rule cannot ever help us with. But neither does it give comfort to the transcendentalists. This beyond-the-rules, or moment of ungoverned singularity, does not in any way solve the problem of justice. It creates the problem. Polarity recognises the tension between our legal and interpretative

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goals rather than giving us a way to trump them. It is not a circuit-breaker: it is, as Lawrence showed so beautifully, a circuit maker.97 Such an argument has not always been properly appreciated. In a series of influential articles Jack Balkin, for example, insisted that justice for Derrida is indeed ‘transcendent’ in just the sense of appealing to an unreasoned and instinctive insight into the meaning of justice.98 He is by no means alone in such a reading. So too in the work of Gillian Rose, the ‘new ethics’ of ‘Messianic deconstruction’ is taken to task because it ultimately disdains justification in favour of the sublime leap into the arms of a ‘sacralized polity’.99 In a remark that seems apposite, she proclaims herself committed ‘to return philosophy from her pathos to her logos’.100 However fair this criticism might be of Heidegger or, indeed, though in a very different context, of Levinas,101 I think the idea of polarity I have been articulating here suggests a reading of deconstruction that sharply distinguishes it from the theorists of transcendence.102 From loss to lack The difference between transcendentalism and deconstruction is this: we have not lost the foundations of law; we lack them. Paradise has not been lost, as the elegiac romantics contend. It never existed. The romantics and the reactionary modernists, right up to early Unger and the CLS movement, were united in their critique of positivism and in seeking some redemptive escape from the problems of modernity. From Weber in his later years and Lawrence in his yearning moods, through Schmitt and all the way up to present-day debates, for example, we hear again and again echoes of the millenarian tradition of a lost Eden in which the modern world is to blame for our ‘loss’ of justice, judgment and insight. But this fantasy of divine and unquestionable authority and of law as an eternal truth that we have tragically lost sight of never existed, though the established order can always be relied upon to claim otherwise. Derrida, Bakhtin and Lawrence insist on the iterability or doubleness of language which destabilises our concepts and ideas; on différance or irony which weakens our structures of authority; on the constant polarities and paradoxes that undermine our verities from within our beliefs and faiths and foundations themselves. Truth and contradiction, as Collingwood saw, are not in opposition: they are the same thing. Our tradition is not whole; it was fractured from its birth. No one did this to it – it did this to itself, although it took the Great War to tear down the temple veil that had hidden it. Barbara Johnson explained this very clearly. It is thus not out of hostility to the moral values of Western civilization that deconstruction has arisen, but out of a desire to understand how these values are potentially already different from themselves. By re-reading the texts of writers and philosophers that have made a difference to Western history, it might be possible to become aware of the repressions, the elisions, the contradictions and the linguistic slippages that have functioned unnoticed and that undercut the certainties those texts have been read as upholding.103

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The non-reactionary modernists, if I can put it that way, from Kangaroo to ‘Force of Law’, have relentlessly drawn our attention to the conflicts and ambiguities that inhere at every moment of our lives104 and to the toxic character of any rhetoric that purports to escape or precede or rise above it. In this task, deconstruction only recasts and expands the modernist moment at the start of the last century when thinkers from so many different fields tried to come to terms with the dawning realisation of our incurable lack. At first glance, there is something paradoxical in this conclusion, since deconstruction is often branded a species of ‘post-modernism’. But what makes it ‘post’ is, at least in this respect, its elaboration of rather than its rejection of modernism. If we keep the distinction between modernism and modernity well in mind, then it seems to me that modernism already contained the seeds of the post-modern. So on this view, justice is neither certain nor ‘transcendent’. Though we strive to make a judgment in the midst of the contradiction and aporia that positivism and romanticism ignore but that deconstruction will not let us forget, and though justice requires us to make that leap without some certain rule to fall back upon, we do not thereby solve the problem of justice. We savour it; we endure it; we suffer it.105 This does not provide us with some stable ground, lost or otherwise; it makes us all too aware of the necessary lack of that ground. Neither does it relieve us of the responsibility to act. In A Passage to India, E.M. Forster called this predicament ‘the twilight of the double vision’. A spiritual muddledom is set up for which no high-sounding words can be found; we can neither act nor refrain from action, we can neither ignore nor respect Infinity. Visions are supposed to entail profundity, but – Wait till you get one, dear reader! The abyss also may be petty.106 Deconstruction attempts to salvage something from that abyss but not by feigning ignorance of the precipice that is so indubitably there. The notion of justice-beyond-the-rules is not a new foundation or a perfected authority, but quite the opposite. And justice is that which is never satisfied: new justifications and not an end to them, new doubts and new instabilities. Justice, like language, leaves us with a tension or polarity between our goals and desires, and it is to the credit of deconstruction that it refuses either to leave this opposition alone or to will it away. Instead, deconstruction attempts to turn this tension into a critique of our complacent assumptions about meaning and interpretation on the one hand, and on the other, into an unceasing discourse in which change and argument and doubt are not a mark of law’s failure but of its success. Deconstruction draws attention to our very human lack of transcendence, foundation and authority – whether these have been invested in a text, a person or an institution – and offers instead polarity, which is to say an endless loop of energy. The uncertainty of a legal text is neither a regrettable failing nor a signal to abandon the whole idea of responsibility to texts and intentions, but instead a necessary interpretative oscillation, whose resolution is a necessary aspect of interpretation

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but never a final one. ‘Undecidability in no way alleviates responsibility,’ explains Drucilla Cornell. ‘The opposite is the case. We cannot be excused from our own role in history because we could not know so as to be re-assured that we were right in advance.’107 In Mikhail Bakhtin, we have seen a similar argument. He too argued that the novel must be considered not in glorious hermetic isolation but as the relationship amongst a plurality of texts (and a plurality of contexts); a collective noun like ‘justice’ or ‘law’, which generates within itself tensions and ambiguities that require a backand-forth reading to produce and explain it and which are resolved in different ways at different times. Each voice, each character, each idiom, thus has within it a ‘doubleness’ deriving from the multiple registers of its origins and its applications.108 Bakhtin, like the other writers whom we have been considering, saw this doubleness not as a crisis but as a resource with both literary and ethical dimensions: literary because it allows us to fully appreciate the richness of a piece of fiction, and ethical because it opens both the text and our reading of it to relations with other texts and other people. The literary exemplifies an ethical condition embedded in all speech, all discourse.109 Bakhtin’s long experience of writing and living under Stalinism may have given him a special sensitivity to the endemic and subtle resource of ambiguity in language.110 Bakhtin highlights language’s ability to operate on multiple levels and to marshal nuances of discursive difference. Not just in theory but in everyday life, these features held the key to locating the politico-legal subtext of Stalinist ‘doublespeak’, a skill which may have saved his life. And it held the key, which surely saved his sanity, to Bakhtin’s unusual ability to write in such a way as to superficially mouth and yet to subvert ideological clichés. A sensitivity to doubleness and an adeptness in irony was, throughout Bakhtin’s life, both an interpretative survival mechanism and a strategic opportunity. His theory of discourse might be said to have generalised his own political experience to language as a whole. Polarity in Lawrence, like doubleness in Bakhtin or différance in Derrida, becomes the name for a two-way interpretative movement ‘determined equally by whose word it is and for whom it is meant’;111 a ceaseless pattern of call and response which is linguistically and ethically necessary. Set against the backdrop of the crisis of modernity and the currents of writers like Schrödinger, Freud, Forster, Bakhtin, Collingwood, Benjamin and Lawrence, this superposition is clearly distinguished from a positivism which seizes upon only one end of the pole, and equally from some kind of transcendentalism that seizes only the other. Polarity asks us instead to hold both ends at once and relish the current – the life – coursing through us. As Lawrence says and shows us in Kangaroo, the dissipation of polarity, the imposition of authority which words cannot supply and which the novel furiously resists, would be a futile gesture. It would also be a death wish. For such pusillanimous disregard for the human predicament that quickens us, Lawrence had only contempt.

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Notes 1 S.T. Coleridge, Biographia Literaria: The Collected Works of Samuel Taylor Coleridge, Biographical Sketches of My Literary Life and Opinions, vol. 7, ed. James Engell and W.J. Bate, Princeton, NJ: Princeton University Press, [1817] 1985, chapter 13. 2 J. Derrida, On Cosmopolitanism and Forgiveness, trans. M. Dooley and M. Hughes, London: Routledge, 2002, 45. 3 J. Derrida, ‘Declarations of Independence’, New Political Science 15, 1986, 7–15 at 11. 4 J. Lacan, Seminars, Book III: The Psychoses, trans. R. Grigg, London: Routledge, 1993, 268–9. 5 For example, R. Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition, Cambridge, Mass.: Harvard University Press, 2005, 3, 29, 52, 136, 141, etc. 6 Ibid, e.g. 3, 10, 15, 51, 52. 7 Ibid, 261–2. 8 J.M. Murray quoted in A. Handelsblad, ‘31 March 1923, Review of Fantasia of the Unconscious’, in R.P. Draper (ed.), D.H. Lawrence: The Critical Heritage, London: Routledge, 1970, 187. 9 M.H. Abrams, The Mirror and the Lamp: Romantic Theory and the Critical Traditions, Oxford: Oxford University Press, 1953, discussed in R. Montgomery, The Visionary D.H. Lawrence, Cambridge: Cambridge University Press, 1994, 17–18; M.H. Abrams, Natural Supernaturalism, New York: WW Norton, 1971, 182. 10 Quoted and discussed in M.H. Abrams, Natural Supernaturalism, 184. 11 P. Fjågesund, The Apocalyptic World of D.H. Lawrence, Oslo: Norwegian University Press, 1991. 12 R. Montgomery, The Visionary D.H. Lawrence, 36. 13 A third element formed by composite relationship with, yet unassimilable to, two other elements. The term was long associated with alchemy and with Coleridge’s discussion of polarity. 14 M.H. Abrams, Natural Supernaturalism, 173; see S.T. Coleridge, Biographia Literaria, chapter 12. 15 M.H. Abrams, Natural Supernaturalism, p. 174; see also pp. 267-68. 16 S.T. Coleridge, Biographia Literaria, chapter 13. 17 Ibid; M.H. Abrams, Natural Supernaturalism, 267–8. 18 D.H. Lawrence, ‘The Crown’, three chapters published in Signature (1915); complete publication waited until Reflections on the Death of a Porcupine (1925), 251–306. 19 Note that makes extensive use of these early works in its discussion of Lawrence. 20 D.H. Lawrence, ‘The Crown’, 6. 21 D.H. Lawrence, The Rainbow, ed. M. Kinkead-Weekes, Cambridge: Cambridge University Press, 1989, 317–18. 22 D.H. Lawrence, Twilight in Italy and Other Essays, ed. P. Eggert, Cambridge: Cambridge University Press, 1994, 252. 23 I am most grateful to Professor Peter Goodrich for these references although unfortunately I have not had the temerity to pursue them further. 24 See e.g. D.H. Lawrence, ‘Introduction’, in Apocalypse, Penguin: London, 1955, 15–21. 25 D.H. Lawrence, ‘The Crown’, in Reflections on the Death of a Porcupine, Bloomington: Indiana, 1969, 251–306, and quoted in R. Montgomery, The Visionary D.H. Lawrence, 15; see 15–21. 26 D.H. Lawrence, Psychoanalysis and the Unconscious, London: Heinemann, 1923, 65–6. 27 D.H. Lawrence, ‘Fantasia of the Unconscious’, in B. Steele (ed.) Psychoanalysis and the Unconscious and Fantasia of the Unconscious, The Cambridge Edition of the Works of D.H. Lawrence, Cambridge: Cambridge University Press, [1922] 2004, 45–204 at 83; see also 120, 57. The references could readily be multiplied.

154 Kangaroo Courts and the Rule of Law 28 Ibid, 114. 29 D.H. Lawrence, Studies in Classic American Literature, New York: Viking Press, 1964, 2. 30 D.H. Lawrence, Women in Love, London: Penguin, 1960, 272; discussed in A. Wright, Literature in Crisis 1910–1922, London: Macmillan, 1984, 113–60 at 132. 31 D.H. Lawrence, Kangaroo, 302–3. 32 Ibid, 267. 33 Ibid, 270–82. 34 G. Doherty, ‘White Mythologies: D.H. Lawrence and the Deconstructive Turn’, Criticism 29, 1987, 477–96 at 477, 493. 35 M.M. Bakhtin, ‘Discourse in the Novel’, in M. Holquist (ed.), The Dialogic Imagination: Four Essays by MM Bakhtin, trans. C. Emerson and M. Holquist, Austin: University of Texas Press, 1981, 263. 36 Ibid. 37 Ibid, 279. 38 D.H. Lawrence, Kangaroo, 282. 39 C. Schmitt, Four Articles: 1931–1938, ed. S. Draghici, Washington, DC: Plutarch Press, 1999; R. Wolin, ‘Carl Schmitt, Political Existentialism, and the Total State’, Theory and Society 19, 1990, 389–416; W. Scheuerman, Carl Schmitt: The End of Law, New York and Oxford: Rowman and Littlefield, 1999, 85–112. 40 Online. Available HTTP: (accessed 2 August 2011). See N. Ben-Asher, ‘Legalism and Decisionism in Crisis’, Ohio State Law Journal 71, 2010, 699–760. 41 D.H. Lawrence, Kangaroo, 316. 42 B. Steele, ‘Introduction’, in D.H. Lawrence, Kangaroo, The Cambridge Edition of the Works of D.H. Lawrence, ed. B. Steele, Cambridge: Cambridge University Press, [1923] 2002, xvii–lvi at xxx–xxxi; R. Rylance, ‘D.H. Lawrence’s Politics’, in K. Brown (ed.), Rethinking Lawrence, Milton Keynes: Open University 1990, 163–80 at 163, 170. 43 D.H. Lawrence, Kangaroo, 340. 44 Garry Shead, The Wave, oil on composition board, 91 3 121 cm, 1992. Reproduced by kind permission of the artist. 45 R. Montgomery, The Visionary D.H. Lawrence, 21. 46 Ibid, 17–18, in particular discussing M.H. Abrams on romanticism. 47 R. Berkowitz, The Gift of Science, 107. 48 See A. Fernihough, D.H. Lawrence: Aesthetics and Ideology, Oxford: Clarendon Press, 1993; J. Humma, Metaphor and Meaning in D.H. Lawrence’s Later Novels, Columbia: University of Missouri Press, 1990; P. Skelton, ‘A “Slobbery Affair” and “Stinking Mongrelism”: Individualism, Postmodernity and D.H. Lawrence’s Kangaroo’, English Studies 81, 2003, 545–57. 49 R. Murphy, Collingwood and the Crisis of Western Civilization, Exeter: Imprint Academic, 2008, 29. 50 See R.G. Collingwood, Essays in Political Philosophy, ed. D. Boucher, New York: Oxford University Press, [1989] 1995; R.G. Collingwood, Outlines of a Philosophy of Art, Oxford: Oxford University Press, 1925. 51 R. Murphy, Collingwood and the Crisis of Western Civilization, 99. 52 Ibid, 157. 53 H.H. Gerth and C.W. Mills (eds), From Max Weber: Essays in Sociology, Oxford: Oxford University Press, [1919] 1958, 229; see M. Horkheimer and T. Adorno, Dialectic of Enlightenment, trans. J. Cumming, London: Allen Lane, [1947] 1973. 54 R. Murphy, Collingwood and the Crisis of Western Civilization, 268. 55 S. Freud, Totem and Taboo, trans. A.A. Brill, New York: Moffat, Yard & Co, 1913. 56 See W. Heisenberg, ‘Über den anschaulichen Inhalt der quantentheoretischen Kinematik und Mechanik’, Zeitschrift für Physik 43, 1927, 172–98, trans. in J.A. Wheeler

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57 58 59 60 61 62 63 64 65 66 67

68 69

70 71 72 73

and H. Zurek, Quantum Theory and Measurement, Princeton, NJ: Princeton University Press, 1983, 62–84; E. Schrödinger, ‘Can Quantum-Mechanical Description of Physical Reality Be Considered Complete?’, Physics Review 47, 1935, 777–80. I do not wish to square the circle by claiming the mantle of scientific truth for the philosophical or legal notions of polarity, although I think it is fair to say that they recognise a truthin-contradiction from an unexpected source. What I do wish to claim is that all ideas are born of a particular cultural context or zeitgeist, and the emergence of cognate ideas at the same time demonstrates clearly the potency of the particular historical moment to call forth a particular constellation of insights. Every era formulates its own set of problems and perspectives and these multiple connections across very different fields demonstrates their fecundity and their continuing relevance. R. Galchen, ‘Dream Machine’, New Yorker, 2 May 2011, 39. K. Clark and M. Holquist, Mikhail Bakhtin, Cambridge Mass: Belknap Press, 1984, e.g. 153. M.M. Bakhtin, ‘Author and Hero in Aesthetic Activity’, in M. Holquist and V. Liapunov (eds), Art and Answerability, trans. V. Lipunov, Austin: University of Texas Press, 1990, 4–256 at 88–9. Quoted in M. Holquist, ‘Introduction’, in M.M. Bakhtin (ed.), The Dialogic Imagination: Four Essays by M.M. Bakhtin, trans. C. Emerson and M. Holquist, Austin, University of Texas Press, 1981, xvii–xliii at xxviii. Ibid, M.M. Bakhtin, ‘Discourse in the Novel’, 280. Ibid, 282. M.M. Bakhtin, ‘Art and Answerability’, in M. Holquist and V. Liapunov (eds), Art and Answerability, trans. V. Lipunov, Austin: University of Texas Press, 1990, 1–3 at 1. Ibid, M.M. Bakhtin, ‘Author and Hero’, 111. See M. Holquist, ‘Introduction’, xxiii. I am immensely indebted to Richard Mohr for – amongst many other helpful criticisms of an early draft – pointing out and insisting on the importance of this connection for my argument. G. Agamben, State of Exception, trans. K. Attell, Chicago: The University of Chicago Press, 2005, esp. ‘Gigantomachy Concerning a Void’, 52–64; W. Benjamin, ‘Zur Kritik der Gewalt’, Archiv für Sozialwissenschaft und Sozialpolitik, 47, 1920/21, 809–32; also included in W. Benjamin, One-Way Street and Other Writings, trans. E. Jephcott, London: NLB, 1979. Ibid. See also W. Benjamin, The Origin of German Tragic Drama, trans. J. Osborne, New York: Verso Books, 1977; S. Weber, ‘Taking Exception to Decision: Walter Benjamin and Carl Schmitt’, Diacritics 22, 1992, 5–18. e.g. C. Mills, ‘Playing with Law: Agamben and Derrida on Postjuridical Justice’, South Atlantic Quarterly 107.1, 2008, 15–36; A. Benjamin and C. Rice (eds), Walter Benjamin and the Architecture of Modernity, Melbourne: Re.press, 2009, particularly M. Mack, ‘Modernity as an Unfinished Project: Benjamin and Political Romanticism’, 59–75 and R. Simmerbrink, ‘Violence, Deconstruction and Sovereignty’, 77–91. W. Benjamin, ‘Kritik’, quoted in G. Agamben, State of Exception, 53. G. Agamben, State of Exception, 53. See R. Simmerbrink, ‘Violence, Deconstruction and Sovereignty’, 90–1. See also A. Auerbach, ‘Remarks on Walter Benjamin’s Critique of Violence’, paper presented to the seminar After 1968, led by K. Diefenbach, J. van Eyck Academie, 2007; A. Balasopoulos, ‘Crisis, Justice, Messianism: On Walter Benjamin’s “Critique of Violence”’, paper presented at Utopia/Crisis/Justice: 12th International Conference of Utopian Studies Society (Europe), University of Cyprus, 2011. Online. Available HTTP: (accessed 3 August 2011).

156 Kangaroo Courts and the Rule of Law 74 W. Benjamin, ‘Zur Kritik der Gewalt’, Archiv für Sozialwissenschaft und Sozialpolitik, 47, 1920/21, 809–32; W. Benjamin, ‘The Critique of Violence’, P. Demetz (ed.), Reflections: Walter Benjamin Essays, Aphorisms, Autobiographical Writings, trans. E. Jephcott, New York, Schocken Books, [1921] 1986, 277–300 at 300. 75 Ibid, 300. 76 W. Benjamin, The Origin of German Tragic Drama, pp. 54–5, discussed in S. Weber, ‘Taking Exception to Decision: Walter Benjamin and Carl Schmitt’, 12. 77 G. Agamben, State of Exception, 57–62. 78 S. Weber, ‘Taking Exception to Decision: Walter Benjamin and Carl Schmitt’, 17; see Benjamin, The Origin of German Tragic Drama, 137. 79 Ibid, 210. 80 M. Mack, ‘Modernity as an Unfinished Project: Benjamin and Political Romanticism’, 74–5. 81 The argument as to the distinction between Benjamin and Derrida is well made in C. Mills, ‘Playing with Law: Agamben and Derrida on Postjuridical Justice’, 28–9. 82 D. Cornell, ‘The Violence of the Masquerade’, Cardozo Law Review 11, 1990, 1047–64 at 1057–8. 83 J. Derrida, ‘Structure Sign Play’, in Writing and Difference, trans. A. Bass, London: Routledge, 2001, 278–93 at 292. The argument is directly treated as a critique of the romantic urge in Benjamin and in Agamben, in Mills, ‘Playing with Law’, 30–3. 84 S. Beckett, Worstward Ho, New York: Grove Press, 1984. 85 J. Derrida, ‘Force of Law: The Mystical Foundation of Authority’, Cardozo Law Review 11, 1990, 919–1045 at 959; see also J. Derrida, ‘Before the Law’, in Acts of Literature, ed. D. Attridge, New York: Routledge, 1992, 181–220. 86 J. Derrida, Writing and Difference, trans. A. Bass, London: Routledge, 2001; P. Fitzpatrick, Dangerous Supplements: Resistance and Renewal in Jurisprudence: Post-Contemporary Interventions, Durham, NC: Duke University Press Books, 1991. For a somewhat partial reading of Derrida in relation to Lawrence, see G. Doherty, ‘White Mythologies’, 477. 87 J. Derrida, ‘Force of Law’. 88 J. Derrida, Gift of Death, trans. D. Wills, Chicago: University of Chicago Press, 1996. 89 J. Derrida, Of Grammatology, trans. G.C. Spivak, Baltimore: The Johns Hopkins University Press, 1998. 90 J. Derrida, ‘Forgiveness’, in On Cosmopolitanism and Forgiveness, trans. M. Dooley and M. Hughes, London: Routledge, 2002, 34–5; see also S. Critchley and R. Kearney, ‘Preface’, in J. Derrida, On Cosmopolitanism and Forgiveness, trans. M. Dooley and M. Hughes, London: Routledge, 2002, vii–xii at e.g. x–xi. 91 J. Derrida, ‘Forgiveness’, 44. 92 Ibid, 51; see also 54. 93 J. Derrida, The Beast and the Sovereign, trans. G. Bennington, Chicago: University of Chicago Press, 2009, 17, 18, 54, 65, etc. 94 Callins v Collins, 510 U.S. 1141 (1994) (Blackmun, J., dissenting) [Callins]. 95 On the tension between universal and particular in law and in literature, see J. Derrida, ‘Before the Law’. 96 Callins. 97 See e.g. D.H. Lawrence, Psychoanalysis and the Unconscious, 113: ‘It is the great difference between the soft, recipient front of the body and the wall of the back. The front of the body is the live end of the magnet. The back is the closed opposition’. 98 C. Norris, Deconstruction: Theory and Practice, 3rd edn, London: Routledge, 2002; J. Balkin, ‘Transcendental Deconstruction, Transcendent Justice’, Michigan Law Review 92, 1994, 1131–201 at 1131; J. Balkin, ‘Deconstruction’s Legal Career’, Cardozo Law Review 27, 2005, 719–40. For a general discussion of the issues, see P. Schlag, ‘A Brief Survey of Deconstruction’, Cardozo Law Review 27.2, 2005, 741–52.

Polarity 157 99 G. Rose, Judaism and Modernity, Oxford: Blackwell, 1993, 87; G. Rose, The Broken Middle, London: Blackwell, 1992, 293. Rose’s target here is the work of Emmanuel Levinas but she is also happy to encompasses Derrida in a searing critique. For a further discussion of Rose’s critique in relation to Levinas and to Derrida, see D. Manderson, Proximity, Levinas, and the Soul of Law, Montreal and Kingston: McGill-Queens University Press, 2006, 73–81, 195. 100 G. Rose, Broken Middle, 310. 101 M. Diamantides, Levinas, Law, Politics, London and New York: Routledge-Cavendish, 2007; N. Smith, ‘Questions for a Reluctant Jurisprudence of Alterity’, in D. Manderson (ed.), Essays on Levinas and Law: A Mosaic, Hampshire: Palgrave Macmillan, 2009, 55–75; J. Sims, ‘Exceptional Justice, Violent Proximity’, in D. Manderson (ed.), Essays on Levinas and Law: A Mosaic, Hampshire: Palgrave Macmillan, 2009, 217–39. 102 D. Manderson, ‘Chapter 7’, in Proximity, Levinas, and the Soul of Law, Montreal and Kingston: McGill-Queens University Press, 2006, 175–204; J. Derrida, ‘Force of Law’; J. Derrida, ‘Afterword: Toward an Ethic of Discussion’, trans. Samuel Weber in Limited, Inc. (Evanston, Ill.: Northwestern University Press, 1988), 111–54. As Schlag has pointed out to me, it is nevertheless fair to say that Derrida’s flirtation with the mysticism of ‘the madness of decision’, no less than his ethereal and abstract discussion of justice, invite Balkin’s interpretation. 103 B. Johnson, ‘The Surprise of Otherness: A Note on the Wartime Writings of Paul de Man’, in P. Collier and H. Geyer-Ryan (eds), Literary Theory Today, Ithaca: Cornell University Press, 1990, 13–21 at 18, 21. 104 See ibid; R. Beardsworth, Derrida and the Political, London and New York: Routledge, 1996; A. Norval, ‘Hegemony After Deconstruction: The Consequences of Undecidability’, Journal of Political Ideologies 9.2, 2004, 139–57; S. Critchley, The Ethics of Deconstruction: Derrida and Levinas, London: Blackwell, 1992; J. Derrida, ‘Afterword: Toward an Ethic of Discussion’. 105 J. Derrida, ‘Force of Law’. 106 E.M. Forster, A Passage to India, London: Folio Society, 2000, 184. 107 D. Cornell, ‘The Violence of the Masquerade’, 1064. 108 For example M.M. Bakhtin, ‘Discourse in the Novel’ and ‘Author and Hero in Aesthetic Activity’. 109 M. M. Bakhtin’s ‘Discourse in the Novel’ is the clearest instance of this logic. The parallel here with Levinas’s argument for the primacy of ethics is remarkable: see E. Levinas, ‘Ethics as First Philosophy’ in S. Hand, The Levinas Reader, Malden, Mass.: Blackwell Publishers Inc., 2001, 75–87; A. Peperzak, Ethics as First Philosophy: The Significance of Emmanuel Levinas for Philosophy, Literature and Religion, New York: Routledge, 1995. 110 K. Clark and M. Holquist, Mikhail Bakhtin, 7. 111 Ibid, 86, quoting M.M. Bakhtin.

Chapter 9

Thirroul of Law

The essence of liberalism is negotiation, a cautious half measure in the hope that the definitive dispute, the decisive bloody battle, can be transformed into a parliamentary debate and permit the decision to be suspended forever in an everlasting discussion.1 – Carl Schmitt, Political Theology We want all this without resistance. We want it continually. And this is the root of all evil in us. There must be resistance. We ought to pray to be resisted and resisted to the bitter end.2 – DH Lawrence, ‘Edgar Allan Poe’

The Great War stood as the shadowy graveyard of romantic fantasies of unity and progress, as of positivist fantasies of logic and system. The World War to come would still more decisively mark their sickening collision. War certainly has a tendency to focus the mind. Many of the writers who responded to it – from Mikhail Bakhtin, Martin Buber and Martin Heidegger in the 1920s to Jean-Paul Sartre and Emmanuel Levinas in the 1940s – seem to have in common a shattering of established canons and the destruction of our naïve illusions of eternal harmony. But in the ‘twilight of the double vision’ they also seem to seize on the idea of intersubjectivity as a way of channeling the irreducibility of difference towards new theories of relational thinking.3 The great modernist novels of the 1920s are admired not only for their heightened inner realism and formal invention, but for their ultimate affirmation of the possibilities of this new, uncharted shore. Both James Joyce’s Ulysses and Virginia Woolf’s To the Lighthouse end with the same thought, ‘yes’. Neither ignore or resolve the crisis of modernity but instead embrace its challenges.4 So an effort is made to genuinely come to terms with the violence of the past and the uncertainty of perspective without thereby slipping into nihilism or despair; to transform conflict and otherness from the curse of human identity to its gift. Responding to the crisis of modernity, D.H. Lawrence’s commitment to the novel in form, content and language, together with the notion of polarity, led him likewise away from the fantasy of a hidden order with which the novel begins and

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towards the recognition of the productive power born of the unremitting clash of discourses. The central feature of this modernism lies in its belief that we should not try to eliminate social contradictions and tensions but draw our strength from them. The appeals to ‘call and answer’, to ‘listening’ and ‘answering’ and challenging5 – polarized energies all – invoke an unceasing friction not just between people but within them. Lawrence relishes this friction not as an unwelcome side effect of human relations, but as its jouissance – its ‘yes’. In order to demonstrate the inter-connection between disparate fields, this book has traced an expansive arc. I want now to draw some of those threads together. In this chapter I want to show how the experience of literature elaborated in Chapters 6 and 7 and the ideas of polarity elaborated in Chapter 8 are relevant to the rule of law. In the next section, I argue that the key to understanding what literary modernism might contribute to this question is to see literature’s power as performative rather than didactic. Its formal and stylistic characteristics, its multiple discursive layers and so on, do not describe or talk about justice but perform it. In particular, the novel’s commitment to narrative takes us away from rules and towards a much deeper engagement with specifics and contexts. In the second section, I argue that Bakhtinian ‘polyphony’ and Lawrentian ‘polarity’ both have another side, a crucial public dimension through which the pressure of communicating and justifying our judgments to others transforms us. Polyphony and polarity strongly suggest that a determinate answer to the crisis of legal judgment cannot be found. The porosity of language and the tension between general and particular will always be with us. In law we must decide, but those answers will always be partial, provisional and incomplete. There can be no final resolution, no synthesis, and no balance. Instead, judgment is an endless cycle which is capable of turning the ineluctable tensions, oppositions and disagreements that make up the law into a productive and indeed constitutive dialogue. The rule of law can be understood then as a set of ideas that institutionally protect the social and dialogic process of exposing and critiquing reasons for decision, rather than as a set of ideas that institutionally entrench the hierarchical or hieratical process of announcing them. In the last section, I invoke a metaphor of triangulation hinted at in Kangaroo to argue that this constellation of features sharply distinguishes the ‘literary’ rule of law from the two starkly sketched alternatives that have been my foils throughout the book, the positivist rule of law and romantic justice. My argument here is intentionally schematic because I am trying to contrast as strongly as possible what I take to be a real difference between these three ways of imagining the rule of law. No doubt most writers (though not all) hold elements of all three positions. But the conceptual terrain is worth mapping. Modernism’s distinctive responses to the crisis of modernity offer us a fragile but nonetheless meaningful re-conception of the rule of law. Neither the positivist dogmatism of the law of rules – with all its implausible rigidity – nor the romantic idealism of the law of love – with all its implausible divinity – can be accepted. Polarity and literature, as Bakhtin argues and as Lawrence shows, work unfailingly against both. What I like to call ‘Thirroul of

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law’6 takes the crisis of modernity seriously, exposing and embracing the tensions and resistances built into the law, and seeing the antiphonic call and answer of contingent decision-making as a way of responding to it. Thirroul of law rejects both the unattainable machine-judges that positivism dreams of and the unattainable god-judges that the romantics and New Romantics dream of. Both rely on a kind of deus ex machina; maybe even a kind of machina ex deo. Literary modernism offers up to us instead perfectly attainable human-judges, always failing and yet socially vital.

Narrativity and performativity In conjunction with his remarkable work on literature and on the unconscious, Lawrence’s Kangaroo is at once characteristic of the modernist response to the crisis of modernity and unusual in its interdisciplinary vision. Its polyphony and fragmentation, its realism, and its focus on individual psychology form a kind of anti-politics. This turn from politics provides not just the narrow content or storyline of the novel. Taking seriously the attitude to verisimilitude and to meaning which modernism foregrounded challenges many of the assumptions surrounding the novel – whether as a straightforward representation of reality or as a redemptive supplement to it – which remain the norm in parts of the legal academy. A novel is not an ‘extra-artistic rhetorical genre’7 or a moral treatise in disguise, pace Nussbaum. Instead, the modernist approach to law and literature builds an ironic resistance to all authority, including its own. It develops our sensitivity to the tension between different voices and perspectives long, long after we have forgotten what the particular story was ‘about’. Kangaroo’s heteroglossia, doubleness, humour and contingency, its layering of voices, stylistic tropes, metaphorical development and structural fragmentation echo on a formal level the same themes. In all these ways we begin to see – not just to see but truly to experience – how the elements that Bakhtin sees as the hallmark of the novel forge a particular voice of justice in law. The force of literature can be understood not as a series of propositions that ‘talk about’ justice, but as engendering a feeling for certain practices ‘of’ justice. As we have seen, Kangaroo is essentially performative – ‘a gramophone of a novel’ in which we witness the power of literature as it operates on the author himself. Such an approach does not rely on some mental library of canonical subjects. It addresses, rather, how the narrative method in and of itself transforms our interpretative approach and leads to the rejection of rule-fetishism. Lawrence’s novel does not tell us what he thought about politics and justice: it shows us what he learnt about them and records how he changed through the very discipline of writing about them. It thus provides evidence for the meaning and force of literature by recording the transformations it wrought on the thinking and beliefs of the author himself. In Fantasia of the Unconscious, which you will recall was published the same year as Kangaroo, Lawrence says as much.

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This pseudo-philosophy of mine is deduced from the novels and poems, not the reverse. The novels and poems come unwatched out of one’s pen. And the absolute need which one has for some sort of satisfactory mental attitudes towards oneself and things in general makes one try to abstract some definite conclusions from one’s experiences.8 This causal relationship is very important for our understanding of how the narrative form modifies our attitude to rules. In keeping with his determination to rescue the tale from the clutches of the moral, Lawrence thinks of literature not as a didactic lesson intended to display a priori principles, but as an experience that forces us by its very particularity to challenge those principles. That it comes ‘unwatched’ is precisely the beauty of literature, both for the writer, and for the reader – it comes at one all unwary, from a side that is not subject to conscious editorial censorship. Recent scholarly interest in Richard Wagner has drawn our attention to a similar creative process in which art transforms the artist as much as the other way around.9 Wagner is in some ways analogous to Lawrence, for both were attracted to a species of highly romantic philosophising about their art and their world. Yet Wagner’s intellectual romanticism is steadily pulled at and unpicked by the intimate and emotional details of his characters’ lives. The famous rupture with Nietzsche seems to hinge on this point. When Nietzsche, with astute and telling sarcasm, termed Wagner, of all people, ‘our greatest miniaturist’, he hit upon the aesthetic commitment to the detailed and intimate study of relationships which Wagner’s art demanded of him. This study forced his grand ideas against themselves and against one another, in just the same way as we have seen in relation to Lawrence. Finally, even so monumental a canvas as the Ring cycle can be understood as a work surprisingly opposed to mythology in the intimate depths of its compassion for its characters; committed not to the consolidation but to the ‘deconstruction of power’.10 Through its subversive performativity, the novel shatters abstraction in favour of a richer understanding born of the diversity and singularity of all experience and of the multiple discourses that contribute to it. In Kangaroo, Richard Somers’ conclusion might almost be taken as an anti-catechism, as his manifesto against the rote application of rules and a declaration of the unique judgments which the ‘call and answer’ of individual lives demand. Life makes no absolute statement. It is all Call and Answer. As soon as the Call ceases, the Answer is invalid. And till the Answer comes, a Call is but a crying in the wilderness. And every Answer must wait until it hears the Call. Till the Call comes, the Answer is but an unborn foetus . . . Blessed are the pure in heart. That is absolute truth, a statement of living relativity, because the pure in heart are those who quiver to the dark God, to the call of woman, and to the call of men. The pure in heart are the listeners and the answerers.11

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On the other hand (or leg) Melville’s Captain Ahab was, for Lawrence, an exemplary Western mythological figure – a ‘monomaniac of the idea’, while poor Moby Dick, our creaturely spirit, was ‘hunted, hunted, hunted by the maniacal fanaticism of our white mental consciousness’.12 These and other monomaniacal ideas of mastery literature takes as its subject and resists with every fibre of its being. Philosophy, religion, science, they are all of them busy nailing things down, to get a stable equilibrium. Religion, with its nailed-down One God, who says Thou shalt, Thou shan’t, and hammers home every time; philosophy with its fixed ideas; and science with its ‘laws’: they, all of them, want to nail us on to some tree or other. But the novel, no . . . If you try to nail anything down, in the novel, either it kills the novel, or the novel gets up and walks away with the nail.13 No doubt Lawrence overstates the case and his target was a fairly narrow one, the English tradition of analytic philosophy which was advancing around him at the time. But I do think that the history of philosophy is full of authors whose goal, as Lawrence says, is to ‘nail things down’. What made deconstruction, for example, the subject of such ugly and ill-tempered abuse,14 and by no means amongst English philosophers alone, was precisely its attack on the enduring materials out of which the discipline had been crafted – abstraction, wholeness, solution, resolution, absolution. The novel, on the other hand, if it is successful, must have change at its core – both narrative change and, as Lawrence says, the fluidities of interrelatedness that drive it. Growth and second thoughts are at the heart of the experience of the novel, including not just the readers’ experience or the characters’, but the author’s too. Literature thus gives to law more than simply a laboratory in which to test the truth and impact of abstract ideas.15 It manifests, through narrative, the singularity of beings and circumstances, and it is these constantly challenging differences which undermine interpretative closure. To pay attention to narrative in law is to acknowledge that the rule, by itself, cannot tell you how it is to be applied in a distinct time and a distinct circumstance. This uniqueness might not, but nonetheless may at any moment, prove to be entirely unsettling to all our previous interpretations of the rule. Many legal examples might be provided. One will do. In Harrison v Carswell the Supreme Court of Canada was asked to decide whether a union picketer in a shopping mall was entitled to be excluded by the proprietor as a trespasser on private property.16 For the majority of the court, the case was an easy one. Private property equals the power to exclude. A shopping mall is private property. Therefore, the rule against trespass applies. QED. To decide otherwise would be to make an ‘arbitrary’ decision ‘deliberately to abandon the [long accepted legal] principle in the name of justice or of social necessity’.17 Thus, as ever within positivism, justice and the rule of law are pitted against each other. But for the minority, the story was not so simple. Times were changing. Shopping malls were

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increasingly (and particularly in icy Canada) replacing streets and squares as necessary spaces of public discourse – a transformation even more evident now than in 1975. In this new world, was it right simply to apply the prior rule without thinking about whether that was what the rule, ancient as it was, ought to achieve? Was a shopping mall really ‘private property’ in the same way that a family house or an office block was? Is that how members of the community saw it? What assumptions did our a priori definitions import about the world? How might those assumptions be called into question by the particular narrative in the case before us and the changing times and experiences it brought to our attention? Wittgenstein most famously said the following: Someone says to me: ‘Show the children a game.’ I teach them gambling with dice, and the other says ‘I didn’t mean that sort of game.’ Must the exclusion of the game with dice have come before his mind when he gave me the order?18 In short, what kind of a ‘game’ is trespass and is a trespass on this new phenomenon, a shopping mall, the kind of game ‘I had in mind’? We cannot answer that question without thinking in a new and unpredictable way about all the assumptions (about property, ownership, space and the public realm) which our previous interpretations of the rule had left unexamined. This is the power of narrative in law. It throws new light on just these aspects of interpreting a ‘long standing legal principle’, and thereby allows the ‘economic and social facts under the circumstances of the present case’19 to transform their meaning for us. It forces us, as Lawrence said, to revisit and revise our definite conclusions. The majority in this case refused to pay attention to the light new stories throw on old ideas, instead relying heavily on a precedent case itself a ‘strictly legal’ argument made before the Supreme Court ‘without any context of fact’.20 We can see here how the contextual specificity demanded by the exposition of a narrative and a context differs in perspective, ideology and outcome from the blanket a priori application of a rule. Narrative, in law, discourse or fiction, is about novelty – the novel – and so about the challenge of passing judgment under alwaysnew and ever-changing circumstances. At the same time, Lawrence, though critical of the liberal-humanist social-realist tradition, nonetheless recognises in the novel, through its attention to relativity, context and poly-vocality, crucial values of selfquestioning, transformation, humour, irony, compassion, specificity ambiguity and doubt. Literature brings philosophy to life but, just as importantly, is an antidote to it.21

Polarity, publicity, and the rule of law Now such an argument threatens to steer the field of ‘law and literature’ towards the romantic rejection of any rote application of abstract rules and logical reason. We seem to be thrown back upon a universe of instances in which justice is

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singular, uncodifiable, unrepeatable and spontaneous. There is a second and countervailing element, however, to the connection between literature and justice. The force of literature – the Lawrentian polarities that pull it (and us) in opposite directions, its (and our) Bakhtinian warp and woof of multiple discourses – requires a constant listening and correction of received ideas and a constant adjustment to changing circumstances. This is a public process and not a private insight. Polarity and the moment of legal judgment Polarity or undecidability are not simply code-words for unanchored relativism or indeed for orthodox liberalism. Lawrence did not believe in the compromised middle ground. Works like St Mawr or The Man Who Died22 show how passionately he believed in experiencing extremes. That is exactly what is captured by the concept of polarity: Lawrence insists on fully plumbing the depths of quite contrary claims upon us. But at the same time he refused to succumb wholly to one side or the other. In different ways, as we saw in the previous chapter, polarity and polyphony both pull us against ourselves and provide the space that allows for the possibility of a new reading. Clearly that does not permit a final resolution of the issues at stake. On the contrary, however, it permits reflection and renewal to continually take place in law. A decision to refuse to take that opportunity, itself a choice amongst other choices, does not prevent decision-makers from exercising their power to frame and limit a certain result, but it does prevent them from acknowledging or even seeing it. It is that blindness – that dogmatic, insouciant, disavowal of responsibility – that characterises the majority in Harrison v Carswell. Instead, the insistence on the movement from rule to context and back again – feeling the weight of both poles – allows us to see more clearly those social and political forces in our world which impose a single, stable meaning.23 What then does polarity mean in terms of the rule of law and the question of legal judgment? The ‘determinate oscillation’ which swings us between two irreconcilable poles – general and particular, prior rules and new circumstances – is not resolved in any way, only experienced.24 The tension between these two ways of looking at things is ineluctable as the tides. It forces us to rethink our rules, the meaning we give our words, the imagined ‘essences’ of those words, and the purposes that are served by them. But in the end, the decision cannot wait. It is made under conditions of and while experiencing polarity and opposition. The pull of singularity forces us to reflect on what the rule means and accomplishes in this particular circumstance. We are forced to reconsider, to question, to doubt. Our understanding of the rule is thus not static. The pull of generality forces us to take into account the implications of our decisions for other circumstances. Our understanding of those circumstances is thus not unconstrained. There is no one single response to these tensions, only a genuine experience of them and the effort to pay attention to both. The decision that we make, therefore, does not either surrender to the rules or ignore them; instead, it attempts to address them.

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Every decision emerges as an unstable and imperfect response to these dynamics. Unlike the romantics, however, we can never expect our decision to transcend or heal those tensions. The judgment we make is an effort to reassess meaning and to question assumptions as circumstances always make us, but the result, whatever it may be, is provisional and open to reconsideration at every moment. Our understanding of the rules may have been either shifted or confirmed by our situation: present circumstances may lead us to reflect on the meaning of the rules we thought we knew, but on the other hand, the pressure of the future may lead us to hold, despite everything, to our prior judgment. Indeed, this is to say no more than Aristotle, ‘for the rule of something indeterminate is indeterminate too’.25 Either way, the new decision we make attempts to impose a new stability and generality on the erring forces that surround us.26 Thus we are constantly thrown from one pole to the other, from the singularity of justice back to the (re-) construction of rules: each are seen in the shadow of the other. Needless to say, the stability of the decision that emerges from this process lasts no time at all. As soon as we are confronted with a new circumstance, the previous interpretation must generate new tensions and a new polarity which will pull us in opposite directions once again. Call and answer, call and answer, never stilled. Like the moon and the tides, the experience of polarity, of the impossibility of entirely satisfying contrary expectations, will always be felt as a tug and a repetition. The public discourse of reasons Crucially for our understanding of the rule of law, however, this eternal weaving of correction and change is never simply a private affair, but a public, social event. It must be articulated, explained and criticised. ‘There must be resistance’, wrote Lawrence. ‘We ought to pray to be resisted and resisted to the bitter end . . . There must be resistance in relationships. It is the basis of strength, of balance, of unison’.27 Here there is perhaps more than a trace of his early life, haunted by the friction and conflict between his parents, transfigured in his thinking from pain to suffering, which is to say from meaninglessness to necessity. Without argument, justification and corrigibility, there can be for Lawrence no change and, indeed, no literature (an endeavour which is itself public, collective and dialogic over time).28 Thus Lawrence sees a moment of accountability, perhaps even of apology, as we confront others, no less than a moment of responsibility as we berate ourselves. ‘I am a fool,’ said Richard Lovatt, which was the most frequent discovery he made. It came, moreover, every time with a new shock of surprise and chagrin. Every time he climbed a new mountain range and looked over, he saw, not only a new world, but a big anticipatory fool on this side of it, namely, himself.29 Lawrence, in his work on the subconscious, calls the moment of judgment tragic – tragic because failed, incomplete and riven. Nonetheless, this tragedy is both necessary and admirable, a forward movement of the soul. So too with respect to

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his fiction he says that The Rainbow ‘deals in the soul’s mistakes and self-retrieval, so that the erring course is constantly under correction’.30 Kangaroo is replete with the same dynamic. You have got to go through the mistakes. You’ve got to go all round the world, and then halfway round again till you get back. Go on, go on, the world is round, and it will bring you back. Draw your ring round the world, the ring of your consciousness.31 Derrida makes a similar point in a slightly different way. He describes the ‘madness of decision’ as that moment in which one is forced to confront a paradox or polarity between the responsibility to ‘conserve the law and destroy it or suspend it enough to have to reinvent it in each case’.32 Justice, even that small aliquot of justice involved in deciding what a particular principle or word means in the context of the unique case that confronts us, ‘is irreducible to rules or laws’.33 Accordingly, when we reflect on how to apply a rule in some new circumstance, whether to apply this rule or that, whether to take account of this circumstance or that, we are forced to think about the notion of justice behind that rule in a way that is incapable of being settled in advance. But, at the same time, as we have seen, the polarity that tugs at justice from contradictory directions and the gap that opens up between the abstract rule and the unique circumstance that casts new light on it, mean that there is a necessary imperfection or remainder to this process of inquiry. Our attentiveness to these imperfections and thus the ‘breakdown in a panoramic view of justice’ lies at the heart of literature34 and at the heart of literature’s obsession with the insufficiency of its own authority. Due to the critical and imperfect dimension inherent in the moment of judgment, the obligation to decide is never severable from the obligation to ruthlessly and publicly expose one’s judgments, to explain, justify and be criticised for our imperfect decisions and interpretations. All decisions are violent but not all violence is the same: the violence that sees itself as such and attempts to think through and explain the choices that are made is different from the violence that is ignorant of itself and pretends to have escaped the dilemma. Justice is clearly envisaged here as exactly the opposite of some final or authoritative judgment – mechanical, divine, natural or sovereign. The value of the rule of law, therefore, does not lie in the decision itself, which is of necessity unsettled and partial, but in the doubt and the challenge that comes before it and the public discourse of reason-giving and argument that comes after it. The public moment of correction and critique intrinsic to the idea of unavoidable polarities is just as central to Bakhtin. The discourse of the novel is built precisely on the interplay between public and private discourses. The interpenetration of the voices of different classes and perspectives, between the formal registers of conventional speech and local idioms and argots, gives the novel its life and its power of critique. These discourses and their multiple uses exist not only on the page but in the world and above all in the synaptic spark that leaps between them.

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Bakhtin provides many instances – and Kangaroo many others – of the ways in which formal discourse and conventional language uses (including those adopted not only by certain characters, but by the narrator or proper to the genre or the era itself) become appropriated, sometimes to be satirised and sometimes to be enriched, by being embodied in and juxtaposed against the voices of others. The multiple registers of the novel, as Bakhtin saw, illuminate how our discourse always invokes the discourse of others, transforming them by incorporating their speech for our purposes but simultaneously transforming us by virtue of the same linguistic contamination. Again, that connects Bakhtin’s understanding of the novel to these broader theories of law, ethics and language. ‘Conversation’ To sum up: the novelistic elements which I noted in the previous section distinguish the literary rule of law from positivism since they pull strongly against an a priori structure of rules. But the idea of a discourse built on polarity and therefore never final or settled pulls just as strongly against the transcendentalist impulse. The public work of doubt and correction is a dynamic and unstable element resolutely opposed to any impulse towards finality and unity, and hostile to any idea that we could reach beyond or behind the rules to a purely singular and inexplicable ‘miracle’.35 Yet many writers (including for example the majority in Harrison) conceive only of this choice: either positivism or else decisions made by natural authority on the basis of sublime insight. And behind this Manichean vision lies a shared assumption that law cannot do without a definite foundation of some kind, be it of science or nature. As David Dyzenhaus ably argues, both Carl Schmitt and Hans Kelsen ultimately shared a quest for an unattainable certainty that condemned them to a kind of impotence.36 ‘Reason’ in the orthodox structure of positivism claims to lead to a single ‘right answer’ to legal problems, grounded in the faith that logic, science and linguistic precision can provide lawyers and citizens with objective and determinate solutions.37 The rule of law, on this understanding, makes a promise of certainty that sacrifices everything to the tyranny of an ever-growing pile of regulations.38 That the promise of science or objectivity as some new and perfect ground to law is doomed to fail, I have no doubt. But it does not follow that we should give up on reasons, now in the plural, understood as an on-going social process of transparency, justification and response. What is important for the rule of law is not the certainty it lays down, but the conversation, even the disagreement, it lays out – the movement backwards and forwards, the irresolution rather than the resolution – the endless polarity that forces us to keep deciding. I want to dwell for a moment on the word ‘conversation’ not because it resolves conflict (read some Lawrence and tell me you still believe that) but because of the way in which it treats public interpretative ambivalence as a value of the rule of law rather than as a threat to it. I think that was Carl Schmitt’s mistake. He

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was a caustic critic of bourgeois democracy precisely because he thought parliamentary debate a charade that grandstanded and perpetuated differences rather than a deliberative forum in which disputes could be settled.39 The criticism of course is well taken. But the opportunity for public debate is perhaps not directed towards political opponents as such but instead to a wider public. The discursive rationality of politics is no less true for being extra-parliamentary.40 Even more centrally Schmitt adjudged conversation a sign of weakness. He had a horror of ‘una clasa discutidor’ – what the contemporary right would call ‘the chattering classes’. ‘A class that shifts all political activity onto the plane of conversation in the press and in parliament’, wrote Schmitt, ‘is no match for social conflict’.41 He scornfully dismissed ‘conversation’ as a way of avoiding conflict, ‘the enemy of enemies’.42 Today as in the Weimar Republic there are naïve liberals, whom Schmitt was right to skewer, who think that if we could only talk everything out we would all happily agree. But that is exactly what the modernists did not think, neither Lawrence, nor Bakhtin (nor for that matter Derrida). What Schmitt condemned as quintessentially romantic, ‘a world . . . without decision, without a final court of appeal, continuing into infinity’,43 becomes transfigured in modernism in two ways. First, it becomes not the denial of decision but its condition. Secondly, it becomes constitutive of the self understood as something by its very nature fluid and emergent. ‘Conversation’ is, accordingly, neither a route to nor a deferral of decision in a settled world. It is a route to knowledge, both of oneself and the world, in a world in flux. Justice, like literature, is not a conclusion, but a process, not a treasure chest containing nuggets of eternal and omniscient verity, but example upon example of learning, doubt and change in response to the humbling irony granted us by others. The importance of public decision-making therefore lies not in the finality of what is declared to us – a top-down and monist relationship – but in the transparency of legal reasoning and its openness to a future which must continually revisit the past – a bottom-up and pluralist relationship. That pluralism and that modernism Schmitt simply could not fathom.44 Indeed, the ‘double vision’ of legal decisions – the irreconcilable conflict between predictable rules and unpredictable circumstances which can never be finally adjudicated – is not a legal disaster, but a crucial opportunity for all of us to participate in the making of law. Since all sides cannot be equally accommodated and none can be entirely ignored, the ultimate decision which must be reached in all humility needs to be justified in terms that, as Robert Cover argued, neither trivialise nor reduce to inevitability the alternative they forego.45 But that is only the first stage of legal interpretation (as it is only the first stage of literary interpretation). The humanness, complexity and incompletion of judgment, which is the lesson of literature to us all, is an invitation to participate in the practices of legal judgment – to judge the judges, to judge the justification, and to participate in the productive conflict and disagreement all around us. Conversation, and with it the potential for correction and development, is the soul of justice.

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On this view, the rule of law is not an arid technical exercise, which is the ethical poverty of positivism. Neither is it an unanswerable and divine decree, which is the ethical poverty of romanticism. It becomes instead a social and human dialogue, which is as it should be. The rule of law cannot deliver a grounded truth about laws or rules – nothing can. But the rule of law can ensure that those who decide remain answerable, engaged in a dialogue of listening with those who come before them and after them. If we look around the world at societies in transition, and the profound legal problems they face, that seems to me a more important goal to advance than an ill-fated promise of objectivity that is increasingly viewed as without credibility.46 Rather than promising certainty or finality, the rule of law might promise something more human and more honest. First, that a decision-maker will be required to articulate and justify his or her decision, to relate it back to the rule even as it has been modified or developed by the context before them. Secondly, to be challenged on these reasons, forced to question them and think again, without ever simply being able to appeal to either interpretative certainty or personal insight as some kind of ineffable trump. Change emerges through the eternal weaving of call and answer, in which courts or judges are implicated, but not they alone. On this view, legal decisions prefigure not an end to interpretative and normative disagreement, but another text to be defended and transformed in the flux of their ceaseless oscillation.

A triangulation Coo-ee Kangaroo manifests this philosophy on every self-scourging page. Richard Somers comes to Australia, a minor authority figure absorbed by himself and consumed by a futile longing. But over the course of the novel and under the challenge of listening to others, he comes to distrust his own autarchic insight in favour of something more hard won. This is the justice of literature, born directly out of proximity to its multiple voices and perspectives, humour, and irony. ‘Thirroul of law’ accords with this justice by finding a place for both the singularity of experience that the novel manifests, and the public and responsive project of judgment that polarity initiates. Like the ceaseless movement of the waves on Thirroul beach, the tensions and oppositions at the heart of the novel cannot be short-circuited by some final appeal to system or reason or nature or tradition or authority or truth. In this realisation, Somers finds a very modern virtue: courage. There is a distinctive Australian idiom that Lawrence uses in Kangaroo but never explains to his readers. In Sydney, where Lovatt and Harriett first land, they stay in a boarding house called ‘Torestin’. ‘Torestin,’ he said, pronouncing it like Russian. ‘Must be a native word.’ ‘No,’ said Harriett. ‘It means “To rest in”.’ She didn’t even laugh at him. He became painfully silent.47

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After leaving Sydney, the house that D.H. and Frieda Lawrence actually rented in Thirroul also had a name: ‘Wyewerk’. Regrettably, we can discern a certain pattern of Australian domiciliary humour here. But ‘why work’ was hardly the fitting name for a cottage in which Lawrence penned well over 100,000 words in a matter of weeks. In the novel, the house is rechristened ‘Coo-ee’.48 This is not another weak pun. Coo-ee is an iconic Australian sound, of aboriginal origin, shouted out long and high and loud with a rising inflection on the second syllable. It is used by those who are lost in the bush. The sound can travel many miles and awaits another coo-ee in reply that helps the wanderer find their way. ‘Coo-ee’ is a call, uncertain, offered up to the unknown, that exists only to invite an answer. Perhaps that ritual dialogue is Lawrence’s version of ‘Thirroul of law’. It is a cry in the wilderness that is an occasion for listening and that uses a pattern of response from others in order to map an uncertain and provisional triangulation. The whole movement in Kangaroo lies in its discovery that justice requires movement and dialogue amongst strangers – a coo-ee and not some settled ‘pouch’ or place ‘to rest in’. Without the coo-ee and response of reason-giving and contingent justification, which Lawrence calls ‘call and answer’, the law (or any other experience for that matter) would cease to offer us – all of us, whether citizens or lawyers or judges – the possibility of learning something about ourselves and the world. This too, I think, reflects a crucial distinction in how we might think about judgment. It separates the literary image of justice from both its positivist and its romantic interlocutors and distinguishes its Heideggerian from its Derridean successors. On the one hand, the positivist does not conceive of judges as learning something new. Judges, on the standard model are already learned. They merely apply what they already know: the answer is to be found in the rules written down on the page in front of them. So the dialogue in a courtroom is all one-way. Only the parties to a dispute learn something: what the law means and what they ought to do. Such a model of legal judgment is resolutely hierarchical and the judge speaks to those below him without interruption. The judge instructs and the parties listen. There is no ‘call and answer’, no ‘coo-ee’, only a command from above. Lawrence rejects this view. He understands judgment (literary, personal, political or legal, it hardly matters) as a constant process of learning. There is no learning without resistance and struggle. Kangaroo records one such struggle. On this model, the judge listens and, having heard something new – about the world perhaps, or the people who live in it – must correct his or her assumptions of what a proper application of legal principles requires. A judge, like the rest of us, must be prepared to make the frequent discovery that he or she is a fool. Not all the time of course, but enough of the time that he or she is always alive to the immanent possibility of this discovery and transformation. On this model the rule of law cedes its mythical certainty. But by listening, deciding, explaining and listening again, law becomes better connected to its community and able to develop, step by step, while always remaining publicly answerable for its decisions. The rule of law facilitates a structure capable of learning from us rather than merely instructing us.

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There is nothing so beautiful, I would say, as a judge who changes his mind and says so. Looked at in this light, the admittedly stereotypical image of a civilian decision, in which Articles such-and-such of the Civil Code are cited followed by the bland assertion that therefore – just by virtue of the existence of these provisions – the court finds in favour of P or D, makes a fetish of legal certainty at the high cost of this discursive transparency. It valorises a mythology of pure reason at the expense of giving reasons. To my mind, this ultra-positivism – admittedly less and less defended even in civilian jurisdictions (except perhaps in the exegetical deadend of some universities) – is as much a scandal to the rule of law as the arbitrary decision of an unaccountable overlord.49 On the other hand, the word ‘insight’, the romantic alternative to rule-following, appears equally to acknowledge no argument or struggle or explanation. Although based on a charismatic model of judgment, it is as hierarchical as its positivist counterpart. Justice appears like a revelation, as the product of a purely inward process by which one intuits the big picture and discovers the reality of justice, momentary but true. Every page of Berkowitz’s The Gift of Science exudes this static and non-discursive image of judgment as insight. To speak of law as something ‘that grows of its own accord’ or as a ‘natural or traditional insight into what is right and fitting’ suggests precisely an intuition that comes without the need for interrogation, modification or argument. It has the status of a divinely ordained fact. Insight is not transformed by criticism or effected by resistance – it is ‘free’. Insight is not modified by time or reflection – it is ‘manifest’ and ‘divine’.50 Berkowitz’s profound hostility to law as ‘the modern approach of giving reasons and justifications’51 in any terms whatsoever appears to confirm this reading of the qualities of insight: reason and justification mark the impoverishment of law.52 Legal systems that abandon all efforts to justify and give reasons, thereby refusing to open themselves to question, inevitably resort to some appeal to nature or authority or tradition. Nonetheless, I suspect that this moment does usher in a reign of ‘lawless caprice’.53 Kangaroo presides over a kangaroo court. Lawrence rejects this view too. On his thinking about the justice of literature and the justice of polarity, nothing is free, natural or manifest. What we learn about justice – and of course this continually changes in a world of bewildering complexity and endless polarity – we earn, like a novel’s gradually ramified understanding, precisely through processes of justification and reasons, and through the resistance provided by the polyphony of many calls and answers. Literature therefore offers something specific and necessary to our understanding of justice. It imagines the court and the law as the forum for an on-going process of learning built on principles of dialogue, conflict and imperfection, rather than the site of a didactic set of outcomes. Tobias Wolff writes, ‘Teaching made him accountable for his thoughts, and as he became accountable for them he had more of them, and they became sharper and deeper’.54 That is profoundly true of the teaching experience and it ought to be profoundly true of the legal experience too. Teaching is not the mere manifestation of insight by a ‘king guru’, but its painful emergence (in the teacher no less than the student) under the pressure imposed by our students, to explain our

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views and to comprehend different stories. Insight and reasons, like foolishness and wisdom, are not opposites. On the contrary, they stem from one another, chiselled out of us by the constant demands and interrogations of others; the painful result of provisional reasons and not the transcendence of them. Without the giving of reasons, there would be no insight at all. Justice, similarly, is not a process by which those in authority instruct us, but a process by which, under the pressure of reasons and the demands to justify, they come to learn from us.55 ‘Trial and error’ is not an insult. It is the life and the virtue of the rule of law. 24 Of many examples that one might choose to illustrate these points, the recent debates on torture may not be the first that come to mind. But it seems to me in some ways helpful. The arguments for executive freedom in times of crisis, made within the White House by legal counsel, by Alberto Gonzales the former Attorney General, and by former Vice President Dick Cheney, are perilously close to the New Romantics’ appeal to a rule-free insight.56 Jack Bauer, the fictional counterterrorist agent in the influential television series ‘24’,57 is symptomatic of the instinctive and inspirational leadership which was said to have transcended the rules and shackles of the Geneva Conventions. Over the course of that series, 24’s Bauer, a government agent, engages in well over 100 incidents of torture.58 All of them succeed. Perhaps it only goes to show that the contemporary romantics’ appeal to action as opposed to process is itself indicative of the times, as the original New Romantics were indicative of theirs. At the same time, it was often argued that what was needed to prevent this state of exception was a return to the rule of law and to the rigorous enforcement of absolute prohibitions on torture. I have on occasion argued this way.59 Reflecting on such arguments, however, led me to think harder about the question of a post-positivist rule of law. I now think that what went so wrong in US policy at this juncture was not the absence of some abstract and determined rule, but the loss of twin principles of context and of public explanaiton. Now the ‘literary’ idea of context was, in a way, relied upon by defenders like Gonzales and Cheney who argued that the ‘war on terror’ was precisely a set of radically new circumstances that ‘rendered quaint’ humanitarian principles. But these arguments were mounted with reference to nothing but the most facile of stereotypes, such as the ‘ticking bomb’ scenario, and in terms completely abstracted from real problems and real lives.60 It was the lack of context of these hypotheticals that made them seem persuasive. These myths would never have survived the test of literature. Ironically, perhaps, then, what was needed to respond to exceptional circumstances was a much greater understanding of those circumstances.61 This understanding would not simply have ‘humanised’ the victims of torture, although it is abundantly clear in relation to Abu Ghraib, for example, that this has been a serious failing which has undoubtedly encouraged and legitimated practices of torture and mistreatment.62 It was, you will recall, Lawrence’s

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experience of dehumanisation in the Great War that turned him so decisively against appeals to any ideal or ideological community. Rather, properly imagining the context of torture would soon lead us to appreciate how ineffective torture is in the eliciting of valuable information from suspects. Neither is this the purpose for which torture is normally used. While it was constructed in the pseudo-debate in the United States as a ‘moment of pain’ which ‘saves lives’, the broader context reveals it to be an on-going shadow of threat and fear through which to intimidate and marginalise whole communities.63 Torture is a demonstration of what the State can do to you and what it can get you to do. The effect is to create a generalised fear about the infinite and random power of the State, and an intense sense of vulnerability in victim populations. Accordingly, a literary approach would have explored the long-term effects of torture not merely on the bodies that suffer pain but on their inner lives and on their families and communities. Torture affects whole societies: it terrorises them and ultimately the powerlessness it communicates shifts from passivity to rage.64 This is why the inmates of Guantánamo Bay – according to the Secretary General of Amnesty International, part of the ‘gulag of our times’65 – are proving to be an insoluble problem for the United States and why many fear now that they may never be released. How can they be? Bystanders or warriors initially, they are much greater risks now. These problems would have been quickly appreciated if policy-makers and law professors had developed a richer and more sophisticated understanding of the context in which they were operating. Literature, the imaginative practices, the psychological attentiveness, and the contextual depth it encourages, would have helped to develop that understanding. Similarly, and even more starkly, the whole process of secret memos, secret rendition and secret interrogations manifested a complete abrogation of rule-oflaw principles of explanation, that is, of any discursive accountability for decisions. US Vice President Dick Cheney remarked shortly after 9/11 that ‘one of the things that’s changed so much since September 11 is the extent to which people do trust the government – big shift’. But, as Washington Post reporter Bob Woodward wrote in a prophetic piece at that time, The problem for Bush in the long run, or even the short run, may be managing and balancing trust and secrecy – and credibility . . . At any time the Presidency has a spellbinding power. In crisis and national emergency it can be blinding. The public, even the media, want to trust. Balancing trust and secrecy in the coming period is going to be a giant task.66 Recent testimony before a US congressional committee has evidenced the extent to which Cheney in particular sought to undermine congressional oversight and to circumvent established procedures of holding executive decisions accountable.67 The assertion that government and the executive should simply be trusted to ‘do the right thing’, to act on its free and manifest insight into what was right, was ironically a wholesale destruction of the grounds on which trust might be built.

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Figures in the US government behaved eerily like Jack Bauer, their fictional avatar, who in lieu of explanation constantly urges his subordinates, friends and family, ‘you’re gunna have to trust me’. So, too, Tony Blair in his last years as British prime minister frequently resorted to the conclusion that the course on which he had decided ‘was the right thing to do’, a full stop that enraged many of his own ministerial colleagues and led to frequent accusations that he was undermining traditions of parliamentary accountability. An appeal to blind trust is not an argument or a reason, but an end to arguments and reasons. The doctrine of the executive presidency, or its prime ministerial corollary, reinforces the image of justice as singular, isolated, instinctive and nonnegotiable. It appeals directly to the romantic tradition. At the same time, it removes any idea of justice as emerging through dialogue or discussion, any sense of it as a social activity. The language of sublime trust conjures up the image of a lone vigilante for whom responsibility is a burden but accountability is a curse. If we were to re-imagine the rule of law as a constant dialogue about judgment, we might instead help create a relationship between decision-makers and citizens that could perhaps allow trust to flourish at last. The rejection of that dialogue is a critical breakdown of the rule of law and a destruction of the principle of reciprocity at its heart.68 After 9/11, we do not need a resurgence of positivism or a resurrection of romanticism. We need the trial-and-error, provisional, frail and fragmented, human and fallible, ideas of justice and the rule of law that literature taught Lawrence.

Notes 1 C. Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, Cambridge MA: MIT Press, [1922] 1985, 63. 2 D.H. Lawrence, ‘Edgar Allan Poe’, in Studies in Classic American Literature, The Cambridge Edition of the Works of D.H. Lawrence, ed. E. Greenspan, Lindeth Vasey and John Worthen, Cambridge: Cambridge University Press, [1923] 2003, 66–81 at 76. 3 M. Holquist, ‘Introduction’, in M. Holquist and V. Liapunov (eds), Art and Answerability, trans. V. Liapunov, Austin: University of Texas Press, 1990, ix–xliii at xxxv. 4 J. Joyce, Ulysses, London: Penguin Books, 2000, 933; V. Woolf, To the Lighthouse, ed. D. Bradshaw, Oxford: Oxford University Press, 2006, 211. 5 D.H. Lawrence, Kangaroo, The Cambridge Edition of the Works of D.H. Lawrence, ed. B. Steele, Cambridge: Cambridge University Press, [1923] 2002, 267. 6 In my defence I mention here that ‘Thirroul’ is pronounced with the ‘i’ reduced to an unvoiced ‘e’ sound and the emphasis on the second syllable, making it almost a perfect homonym for ‘the rule’. The difference is only between an aspirated ‘th’ such as we hear in the contraction ‘this’ll’ (hence: ‘the rule’) and an unaspirated ‘th’ such as we hear in the word ‘thistle’ (hence: ‘Thirroul’). 7 M.M. Bakhtin, ‘Discourse in the Novel’, in M. Holquist (ed.), The Dialogic Imagination: Four Essays by M.M. Bakhtin, trans. C. Emerson and M. Holquist, Austin: University of Texas Press, 1981, 259–422 at 268. 8 D.H. Lawrence, Fantasia of the Unconscious [1923], Rockville, MD: Serenity, 2008, 10; D.H. Lawrence, ‘Fantasia of the Unconscious’, in B. Steele (ed.), Psychoanalysis and the Unconscious and Fantasia of the Unconscious, The Cambridge Edition of the Works of D.H.

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9 10 11 12 13 14

15 16 17 18 19 20 21

22

23 24 25 26 27

28

Lawrence, ed. B. Steele, Cambridge: Cambridge University Press, [1922] 2004, 45–204 at 59. A. Badiou and S. Zizek, Five Lessons on Wagner, London: Verso, 2011. A. Ross, ‘Secret Passage’, New Yorker, 25 April 2011. Online. Available HTTP: (accessed 20 July 2011), 85. D.H. Lawrence, Kangaroo, 267–668. D.H. Lawrence, ‘Herman Melville’s Moby Dick’, in Studies in Classic American Literature, New York: Viking Press, [1923] 1964, 133–47 at 146; also in D.H. Lawrence, Selected Literary Criticism, ed. A. Beal, London: Heinemann, 1955, 380. D.H. Lawrence, ‘Morality and the Novel’, in E.D. McDonald (ed.), Phoenix: The Posthumous Papers of D.H. Lawrence, New York: Viking, [1925] 1936, 527–32 at 528. The dispute over the honorary doctorate awarded to Derrida by Cambridge University in 1992 provides a fine example of the enmity his work provoked. See also the notorious obituary published by the New York Times: J. Kandell, ‘Jacques Derrida, Abstruse Theorist, Dies at 74’, New York Times, 10 October 2004. This is, broadly speaking, Nussbaum’s position: M. Nussbaum, Poetic Justice, Boston: Beacon Press, 1995. Harrison v Carswell [1976] 2 S.C.R. 200 [Harrison]. Ibid, per Dickson J at 219. For the sake of brevity, the phrase ‘long accepted legal’ has been added to ‘principle’ in the above quote although in the original it occurs earlier in the sentence. L. Wittgenstein, Philosophical Investigations, 4th edn, trans. G.E.M. Anscombe, P.M.S. Hacker and J. Schulte, West Sussex: Wiley-Blackwell, 2009, 38. Harrison, per Laskin CJ (dissenting) at 208. Ibid at 204; Peters v The Queen (1971), 17 DLR (3rd) 128 [Peters]. R. Berkowitz, The Gift of Science: Leibniz and the Modern Legal Tradition, Cambridge, Mass.: Harvard University Press, 2005, 16. See also the discussion of pharmakon as cure and poison: J. Derrida, ‘Plato’s Pharmacy’, in B. Johnson (ed.), Dissemination, trans. B. Johnson, Chicago: Chicago University Press, 2004, 61–4. D.H. Lawrence, ‘St. Mawr’, in B. Finney (ed.), The Cambridge Edition of the Works of D.H. Lawrence: St. Mawr and Other Stories, Cambridge: Cambridge University Press, [1925] 1987, 19–156; D.H. Lawrence, The Man Who Died, New York: HarperCollins Publishers Inc., [1929] 1995. R. Beardsworth, Derrida and the Political, London: Routledge, 1996; S. Critchley, The Ethics of Deconstruction: Derrida and Levinas, London: Blackwell, 1992. J. Derrida, ‘Afterword: Toward an Ethic of Discussion’, in G. Graff (ed.), Limited Inc., trans. J. Mehlman and S. Weber, Evanston, IL: Northwestern University Press, 1988, 111–60 at 148. Aristotle, Book 5, in R.C. Barlett and S.D. Collins (trans.), Aristotle’s Nicomachean Ethics, Chicago and London: University of Chicago Press, 2011, 90–114 at 112. J. Derrida, ‘Afterword,’ 148. D.H. Lawrence, ‘Edgar Allan Poe’, in Studies in Classic American Literature, The Cambridge Edition of the Works of D.H. Lawrence, ed. E. Greenspan, Lindeth Vasey and John Worthen, Cambridge: Cambridge University Press, [1923] 2003, 66–81 at 76. See A. Nin, D.H. Lawrence, An Unprofessional Study, Denver: Swallow, 1964, 54–5. For the importance of the idea of publicity in understanding both law and literary criticism, and literature’s relations to corrigibility and to the public realm, I am deeply indebted to Paul Yachnin’s many ships, particularly his friendship, scholarship and leadership. See P. Yachnin and B. Wilson (eds), Making Publics in Early Modern Europe: People, Things, Forms of Knowledge, New York: Routledge, 2009; and P. Yachnin and D. Manderson, ‘Shakespeare and Judgment: The Renewal of Law and Literature’, European Legacy 15.2, 2010, 195–213.

176 Kangaroo Courts and the Rule of Law 29 D.H. Lawrence, Kangaroo, 279. 30 D.H. Lawrence, The Rainbow, ed. M. Kinkead-Weekes, Cambridge: Cambridge University Press, 1989, ix, 83. 31 D.H. Lawrence, Kangaroo, 347. 32 J. Derrida, ‘Force of Law: The Mystical Foundation of Authority’, Cardozo Law Review 11.5, 1990, 919–1045 at 961. 33 R. Berkowitz, The Gift of Science, x. 34 W.C. Dimock, Residues of Justice: Literature, Law, Philosophy, Berkeley: University of California Press, 1996, e.g. 10, 95. 35 G. Rose, The Broken Middle, London: Blackwell, 1992. 36 D. Dyzenhaus, Legality and Legitimacy: Carl Schmitt, Hans Kelsen and Hermann Heller in Weimar, Oxford: Oxford University Press, 1997, 123–8, 176. 37 In Dworkin no less than in Hart or in Kelsen: R. Dworkin, Law’s Empire, Boston: Belknap Press, 1986; H.L.A. Hart, Concept of Law, Oxford: Clarendon Press, 1961; H. Kelsen, Pure Theory of Law, trans. M. Knight, Berkeley: University of California Press, [1934] 1978. 38 R. Berkowitz, The Gift of Science, 94–7. 39 C. Schmitt, The Crisis of Parliamentary Democracy, trans. E. Kennedy, Cambridge, MA: MIT Press, [1923] 1988. 40 D. Levdet, ‘Pluralism and the Crisis of Liberal Democracy’, in D. Dyzenhaus (ed.), Law as Politics, Durham: Duke, 1998, 109–21, e.g. at 121. 41 C. Schmitt, Political Theology, 59. 42 Discussed in D. Dyzenhaus, Legality and Legitimacy, 41–5; C. Schmitt, Political Romanticism, trans. G. Oakes, London: Transaction Publishers, [1919] 2011, 17. 43 C. Schmitt, Political Romanticism, 19. 44 The importance of the State and of a homogeneous society, and Schmitt’s consequent hostility to liberal pluralism, became increasingly clear in his writing: C. Schmitt, The Concept of the Political, trans. G. Schwab, Chicago: University of Chicago Press, [1927] 1996; and see D. Dyzenhaus, Legality and Legitimacy. 45 R. Cover, ‘The Supreme Court: 1982 Term: Foreword: Nomos and Narrative’, Harvard Law Review 97.1, 1983, 4–68. 46 R.G. Teitel, Transitional Justice, Oxford: Oxford University Press, 2000; M. Krygier and A. Czarnota (eds), The Rule of Law After Communism: Problems and Prospects in East-Central Europe, Dartmouth: Ashgate, 1999; A. Czarnota, M. Krygier and W. Sadurski (eds), Rethinking the Rule of Law After Communism, Budapest: Central European University Press, 30 December 2005; M. Krygier, ‘The Rule of Law: Legality, Teleology, Sociology’, UNSW Faculty of Law Research Series 65, 2007. Available HTTP: (accessed 5 July 2011). 47 D.H. Lawrence, Kangaroo, 11. 48 See EntertainmentOnABC (2008) ‘Cooee Championship’. Online. Available video: (accessed 31 March 2011). 49 For a highly sophisticated analysis of the civilian tradition and practices in the Quebec context, see J. Brierley and R. Macdonald (eds), Quebec Civil Law: An Introduction to Quebec Private Law, Toronto: Emond Montgomery, 1993. 50 R. Berkowitz, The Gift of Science, 24, 29, 51. 51 Ibid, 156. 52 Ibid, 51, 52. 53 Ibid, xvi. 54 T. Wolff, Old School, New York: Vintage, 2003, 181–2. Berkowitz’s own vision of teaching seems dramatically different: see 159–60. 55 B. Gibbs, ‘The Other Comes to Teach Me: A Review of Recent Levinas Publications’, Man and World 24, 1991, 219–33.

Thirroul of Law 177 56 K.J. Greenberg, J.L. Dratel and A. Lewis (eds), The Torture Papers: The Road to Abu Graib, Cambridge: Cambridge University Press, 2005. 57 See D. Manderson, ‘Trust Us Justice: 24 and the Law’, in A. Sarat (ed.), Imagining Legality: Where Law Meets Popular Culture, Mobile: University of Alabama Press, 2011. Online. Available HTTP: (accessed 14 July 2011). 58 Parents’ Television Council, quoted in J. Mayer, ‘Letter from Hollywood: Whatever It Takes’, New Yorker, 19 February 2007. Online. Available HTTP: (accessed 5 July 2011). 59 D. Manderson, ‘Another Modest Proposal: In Defence of the Prohibition Against Torture’, in M. Gani et al. (eds), Fresh Perspectives on the ‘War on Terror’, Canberra: ANU Press, 2008, 27–43. 60 M. Bagaric and J. Clarke, ‘Not Enough Official Torture in the World? The Circumstances in which Torture is Morally Justifiable’, University San Francisco Law Review 39.3, 2005, 581–616. 61 See P. Yachnin and D. Manderson, ‘Shakespeare and Judgment: The Renewal of Law and Literature’, European Legacy 15.2, 2010, 195–213, which discusses literary and legal notions of the relevance of context to evidential inquiries into truth and character. 62 K.J. Greenberg and J.L. Dratel (eds), The Torture Papers; E. Scarry, The Body in Pain: The Making and Unmaking of the World, Oxford: Oxford University Press, 1987. 63 See e.g. J. Conroy, Unspeakable Acts, Ordinary People: The Dynamics of Torture, Berkeley: University of California Press, 2001. 64 J. Mayer, ‘Letter from Hollywood: Whatever It Takes’. See also Human Rights Watch Reports for 2005, particularly in relation to Egypt; and S. Grey, ‘America’s Gulag’, New Statesman, 17 May 2004. Online. Available HTTP: (accessed 5 July 2011). 65 New York Times, 26 May 2005; D. Cole, ‘What to Do About Guantanamo’, The New York Review of Books LVII.15, 14 October 2010, 48–50. 66 B. Woodward, ‘Credibility Fails if Trust, Secrecy, Out of Balance’, The Ledger, 28 October 2001 (reproduced from Washington Post). 67 L. Panetta, quoted in P. Benson, Senator: Cheney and Alleged Secret CIA Program ‘a problem’, CNN Politics, 2009. Online. Available HTTP: (accessed 8 July 2011). 68 C. Stewart, ‘The Rule of Law and the Tinkerbell Effect’, Macquarie Law Journal 4, 2004, 135–64 at 135–7; C. Murphy, ‘Lon Fuller and the Moral Value of the Rule of Law’, Law and Philosophy 24, 2005, 239–62.

Chapter 10

Littoral Readings

When a writer calls his work a Romance, it need hardly be observed that he wishes to claim a certain latitude, both as to its fashion and material, which he would not have felt himself entitled to assume had he professed to be writing a Novel. The latter form of composition is presumed to aim at a very minute fidelity, not merely to the possible, but to the probable and ordinary course of man’s experience. The former – while, as a work of art, it must rigidly subject itself to laws, and while it sins unpardonably so far as it may swerve aside from the truth of the human heart – has fairly a right to present that truth under circumstances, to a great extent, of the writer’s own choosing or creation.1 – Nathaniel Hawthorne, The House of the Seven Gables

On the road Here is my final road map. For positivists, the rule of law is completed by the simple application of the words of the law. That is its limited presence in law. For romantics, this limit or curtailment is exactly what has gone wrong in our thinking about law. Justice has been lost but can be restored if we abandon the rule of law in favour of singular judgments based on natural insight. That is its unlimited absence in law.2 Tamanaha and Berkowitz, and behind them Kelsen and Schmitt, stand most recently for these two positions and, oddly enough, each blame the other for the corruption and instrumentalisation of law. Indeed, in some of the work in the field of law and literature, the positions start oddly to blend, a positivist and literal approach to literature serving as the supplement by which the romantic project for law can finally be realised. Yet for Lawrence and the relationship between law and literature he forges, justice is neither happilly present nor tragically lost. Instead, it is a kind of lack, a shout of coo-ee in the bush. Against positivists’ assertion of law’s perfection and the romantics’ of its perfectability – the former a claim of purity centred on the past3 and the second a dream of it focused on the future – the approach to law and literature I have been advocating is deeply bound up in our present imperfection, our fragmentation and the imperfection and fragmentation of justice with us. My invitation has been for us to learn to accept and build on these qualities of the human condition, with which modernism was so absorbed, rather than to fear or

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deny them. Indeed, an awareness that lack lies at the heart of the human condition implies an abiding humility about our human capacities with specific relevance to the claims that institutions might make about their truth and certainty and authority. The novel in particular seems in the course of the twentieth century to have striven to achieve more understanding not by maintaining its closure, determinacy or authority – but by undermining it. That is a wisdom that the rule of law might do well to emulate. Modernism’s vision of opposites and opposition, polarity, fragmentation, and ambivalence, subjectivity and exile is a blessing in disguise. As against modernity’s effort to separate the rule of law and justice (or to subsume the latter within the former), and the counter-effort to fuse both of them in the name of politics or community, the individual psychology which is at the heart of the literary method preserves the relationship between the former pair and distinguishes it from the latter. This, as I have previously noted, points to the failure of Lawrence’s political project but the success of a jurisprudential one.4 The novel embodies a commitment, says Lawrence, to narrative, in form and style, built on the powerful accumulation of the psychological detail, experience and change of its characters. The novel’s attention to the narrative movement not just of world forces but of inner lives distinguishes it from history, philosophy, politics and myth. By these means, it teases out the inadequacy of our abstractions and the relativity of our principles, leading us to a new awareness and responsiveness to circumstances. These features undermine the hegemonic reason of positivism and the hegemonic unreason of romanticism alike. Instead, they instil a respect for reasons in the plural and for a rule of law that is kept alive by polarity and narrative in a backwards-and-forwards movement of constant correction, dialogue and metamorphosis. This movement, as I have discussed, cannot ever resolve the opposition between general rules and specific circumstances or between narrative’s attention to uniqueness and difference and the public demand for an articulated and defensible interpretation of existing principles. Instead, both sides remain always in play. The imperfectability of justice turns the rule of law into an endless process of reassessment and learning. The field of law and literature alone really tries to hang on to both sides – the universal and the singular, the ideal and the real.5 It has been the argument of this book that we should pursue this admirable goal not by attempting to reconcile or accommodate, prioritise, harmonise, synthesise or balance the two but by cherishing the charge of opposition that runs between them. This brings out a further feature which binds justice to literature – the social and on-going character of them both. The irreducible tension of polarity or contradiction which this ‘difference engine’6 sets up in literature – and in our lives – generates a public process of call and answer, in which our opinions are constantly amended and tested against the challenge of other voices. It transforms both justice and literature into imperfect, discursive practices at any moment and over time. The rule of law, thus re-imagined, has at least three salient features. First, the rule of law is not the outcome of a foundation, but a process of continually putting

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them in question. Secondly, the rule of law is governed by reasons rather than a singular or categorical reason. Thirdly, the rule of law does not present commandments that are handed down to us, but a discourse by which the law learns from us, paying attention to new circumstances and individual lives. Such a literary approach to justice does not reach for a unity, real or imagined, but a polarity – the polyphonic discourse of restless calls and answers. Like all discourses, as we have seen, it does not advance certainty, but enshrines uncertainty: and a good thing too. Justice is like the rest of us; its frailty is its strength. My emphasis in this book on Lawrence’s historical context, and the novel as a particular affective structure with certain distinctive features, was intended to respond to what I identified as the dual problems of law and literature: the problem of legitimacy and the problem of substance. In order to flesh out this argument, I have related Lawrence not only to his own time and his work, but to the interplay with other central – and, within the field of law and literature, still underappreciated – theorists of literature and philosophy. My discussions of Bakhtin have helped to enrich, clarify and more fully theorise Lawrence’s ideas. For Bakhtin, ‘the dialogic imagination’ – the doubleness of interpretation and the polyphony of discourse – lies at the heart of the ethics of literature, and of ethics full stop. Taking these features seriously does not mean treating other perspectives or contexts as carriers of the truth of their experiences or as ways to ‘top up’ our knowledge. Instead, Bakhtin points to the partiality of understanding and the ways in which all meaning is inter-subjective.7 Derrida’s writings on law and literature, on the contrary, while they are not under-appreciated are sometimes misread. The idea of polarity that I have drawn from Lawrence’s work has helped me illuminate what is meant by the ‘deconstruction’ of justice and to clarify how it differs not only from mainstream legal theory, but also from the transcendentalist or romantic trends of contemporary work with which it is sometimes lumped. Taken together, we begin to see the outlines of a theory in which literature has something vital to contribute to law not because of what it says, in one novel or another (though of course this is not without interest), but because its structural, formal, stylistic and ethical commitments constitute not opinions or facts about the world but a desire in relation to it.8 These commitments embody not merely a noun, but a verb of justice – a practice, indeed an affective orientation, that is unstable, narrative, collective, polyphonic, recursive and accountable. Lawrence developed these arguments in the astonishing vein of non-fictional writing that he opened in and around 1922. He accomplished important work at this time on the nature of the novel, psychology and the subconscious, and celebrated essays on American literature. Kangaroo was the flawed masterpiece in which Lawrence attempted to distil all his thinking around all these questions. In many eyes, Lawrence is still the poster-boy for the New Romantics’ antipathy to the ‘mechanical civilization’9 of the modern world. It is imperative to fully appreciate the problems that modernity posed. This, clearly, Lawrence did, and in the course of this book I have often drawn on the work of Carl Schmitt to demonstrate the shape these problems took in the field of legal theory. Lawrence

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himself came to think very differently, at least in Kangaroo – to resist the siren song of the absolute and to celebrate the very elements of the novel that Schmitt dismissed as conversational prattle. A closer reading of his novel, at least, shows us why. Lawrence is too influenced by the time in which he lived, and too committed to literature, to be satisfied with a new idealism to replace the old machinery. ‘Why, Mr. Somers!’ laughed Jaz, ‘seems to me you just go round the world looking for things you’re not going to give in to. You’re as bad as we folk.’ ... ‘The enemy of civilization? Well, I’m the enemy of this machine-civilization and this ideal civilization. But I’m not the enemy of the deep, self-responsible consciousness in man, which is what I mean by civilization.’10 What Lawrence means by civilisation, a ‘deep self-responsible consciousness’, is not only articulated in Kangaroo, it is given form and language and poetry there. Actually, the form and language and poetry gave birth to it, and the novel is 500 pages of labour-pains. Kangaroo performs both the transformative contradictions of polarity and the transformative narrative of literature. In that sense it is a model, both in theory and in practice, for what it means to ‘do’ law and literature. For in Lawrence we see, as if the page were alive, how literature works not to lay down the law, but to test, shatter and transform it. In the pages of Kangaroo, Lawrence never attempts to deny or to heal the deep contradictions that lie at the very heart of our lived experience. Of course living with uncertainty is uncomfortable; thereby we experience justice not as a manifest knowledge of what is right and fitting, but as the energised field of doubt that requires justification in human terms and in which such justification is always inadequate, always subject to reconsideration. Yet in Kangaroo Lawrence does a remarkable job in showing us that Richard Somers’ discomfort, as frustrated as it makes him feel, is life as it is lived. Really, it was his frustration that he needed to address and not his discomfort. Richard Somers begins the novel as a man who experiences loss, ‘struggling with the problem of himself, and calling it Australia’,11 and the loss makes him angry because it implies deprivation and tends towards blame. But his yearning for a totalitarian perfection – be it personal, marital12 or social – seductive as he finds it, cannot lead him to glory, but to death. Kangaroo records the internal struggle of a man with his own demons, written at a time when those same demons circled like vultures over all of Europe. That is its method, its form and its point. By the end of the novel, Richard Somers has come to recognise not a loss, but a lack, and that recognition is the beginning of wisdom. The beauty of a fragmentary self (one might almost say, in Lacanian terms, a split subject) is that we are porous vessels and, being porous, capable of being touched by others. Others enter our lives through the crazed surface of our clay.13 They change us and they drive us on.

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It is not impossible to understand the rule of law in similar terms. Against the thrall of science and the call of nature, Lawrence offers a tenuous ‘Thirroul of law’ based on his experiences of literature – not a way around, or a way back, but a way in and on. The Great War was the event that prevented Lawrence from going back; Australia, as it happened, was the place that allowed him to go on; and 1922, for Lawrence as for so many other artists and thinkers, was the time.14

On the beach In Kangaroo, Lawrence returns again and again to images of the coastline, as would anyone who has ever lived in a place like Thirroul. As we have seen, the movement of the waves is the very image of polarity, of flux and indissociable opposition. But the idea of the shoreline is perhaps more broadly suggestive too. The littoral, to give it its proper name, is that slim margin where the distinctions between sea and land break down, and where diverse forms of life jockey and interact. It is an ecology of the interdisciplinary: dynamic, imaginative, fertile. A ‘littoral reading’ is interested in margins and contexts, in fertile jurisgenesis and fluid responsiveness. Purity is the enemy of the littoral. On life’s rich and diverse edges, the borderlands where we live, the dry land of positivist certainty and the oceanic vastness of romantic idealism are equally distant. Modernism saw steadily the perils of twilight and muddledom, but also taught us, at least at times, to love the mucky and the marshy. It showed us how to get our feet wet while keeping our balance. It is a puzzle to me why many theorists, positivists and romantics, of law, jurisprudence and of literature too, still try to clamber onto higher ground. To be brief, there was a Harriett, a Kangaroo, a Jack and a Jaz and a Vicky, let alone a number of mere Australians . . . But you know that Harriett is brushing her hair in the sun, and Kangaroo looking at huge sums of money on paper, and Jack fishing, and Vicky flirting and Jaz bargaining, so what more do you want to know?15 Life is lived on the shoreline and at the margins, with all its tiny and fractured pleasures and pains, tugging at us every which way. Literature, like the littoral, takes the smallness, the inadequacy, and the hopeless perversity of each of us, without waxing nostalgic for a time when gods and heroes roamed the earth. It makes of it something that can be truly seen, not out of despair, but out of love. At the end of Kangaroo and as if to insist that you can’t go back and you can’t go around, a storm destroys the beach below ‘Coo-ee’ just as Richard Somers and Harriett prepare to leave Australia. Richard tried to walk under the cliffs. But the whole shore was ruined, changed: a whole mass of new rocks, a chaos of heaped boulders, a gurgle of rushing, clayey water, and heaps of collapsed earth.

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On the fourth day the wind had sunk, the rain was only thin, the dark sky was breaking. Gradually the storm of the sky went down. But not the sea. Its great yellow fore-fringe was a snarl of wave after wave, unceasing. And the shore was a ruin . . . The fresh-water met the waves with a snarl, and sometimes pushed on into the sea, sometimes was shoved back and heaped up with a rattle of angry protest. Waters against waters . . . The beach never recovered, during the Somers’ stay, the river never subsided into the sand, the sandy foreshore never came back.16 The littoral is figured then at the end of Kangaroo not as a place of essences but of indeterminacy and even of shattering change. ‘The spirit of place’17 is one of those Lawrentian phrases that are typically treated as a kind of fanciful mystification. But as we can see from the above quote, Lawrence does not understand place in any reductionist sense. Places are constitutive of the self, but many places make many selves, and even places change. The beach at Thirroul was just another one of those elements of contingency and fracture that constantly rework and transform one; another one of the ways in which the novel’s methodological commitment to relativity and to discovery comes to the fore. So they sail away. Everybody had bought streamers, rolls of coloured paper ribbon, and now the passengers leaning over the rail of the lower and middle decks tossed the unwinding rolls to their friends below. So this was the last tie, this ribbon of coloured paper . . . He felt a deep pang in his heart, leaving Australia, that strange country that a man might love so hopelessly. He felt another heartstring going to break like the streamers, leaving Australia, leaving his own British connection . . . The last streamers blowing away like broken attachments, broken.18 Yet even here the plurality of the text, as provisional as the littoral, asserts itself; there are no less than three extant endings to the novel.19 In the first English edition Richard and Harriett are granted one last glimpse of Thirroul. Harriett watched the two seamen casting rubbish overboard: such a funny assortment of rubbish. The iron sank in the deep, dark water, the wood and straw and cardboard drearily floated. Lovatt watched till he could see the dark of the mountain, far away, behind Coo-ee. He was almost sure of the shape. He thought of the empty house – the sunny grass in front – the sunny foreshore with its new rocks – the township behind, the dark tor, the bush, the Australian spring. The sea seemed dark and cold and inhospitable. It was only four days to New Zealand, over a cold, dark, inhospitable sea.20 Lawrence’s conclusion here, which is by no means an ending, brings home our poor, tender, human fragility. We float perilously on the meniscus of this world,

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transcendence dark – the word peals repeatedly like a tocsin – and unfathomably far above and below us. Lawrence’s book, born of his own past and stirred up by the intellectual ferment of 1922, seems to have generated in him a glimmer of the human possibilities, within that encompassing dark, for the fractured and fractious relationship between literature and justice which I have called ‘Thirroul of law’.

Figure 10.1 Arthur Streeton, From my camp (Sirius Cove)21

Littoral Readings 185

Lawrence’s idea of Australia as ‘sprinkled on the surface of a darkness into which it never penetrated’,22 and the ancient other-worldliness of its landscape to the white settlers, stimulated him to rethink politics and justice. Not as a romantic quest for the natural and the innate – since the natural had itself become problematised, indeed at times rather threatening, for him in the antipodes – but as a human and provisional enterprise, and the Gods of the oily bush and the brimy ocean well out of it. One hundred years later the questions have not gone away. One can hear the possibilities of a littoral reading, in the tender and unceasing oscillation of the waves, as they hiss and recede; and in the call and answer of the unceasing friction between persons. What, after all, are the antipodes but a geographical-mythological expression of polarity, of the anti-podes, the ‘other pole’ or diametrical opposite of the old world?23 Polarity, deconstruction and antipodes all gesture to the same modernist possibility which beckons to us still.

Notes 1 N. Hawthorne, ‘Preface by the Author’, in C.B. Johnson (ed.), The House of the Seven Gables, New York: Pocket Books, 2007, 3–6. 2 M. Constable, Just Silences: The Limits and Possibilities of Modern Law, Princeton, NJ: Princeton University Press, 2007. 3 H. Kelsen, Pure Theory of Law, trans. M. Knight, Berkeley, CA: University of California Press, [1934] 1978. 4 M. Wilding, ‘“A New Show”: The Politics of Kangaroo’, Southerly 30.1, 1969, 20–40, e.g. at 39. 5 J. Derrida, ‘Before the Law’, in J. Derrida, Acts of Literature, ed. D. Attridge, New York: Routledge, 1992, 181–220 at 213: ‘The man from the country had difficulty in grasping that an entrance was singular or unique when it should have been universal, which in truth it was. He had difficulty with literature’. See also J. Derrida, ‘The Law of Genre’, in J. Derrida, Acts of Literature, ed. D. Attridge, New York: Routledge, 1992, 221–52. 6 For me, Virginia Woolf’s To the Lighthouse most perfectly exemplifies just why this attention to inner lives operates as a ‘difference engine’, a generator of polarity and contradiction; V. Woolf, To the Lighthouse, ed. D. Bradshaw, Oxford: Oxford University Press, [1927] 2006. 7 M.M. Bakhtin, ‘Author and Hero in Aesthetic Activity’, in M. Holquist and V. Liapunov (eds), Art and Answerability, trans. V. Lipunov, Austin: University of Texas Press, 1990, 4–256, esp 89–103. 8 S. Sontag, ‘On Style’, in Against Interpretation and Other Essays, New York: Picador, 2001, 15–36 at 21. 9 See L. Mumford, Technics and Civilization, New York: Harcourt Brace, 1934, 12. See also M.M. Brunsdale, The German Effect on D.H. Lawrence and His Works 1885–1912, Berne and Frankfort: Peter Lang, 1978. 10 D.H. Lawrence, Kangaroo, 348. 11 Ibid, 28. 12 The relationship between Richard and Harriett is yet another level in which the movement and resistance of the book is carried out. Without going into detail, here again we see that the ‘moral’ which Lawrence advocates – the ‘good ship Harriett and Lovatt’ tranquilly united under his mastery and her devotion – is constantly belied by the ‘tale’ of their conflict and resistance: e.g. D.H. Lawrence, ‘Chapter IX: Harriett and Lovatt at Sea in Marriage’, in Kangaroo, 169–76.

186 Kangaroo Courts and the Rule of Law 13 Clearly, this argument has a Levinasian dimension: see E. Levinas, Totality and Infinity, trans. A. Lingis, The Hague: Martinus Nijhoff, 1969; E. Levinas, Otherwise Than Being, or Beyond Essence, trans. A. Lingis, The Hague: Martinus Nijhoff, 1981; D. Manderson (ed.), Essays on Levinas and Law: A Mosaic, Hampshire: Palgrave Macmillan, 2009; D. Manderson, Proximity, Levinas, and the Soul of Law, Montreal and Kingston: McGillQueens University Press, 2006. 14 J. Davis, Lawrence at Thirroul, Sydney: Collins, 1989, 188–98. 15 D.H. Lawrence, Kangaroo, The Cambridge Edition of the Works of D.H. Lawrence, ed. B. Steele, Cambridge: Cambridge University Press, [1923] 2002, 284. 16 D.H. Lawrence, Kangaroo, 352–3. 17 D.H. Lawrence, ‘The Spirit of Place’, in Studies in Classic American Literature, The Cambridge Edition of the Works of D.H. Lawrence, ed. E. Greenspan, Lindeth Vasey and John Worthen, Cambridge: Cambridge University Press, [1923] 2003, 13–20; R. Aldington (ed.), The Spirit of Place: An Anthology Compiled From the Prose of D.H. Lawrence, London: Heinemann, 1935. 18 D.H. Lawrence, Kangaroo, 357–8. 19 B. Steele, ‘Introduction’, in D.H. Lawrence, Kangaroo, The Cambridge Edition of the Works of D.H. Lawrence, ed. B. Steele, Cambridge: Cambridge University Press, [1923] 2002, xvii–lvi at xliii–xlviii; and Appendix II. 20 See Kangaroo, 476 and Appendix II. 21 Arthur Streeton, From my camp (Sirius Cove), oil on plywood, 28 3 21.5 cm, 1896. Art Gallery of New South Wales, bequest of Mrs Elizabeth Finley 1979. Image and permission to reproduce from the Art Gallery of New South Wales gratefully acknowledged. 22 D.H. Lawrence, Kangaroo, 13. 23 Derrida in fact uses the word ‘antipodes’ in this way: J. Derrida, The Beast and the Sovereign, Volume I: The Seminars of Jacques Derrida, ed. G. Bennington, Chicago, University of Chicago Press, 2009, 17.

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Index

1922 5, 25–46, 180–82 24 172–74 9/11 2, 75, 140, 172–74

Buber, Martin 158 Bulletin 54, 101 Burden, Robert 101

Abrams, Meyer Howard 17, 34–5, 90 Abu Ghraib 173 Adorno, Theodor 143 Agamben, Giorgio 75, 119, 140 Aldington, Richard 114 ambivalence, see Freud and see polarity, modernism and Amnesty International 173 Aristotle 72 Auden, Wystan Hugh 18, 77, 140 Austen, Jane 123 Australia: landscape 98–100, 120, 183–85; society and politics 55–56, 60, 62–64

Cervantes, Miguel de 93–94 Cezanne, Paul 104 Cheney, Dick 140, 172–73 Code Civil 171 Coleridge, Samuel 6, 30, 35, 90, 134, 136; see also polarity Collingwood, Robin 5, 29, 36, 142, 150, 152 Constable, Marianne 39 coo-ee 169–72; see also Lawrence, D.H., polarity and Cormack, Bradin 18 Cornell, Drucilla 152 Cornwall 114–16 Cover, Robert 168 Critchley, Simon 7 critical legal studies, see romanticism

Baden-Powell, Lord Robert 61 Bakhtin, Mikhail: 3, 91–92, 93, 152; dialogism and the novel 16–17, 19–20, 92–96, 112–14, 122, 124–27, 138–39, 143–44, 152, 158–60, 160–63, 166–69, 180–81; ethics and the novel 13–14, 92–96, 101–3, 144, 150–51 Balkin, Jack 150 Bauer, Jack 172–74 Beardsworth, Richard 7 Beckett, Samuel 123 Bell, Michael 56–57 Benjamin, Walter 25, 81, 144–47, 152 Bergson, Henri 26 Berkowitz, Roger 36–7, 69, 78–82, 85, 91, 104, 134, 171–72, 178 Blackmun, Justice Harry 149 Blackstone, William 19 Blair, Tony 174 Bronte, Emily 14

Darroch, Robert 62–63 David, Gerard ix, 39–40 Davis, Jane 53 deconstruction 105–6, 135, 147–52, 162, 164–67, 180; see also rule of law, deconstruction and Defoe, Daniel 122 Derrida, Jacques 2–3, 5–6, 17, 38, 75–78, 81, 127, 134, 144, 147–52, 166, 168, 180; see also deconstruction dialogic imagination, see Bakhtin Dicey, Albert Venn 71 Dickens, Charles 11, 14, 30, 95, 123 Diederichs, Eugen 41, 60 Dimock, Wai Chee 19, 127 Dix, Otto ix, 30–2, 114, 124

208 Index Dixon, Sir Owen 69–70, 76 Dostoevsky, Fyodr 93, 95, 121; see also Bakhtin Douglas, Mary 11 Doyle, Sir Arthur Conan 29 Dworkin, Ronald 70 Dyzenhaus, David 73, 167 Eco, Umberto 38 Eliot, George 123, 125 Eliot, Thomas Stearns 25, 28, 30, 54, 57, 81, 104 emergency 44–5, 75, 140, 172–73; see also Agamben, Giorgio and Schmitt, Carl exception, state of, see emergency Expressionism 30, 41, 44, 120 Felman, Shoshana 127 Fernihough, Anne 106 Fielding, Henry 122 Fischer, Karl 61 Forster, Edward Morgan 11, 14, 29, 123, 151–52 Freud, Sigmund 26, 102, 120–21, 137–38, 143, 149, 152 Freyer, Hans 52 Friedrich, Caspar David 31, 35 Fuller, Lon 72, 77, 83 Fussell, Paul 27 Galsworthy, John 12 Garnett, Edward 102 Gaskell, Elizabeth 123 Geneva Conventions 172 Gonzales, Alberto 172 Great War (1914–18) 3, 5–6, 25, 27–32, 56, 58–59, 63–64, 81, 83, 100, 112–18, 150, 158; see also Lawrence, D.H., Great War and Gregory, Alyse 119–20 Grosz, George 30 Guantánamo Bay 173 Harrison v Carswell 162–64, 167 Hart, H.L.A. 69, 73, 77 Hayek, Friedrich 71 Hegel, G.W.F. 17, 126–28, 142 Heidegger, Martin 2–3, 5, 52, 57, 58, 77–80, 91, 104, 141, 143, 150, 158 Hemingway, Ernest 28 Heraclitus 6, 136–37 heteroglossia see Bakhtin

Hobbes, Thomas 2, 43, 147 Hobsbawm, Eric 118 Horkheimer, Max 142 Huxley, Aldous 57 insight, law and 80, 103–4, 171–73 Jacob, Robert 39 Jameson, Fredric 123 Johnson, Barbara 150 Joyce, James 17, 25, 30, 57, 96, 114, 123, 158 Jung, Carl 120–21, 137 Jünger, Ernst 52 Kafka, Franz 11, 16–17 Kangaroo, see Lawrence, D.H. Kant, Immanuel 19, 35 Kelsen, Hans 25, 43, 45, 68, 73, 144, 147, 167, 178 Kermode, Frank 53, 55 King and Empire Alliance 62–64 Kundera, Milan 58, 93, 112, 126 Lacan, Jacques 129, 181 Lacey, Nicola 15 Lagarde, Paul de 41 Langbehn, Julius 41 Langille, Brian 77 law and literature: 4–5, 7, 9–21, 179–83, see also novel and see also Bakhtin; mimesis and 10–15; narrative and 160–63, 179; romanticism and 17–20, 77–78; style and 9–10, 15–17, 20, 100–103 Lawrence, David Herbert: ix, 3–6, 12, 14, 16, 25, 52–54, 80, 158, 178–85; essays on the novel and 56, 92–96, 100–107, 119–29, 160–61, 164–72; Great War and 100, 112–19, 158, 181–82; metaphors of sea in 1, 98–99, 141–42, 165, 169, 182–85; polarity and 134–42, 149, 164–72; psychoanalysis and 4, 57, 119–24, 127; romanticism, modernism and 33–4, 52–54, 80, 90–92, 103–7, 134–42; rule of law and 158–74, 178–82; Aaron’s Rod 53, 90; The Crown 137; Democracy 60, 140; Fantasia of the Unconscious and Psychology of the Unconscious 57, 120–22, 137–38, 160–61, 165–66; Kangaroo: 1, 5–6, 20–1, 33–4, 46, 52–64, 178–84; characters in: Ben Cooley (‘Kangaroo’) 58–59, 61–64,

Index 209 96–97, 99, 114, 117–19, 126, ‘Diggers’ 58, 60, 91, 96–97, 102, 115, 123, 140, Harriett 97, 103, 125–26, 128–29, 138–39, 169–70, 183, Jack Callcott 59, 61, 119, 124, Jaz 96–97, 181, Richard Somers 58–62, 91, 96–100, 102–3, 115–19, 125, 138–40, 161, 165, 169–70, 181–83, Victoria, 128–29, Willy Struthers 61–63, 97, 118; context of 113–19; historical background to 62–64; polarity in 138–42, 166, 169–72; polyphony in 124–26; psychology and 120–24; reception of 53–58; story and themes 58–62; textual analysis 96–103; Phoenix 52–53, 57; Plumed Serpent 53, 61, 90, 104, 107, 135; Rainbow 33–4, 90, 93, 115, 120, 137, 166; Sons and Lovers 100, 123; Studies in Classic American Literature 57, 138, 180; Twilight in Italy 137; Women in Love 34, 90, 100, 128, 138 Lawrence, Frieda 1, 97, 114–15, 170 Leavis, Frank Raymond 53, 57 legal realists 82–84 Leibniz, Gottfried 36–7, 78 Levinas, Emmanuel 38, 78, 94, 150, 158 Llewellyn, Karl 83–85 Mann, Klaus 33 Melville, Herman 18, 162 modernism: 5–6, 9–10, 20–1, 26–34, 146–47, 159, 178–82; language and 103–7; law and 36–7, 68–69, 81, 181–82; polarity and 150–52; reactionary modernism see romanticism modernity, crisis of 3, 26–34; see also modernism Mohr, Richard 39 Monash, General Sir John 63 Mortimer, Raymond 55 Mosse, George 41 Munch, Edvard 30 Murphy, Colleen 72 Mussolini, Benito 52, 56 narrative 125, 160–63, 179, 181; see also novel, narrativity and nature, law and 80, 104–5, 134 Nazism 45–6, 58, 61–62, 141, 144 New Delhi Declaration 70 New Romantics 40–2, 58, 60–61, 73, 81, 83, 90–92, 97, 100, 103–4, 134–35, 160, 172; see also romanticism

Nietzsche, Friedrich 5, 30, 33, 35, 53, 57–58, 81, 120–21, 143, 161 Nin, Anaïs 60, 62, 120, 128 Nonet, Philippe 77–81 Norris, Christopher 104 novel: characteristics of 112–29, 179–83; irony and 17, 19–20, 126–29; narrativity and 160–63; psychology and 120–24, 160; public discourse and 165–69; see also Bakhtin and see also law and literature Nussbaum, Martha 12–16, 160 Ortega y Gasset, José 143 Orwell, George 28 Owen, Wilfred 27 phoenix 26, 52–53, 57, 81, 145 Plato 9 polarity: 6–7, 134–52, 158–59, 180–82, 185; deconstruction and 148–52, 180, 185; definition 136–38; law and 163–69, 180–82; in Lawrence 138–42, 144, 159, 161, 165, 169–70; modernism and 142–44, 150–52; see also rule of law, polarity and polyphony or polyglossia see Bakhtin Posner, Richard, 11–12 Pound, Ezra 28, 52, 141 Rabelais, Francois 93, 95, 113; see also Bakhtin Ravel, Maurice 32–3 Raz, Joseph 68, 71, 83 Remarque, Erich Maria 25, 27 responsibility 38, 148–49, 165–67, 171–72 Rimbaud, Arthur 26–7 romanticism: 3, 5–6, 9, 17–20, 34–5, 90–91, 100, 134–35; Christological tradition and 37–41, 44, 74, 90; critical legal studies and 77–78, 82, 150; language and 103–5; law and 41–6, 68–69, 73, 77–78, 172–74; see also New Romantics Rose, Gillian 150 Rosenthal, Sir Charles 62–64 Ross, Robert 63 rule of law: 1–2, 70–85, 158–74; comparative conceptions of 150–52, 169–72, 178–81; critique of 2, 73–77 see also Schmitt, Carl, critique

210 Index of the rule of law; deconstruction or post-modernism and 7, 75–77, 82–83, 147–51, 164–67, 180; dialogue, learning and 167–72; modernism and 2, 6–7, 85, 158–74, 178–80; narrative and 160–63, 179–80; polarity and 163–69, 178–82 see also polarity; positivism and 2, 36–7, 69–72, 81, 82–85; publicity and 165–67; romanticism and 36–7, 41–6, 78–82; uncertainty and 2, 7, 71–72, 82–85, 165–72 Ruskin, John 142 Russell, Bertrand 54, 57, 119 Sartre, Jean-Paul 93, 158 Schelling, Friedrich 136 Scheuerman, William 69, 84–85 Schmitt, Carl: 5, 68, 83–85, 123, 150, 178, 181; Benjamin, sovereignty and 144–47; conversation’ and 167–69; critique of the rule of law 26, 41–6, 68–69, 73–75, 77; irony and 17–20, 126–28, 150; Nazism and 45–6, 75, 141; romanticism of 41–6; Concept of the Political 74, 123; The Dictator 25, 43, 73–74; Law and Judgment 74, 76; Political Romanticism 17–9, 35, 38, 41–5, 168; Political Theology 25–6, 43–5, 68, 73–74, 145–47, 158, 168 Schoenberg, Arnold 26 Schrodinger 143, 152 sea, see Lawrence, metaphors of sea in Shakespeare, William 19 Shead, Garry ix, 4, 59, 141 Simmel, George 5, 29, 36 Sontag, Susan 9, 15–16, 106 sovereignty 144–49 Spengler, Oswald 52 Spilka, Mark 53 Stalinism 152 Steele, Bruce 97

Strauss, Leo 35, 52, 57 Stravinsky, Igor 26, 52 Streeton, Arthur ix, 184 Superman 37–8 Swift, Jonathan 122 Tamanaha, Brian 2, 69, 82–85, 178 Thackeray, William 107 Thackeray, William 14 Thirroul 1, 4, 63, 114–15, 141–42, 169–70, 183–85; of law see rule of law, polarity and Tolstoy, Leo 30, 96, 121 transcendence, law and 44, 68, 78–80, 91, 105, 147, 150–52 Trollope, Anthony 30 Unger, Roberto 78, 150 Van Gogh, Vincent 104 Wagner, Richard 161 Ward, Ian 18 Weber, Max 5, 11, 28–9, 35–6, 56, 81, 104, 113, 142, 150 Weber, Samuel 146 Weimar Republic 25, 36, 41–3, 75, 81, 168 West, Rebecca 98 West, Robin 11–12 White, James Boyd 10 witchcraft 37 Wittgenstein, Ludwig 163 Wolff, Tobias 171 Woodward, Bob 173 Woolf, Virginia 14, 17, 26, 30, 123, 125, 158 Wordsworth, William 30, 35, 90 World War I, see Great War (1914–18) Wright, Richard 11, 14 Zeller, Magnus ix, 41–2, 44, 46, 81 Zizek, Slavoj 129