Law and the beautiful soul 9781135310257, 1135310254, 9781135310264, 1135310262, 9781281326034, 1281326038, 9781843146261, 1843146266, 9786611326036, 6611326030, 9781904385301, 1904385303

Table of contents :
Content: From law to the beautiful soul --
Closure and critique : antinomy in modern legal theory --
From law to popular justice : beyond antinomialism --
Legal and moral judgment in the 'general part' --The limits of justice : finding fault in the criminal law --
Albert Speer, guilt and the 'space between' --
From criminal law to legal theory : the mysterious case of the reasonable glue sniffer --
From critical to socio-legal studies : three dialectics in search of a subject --
How does freedom lie? Adorno, negative dialectics and law --
Law and the beautiful soul.

Citation preview

LAW A N D THE BEAUTIFUL SOUL

LAW A N D THE BEAUTIFUL SOUL Alan Norrie

First published in Great Britain 2005 by The GlassH ouse Press, The Glass House, W harton Street, London WC1X 9PX, United Kingdom Telephone: + 44 (0)20 7278 8000 Facsimile: + 44 (0)20 7278 8080 Email: [email protected] Website: www.cavendishpublishing.com Published in the United States by Cavendish Publishing c / o International Specialized Book Services, 5824 NE Hassalo Street, Portland, Oregon 97213-3644, USA Published in Australia by The GlassHouse Press, 45 Beach Street, Coogee, NSW 2034, Australia Telephone: + 61 (2)9664 0909 Facsimile: +61 (2)9664 5420 Email: [email protected] .au Website: www.cavendishpublishing.com .au © N orrie, A 2005 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system , or transm itted, in any form or by any means, electronic, mechanical, photocopying, recording, scanning or otherw ise, w ithout the prior perm ission in w riting of Cavendish Publishing Limited, or as expressly perm itted by law', or under the terms agreed with the appropriate reprographics rights organisation. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Departm ent, Cavendish Publishing Lim ited, at the address above. You m ust not circulate this book in any other binding or cover and you m ust impose the sam e condition on any acquirer. British Library Cataloguing in Publication Data N orrie, Alan W (Alan William), 1 9 53Lawf and the beautiful soul 1 Sociological jurisprudence 2 Law - Philosophy 3 Law - Moral and ethical aspects I Title 340.T15 Library of Congress Cataloguing in Publication Data Data available ISBN 1-90438-530-3 ISBN 978-1-904-38530-1 1 3 5 7 9 10 8 6 4 2 Printed and bound in Great Britain

To Peter

Thus play I in one person many people And none contented ... (Shakespeare, Richard II, V, 5)

We are such stuff As dreams are made on. (Shakespeare, The Tempest, IV, 1)

Preface The essays collected in this book concern the relationship betw een law as a social and historical institution and the m oral ju dgm ents it is required to m ake. Such judgm ents are necessarily, though lim itedly and contradictorily, reflected in legal form s. It is this lim ited and co m p lex relatio n sh ip that is at the p ra ctica l and theoretical core o f these essays. W hile they draw up on my p rev io u s w ork on punishm ent, crim e and responsibility, they also em phasise the search for a broader theory of law and legal method. My hope is that bringing them together will cast that w ork in a slightly different light and make it accessible to a wider audience. Taken together, they also reveal a theoretical d ev elopm ent w hich renders their collection more than the sum of its parts. That developm ent is explained in the first chapter, and I have reworked the last two chapters in line with it. However, I would like briefly to sketch it here in a slightly different way to help anchor the detailed argum ents of the individual pieces. There are four key ideas in these essays. The first is that Western liberal law is e sse n tia lly c o n tra d ic to ry or a n tin o m ia l, so that legal c o n ce p ts, tro u b led and oppositional, generally hunt in pairs. Secondly, this essential characteristic is shaped by the p articu lar socio -h isto rical con text o f W estern liberal societies in w hich structural conflicts and contradictions are key elem ents. Thirdly, this shaping of lib e ral law c ru cia lly affects and lim its its e th ica l c h a ra cter and im p licatio n s. Fourthly, law plays a central role in structuring, shaping and lim iting the ethical possibilities in Western liberal societies. At first sight, this fourth point may appear only to restate the third from a different angle; however, it seem s to me to give rise to an im portant developm ent of the overall them e of these essays and it introduces us to their titular figurehead, the Beautiful Soul. To grasp the significance o f the Beautiful Soul, it is helpful to identify tw o tendencies that a critical understanding of liberal law should, in my view, avoid. One is to dismiss such law as ethically invalid, as entirely turned away from what human being is, as 'd ead' or 'bare', as morally evacuated. The other is to fall back into upholding it as being 'as good as it gets' given the nature of hum an being or m od ern politics. I seek a m id dle cou rse o f acknow ledgin g liberal law 's ethical validity w hile noting its significant structural lim its and com plexities. This may, however, seem to say little m ore than w hat w ould be claim ed by m any m odern liberal theorists. Typically, it m ight be said that liberal law establishes an ethical and political basis for 'the right', and not for 'the good'. Liberalism provides a floor, not a ceilin g . It is for in d iv id u a ls to m ake w hat they w ill o f th eir liv es w ith in a fram ew ork of rights, in pursuit of their own particular versions of the good. Law p rio ritise s the righ t, and thereby lim its itself, in o rd er to allow this to occur. Alternatively, in a more sociological vein, it m ight be argued that legal legitimacy rests not just on the forms of law, but on the com plem entary existence of a vibrant civil society. To be itself, liberal law must look beyond itself; what law can achieve w ith o u t fa v o u ra b le s o c ia l c o n d itio n s is, it is a c c e p te d , h ig h ly lim ite d and questionable. To talk, therefore, o f the lim its o f law m ay not seem novel to the liberal mind. These essays argue for a stro n ger sen se o f the lim its o f liberal leg ality by stressing the role of antinomy, the role of historical conflict and contradiction and, perhaps m ost im portantly, the essentially restricted and suppressed character of ethical life within liberal society. To do this, I draw upon the dialectical tradition's more critical elem ents - the young H egel, Adorno, Bhaskar and Derrida (whom I

| Law and the Beautiful Soul

press, legitim ately in my view (see Chapter 8), into dialectical service). M y aim is to show how liberal law channels, contains and represses a radical Enlightenm ent sense of 'the good' in order to produce a m odern liberal sense of 'the right'. Shaped by m odern institutions of private property and contract, liberal law contains the m ost radical promise of the Enlightenment, but it does so in a double and conflicted sense. 'To contain' can mean two things. It can mean 'to hold w ithin' and 'to em body' (as in 'the book contained many meanings'). It can also mean, however, 'to hold at bay' and 'to suppress' (as in 'the fire or riot was contained'). Liberal law contains the prom ise of Enlightenm ent in the first sense in that it expresses it in limited, oblique and, to use a Freudianism, 'pale' forms. It also does so in the second sense in that it checks and represses that prom ise through the forms of freedom it provides. This w ork of expression on the one hand and repression on the other is signposted by the pathologies of antinom ialism that bedevil liberal thought and w hich reach into the finest points of its law. The chain of antinom ies begins at the edge of law, in o p p o s itio n s b e tw e e n 'th e id e a l' an d 'th e a c tu a l', and b e tw e e n 's o c ia l' an d 'individual' justice. It reaches into law 's foundations, through lines drawn between the 'in te r n a l' and the 'e x te r n a l', the 'fo r m a l' and the 's u b s ta n tiv e ', and the 'universal' and the 'particular'. It proceeds into substantive areas like crim inal law in su c h fo rm s as th e 's u b je c t iv e ' an d th e 'o b je c t iv e ', th e 'h o n e s t ' an d th e 're a s o n a b le ', 'o ffe n c e ' and 'd e fe n c e ', 'ju s tific a tio n ' and 'e x c u s e '. W h at th ese antinom ies bespeak, I argue, is confusion and dis-ease in thought, in practice, in law. The radical prom ise of the Enlightenment of w hich I speak gets largely, but not entirely, lost in this antinomial enchainment. It is expressed in various attenuated and inchoate forms in these essays. It is there, obscurely, in the legal conceptions of responsibility and freedom that m any of them discuss. It is expressed in Adorno's critique of Kant, in Bhaskar's 'pulse of freedom ', in Derrida's attention to the claims of 'the O ther' and, in one of its finest forms, in the young H egel's adm iration for the Beautiful Soul. Sadly, Hegel was to abandon this figure to a far off exile in order to construct the system atic dialectics for w hich he is known today. Yet it remained, and remains, a force to be reckoned with: an end state glim psed 'through a glass darkly', the unfulfilled prom ise of modernity, the ghost in the corridors of liberal law, the absent presence lurking in its antinom ies, the harbinger of w hat free hum ankind could be. That, at least, is the argum ent which rounds these essays off and gives them som e of their prospective unity. It would, however, be wrong to prom ise too much of a set of essays written over a num ber of years (the earliest in 1993). These essays travel from law' to the Beautiful Soul, but the journey was not a straightforward one and the final destination was not known in advance. They remain individual pieces along a road and in C hapter 1 I explain how it w as navigated, and how, in the journey, it changed. To essays written some time ago I returned with trepidation as to h ow th e y w o u ld sta n d u p . O n ly C h a p te r 2 f e lt in n e e d o f s ig n if ic a n t developm ent, but I decided it should be included as it w as for its broad, though alw ays sketched and now slightly dated, diagnosis of the antinomial character of modern legal theory. In Chapter 1 , 1 explain one way in which my own thinking has developed beyond its argum ent while retaining its basic orientation. Chapter 5 also m oves perhaps too quickly from the historical, structured understanding o f the

Preface

lim its o f crim in al ju stice and antinom y to reflectio n on its exp erien tial ethical quality. I have not sought to rew rite these or other essays significantly, though I have been throu gh them all w ith a view to light re-ed iting as to m eaning and continuity within the collection. W hen these essays were first published, they were accom panied by thanks to colleagues who had read or otherwise been involved in them. I have omitted these marks of gratitude from the revised versions here, though with no diminished sense of the contribution others made to them at the time. Instead, I w ould like to mention those who in one way or another have helped me significantly at different times or over the w hole period in d eveloping m y thinking. These inclu de Roy Bhaskar, whose w ork has always inspired me, Bill Bowring, Davina Cooper, Roger Cotterrell, Kathryn Dean, Antony Duff, Robert Fine, Peter Fitzpatrick, Nick Hostettler, Nicola Lacey and Chris Thornhill. At GlassH ouse, I would like to thank Beverley Brown, who is an energetic and acute intellectual presence, and Sanjeevi Perera for her production skills. I thank M ichelle Dem psey for bringing the various chapters into one com m on format with energy, efficiency and good humour. On a personal level, I would like to thank Gw en once m ore for her love and support, and Stephen and Richard for theirs, as well as for many ideas and laughs along the way. I would like to thank my father Tom, who has always been there. Thanks to Olive, Sarah, John, Catherine and Peter, my brother, to whom this book is dedicated. I also thank Kitty w ho, arm ed w ith cam era, joined the quest for the Beautiful Soul at the Tate Modern. Though we found it, we could not capture it on film. This w as as it should be. These essays were previously published in the follow ing places: Chapter 2 in Norrie, A (ed) (1993) Closure or Critique: New Directions in Legal Theory, Edinburgh: Edinburgh University Press; Chapter 3 in (1996) 5 Social & Legal Studies 383-404 and in revised form in Darian Smith, E and Fitzpatrick, P (1999) Laivs o f the Postcolonial, Ann Arbor: U niversity of M ichigan Press; Chapter 4 in McVeigh, S, Rush, P and Young, A (eds) (1997) Criminal Legal Doctrine, Aldershot: Dartm outh; Chapter 5 in (1996) 59 M odern L aw R eview 5 4 0 -5 6 (p u b lish ed by B la c k w e ll); C h a p te r 6 in M atravers, M (ed) (1999) Punishment and Political Theory, Oxford: H art; Chapter 7 in (2002) 65 M odern Laiu Review 538-55 (published by Blackwell); Chapter 8 in (1999) 8 S ocial & L egal S tu dies 8 5 -1 1 4 (p u blish ed by Sage U K ) and in rev ised form as 'Dialectics, deconstruction and the legal subject' in Joseph, J and Roberts, JM (2004) Realism, D iscourse and Deconstruction, London: Routledge; Chapter 9 in revised form in (2004) 3 Journal o f Critical Realism 23-48 (published by Brill); Chapter 10 in revised fo rm in (2 0 0 4 ) 15 K in g 's C o lle g e L a w Jo u r n a l 4 5 - 6 2 (p u b lis h e d b y H a rt). I acknowledge copyright and perm ission to republish where relevant.

C o n te n ts

P reface

1

ix

From Law to the Beautiful Soul

1 Part I

Legal Antinomies in History 2

Closure and Critique: Antinomy in M odem Legal Theory

19

3

From Law to Popular Justice: Beyond Antinomialism

33

Part 2 Justice and Judgment 4

Legal and Moral Judgment in the 'General Part'

53

5

The Limits of Justice: Finding Fault in the Criminal Law

75

6

Albert Speer, Guilt and the 'Space Between'

93

7

From Criminal Law to Legal Theory: The Mysterious Case of the Reasonable Glue Sniffer

111

Part 3 Law, H istory and Ethics: The N ature of Critique 8

9

From Critical to Socio-Legal Studies: Three Dialectics in Search of a Subject

133

How Does Freedom Lie? Adorno, Negative Dialectics and Law

157

10 Law and the Beautiful Soul

179

Bibliography

197

Index

209

C h ap ter I From Law to the Beautiful Soul

... his form had not yet lost All her original brightness ... ... as when the sun new ris'n Looks through the horizontal misty air Shorn of his beams, or from behind the moon In dim eclipse disastrous twilight sheds On half the nations, and with fear of change Perplexes monarchs. (Milton, Paradise Lost I, lines 59 1 -9 9 ) But just ponder the extent to which, although we may live for the future, we live, quite literally, in the past. (Bhaskar, 1993, p 58)"

Introduction The essays in this collection cover topics in the area of legal theory and the theory of crim inal justice and responsibility. They discuss matters as diverse as the crim inal responsibility of the two boys who killed Jam es Bulger, the guilt of A lbert Speer, the n atu re o f p o p u lar ju stice , p ro b lem s in the law o f in te n tio n , re ck le ssn e ss and provocation, the historical developm ent of m odem legal theory, and the nature of its critiqu e. They w ere no t w ritten to a general plan, b u t they w ere w ritten in relation to each other. The result is a set of essays that reveal a dom inant theme and an emerging line of argum ent. Put together, I hope that the im pact and significance of both is made the stronger. Since each chapter was originally written to stand by itself, I do not seek in this introduction to outline each in detail. Their titles indicate som ething of their content, and the next section begins by locating each one briefly within the overall argum ent that develops through the collection. I have focused on what holds these essays together as a whole, and this introduction is designed to bring this out. Two themes Two them es dominate the collection; the one on its face, the other as its emergent problematic. The first is the idea that legal discourse is essentially contradictory or, as I prefer, antinomial in its form. The essays are concerned with legal antinomies which are analysed either individually or in groups, and then, finally, as a whole. T he second them e con cern s the natu re o f legal critiq u e, and in p articu lar the relationship betw een its socio-historical and ethical dim ensions. In m uch critical legal theory, these two dim ensions are in conflict with, or at least speak past, each other. Derrida's distinction between two forms of critique in his essay 'Force of law ', discussed below, is a case in point. W hile he privileges an ethical critique, the essays in this collection privilege a socio-historical point of view. N either finds much place for the other. The last three chapters here, however, w ork towards a way in which

Law and the Beautiful Soul

the ethical and the socio-historical dim ensions of critique can be brought together as one enterprise. This introduction has the follow ing structure. In the next section, I say a little about each individual chapter while linking them to the collection's two dom inant them es: antinom y and the natu re o f critiqu e. In the follow ing, third, section, I develop the theoretical discussion of antinom y in law while considering the roots of m y own socio-historical approach to critique. At the beginning of the fourth section, I suggest that it was focusing on antinom y that led critical theorists historically to adopt diverging socio-historical and ethical approaches to critique. In that section, I then consider two modern critical philosophies which underpin the socio-historical and the ethical approaches to the critique o f law, and how they m ight be brought together. T hese are the tw o p h iloso p h ies m ost im portan t to this w ork: critical realism and deconstruction. In the final section, I argue that the com m on ground I identify can lead to a critical interpretation of law in which the socio-historical and ethical approaches are brought together. Considering my two prefatory quotes, such a c o n v e rg e n c e w'ould d raw to g e th e r so m e th in g lik e th e h isto ric a l ap p ro ach identified by Roy B haskar and the ethical vision o f fallen d iv inity - of a form terribly changed yet reflecting an original ethical grace - depicted in John M ilton's description of Satan. The routes into this critical interpretation are provided by an account of A dorno's view of law in his philosophy of negative dialectics and by considering the key figure of the Beautiful Soul in H egel's philosophy and how it relates to law. The Beautiful Soul Before moving to the next section, it may be useful briefly to introduce the idea of the B eautiful Soul to the read er as it appeared in H egel's thought. In the 18th century, the Beautiful Soul had been a w idely deployed, pan-European figure in eth ical and a e sth e tic p hilosop h y, as w ell as in literatu re. A s R o b ert N o rto n 's excellent m onograph m akes clear, the precise m eaning of the term changed over its 100 year history and according to the national context in w hich it w as deployed (N orton, 1995). The core idea w as the possibility of com bining moral virtue and a e sth e tic v alu e in the p e rfe c tio n o f liv ed h u m a n b e in g . T h e B e a u tifu l S o u l represented the possibility in the here and now of attaining the morally good life as 'the m ost profound expression of hum an m oral existence' (Norton, 1995, p 211). To anticipate a sceptical response, Norton does go on to say that 'identifying exactly w hat m oral beauty w as had never been an easy task', even in the period of the figure's popularity. Ju st how w e today should treat this im age of hum an m oral potential is a question for debate, and the subject m atter of the final chapter. We can, however, be helped by considering two dram atically different view s of the Beautiful Soul in H egel's philosophy. His treatment of it com es at the end of the period o f its currency, and its crucial and intriguing feature is how Hegel shifts in a very few years from adm iration to outright rejection. In his early theological w ritings, he id entified b eau ty o f soul w ith the figure o f Je su s and the need for a m odern m orality based upon the loving heart. In an essay of about 1799, beauty of soul in v o lv e d 'B o ld n e s s and c o n fid e n c e o f d e c isio n a b o u t fu lln e ss o f life , a b o u t abundance of love, aris[ing] from the feeling of the man who bears in him self the w hole of hum an nature'. He w ent on:

From Law to the Beautiful Soul

Such a heart has no need of the m uch vaunted profound 'knowledge of m en' which for distracted beings ... is indeed a [useful] science; but the spirit, which is w hat they seek, alw ays eludes them ... An integrated nature p en etrates the feelings of another in a m om ent and senses the other's harm ony or disharm ony ... (Hegel, 1948, p 240)

The morally full life of the Beautiful Soul is, however, not an easy one. To m aintain a loving heart in the face o f the conventional existence of one's people is to invite isolation and run the risk of w orse. The crucifixion of Jesu s, the quintessen tial Beautiful Soul, illustrates what may happen, yet his was a noble fate consistent with the best that hum an being can be. Contrast this view of the Beautiful Soul with H egel's depiction only eight years later, in his Phenomenology: It lives in dread of besm irching the splen d o u r of its inner being by action and an existence; and, in order to preserve the purity of its heart, it flees from contact with the actual w orld, and persists in its self-willed im potence to renounce its self w hich is red u ced to the e x trem e of u ltim ate ab stractio n ... In this tran sp aren t pu rity of its m om ents, an unhappy, so-called 'beautiful soul', its light dies aw ay within it, and it vanishes like a shapeless vapour that dissolves into thin air. (Hegel, 1977, p 400)

In various places in this later work, H egel describes the Beautiful Soul as 'em pty', 'h ollo w ', 'ev ap orated ', 'm ad ', 'im p o ten t' and 'consum p tive'. W ith all the charm m odern life can muster, this figure would now be described as a 'loser' who needs to 'g et a life'. The m oral pu rity o f the earlier v ision has been exchanged for a vainglorious purism that fails to involve itself with the world, and is therefore the subject only of pity and scorn. A t one level, this is sim ply intriguing: w hy should H egel in so short a period of time have changed his view so radically? W hy 'kill' the Beautiful Soul? The answ er to that question m ust aw ait the final section o f this chapter and, of course, the final chapter itself. My suggestion in brief, however, is that its significance is in equal parts historical, ethical and legal. Historically, Hegel wanted to contain and control a radical ethical im pulse which m odernity and its historical experience of revolution had set before humankind. The early view of the Beautiful Soul reflects that impulse, the later shows its containm ent. Ethically too, this process of containm ent was one in which law was to be set at the core of an evolving moral totality, whereas previously, Hegel had seen law as the site of only lim ited virtues, opposed to the radical impulse. To kill the Beautiful Soul was in effect to give life to the moral-legal subject - and a world replete with antinomies. A figure with both historical and ethical resonance, as well as legal reference, I shall a rg u e th a t th e rise an d fa ll o f th e B e a u tifu l S o u l can b e s e e n as a k e y to understanding the relationship betw een history and ethics in critical legal theory. That, however, is for later. For the present, I turn to the key issue of law 's antinomial form.

For critique: from law’s antinomies to history ... and ethics Throughout this collection, the antinomial character of law is traced to its historical roots in a particular kind of society. Yet the essays are also ethical in the way they contrast legal form s of justice with moral forms of judgm ent that lie beyond the law. T his raises a theoretical qu estion about how a critical ap p roach han d les these different dim ensions. In this section, I sketch the essays and outline the emergence of this theoretical question.

Law and the Beautiful Soul

These essays seek to develop a critical understanding of law. They seek to explain the stru c tu ra l lim its in v o lv e d in le g a l c o n ce p tio n s o f ju stice . T h ey do so by developing an understanding of w hat such conceptions represent and what they exclu d e. L egal ju stice takes p lace on a p a rticu la r te rrain , it d ev elo p s its ow n 'architectonic', but what this represses is as im portant as what it represents. Law 's conception of justice involves a process of forced abstraction, and this leads it to separate out questions of justice that cannot in truth be separated. The result is a set of false, one-sided, oppositions, and this is felt throughout law 's categories as a series of antinomies. The separation producing these antinom ies is not a m atter of sim ple intellectual invention. It is social and historical in its origin and it can be traced to the beginnings of m odern law in the Enlightenm ent and the early 19th century. The chapters are assembled in three sections, reflecting a developing perspective in which law 's antinom ies are first located in Part 1 as part of a historical structure. Part 2 ap p lies this h isto rical-stru ctu ral p ersp ectiv e to qu estion s o f ju stice and responsibility. These chapters consider how the historical structuring of law limits the justice it offers, and they reflect on how this affects the experience of justice for those com in g b e fo re the law. T h ey th erefo re raise an e th ica l d im en sio n . The chapters in Part 3 begin to address some of the broader theoretical issues raised by a critical approach, which m ust find room for both ethical evaluation and historical perspective. W hile these are raised in the earlier chapters, the final chapters seek to address them in depth and more satisfactorily. Legal antinomies in history The two essays in Part 1 identify the problem , as their titles indicate, of antinomies in Western legal thinking. Chapter 2 considers the evolution of legal theory from the Enlightenm ent to the present, considering the relationship betw een natural law, legal p o sitiv ism and a socio lo g ical ap p roach to law. It ch arts a co n trad icto ry developm ent in which approaches affirm ing one-sided views of law com pete with each other. To this perm anently contradictory, one-sided oppositionalism in legal theory, it gives the nam e 'an tinom ialism '. C hapter 3 then exam ines a particular antinom y central to law, that betw een the 'form al' and the 'inform al' in the context of thinking about the opposition betw een 'p o p u lar' and 'legal' justice. Together, these chapters develop a sense of antinom y as central to law, and they relate this to the historical developm ent of Western societies, and the underlying social relations w hich condition and shape law in a particular, contradictory way. They begin to develop a dialectical approach to the relation between law and society in which the idea of law 's autonom y is seen as both a false and necessary denial of its inherent relationality. Together, they point to the historical structuring of legal form in a particular, antinomial way. Justice and judgm ent The four essays in Part 2 exam ine a set of issues relating to legal conceptions of ju stice, resp o n sib ility and ju d g m en t in lig h t of the h istorical antinom ialism of western liberal legal thought. W hilst their aim is to consider the theoretical structure of law in this area, each discussion is informed by the use of exam ples taken from

From Law to the Beautiful Soul

legal doctrine or practice. Chapter 4 considers the 1993 trial and conviction of two boys in England for the m urder of Jam es Bulger, and relates this to the particular 'architectonic' of justice developed through legal categories. A n antinom y between le g a l ju s tic e an d m o ra l ju d g m e n t e m e rg e s as a re s u lt o f the la w 's a b s tra c t individualism and is used as a w ay of understanding the lim its and conflicts of liberal law. C hapter 5 considers m ore broadly the idea of liberal law delivering ju stice throu gh w hat I call the 'p en al eq u atio n ', that 'crim e plus responsibility equals p u n ish m en t'. It con sid ers the historical p rio ritisin g o f the legal form of ju stice, b efore m oving on to exam in e how law, d esp ite its failing s, provides a limited and am bivalent experience o f justice. Chapter 6 pursues this latter theme of the experience of justice by exam ining the idea of guilt in m odern societies, and considers the limits of any conception of individual guilt that rests upon a liberal model of responsibility. The focus is Gitta Sereny's moral interrogation of A lbert Speer w hich, relying on such a m odel, fails to catch the sense of moral judgm ent Speer's actions invoke. Underlying the discussion here is an antinom y between 'the individual' and 'the com m unity' and guilt is argued to occupy an am biguous space between these options. Chapter 7 considers the 'logic of legal reasoning', where the categories of liberal legality are based upon antinom ial form s. H ere, tw o further antinom ies of law are exam ined; those of 'form ' and 'substance', and the 'universal' and the 'particular'. U nderlying both is the antinom y betw een individual and social justice, an antinom y which also bears upon the discussions of Chapters 3 and 4. The attem pt to d eal w ith this antinom ial conceptual terrain in C h apter 7 invokes a dialectic of legal reasoning in place of the standard analytical format, a 'dialectic of the universalised particular and the reparticularised universal'. As can be seen, the essays in the first two parts of the collection are organised around the them e of antinom y within law and legal theory, but they raise a deeper question. Throughout, the injunction is to 'look to history' to locate and explain the existence of law 's antinom ies. A t the sam e tim e, these essays indicate an ethical purpose. Chapter 3 looks to the role of movem ents of national and social liberation in resh ap in g legal form . C h ap ter 4 co n tra sts leg al and m oral ju d g m e n t, and considers the limits of law 's own particular 'm orality of form '. Chapter 5 looks to the social and historical emergence of new forms of moral critique, while Chapter 6 considers how morally to judge an old w ar criminal like Speer. Chapter 7 shows law reaching beyond its own terms in a necessary, but necessarily failing, attempt to do a b e tte r ju stice. In look in g to history, these essays also draw up on an ethical position. They therefore raise important questions about the relationship between law, ethics and history in critical thinking. Is our critique grounded in a m ove to historical issues, or does it rest upon ethical foundations? Can it be both? Law, history and ethics: the nature o f critique The essays in Part 3 consider this issue. They exam ine how philosophers who have recognised the im portance of antinom y (not necessarily by that nam e) have treated it. T hey think about how law in its W estern liberal form fits w ithin a broad er philosophical context. The philosophers discussed in this part are predominantly in the modern dialectical tradition inaugurated by Hegel (see Chapters 8 and 10), but H egel's particular contribution to that tradition is read alongside that of Adorno (Chapter 9) and Bhaskar (Chapter 8). These three dialecticians are also brought into

Law and the Beautiful Soul

dialogue with the deconstructionist Derrida, who, I argue, is him self to be located w ithin the dialectical tradition (Chapter 8). The overall aim is to think about the conflict in critical legal theory betw een historical and ethical approaches. M ore specifically, how can qu estion s o f ethics, often treated as m etap h ysical, suprahistorical questions, be brought together w ith a socio-historical analysis, w hich often denies the significance of a m etaphysical approach? The nature of the conflict b e tw e e n th ese tw o ap p ro a ch e s is a d d ressed in d iscu ssio n o f d ia le c tic a l and deconstructive theory. Before m oving on, let us identify this conflict betw een a metaphysical-ethical and a socio-historical critique more directly. History versus ethics in critical legal theory The conflict betw een a socio-historical and a m etaphysical-ethical critique of law can be seen in Derrida's essay 'Force of law ' (Derrida, 1990), which I discuss at some length in Chapter 8 below. In that chapter, Derrida describes a 'critique of law ' that is 'p o s s ib le an d a lw a y s u s e fu l'. T h is is 'a c r itiq u e o f ju r id ic a l id e o lo g y , a d ese d im en tatio n o f the su p e rstru ctu re s o f law that b o th h id e and reflect the econom ic and political interests of the dom inant form s of society' (Derrida, 1990, p 941). With these com m ents, Derrida is discussing w hat I call here a socio-historical critique of law, one that relates law to underlying historical interests and structures of power. For Derrida, this is a 'possible and always useful' w ay of proceeding, but it is not actually w hat he him self does. For him , there is a deeper critique to be developed, of w hat he calls a 'm ore intrinsic structure'. This involves the 'very emergence of justice and law ' in a 'perform ative and therefore interpretive violence' (1990, p 941). This second critique is metaphysical and ethical rather than socio-historical in its form. It links up w ith what Derrida has to say about deconstruction as a form of justice that is 'm ad ' and 'm ystical', w hich points beyond 'w hat is' to a 'm essianic' ethics o f 'the other'. It participates in this way in an abstract metaphysics of justice, despite Derrida's own disclaim er to the contrary.1 So doing, this deeper critique of law and legal justice, drawing on an ethical-m etaphysical argum ent, is developed w ithout reference to the idea of socio-historical critique. Although Derrida says that d eco n stru ctio n o p erates in p art by lo ok in g h isto ric a lly at the g e n ea lo g ie s of concepts, he does not relate deconstruction as an ethical project to the 'possible or useful' socio-historical project he also identifies. Thus, the socio-historical critique is m arginalised by the deconstructive (m etaphysical-ethical) approach which comes after it. How should the socio-historical critique react to this? A first response would be to adopt an oppositional standpoint. If deconstruction argues for a m etaphysical ethics that marginalises socio-historical critique, the latter should reject the need for a metaphysical ethics within a socio-historical approach. This is in fact the position enu nciated in C h ap ter 5 below , althou g h it is on e that the later ch ap ters will confront and modify. In that chapter, I suggest that ethical standp oints em erge

1

While Derrida (1999, 245-49) refuses the term 'metaphysics', what he invokes as lying beyond the 'here and now ' operates on a level that can never be actualised. As the never-to-beactualised addition to what exists, it operates as a metaphysics of justice.

From Law to the Beautiful Soul

historically in society, and these give a critical purchase on legal concepts. There is no need, I argue, for: an ab stract, ethical 'b ey o n d '. T here is no m etap h ysical 'o th e r', rath er there is real em ergent history and developing social structure, and these generate actual difference, conflict, change, som etim es crisis ... New perspectives and critical standpoints, new w ays of looking at old phenom ena, including the phenomena of law and justice, arc produced in this process of em erging change and difference. (Below, p 80)

This conflict betw een two approaches to critique underlies these chapters, as I think it underlies m uch critical debate about law today. If these essays make a general contribution to the critique of law, it is in that they seek a way of m oving beyond this opposition. The em ergence, the recognition, and the attem pt to deal w ith it represents a them e running through the collection. In C hapter 2, m etaphysicaleth ical and so cio -h isto rica l ap p ro ach es are co u n terp o sed . In C h ap ter 5, th eir opposition is m ade exp licit, and supported by arguing for the irrelevan ce o f a m etaphysical-ethical standpoint. Chapter 8 is a first effort at rapprochem ent, but it ends up leaving the opposition in place. Chapters 9 and 10 in different ways then lo o k fo r a w ay o f b rin g in g the te rm s o f th e o p p o s itio n in to a s a tis fa c to r y relationship with each other. Thus, as the chapters move on, a more reconciliatory approach is adopted in which the socio-historical and the m etaphysical-ethical are seen as part of a single critical project. Before w e address this developm ent further, how ever, it will be helpful to exam ine how the argum ent of these essays cam e together in the first place.

Social history and legal antinomy Written from the early 1990s, the perspective in these essays w as form ed in the previous decade out of the different critical currents of that time. These included the socio log ical m ov em en t in law, critical legal stu d ies, the p h ilo so p h y o f critical realism, and deconstruction. These led to an interest in four different but converging perspectives: law as socio-historical form, the contradictions of law, the need for a 'depth ontology' of law, and the relationship between law and ethics. The first two, historical form analysis and legal contradiction, are discussed in this section. They were instrum ental in establishing the foundations of my approach, and they lead, through discussion of the idea of 'antinom y', to the second two, depth ontology and the relation between law and ethics. These are discussed in the following section as the philosophical perspectives which bring out the conflict betw een the historical and the m etaphysical-ethical approaches described above. Law as socio-historical form My initial interest in the area of law and social theory was in the way that law was rooted in, and shaped by, its social context. The key to understanding Western law, it seemed to me, w as to relate it to the underlying social relations in w hich it was embedded. This pointed to the im portance of an historical perspective on law and, in the period in w hich I was developing, an older literature around this point was being rediscovered. EB Pashukanis (1978) had written a short book on the historical

Law and the Beautiful Soul

nature of legal form and its relation to political econom y (Norrie, 1982), and Franz Neumann, a scion of the Frankfurt School, had m ade sim ilar points in a significant chapter on the relation betw een law 's form and historical fun ction (N eum ann, 1957). In this period, N eum ann's doctoral thesis from the 1930s was also published in English (Neumann, 1986). These writers developed a perspective which involved the claim that, in thinking about law, one would not take the law 's own word on how it developed or should be understood. It was im portant to travel beyond law in order to relate it to social processes that were, according to orthodox legal theory, other than it, but which were in fact crucial in creating it. The value of this w ork was that it took orthodoxy head on. It was serious in its interest in questions that were generally seen as the province of orthodox jurisprudence. Questions about core legal concepts such as 'r ig h t', 'd u ty ' and the 's u b je c t' w ere o f no real in te re st to the co n te m p o ra ry sociology of law'. Pashukanis, in contrast, begins his book with a sharp critique of K e ls e n an d n e o -K a n tia n le g a l s c h o la r s h ip an d a lso an a tta c k on fo rm s o f sociological ju risprudence w hich 'forgo an analysis o f the fundam ental juridical co n ce p ts' (1978, p 55) and 'e x clu d e the legal form as such from th eir field of observation' (1978, p 53). The challenge that resulted from this perspective was to see what one could do w ith it in specific areas of law. Could the crim inal law, for exam ple, be made to yield its deepest secrets to an historical perspective given that its core concepts, based seem ingly on ahistorical, universal ideas, denied its relevance? Chapters 3 -5 and 7 provide an answer, but the book as a w hole seeks more generally to treat law as a socio-historical form. Contradictions in law: the nature o f ‘antinom y’ In paying specific attention to legal form , however, how would a socio-historical approach orient itself? Here, one further quote from Pashukanis is relevant. Law, he said 'exists only in antitheses: objective law - subjective law; public law - private law, and so on' (1978, p 58). Such a statem ent, bold and brief, provided a starting point for thinking about law socio-historically, and for focusing on 'antitheses' as law 's specific form of being. This focus was also encouraged by another, more m odem influence. The 'Critical Legal Studies M ovem ent' in the US proved a fairly transient phenomenon. It lacked a sufficiently clear or deep sense of w hat a 'critiqu e' o f law should entail. In an im portant article about rationality in the crim inal law, M ark Kelm an (1981) once taunted orthodox scholarship that it had not got very far with its understanding of law. The com m ent seemed also to say som ething about critical legal studies, which tend ed sim p ly to in v ert and n eg ate o rth o d o x p o sitio n s. N o n e th e le ss, it w as prepared to look seriously at law and orthodox legal argum ent and to have the boldness to take such argum ent in a radically different direction. W here orthodoxy sought to rationalise law, to develop a sense of its intellectual coherence, to establish the 'internal' perspective upon law, it w ent the other way. It sought to show the contradictions within law and to show that much legal argum ent was an attem pt to hide law 's con trad ictory im pulses. To a classical European line o f argum ent, it contributed a more pragmatic-critical N orth A m erican 'realism ' as to how doctrine should be interrogated.

From Law to the Beautiful Soul

Two routes, then, into the idea of legal contradiction, but I have chosen the term 'antinom y'. W hat is the particular significance of this term? In Chapter 3, I give a definition from the m odem philosopher Q uine as a 'self-contradiction by accepted w ays o f reaso n in g [w hich] e sta b lish es that som e tacit and tru sted p atte rn of reasoning m ust be made explicit and henceforward be avoided or revised' (below, p 33). This is a start, bu t it is not enough, for any defender of analytic logic will a rg u e th a t s e lf-c o n tr a d ic tio n sh o u ld be 'a v o id e d or r e v is e d '. Q u in e a d d ed som ething more when he said that such revision would involve 'nothing less than a repudiation of part of our conceptual heritage' and this perhaps suggests the idea th at an tin om y is d eep seated in the W estern p sych e and p ractices. C ertainly, discussion o f antinom y is engrained in the Western philosophical tradition, and it is there that I locate its significance. A ntinom y has its modern classical origin in Kant, for w hom self-contradiction w as inherent in hum an reason as the sign that such reason w as going beyond its proper bounds. Hegel generalised the point to make antinomialism a feature of both subjective thought and objective being. The aim of reason was to dem onstrate how, w orking through, preserving and transcending contradictions, antinom ies could be unified in a dialectical totality that was modern living. In the M arxist tradition, this id ea w as g iv en fu rth e r fo rce by L u k acs (1 971), w ho arg u ed that a n tin o m ia l structures in p hilosoph y reflected histo rical w ays o f liv ing in W estern society. Antinomies were the product of a particular, reified form of life: structures in the mind reflected the particular lived experience of m odem capitalism. These different philosophical approaches converge on the deep-seated and structural nature of antinomy in western thought. A n tin o m y in th e se e ss a y s c a rrie s the w e ig h t o f th is kind o f im p lica tio n : contradictions are inherent in Western ways of thinking and acting in a structural and historical way. They are not lightly or easily overcom e because they reflect som ething of our overall state o f being. W estern law, as a prim ary form for the m ediation of such overall being, is an integral part o f this w ay of living and is therefore expressed antinomially. In addition to this sense of the historical and structural significance of antinomy, som ething also should be said about its philosophical implication. There is a strong sense in the term that the tw o sides of an antinom y are both necessitated , and rendered inad equ ate, by the context in w hich the antinom y em erges. The one­ sidedness of argum ent 'a ' leads to the developm ent of oppositional argum ent 'nota', so that both reflect som ething o f the underlying truth to be conveyed through the argument. Neither, however, is adequate by itself, and they are in contradiction with each other. Nor will a sim ple aggregation of 'a ' and 'not-a' lead to a full sense of the issue at stake, for bringin g together tw o one-sid ed, contradictory, view s by no means guarantees a sense of the whole. Deploying the term antinom y thus brings a sense o f partiality and one-sid edness in relation to an argum ent, an issue, or a phenomenon under discussion. It is not that w hat is represented in the terms of the antinom y is com pletely w rong, rather that it is stated incom pletely in a rather radical way so that it invokes a further attem pt at com pletion. This further attempt, h o w e v e r, p ro v e s to be in c o n tra d ic tio n w ith the first, and th is le a d s to an argum entative to and fro as first one side and then the other presses its claim. This back and forth on ly con firm s that neith er sid e o f the argum en t really or fully captures w hat is at stake.

Law and the Beautiful Soul

This describes som ething of the nature of antinomy, and how it might operate in m odern legal thinking. The to and fro o f legal argum ent is d escribed below in C hapters 2 -4 , 5 and 7. The existen ce of antinom y, how ever, also raises further q u e s tio n s a b o u t the n a tu re o f c ritiq u e . H av in g d e s c rib e d s o m e th in g o f the underlying theoretical trajectory, we are now in a position to link it to the problem of conflicting historical and ethical approaches to critique raised in the first section, and to see how this problem com es into play in these essays.

From legal antinomy to the conflicting grounds of critique We can ad d ress the p roblem of d iv erg in g critiq u es o f law first as it em erged h isto rically out o f the exp erience o f an antinom ial w orld . If neith er sid e o f an antinom y is able to achieve a sense of a whole, and nor is their aggregation, how is the w h ole, w h ich is p resu p p o sed by the v ery n o tio n o f o n e -sid e d n ess, to be approached or identified? Once we start talking in this way, we are led beyond the bare id entification o f one-sid edn ess to w hat it relates to. The idea of antinom y presupposes som ething beyond itself, expressed in it in a lim ited, one-sided way. How do w e get at this relation betw een the terms of an antinom y and w hat lies beyond them ? M ost famously, the problem of w hat is expressed in a one-sided, contradictory w ay is w hat drove H egel to dialectical philosophy. The sense that neither 'a ' nor 'not-a' is adequate to the w hole led him to the process of 'sublation' in his philosophy. In this, contradiction was noted, preserved and transcended in a m ove to higher levels w ithin a greater ethical and rational totality (see below, Chapter 8). Dialectic w as the sense of being driven beyond antinom y to a greater truth at a higher level of understanding and being. One-sidedness led to a sense of wholeness or totality, but w hat was the nature of that totality? F o r H e g e l, a ra tio n a l and e th ic a l w h o le w'as th e e n d -p o in t o f d ia le c tic a l philosophy. Philosophers after H egel, however, found it difficult to accept that one could resolve the contradictions of m odernity by theorising an ethical totality as he had done. As Chapter 2 indicates, dissatisfaction w ith H egel w ent in two directions. O n e w e n t in to the s o c io -h is to ric a l c o n te x ts and c o n d itio n s e sta b lish in g the antinom ies of modernity. W here Hegel argued that conflicts in m odernity could be resolved by a w ork of m etaphysical-ethical reasoning, a socio-historical approach suggested they could not be so resolved, but that they could at least be located and explained on a broad er and different, historical, terrain. The other pursued the ethics im plicit in the idea of a rational totality, but refused to accept H egel's view th a t re aso n sh o u ld re so lv e an tin om y . It reso rted in ste a d to a p h ilo so p h ic a l irrationalism such as that deployed by N ietzsche. Such philosophies refused the possibility of resolution or sublation, but maintained an essentially metaphysicale th ic a l a p p ro a c h to th e p ro b le m . T h u s w as the c o n flic t b o rn b e tw e e n tw o approaches to critique: out of the identification of antinom y at the core of modern society and the failure of a metaphysical-ethical approach to resolve it dialectically. The opposition is observed in these chapters betw een two m odern philosophical positions w hich prioritise either the socio-historical or the m etaphysical-ethical standpoint: critical realism and deconstruction. I turn now to discuss these.

From Law to the Beautiful Soul

Grounding the socio-historical: a ‘depth ontology’ o f law If antinom y lies at the heart o f law, pushing in one direction to the socio-historical as its basis, a philosophy is required that can explain this. The philosophy I find most able to do this is critical realism with its emphasis on the idea of a 'depth ontology'. This idea explains the w ays in which social phenom ena are grounded in underlying p ro c e ss e s, stru c tu re s and c o n d itio n s. C r itic a l re a lism also h as a d ev e lo p e d dialectical form (dialectical critical realism) w hich is w ell-suited to deal w'ith the c on trad icto ry , an tin o m ial q u ality o f law w h ile retain in g a focu s on its so cio historical grounding. Here, I will say som ething about the idea of a depth ontology and dialectical critical realism. The idea of social depth or a depth ontology (see below, Chapter 9 for the fullest statem ent of this idea) is in part just the philosophical expression of the general idea that in understanding a phenom enon such as law, we need to move beyond it, to the social structures and relations which underpin it, and w hich it mediates. Legal form s appear as the surface phenom ena which are explained by underlying social relations. For exam ple, the form of the individual legal subject, w hich is discussed in several chapters here, could be seen as sim ply the expression of the biological singularity of the individual hum an agent. It is just a fact that hum ans are (in the vast m ajority o f cases) born into the world as single, bounded persons w ith an individual consciousness, and legal concepts reflect this. However, w hatever their biological make-up, individuals are also constituted by underlying social relations that assist them in creating their identity, language and being. They alw ays exist in this broader context so that the em phasis on the individual subject begins to look one-sided. H istorically, too, the em phasis on the individual subject needs to be ad dressed as it em erged in the early 19th cen tu ry as a w ay o f ach iev in g and legitim ating a particular system of rule. More sense is made of legal individualism in the lig h t o f th ese u n d e rly in g issu es o f hu m an re la tio n a lity and h isto rical development. The philosophical method is to look behind the legal individual to the social relations, often hidden from our im m ediate experience, which engender it. To view a phenom enon in history, to account for it in terms of deeper social relations, is to operate w ith an idea of w hat underlies, causes or con d itions it, and gives it presence. Recognising such processes involves com m itm ent to a depth ontology. This is a fairly straightforward idea, but it is som etim es lost sight of by those who adopt a certain kind of criticism. This is the argum ent that such an ontology draws to o s tro n g a c o n tr a s t b e tw e e n the 'a p p e a r a n c e s ' o f a p h e n o m e n o n an d an 'u nd erlying reality', w here the latter expresses w hat the phenom enon is 'really' about in contrast to its 'm ere' appearance. The phenom enon becom es sim ply an adjunct to a deeper m ovem ent or truth. It is, of course, possible to argue for this kind of relation betw een 'appearance' and 'reality', but it would norm ally be wrong to do so.2 The relationship between phenomena and their underlying conditions is one of com plex co-relation and constitution, not one-sided determination. It is also a bowdlerisation of the critical realist argument. Consider the possibility of choosing between two rival explanations as to why a phenom enon exists. When one tries to explain w hy or how som eth in g h ap p en ed , one acco u n t m ay be b etter able to 2

An exam ple of w here it w ould be a p p ro p riate w ould be w here a person deliberately misrepresents a situation or lies about it.

II

Law and the Beautiful Soul

explain it by reference to the underlying causes and conditions w hich brought it about. Identifying such causes and relating them to what is happening involves a process of exploring the depth of phenom ena, not substituting a 'real' m ovem ent for them. A critical realist depth ontology asserts that both how things appear to agents and the underlying causes and conditions w hich m ake them possible are crucial to understanding. That there is ontological depth in the social world is an injunction to take history and structure seriously as real, underlying elem ents in our understanding of things, not to substitute those elem ents for the thing that is to be explained. O n this basis, critical realism has also developed a dialectical approach. This involves an insistence that, if we are looking at antinomies, w e ought to see these as not just a product of the mind, but of a specifically shaped historical world. As Roy Bhaskar puts it, it is important 'to understand that w hen logical contradictions are com m itted, they are real constituents of the Lebenswelt' (1993, p 58). Dialectic is a supple way of thinking which forces one to think about the further implications of any statem ent. It constantly presses against the barriers raised by analytical thinking to ask what lies beyond them. It is present in these chapters in different ways. One is in considering the limits of legal concepts and how they lead beyond themselves to their opposites. A particular view of a legal concept (intention, recklessness or p rov ocation, see C h ap ters 4, 5 and 7), or o f a school o f thou ght (eg, orthod ox subjectivism , see Chapters 4 and 7) proves inadequate. This invokes a correction w h ich , it tra n sp ire s, is in c o n tra d ic tio n to it. A n o th e r is in se e in g how law establishes itself as law by erecting a boundary betw een itself and things 'outside' it. However, those matters that are within law are unconvincingly shielded from those th at are not: for exam p le, the p o sitiv e from the m o ral law (C h ap ter 2), legal form alism from the informal (Chapter 3), legal from social justice (Chapter 7) and the in tern al from the extern al (C h ap ter 10). D iale ctics p ro p o ses the in trin sic connectedness of things that appear to be separate and distinct, and that therefore challenges form al-logical ways of thinking. Dialectical argum ents of this kind can be handled while relating law to the sociohistorical on the basis of a depth ontology that asks us to look beyond law to its conditions of existence. They make for a more subtle and com plete understanding of how surface and depth fit together. This how ever still leaves open the question how this socio-historical approach deals with the question of ethics. How do we ground our ethical concerns within an historical approach? As I argue in Chapter 8 below, it is unclear that dialectical critical realism has as yet a satisfactory answ er to this question. W hile I will not provide a full one here, I will at least seek to indicate what kind of answer might be given. To do so, I must turn to the fourth influence on these essays, D errida's account of deconstruction. Deconstruction and law: placing ethics Unlike the first three influences on my thinking - form analysis, critical legal studies and (dialectical) critical realism - my response to d econstruction has been more ambivalent. It operates as an underlying, often uncom fortable engagem ent in these chapters, and one that has evolved through their course. I shall begin by explaining the grounds of my am bivalence, and then say how my view has changed.

From Law to the Beautiful Soul

D espite his m arginalisation o f the socio-historical critiqu e o f law (discussed above, and below in detail, C h apter 8), my reaction to D errida has nev er been com pletely negative. I have always valued his insistence on the need to deconstruct law, meaning the need to chart its 'logico-form al paradoxes' (Derrida, 1990, p 959), arid to trace these back to its 'aporias'. The concept o f an aporia seem s quite closely related to the idea of antinom y A n aporia is a 'perplexing difficulty' or a 'doubtful m atter', com ing from the Greek 'w ithout passage'. It has som ething in com m on with antinom y w hich, from the Greek, means 'against the law'. Aporia is perhaps a vaguer term, more used in rhetoric, and w ithout the baggage of antinomy. It seems to represent D errida's notion of a m atter being 'undecidable'. In both aporia and antinomy, there is a sense of blockage, for every contradiction by its nature indicates a lack of passage. W hatever their precise relationship, Derrida's aporias of law are all versions of what I call the antinom y betw een the universal and the particular (see below , C h ap ter 7). Sin ce they are lin ked to the search for 'lo g ico -fo rm a l paradox', there is significant overlap between the terms. Deconstruction wants to read legal lan gu age for its d ifficu ltie s and co n trad ictio n s, ju st as I do. In the intellectual context of the legal academy, where making rational sense of law is the rule, d econstruction offers support to anyone w ho pursues an alternative line. I have always valued this aspect. Nonetheless, I have also written against the idea of deconstruction as a general p h ilo so p h ic a l b a sis for c ritiq u e . In C h ap te r 2, I arg u e fo r the im p o rta n ce of d econstruction as a critical tool, while suggesting that its reliance on an abstract m etaphysical-ethical foundation leads to an unbalanced approach to critique which is eith er o v er-critica l (too n e g a tiv e ), or u n d e r-critical (too p o sitiv e) in that it reinstates law in its present liberal forms. The move to a 'm ad' justice beyond law either leads to a nihilism of law, or, in its more 'constructive' m om ents, to law 's re­ accreditation. I have therefore argued for a separation of deconstruction's 'm ethod' of looking at law from its underlying philosophy. This certainly takes me outside the Derridean camp, for it is clear that deconstruction is more than just a 'm ethod' for reading texts. It is deconstruction as 'm ad', 'm ystical', 'm essianic' justice that I have tended to avoid. However, it is just this elem ent in deconstruction that I now believe needs to be addressed if the ethical dim ension in m y argum ent is to be understood alongside the socio-historical perspective that has always been present. How, then, can w e elaborate this ethical d im ension w ithout eith er evading the socio-historical, or collapsing it into it? D errid a w rites o f an eth ical p o sitio n that in form s law w ith o u t b ein g fully instantiated in it; of an ethics w hich lies beyond law but constantly disturbs its presence. He writes of a 'universal structure of experience ... of the m ost irreducibly h etero gen eou s o th ern ess' (D errid a, 1999, p 249). This sen se o f a philosop h ical m om ent of absence-presence, I argue in Chapter 8, represents a m om ent of ideal 'u n re a s o n ' (th e 'm a d ', the 'm y s tic a l') in h is th o u g h t to s e t a g a in s t H e g e l's conception of ideal reason. Both operate as further mom ents beyond the antinom ies (aporias) of the present, and both are related back to them . D errida, of course, refuses the reconciliation claim ed by H egel, but he rem ains a pow erful m odern thinker in the tradition of dialectics, and of Hegel. In terms of the split in critical thinking begun after the rejection of Hegelian dialectics, Derrida is one of those who decidedly followed the Hegelian pattern of linking the m etaphysical-ethical to the

13

Law and the Beautiful Soul

world, while refusing the soothing resolution that reason would bring. H e brings an ethical irrationalism to bear on the antinomial workings o f the world and its law. How does this relate to the socio-historical? In boldly stating an ethical ideal that is always still to com e, Derrida makes a strong case for a metaphysics of the absent w ith in the p re se n t, p ro d u ced b y an o rig in a ry act o f cu ttin g that he ca lls an 'interpretive violence' (Derrida, 1990, p 941). A t first sight, this seem s no more than an evasion of the socio-historical, and it does, I argue, play that role. However, there is another way of looking at this resort to metaphysics, as itself an elem ent in the so cio -h isto rical. C ertainly, as an arg u m en t, it h as its ow n h istorical p resence. Derrida's metaphysics operate pow erfully within his philosophy and they resonate with many people today. They occupy their own place in the world, and they must be understood as so doing. The question is therefore raised how they m ight be given credence and validity in the kind of socio-historical approach I see as central to critique. Can the 'm ad', 'm ystical' m om ent be relocated in a w ay that does not repudiate a socio-historical approach, but rather becom es a significant, irreducible, part of it? The answ er to w hich the final chapters in this collection push is to say that Derrida's way of stating the ethical dim ension in legal thought needs to be recast as the metaphysical m om ent associated with a specifically developed historical setting. The m etaphysical-ethical dim ension in m odern philosophical thinking about law exists as a misplaced, but nonetheless historically and ethically valid, expression of the m oral character of m odernity and its law. We live in a socio-historical world w hich produces a highly lim ited ethics o f the present alongside, as its displaced com plem ent, a necessarily utopian and other-w orldly ethics of the future. W hat Derrida presents as an abstract m etaphysics of w hat is still 'to com e' is in fact a necessarily vague and inchoate indication of w hat could com e under different social and historical conditions.3 One deep antinom y of the modern world is that between the m etaphysically 'ideal' and the socially 'actual', and this is not because the ideal is by definition a m etaphysical abstraction, but because modern liberal society is founded on a sp lit w hich prod uces it in that form . Such a sp lit is represented p h ilo so p h ically by D errid a as the m etap h ysical gap betw een d eco n stru ctio n 's ju stice and the ju stic e o f the h ere and now , in th eir o p p o sitio n and relation . Historically, it w as represented at the dawn of modernity by the rise and fall of the figu re o f the B eau tifu l Soul in H e g e l's philosophy. T h at figure, I shall argue, inaugurated a typically m odern forcing of hum ankind's ethical possibilities into a metaphysical realm disconnected from the presently possible.

3

Derrida's response (1994, 1999) to this is to turn the tables. Instead of seeing metaphysics as the placeholder for a particular historical relation, history, he says, is the placeholder for a subterranean metaphysics. While it is correct to say that interpretations of history may involve this kind of operation, it is surely not necessarily the case that this be so. If we observe the development of social forms such as law over historical time, recognise determinate changes in those forms in different periods, relate these changes to underlying social relations or em erging social structures, are ou r in terpretations driven or structured by a particular metaphysical project? From a critical realist standpoint, the idea of a depth ontology accesses real developments in time and space. Interpretation is always part of historical research, but history is not reducible to it, thereby form ing the basis for a secret m etaphysics of the interpreted world.

From Law to the Beautiful Soul

Law, history, ethics: towards the Beautiful Soul Th e fin al tw o e ssay s in the c o lle ctio n seek in d iffe re n t m ilieu x to co m b in e a m etaphysical sense of the ethical inside and outside the law w ith a sense o f its specific socio-historicity. Chapter 9 considers the place of a metaphysical ethics with regard to law in A dorno's N egative Dialectics, and argues that his account of ethics is b etter read as involving a specifically historical yet real and em ergent im pulse underlying, but also repressed by, modern law. Chapter 10 considers the Beautiful Soul in H egel's early and mature philosophy. It argues that this figure assum es an ideal metaphysical form for Hegel because modern social institutions like those of private property and law cannot sustain or actualise its radical m oral implications. However, such im plications were them selves historically em ergent within Western s o c ie tie s as a re su lt o f the 18th c e n tu ry e x p e rie n c e o f s o c ia l re v o lu tio n . A s revolutionary possibility was snuffed out by property and law, so did the Beautiful Soul retreat from being a harbinger of present possibility to becom e, first, its tragic victim and, then, its pathetic outcast. The m oral possibilities associated w ith it therefore had nowhere to go but into the realm of the metaphysical. In both Adorno and the young H egel, an historically em ergent prom ise of freedom underlies the form s of liberal legality, yet is stifled, repressed and contained by it. Forced in the socio-historical present to be a shadow of w hat it could otherwise be, it assum es the ideal, metaphysical form of a prom ise of som ething that is always still, as Derrida has it, 'to com e'. In N egative Dialectics, Adorno adopts an am bivalent attitude to modern juridical freedom . In the m ain, he sees it as a form of repression, a m eans of containing hum an being within forms that rigidly control it. However, he also sees in such law th e p o s s ib ility o f a lim ite d , fo rm a l fre e d o m . U n d e r ly in g th is a m b iv a le n t (antinomial) vision of law, Adorno glim pses a conception of free humanity, which he refers to in metaphysical terms as an 'archaic' or 'untam ed im pulse', a 'jolt' of freedom , or even a 'flash of light between the poles of som ething long past'. This protean, ahistorical vision underpins m odern law with a sense of hum an freedom e x is tin g b e fo r e tim e o r s o c ia lity . T h is m e ta p h y s ic o f fre e d o m is h o w e v e r a cco m p an ied by an h isto rica l view o f how the em erg en ce o f m o d ern society produces genuine m om ents of freedom that are encased within and lim ited by a gen eral en v iro n m en t of unfreedom . For exam p le, A dorno says H am let's early m odern existential choice, 'to be or not to be', represents a real historical advance in the cause of freedom. However, at the sam e time, one can add, it is a tragic choice that only delivers H amlet up to a fate he cannot control. M odern freedom expresses an underlying sense of w hat it m eans to be free, but this is glim psed 'through a glass darkly', inchoately, in a world characterised by unfreedom. My suggestion in Chapter 9 is that A dorno's different and conflicting views of freedom can best be understood if one adopts a view o f freedom as historically emergent rather than the ahistorical, metaphysical view he also deploys. The latter sense of an 'archaic' impulse to freedom can be seen to represent nothing other than the metaphysicalisation of an historically em ergent moment. As such, it operates as a place m arker for what lies implicit, but cannot be brought out, within the present. It is a w ay o f id e a lisin g and fa lse ly u n iv e rsa lisin g a s p e cific s o c io -h isto rica l d ev elo p m en t, the lim its of w hich w e need to in terro g ate. T h e d ifficu lty w ith A d o rn o 's n egativ e d ialectics is that, in their ow n way, they con flate the socio-

15

Law and the Beautiful Soul

historical and metaphysical-ethical directions in modern critical theory, and this is seen in the conflicting (historical/ahistorical) origins of his impulse to freedom .4 The idea is of an historically em ergent freedom , repressed and constrained by m od ern law, and con sequ en tly p assin g into the form o f a m etap h ysical ethics beyond the here and now. From Adorno, we move in the final chapter to H egel and his account of the Beautiful Soul. In his early theological writings, Hegel admired this figure for its uncom prom ising assertion of a morality of love and non-alienated being. As his philosophy developed through the Phenom enology to the Philosophy o f Right, he cam e to dism iss it as a 'sad lo se r' w ho refuses to take its place in the world. The backdrop to this change in attitude was H egel's acceptance of modern form s of private property and law which institutionalised separation and alienation in the world. To accept these forms was to reject a morality of the Beautiful Soul, as H egel cam e d ecisiv ely , and cruelly, to do. So d o in g , he rep resen ts its rad ical morality as, first, an 'ideal' operating in conflict with the 'actual' world, and he then proceeds to idealise the actual (modern) world by making it the hom e of reason and ethics. These moves are only possible if the Beautiful Soul is banished to oblivion, yet it can never be forgotten sin ce its im age rem ains as the repressed o ther of modern institutions and life. If the loser in H egel's evolving philosophy was the Beautiful Soul, the primary w inner was an im age of individual m oral consciousness not unlike the m odernc la s s ic a l m o d e l o f th e le g a l s u b je c t. H e g e l d e fe n d s an in d iv id u a l in h is Phenom enology who takes its moral place in society by virtue of its formal capacity to will its ends, rather than because those ends have a specific moral content. The gap betw een this figure and m odern legal p ersonality is not so w ide, so that legal subjectivity with its particular legal-m oral duties com es to stand where once there w as the radical ethical figure of the Beautiful Soul. However, I argue, that figure w as never com pletely erased from the scene so that it rem ains as an ideal 'other' to legal subjectivity, present and absent w ithin it, and producing antinom ies wherever it goes. Legal argum ents, based upon the capacities of the legal subject, push one way and then the other as they strive for a moral content they cannot reach. L aw 's antinom ial form s represent a socio-historically prod uced, lim ited and partial, m orality w hich invokes broad er m oral conceptions beyond itself. These forms seek out a morality they cannot express, but which is glimpsed at the core of what they are. That fuller possibility was represented, and then repressed, by Hegel as the figure of the Beautiful Soul. The ethical move beyond the law is towards such a figure, though the jo u rn ey rem ains n ecessarily incom p lete. W hile it m ay be re p rese n te d in m e ta p h y s ic a l term s, th is is o n ly b e c a u se m e ta p h y sic s is the philosophical language in which interrupted historical possibility expresses itself. Balanced betw een ethics and history, law indexes how far m orally hum anity has com e, and how far it still has to go. A ntinom y becom es liberal law 's sign, socio­ history its context and condition, ethics its force and im possible goal.

4

The opening line of N egative D ialectics argues for a socio-historical approach: 'Philosophy, which once seemed obsolete, lives on because the moment to realise it was missed' (Adorno, 1973, p 3). In C hap ter 9, I argue that he does not sustain it in a w ork caugh t between conflicting idealist and realist standpoints.

Part I Legal Antinomies in History

C h ap ter 2 Closure and C ritique: A ntim ony in M odern Legal T h e o ry

O ur external sym bols m ust alw ays express the life within us with absolute precision; how could they do otherwise, since that life has generated them? Therefore w e must not blame our poor symbols if they take forms that seem trivial to us, or absurd, for ... the nature of ou r life alone has determ ined their form s. A critique of these sym bols is a critique of our lives. (Carter, 1977, p 6) [Philosophical thinking, if pursued far enough, turns into historical thinking, and the understanding of abstract thought ultimately resolves itself back into an awareness of the content of that thought, which is to say, of the basic historical situation in which it took place. (Jameson, 1971, p 345)

Introduction There can rarely have been so m uch d iversity in legal theory as there is at the present time. The 1980s saw a blossom ing of novel approaches to the subject in a way that w as quite unanticipated, and w hich has added much to w hat has not alw ays been a rich tapestry. But this d ev elop m en t brings w ith it a n u m b er of questions: w hat accounts for it? W hat is its nature? W hat are its strengths and w eaknesses? W hat overall assessm ent does it m erit w ith regard to its ability to explain, illum inate or contextualise the nature of law? In sketching a fram ew ork in which to locate these questions, I shall treat this phenom enon of theoretical regeneration as both an intellectual and a social issue, cla im in g th at th ese tw o a s p e cts are in s e p a ra b ly in te rtw in e d to p ro v id e the theoretical developm ents of the last ten years. On the one hand, the movem ents of legal theory respond to the inner logic of earlier positions within the field. Theory orients itself, or rather is oriented, within an already established set of intellectual practices and paradigm s, which it works to repeat or change. Theory responds to w hat already exists, revealing, w ith the benefit of hind sight, an inherent logic, w hether of continuity or discontinuity. In one sense, the production of theory, as described, is already a social process, for it occurs within a tradition provided by a com m unity of intellectuals (Bhaskar, 1979, Chapter 1; Outhwaite, 1978, Chapters 1 and 2; B o u rd ieu , 1988). H ow ever, th ere is also a b ro ad e r sen se in w h ich the intellectual is social, for the production of ideas occurs within given socio-econom ic conditions, at two different but connected levels. A t the m ost fu n d am en tal level, the b a sic id eas o f a trad itio n are h isto rical products em erging out o f a particular social period or epoch. Thus, the idea of abstract individual freedom as the apogee of hum an history in 18th century Europe was only possible in a world in which, as H egel (1952; 1956: pp 438-57) put it, the p rin cip le o f hu m an su b je ctiv ity had been realised , and this cou ld only occu r becau se o f the break d o w n o f feu d alism and the em erg en ce o f b o u rgeo is civil society. D ifferent societies - the m u slim w orld , the w orld of the state socialist societies - generate different basic ideas. A t a m ore specific level, the ideas of a period are social and historical in that the basic intellectual structures, w hich are

Law and the Beautiful Soul

handed dow n from the past and engaged w ith in the present, are m ediated and redirected according to the preoccupations of the here and now. Thus, to be a legal theorist today in the m u slim world or in Eastern Europe, is to engage w ith the available theories in a way that is quite different from even the relatively recent past. Thus, history and society are both fundam ental and conjunctural elem ents in the com position of legal theory, but the w ork of legal theory rem ains an intellectual practice engaged in and given life by past and present generations of theorists. History provides the structure and the colour of theory, but it is the intellectual who w orks on the material and produces the accomplished product. There is, in analytic te rm s , b o th an in te rn a l an d an e x te rn a l e le m e n t to th e h is to r ic a l lo c a tio n , co m p reh en sio n and c ritiq u e o f cu rren t d ev elo p m en ts and , in w h at fo llow s, I approach these both as products in them selves, and as products in history. The developm ents of the 1980s can be understood in a w ay that can genuinely be termed dialectical. On the one hand, the flourishing of theory can only be seen as a strength; on the other hand, it is the product of fundam ental intellectual weakness. This theoretical efflorescence has all the appearances of vigour and vibrancy, yet it is the product of profound and longstanding intellectual crisis. The developm ents on view are interesting and exciting (they are our world!), yet flawed and depressing. They d eriv e from a trad ition that h as grappled ov er and again w ith w hat are basically the sam e problems, that provides us with insight and understanding, but which also obscures and occludes. I make a division for historical and analytical purposes between two periods of intellectu al developm ent. The first, classical, period of the 18th and early 19th centuries established two sets of theories and schools which were in conflict with each other, and in which nothing was resolved other than the incom mensurability of the two approaches. This period is discussed in the next section. The second, modern, period, discussed in the ensuing section, is that of the post-w ar political and intellectual reconstruction which reassembled the sam e intellectual arm ies on the battlefield, in som ew hat different garb, but brandishing sim ilar w eapons. In b o th p erio d s, w e w itn ess p ro cesses o f d eclin e and d estru ctio n as establish ed positions unravel before us. The difference is that the process of unravelling in the classical period is reversed in the m odem period. In the former, it is classical natural law which unravels in the face of legal positivism; in the latter it is positivism that com es under fire from natural law - in its modern distilled and fragmented forms. In th is c o n te x t, th e s o -c a lle d p o s tm o d e r n c r itiq u e o f law r e p r e s e n ts , in jurisprudential terms, one final throw of the natural law dice. A lthough it would view E n lig h te n m e n t and m o d e rn ity in the c o n te x t o f a lo n g e r p h ilo so p h ica l tradition, and would see itself in its relation to m odernity in a quite different way, its concepts are those of Enlightenm ent ethical jurisprudence, turned against, but rem aining within, that tradition.

The breakdown of the Enlightenment tradition The modern classical period of jurisprudence was the child of the Enlightenment, and d ied w ith it. It e s ta b lis h e d a m e th o d fo r u n d e rs ta n d in g law th a t w as profoundly alien and unacceptable in the 19th century. Traditional accounts present

Closure and Critique: Antim ony in M odem Legal T heory

this as the redefinition of the province of jurisprudence (Austin, 1861), as theorists began to sep arate out sets of different questions: of fact and value, of law and morality, of w hat the law is and ought to be, of natural and positive law. However, the dem ise of classical natural law w as essentially m uch m ore than a m atter of definitional or logical refinement. It was a profound intellectual and political shift, from w hich there em erged the red efin itio n o f ju risp ru d en ce (cf H alevy, 1972; Marcuse, 1941). First, the rise of legal positivism accom panied the political securing of the wellordered bourgeois state. Bentham sensed the need to control and contain the restless s o cia l im p u lse s g e n era ted by the call fo r in te lle c tu a l and p o litic a l freed om (Steintrager, 1977; Rosenblum, 1978). Once the conditions for industrialisation had been ach iev ed , it w as m ore im p o rtan t to co n so lid ate 'w h a t is' than to dream dangerously about w hat might be in an ideal world of metaphysical abstractions. W hat 'ought to b e' should be no more than a deduction based upon the facticity of w hat had already been achieved. W hat was there w as what there was, its positivity only requiring am elioration, not fundam ental change (Cotterrell, 1989, Chapter 3). Accordingly, the 'nonsense on stilts' of natural rights theory was better shut off in favour o f sober evaluation of the concrete (cf W aldron, 1987). The source of the evaluation had changed too. No longer was the m oral standpoint that of the free individual; now it was the standpoint of the state itself through the aggregative logic of 'the greatest happiness of the greatest num ber'. The shift from individual egoism to general utilitarianism was the result of a m ajor historical developm ent (Halevy, 1972), closely connected with the positive theory of law. It was only an organised state that could posit a coherent, rational legal system. Secondly, the sam e developm ent that strengthened the hand of utilitarianism also w eaken ed that o f c lassical n atu ral law. The la tte r 's raison d'etre w as the establishm ent of a synthesis of the moral and the practical, the universal and the particular, the rational and the real, the ideal and the positive. Law 's im portance is only seen in the light of a general metaphysical stance on the nature of the social and political order. Law is seen in terms of an ethical other, is alw ays understood in the first place in term s of its heteronom y. This is the m oving intellectual force of m odern classical natural law, from Hobbes to Locke, to Kant, to Hegel: to establish an ad equ ate m ethod ology for the com prehen sion and rationalisation of law in te rm s th a t e x te n d b e y o n d its p h e n o m e n a l a p p e a ra n c e an d p r a c tic a l s e lfunderstanding. Different cultures naturally yield different political and intellectual approaches. In the w o rk o f the B ritish n atu ral law y ers, m o ra l-ju rid ica l and p o sitiv e-le g al concepts are prom iscuously interm ingled, so that one is never clear w hether the a rg u m e n t is a d ir e c t ju r id ic o -p o lit ic a l in te r v e n tio n or an a b s tr a c t e th ic o philosophical reflection (Strauss, 1953; H abermas, 1974, Chapter 1; N eum ann, 1986, Chapters 7 and 8). The metaphysic of the social contract to establish the sovereign is also the practical basis for the powers and duties of the constitutional monarch in Locke's program m e for the 'n igh tw atch m an state' (Locke, 1960); in H obbes, the philosophical constitution of sovereignty on the basis of metaphysical misanthropy is the im m ediate ju stification for contem porary political absolutism (H aberm as, 1974). There is, in short, no clear m ethod for affirm ing legal positivity w ithin a universal moral theory of society and polity, no adequate synthesis of the two. The

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Law and the Beautiful Soul

natural and the positive appear to be confused, so that w hen the m aster sceptic Hum e (1898) pointed out the flaws in the contract philosophy, and the reducibility o f p o litic a l p h ilo so p h y - th a t w h ich c o n c e rn s the 'a r t ific ia l v ir tu e s ' - to a consideration of the practical and the useful (Hum e, 1888), he brought philosophy down to the sam e level as legal positivity and the way was opened for the trium ph of the utilitarian-positivist axis in British intellectual life under Bentham and Austin. The German route w as more profound. If the philosophical m aterialism of the contract was an inadequate method for legitim ating positivity, the answ er lay in the firm er establishm ent of rational m etaphysics, not its discarding. For Kant (1965), law w as posited as the bridge between the speculative and the practical. Law was viewed dualistically as both a rational truth em bodying a priori concepts of right and as a n e ce ssa ry e lem e n t o f re g u latio n in a w orld g o v ern ed by em p irical necessity. Law embodied rational Will (der Wille) and controlled private egoistic will ( W illkiir). H ow ever, th is did n o t go far en o u g h , for, as e lse w h e re , K ant on ly succeeded in establishing an unbridgeable duality betw een the two sides of law. Law w as positive and law w as rational at the sam e tim e, but the philosophical m ethod of abstraction em ployed by Kant could never achieve a true synthesis (Norrie, 1991b, Chapter 3). W hat w as needed, as Hegel (1952) saw it, w as a means o f re co n cilin g the tw o sid es th ro u gh a d ia le ctic a l-ra tio n a l e lu cid a tio n o f the universal w ithin the particular, of synthesising w hat had been posited with the universality of spirit. Law was in this view both a m echanism of civil society, and an emanation of reason within ethical life. Law was one m om ent in the m ovem ent of the rational within the social (M arcuse, 1941; Norrie, 1991b, Chapter 4). Thus, for both K ant and Hegel, the separation of 'is' and 'ought' was a profound mistake revealing a lack of understanding of the w orkings of reason in and through the natural and the social. Law w as never just 'law ': it was always com prehended as part of a rational 'other', and the m ovem ent of classical natural law w as towards a refinem ent and developm ent of what the 'o ther' was, reaching its final highpoint in H egel's philosophical system . However, in the end, this grand theoretical edifice turned out to be no more than a rationalisation of the status quo, with the Prussian state as the term inal p o in t o f h isto ry (H egel, 1952, pp 1 7 9 -8 8 ; M arcu se, 1941; McLellan, 1969). Recognising the inability of the forms of individual right and selfinterest (property, contract, civil society) to generate institutions entailing a genuine ethical unity of the people, Hegel was forced to stipulate the rational necessity of ever more positive statal and para-statal agencies as the basis for Ethical Life. The cu lm in atio n of his grand d ialectical m ethod w as a set o f extrem ely 'p ro fa n e ', historically specific, institutions. Their historical particularity proved to be both the cause of the Philosophy o f Right's fall into disrepute, and an im portant opening for p o sitiv ist m eth o d o log y from w ith in the h e a rt o f its m ain ad versary. H e g e l's dialectical m ethod increasingly em braced actually existing (posited) political and legal institutions (Marx, 1975; and see below, Chapter 8). Hegel had rationalised the real, but the real turned out a sore disappointm ent, so that when the Prussian state began to act in authoritarian ways in order to quell the growing crises o f civil society, Hegelianism, which had predicted the end of history in a rational, liberal social order, had no means of analysing w hat w as happening, and therefore collapsed (M cLellan, 1969, C hapter 1; Engels, 1968). The result in G erm an in te lle ctu al life w as a v oid , w hich w as filled by p o sitiv ism in social

Closure and Critique: Antim ony in M odem Legal T heory

philosophy (Marcuse, 1941, pp 360-74), and the w eak abstractions of the historical school in law (cf Therbom , 1976, pp 178-86). The particular history of the Germ an polity, with its relative econom ic underdevelopm ent (Cullen, 1979), did not perm it a stable and pragm atic intellectual developm ent as occurred in Britain, and its very metaphysical sophistication made it clear that a grand intellectual synthesis of the ideal and the actual was im possible on the conceptual terrain provided by m odem social conditions. Thus, at the very m om ent in which positivism was given a boost by historical developm ents, classical natural law was fundam entally underm ined, in a m om ent from which it is yet to recover. The problem s w ere not, how ever, all one way. If, under the w eight o f sociohistorical developm ent, natural law was threatened by the developm ent of a new intellectual approach, positivism too was soon to be in the position of looking over its shoulder, in its case, at the rise of sociological approaches to the study of law. P o sitiv ism flou rish ed un der the so cio -p o litical p atro n age o f the con solid ated bourgeois state, which affirmed the possibility of social construction according to the 'u n iv ersalistic' criterion of the 'g reatest happ in ess o f the greatest n u m b er'. Positivism w as formed out of the heady optim ism of the early days of industrialism , and u n d e rp in n e d b y a c o n v ic tio n o f th e e te r n a l an d n a tu r a l c h a r a c te r o f contemporary developments. It relied on the support of the well-ordered economy as the counterpart to the well-ordered state and legal system , so that its intellectual partner in the elucidation of the nature of social order was the theory of the classical political econom ists (see, eg, Bentham , 1975, p 265). The subsequent developments of social life in the nineteenth century revealed that the abstractions of political economy could not be a reliable basis for continuing good order, and that a more con crete s o cio lo g ica l in v e stig a tio n o f social ills w as requ ired (A bram s, 1968; cf Corrigan and Sayer, 1985, Chapter 6). This conclusion led to questions about the nature of law that threatened the depoliticisation and form alism , the certitude that law could be un derstood as an auton om ou s, self-g ro u n d in g reg u lativ e system , achieved under positivist theory (cf Cotterrell, 1993). In Britain, positivism m anaged to remain fairly stable because of the strength of the socio-econom ic developm ents of the period, and the resultant growth of a legal profession that theory could feed off, legitim ate, and in turn be legitim ated by (Cotterrell, 1983). In the rest of Europe, where these developm ents were less even and successfu l, the problem w as m ore stark. W hether the u n derlyin g political p ro je c t w as c o n se rv a tiv e , lib e ra l o r ra d ica l, it w as n e c e ss a ry to th in k m ore historically and sociologically not only about the nature o f social order bu t also about the nature of law itself. Thus, France could give rise to a Durkheim (1964) with his investigations of the nature of social solidarity, with legal obedience seen as a d ep en den t factor and ind icator o f social health, and w ith his analysis of the historical evolution of m odern legal form (D urkheim , 1973). G erm any produced Marx, with his diagnosis of both the class basis of law (M arx and Engels, 1968) and the econom ic basis of legal form in generalised com m odity exchange (M arx, 1973), and Weber with his historical-ideal typifications of different types of law (Weber, 1978). W hile m odem law w as attributed, in neo-Kantian style, a status independent o f c a p ita list e co n o m ic d ev e lo p m e n ts, W eber in sisted up on an h isto rica l and sociological mode of investigation w hich both emphasised the contingency of legal developm ents and threatened - in his discussion of the 'England problem ' (Hunt, 1978) and his study of Islam (Turner, 1974) - to underm ine his formalism.

23

Law and the Beautiful Soul

Thus legal positivism w as itself threatened by another approach that emerged out o f the s o cia l-h isto rica l d ev elo p m en ts o f the 19th century. Law sh o u ld be com prehended neither in its positivity nor as a m etaphysical correlate, but as a social p h en o m en o n , com p reh en d ed w ith in socio lo g ical theory. A so cio lo g ical approach shares with positivism an insistence on shearing away the metaphysical baggage of natural law, but having done so, has this m uch in com m on with the natural lawyers: a shared belief in the im possibility of seeing law as an autonom ous, self-standing institutional force. Law in this view, as with natural law, w as regarded as essentially heteronom ous, but this was to be com prehended in sociological terms, in its intrinsic relationship w ith other social and historical form s and relations. Law 's heteronom y resides in its existing in social relation: to attem pt to portray it in te rm s o f a p ro je cte d au to n o m y , w h ile a c ce p ta b le as a m ean s o f c u ttin g o u t metaphysical speculation, may be deeply misleading as a means of understanding it.

Modern trends in the wake of the classical breakdown I have identified a historical period of developm ent and decline which lies at the root of the m odem developm ents in legal theory. H aving established three actors on an intellectual stage, I now wish to indicate the basic scripts that they will read and the strengths and w eaknesses in the characters that they will play. It will be noted that this is a genuine play, for as we proceed, w e will see that the actors' lines are always in dialogue with each other. The play's dynam ic is provided by interplay between the three characters because they exist in relational tension, and in a sense need each other in order to fill out their own roles. The essence of legal theory is a grouping of intellectual ideas in a set of one-sided ways. It will also be noted that through dialogue, the different actors com e to assum e some of the characteristics of their opponents, for, som e of the time, their com petition is of a som ew hat 'friendly' nature. Broadly, three connected intellectual moves can be discerned in this play. Positivism and the attack on legal closure F o r th e p o s it iv is t , h is to ry , in th e w e ll o rd e re d p o lity , is on h e r s id e . T h e establishm ent and expansion of a legal profession in the UK provided the positivists with a set of professional practices and intellectual problem s that were legal in a narrow sense, and on which they could feed and in their own way thrive (Cotterrell, 1983). The existence of law as a social practice in itself encouraged the developm ent of a legal theory that would define law intellectually as an autonom ous practical phenom enon. However, at a deeper level, the search for the autonom ous essence of law proved chim erical. In the standard positivist texts, the theorist alw ays buys certainty at the cost of lim itation. A ustin's sovereign is a juridical m aster for the purpose of legal theory, but at the cost of hiving off the interesting questions about pow er and social relations to other disciplines (cf Fitzpatrick, 1991a, on the work of Hart). The province of jurisprudence is circum scribed from the beginning. W hat, then, is the positivist left with? The answer is a set of 'technical' materials, which can do no more than replicate and refine an existing social practice, but w hich can never get beyond it. Furtherm ore, as A m erican legal theorists have pointed out from the tim e o f realism o n w ard s, ev en the te ch n ica l ce rta in tie s o f the legal

Closure and Critique: Antim ony in M odem Legal T heory

positivists are hardly so certain. Law is about w hat judges do, not w hat they say they do (Llewellyn, 1951; Frank, 1963); it is about conflict and social interests, about rationalisation in the p ejorativ e sense o f covering p olitical goals in a 'sh o w ' of formal im partial reasoning (Kelm an, 1987). Positivist legal theory reflects the selfunderstanding of legal practice, and cannot m ove beyond it. For this reason it can be designated as what Bhaskar (1979) calls a 'praxiology', a term to which I return below (see p 30). This battle between positivism and a sociologically inspired realism is fought out all the tim e, w ith the argum en t sw in ging first one w ay and then the other. At present, both sides have som e strong w eapons in their armoury, for there has been a revival in forms of positivism as its theorists com e to terms with the onslaught of firs t the s o c io lo g ic a l m o v e m e n t in law , and th en th e C ritic a l L eg al S tu d ie s movem ent in the US and the UK. In this context, M acCorm ick's w ork (1976, 1983, 1993) has been exem plary becau se o f its w illingn ess to take on, and to take on board, the criticism s of positivism 's opponents, while Dworkin (1986) has sought a more dogmatic, unconvincing closure of the debate with critical approaches to law (Cotterrell, 1993). This dialogue about law 's heteronom y is not just betw een the positivist and her sociological and realist critics. It is also one that one branch of the descendants of n atu ral law hav e b een keen to join . To u n d erstan d the n atu re o f this fu rth er intervention, it is necessary, first, to understand the process of fragm entation that occurred after the collap se o f the classical d octrin e. T he H egelian system had com bined deep philosophical abstraction with a close focus on the positivities of law, politics and economics. W hen the synthesis of these elem ents achieved no more than a glorification of the present, the intellectual world w as sundered into a strict positivism on the one hand and a v ariety of o ne-sid ed theoretical, ethical and irrational abstractions on the other. Within the latter realm, theory was more or less unbounded by the 'discipline of positivity', that is, the need to explain and analyse 'w hat is'. Freed from this obligation, it w as able to engage in radical, som etim es wild, philosophical speculations about the nature of law. In this process, law as an object of study becam e of secondary importance, to be pulled along on the coat tails of a m aster abstraction. The neo-classical world of these different w riters w as a world where 'anything w ent', and where fragm entation was the order of the day.1 In this situation, intellectual stability w as impossible, indeed undesirable, and the latest abstraction would reflect the political or ideological colour of its period and place. It is within this context that the current attempts by postm odern legal theory, from a diverse and varied set of perspectives, to take over the field of legal theory can be located. Postm odernism is a one-sided response to the breakdow n of the c la s sic a l sy n th e se s o f law and ra tio n a lis m , tu rn in g the p o s t-E n lig h te n m e n t irratio n alism o f the d eclin in g and frag m en ted n atu ral law sch o o l ag ain st the proclaimed achievem ent of legal positivism: a theory of law as a more or less closed and autonom ous system of rules, norm s, or regulation.

1

For a helpful account of the intellectual development from romanticism to Nietzsche, and beyond to Heidegger and Bataille, see Habermas, 1987.

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Law and the Beautiful Soul

Thus, positivism is alw ays under attack from different sides because of its claim ab o u t th e au to n o m y o f law . T h e s e a tta c k s are m o re or le ss w e ll g ro u n d e d , som etim es in realism, som etim es in sociological critique, som etim es in postm odern theory. From w hichever side, the claim is that law should be understood in terms of an 'other', in terms of its social or philosophical reliance upon and instantiation of p ractices and ideas beyond itself: in term s of its heteronom y. P ositiv ism m u st alw ays w alk the line that it has chosen for itself (and that a particular historical period has generated for it) between two different approaches to legal phenomena w hich, in their different w ays, seek to ground and explain legal phenom ena in relation to w hat lies beyond them, w hether this is com prehended in terms that are predominantly metaphysical or material. N a tu ra l law distillations and filia tio n s For the natural lawyer, a variety of responses has emerged to the breakdow n of the classical trad ition. First, there is the neo-K antian response, w hich replaces the transcendental basis of the categorical im perative with a scaled down, prosaic sollen ('ought': cf Rose, 1984; Lukacs, 1971, pp 108-09). This is then attached directly to the categories of law, producing an 'eth icalised ' legal positivism , as in the w ork of Kelsen and, in quite different ways, in that of Weber (cf Schluchter, 1981; M urphy 1993), Fu ller (1969; cf Sum m ers, 1984), and ev en , throu gh Weber, the M arxist, Lukacs (1971, pp 83-110). The problem w ith this approach is that, in its purest Kelsenian form, it gets the w orst of both worlds. On the one hand, the dim inution of the 'ou ght' required by the theory's reduced transcendental quality provides an u n co n v in c in g a c co u n t o f law as a s e rie s o f lo g ica lly lin ked b u t e m p iric a lly unspecified oughts, w hich suffer for their 'purity' in a parallel w ay to the original Kantian m etaphysic; that is, they rem ain barren. The unbridgeable gap betw een K a n t's m oral law (the n o u m en al) and the w orld o f n atu re (the p h en o m en al) (M acIntyre, 1967, pp 197-98; Wolff, 1973, C hapter 2) is replicated in the gulf in K elsen's work between the form of law and its content (cf Pashukanis, 1978, p 52). On the other hand, where Kelsen does say som ething about law, it appears as little more than a mystified doppelgciiiger for its positivist counterpart - for exam ple, in the em ploym ent of the Grundnorm in place of the sovereign's com m and. M ore broadly, the problem with neo-Kantianism , even in its sociological form, is that it fails to get 'behind', or to penetrate into the nature of law. It takes law on its ow n terms, as in W eber's em brace of the legal paradigm as a rational practical form (Albrow, 1975; cf the discussion of W eber below in Chapter 9), or in Teubner's affirmation of the selfclosing character of the juridical sphere in an autopoietic system (Teubner, 1987; cf C o tte rre ll, 1993). N e o -K a n tia n ism is no m ore th an a scaled d ow n v e rsio n of Kantianism itself in w hich the antinom ies of the noum enal and the phenom enal are replicated in a narrower ambit. A second response, one that has been partially described already, is to break aw ay from the rationalism of the classical and neo-K antian d iscou rses, and to replace them with one of the many varieties of irrationalism which stem from the radical conclusions drawn by Nietzsche and others about the value of classicism. From this view p oint, the pretensions of law are sw ept aw ay as its d iscourse is hitched to a 'w ill to p ow er' (Foucault, 1977, 1980), or the vagaries of an historical text (Foucault, 1972), or its suppression or denial of 'the o ther', how ever that might

Closure and Critique: Antim ony in M odem Legal T heory

be con ceived (D errida, 1990; Lacey, 1993b; Barron, 1993; G ood rich, 1993; Land, 1993). One danger w ith this response to the dem ise of classicism is that the object of stu d y (law ) re m a in s se c o n d a ry to the m o tiv a tin g th e o re tic a l im p u ls e , and underdeveloped in its specificity. This may be claimed to be no more than a function of the new ness of approaches that have only recently sprung up, and require time to attain a synthesis, but there is also an inherent m ethodological tendency for such approaches not to engage thoroughly w ith law, for two reasons. O ne is that the p ersp ectiv es that are d eveloped in this m ode are necessarily fragm entary, and therefore lack the concepts necessary to engage in a full critique of law. W here they do make the effort of engagem ent w ith law, they are likely to replicate its self-image, like the neo-K antian. T hu s, in G o o d rich 's w ork (G oodrich, 1986), it is not clear whether bringing a herm eneutic critique to bear on legal discourse does more than affirm the recog n ised p ra ctice o f law y e rs (N o rrie , 1989b ), w h ile a p o sitiv ist ap p rop riatio n o f h erm en eu tics is p o ssib le (M acC o rm ick , 1983). Sim ilarly, the representation of law as a system of technical and bureaucratic rules (eg, Goodrich, 1993; Land, 1993) that is closed off against authenticity or wholeness is not that far from the positivist's own stance. The second is that in these approaches, the 'critical' is out of balance with the 'analytical', so that the theorist is m otivated by the kind of th o ro u g h g o in g n e g a tiv ity that m ak es 'tra s h in g ' a s a tisfa cto ry and su fficie n t response to law (cf Kelm an, 1984). Instead of seeking the intrinsic specificity and m o d a litie s o f the le g a l e n te rp ris e (w h ich is n o t th e re b y to acco rd them the positivist's claimed autonom y), the tendency may be to dismiss these elem ents as epiphenom enal, and to reduce the critical enterprise to one of full-blown negation. To make these criticism s is not, however, to deny the value of postm odern critical tools such as deconstruction to our understanding of law, or the possibility of using them to investigate the nature of law as a social phenom enon; my concern is that, pursued to their full extent, such approaches may miss as many legal targets as they hit (see further below, Chapter 8). Is so am bivalent a reaction to postm odernism possible? Only a brief answer to that question can be made here. If we take Derrida's work as exemplary, he would deny the charge of nihilism , yet his account o f d econstruction is hitched to the affirmation of a justice so 'm ystical' that it beggars description. Justice 'would be the experience that w e are not able to experience ... an experience of the im possible' (Derrida, 1990, p 947). Justice is at best a negative m om ent defined against all that p o sitiv ely is, an o u tsid e , a b ey o n d , that can n o t be ex p re sse d , on ly felt as an 'im p u lse ', an 'u n satisfied ap p eal' (ibid, p 957). H ow ever, this irrationality, this 'm adness' (ibid, p 965), this 'anxiety-ridden m om ent of suspense' (ibid, p 955), this upturning of the m oral rationalism of the Enlightenm ent2 is allied to the prior, in m y view m ore valuable, d econstructive tasks of seeking out the con trad iction s w ithin d iscou rse and tracin g the 'h isto rical and in terp retative m em ory' o f the concepts. One m ust 'd o ju stice' to the historical and political concept of justice, in te rro g a tin g its 'o rig in , gro u n d s and lim its ', atte n d in g to 'th e th eo retical or norm ative apparatus surrounding' it (ibid, p 955). This genealogical investigation into justice can then go two ways. Either it can go back into the m oral-philosophical

2

Derrida's self-expressed orientation to classical thought is that, while he might not be 'in the race' (dans la course), in an inside lane, deconstruction 'keeps him running' (fait courir) 'faster and stronger' (ibid, p 966).

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Law and the Beautiful Soul

tradition that it is deconstructing, in the process seeking some precarious foothold on the classical terrain it has already deconstructed, or it can probe more deeply the historical and social relations within which the concept has flourished. Either it can go back to natural law, or it can go forward to a sociological understanding of the nature of the concepts at play. Derrida's deconstructionism does the former, but his deconstructive project strikes im portant chords with anyone who, as I will indicate below, wishes to follow the latter course.3 A third response is to attem pt som e kind of return to the classical tradition, and this is in m any w ays still the m ost p op u lar approach. From H art's 'm in im u m content of natural law ' (Hart, 1961), to Dw orkin's view of the anim ating values of the Western polity (Dworkin, 1977; cf M acCorm ick, 1978a), to M acC orm ick's 'ethical positivism ' (M acCorm ick, 1989), to H aberm as's discourse ethics (H aberm as, 1984, 1989; see also Alexy, 1989), to Rawls's original position and contractarianism (Rawls, 1972; cf Rawls, 1985), to N ozick's Lockean natural rights theory (Nozick, 1975), to Rose's reading of Hegel (Rose, 1981), to Beyleveld and Brownsword's Gewirthian, and K an tian , ratio n alism (B ey lev eld and B ro w n sw o rd , 1986, 1993), a ho st of different 'back to the Enlightenm ent' approaches have been adopted. The difficulty for all these approaches, which exhibit a wide variety, is to know w hether they have been able to achieve what their classical predecessors were not, ie, the resolution of the d ifficu lties o f com binin g the eth ical and the positiv e. It has been said that 'positivists are not so positivist as they were', but the question is w hether any of these approaches achieves a synth esis betw een their positivism and classicism . Positivism has been under attack for m any years from m any directions, and this return to natural law prem ises is part of a response. But in reversing the historical process that saw positivism trium ph on the back of a natural law in decline, it is doubtful just how much m ileage there is in these neo-classical syntheses. Locating legal specificity sociologically It will already be clear that in separating off three approaches to the study of law, it is only possible to construct m odels for analytical purposes since our three main c h a ra c te r s are so fre q u e n tly the p ro d u c t o f in te lle c tu a l cro sso v e r. T h u s, in c o n sid e rin g a s o c io lo g ic a l a p p ro a ch , it m u st be n o ted th a t on e o f the m ain theoretical traditions, the W eberian, has already com e under scrutiny for its neoK antianism . H owever, for those w ho believe that the study of law is a m atter of building theoretical concepts out of the observation of a social phenom enon, in its re late d n e ss to o th er su ch p h en o m en a, a so cio lo g ica l ap p roach d oes offer the possibility of breaking out from the one-sid edness that either leads to the pure reduction of law within an analysis stressing heteronomy, or its secular deification through the stress on autonomy. In recent times, there have been attem pts to view law in th is sy n th esised w ay th ro u gh a legal form a n aly sis th at co m b in e s an insistence on the historicity of all social forms with a regard for their particularity in 3

This argument is pursued below, in Chapter 8, where I press Derrida into service in the ranks of the dialectical trad ition . A ccord in g to H ab erm as (1 9 8 7 , p 97 ), this division within deconstruction is already present in Nietzsche as the two paths of (1) sceptical unmasking of 'the perversion of the will to power, the revolt of the reactionary forces, and the emergence of a subject-centred reason by using anthropological, psychological, and historical methods', and (2) the initiate's critique 'of metaphysics [which] pretends to a unique kind of knowledge and pursues the rise of the philosophy of the subject back to its pre-Socratic beginnings'.

Closure and Critique: Antim ony in M odem Legal T heory

different historical periods. In this way, form and content are merged on the basis that law is a sp ecific social form em erging w ithin certain social relatio n s, and m ediating them. To nam e two such attem pts, there has been the w ork of U nger (1976) in the U S, and the re d isc o v e ry and u se o f the le g a l form a n a ly s is o f Pashukanis in Western Europe (Pashukanis, 1978; cf N eumann, 1986; Neum ann and Kircheimer, 1987). These approaches have been im portant for their ability to re-establish broad historical-conceptual fram ew orks for the study of law, both in its juridical specificity and as a social phenom enon. However, both remain som ew hat isolated within the intellectual traditions of which they are a part and exhibit certain weaknesses. This may be for a variety of reasons that are extrinsic to the theories them selves, but there are also internal problems with them that should be mentioned. The m ajor p roblem o f the U ngerian an alysis is that it rests on an idealised conception of the econom ic and political processes underlying the W estern legal polity. Resting on a theoretical basis of sociological pluralism and evolutionism , the dynam ics o f liberal society are founded upon ab stractio ns that are them selves liberal in their conception (group pluralism , the impartial state) with the result that the predicted future of 'post-liberal society' (based on welfarism and corporatism ) can only recapitulate the developm ents on the surface of Western social life, which the last 15 years o f n eo -lib eral b ack lash h av e show n to be h igh ly co n tin g en t, reversible, and by no m eans necessary. U n ger's account is show n by the current historical period of conservativism and authoritarianism to be unable to grasp the real u n d erly in g trends w ithin w hich the d ev elo p m en t o f legal form s m u st be located, and within w hich they perform their socio-political roles. N onetheless, his w o rk is an im p o rtan t attem p t, u tilisin g im p ressiv ely broad co m p arativ e and historical analysis, to com prehend d ifferent legal form s in p articu lar historical periods (cf the important but now dated essay by Kamenka and Tay, 1975). The problem with the second approach is that legal form analysis in the Marxian tradition has been ham strung by certain assumptions, the m ost important of which is the indefensible claim that law and capitalism are coextensive on the basis of the com m odity form. This view has been prom ulgated by those who are particularly critical of Pashukanis's w ork (Collins, 1981, pp 108-11; Warrington, 1981). I do not think that so crude a view can be attributed to him (Norrie, 1982), but the charge appears largely to have stuck, discouraging further work. It is necessary to discard this view through a d eeper aw areness o f the nature o f the theoretical prem ises which underlie form analysis (Sayer, 1987). A more flexible approach to legal forms is required w hich can locate different kinds of law in different kinds of societies, starting from a deeper analysis of the social relations w hich constitute particular social form ations (see, eg, Fitzpatrick, 1982; N orrie, 1990a, 1993b). There rem ains m uch strength and potential in such an approach, both in terms of its com parative and historical dim ensions, and in term s of its ability to understand the nature of modern Western law. The focus of a sociological approach should be the specificity of law, and to explain such specificity as a particular, historical form of practice. The aim should be to steer a path between the autonom isation of law sought by positivist and neo-Kantian approaches on the one hand, and reductive heteronom ising accounts, such as those suggested by postm odern analysis on the other. Law is to be understood neither as the fruit of a regulative system w hich can

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Law and the Beautiful Soul

achieve, by its own efforts, closure and autonom y (cf Teubner, 1987), nor as the pale reflection or negation of forces beyond it that it can never embrace. Law m ust be seen in its specificity as a historical practice w hich operates through particular form s and m echanism s which are real, effective and differentiated, and which are related but irreducible to broader social relations. O ne w ay to capture this duality of law is through Roy B h ask ar's con cept of 'praxiology', by which he refers to any theoretical account of som e form of action that is tied to, and limited by, a set of possible practices and outcomes. The range of concepts available within a praxiology is governed by the set of social practices that th ey re p rese n t, in fo rm and le g itim a te . To th e e x te n t th a t th e so cia l p ra c tice represents a partial or particular m ode of intervention in social affairs, to that extent are the knowledge forms that it generates also limited. A praxiology may best be regarded as a norm ative theory of practical action, generating a set of techniques for achieving particular ends, rather than as an explanatory theory capable of casting general light on actual events (Bhaskar, 1979, p 37; see my use of this approach in Norrie, 2001b, Chapter 11). A prim ary exam ple of a praxiology would be neo-classical econom ic theory, but also other theoretical accounts such as that provided by different kinds of gam e, rational and public choice theories in the social sciences, by utilitarianism, and by political liberalism. All such accounts seek to explain and guide action by reference to abstract ahistorical criteria w hile rem aining rooted in particular, historically given, social relations they seek to bracket off or deny. Positivistic theories of law, w hich attem p t to exp lain the natu re of law and to p rovide gu id ance for legal p ractice, share m any ch aracteristics w ith these p rax io lo g ies. The essen ce o f a praxiology is that it takes the part represented by the practice to be the w hole, and in so doing both obscures the whole and misrepresents the practice. By ignoring the relationship betw een the practice and its broad er social context, the need for a radical reinterpretation of the nature of the practice in the light of its social context is hidden. Praxiologies both describe real social practices and obscure and m ystify their deeper foundations, w here recognition of those foundations would force a reappraisal of the practices themselves. I w ill illu stra te this p o sitio n w ith a b rie f d iscu ssio n o f the d escrip tiv e and norm ative concept of the legal subject as a responsible agent which lies at the heart of the 'general principles' of the crim inal law (for a general critique, see N orrie, 2001b). Such a concept is instantiated through the doctrines of mens rea, actus reus and the general defences w hich go to m ake up the 'general part' of the law. The concept of a 'responsible legal subject' is constructed through ideas of intention, recklessness, v olu ntariness and rationality, w hich refer to real characteristics of hum an agency as it has evolved in m odern Western societies (Harre, 1983). M odern Western agents are constructed as, and understand them selves as, agents in terms that correspond to those of the law. Nonetheless the law 's conception of these terms rem ains partial and m ystificatory because it seeks to abstract the actor from the context of social conflict and deprivation w hich generates crim e, and to exclude that context from the judicial gaze.4 Human agency is intentional, but, in the w ay these

4

This argument and its implications are developed below in Chapters 4 and 5, and most fully in Norrie, 2000.

Closure and C ritique: Antim ony in M odem Legal T heory

con cep ts are d ifferentiated , intentions are alw ays linked to m o tiv es w hich are socially constituted and norm atively determ inative for agents. In order to exclude this broader social context of agency, legal responsibility form alises the distinction betw een 'intention' and 'm otive'. Were these to be seen as com bined in the creation of agency, the responsibility of the individual would dissolve into, or at least require a very different articulation with (Norrie, 1990b, discussing Lacey, 1988), society's ow n responsibility for crim inal actions. Sim ilarly, legal praxiology abstracts the 'factu al' question of aw areness o f risk in the law o f recklessness from the socio­ political and 'n orm ativ e' question o f the ju stifiab ility of risk in ord er to locate crim inal responsibility individualistically in the law of recklessness (Norrie, 1992); while in the law of causation, it attributes causal responsibility individualistically by socio-political fia t in order to separate off the consequences o f individual agency from the broad flux and structure of social causation (Norrie, 1991a). Thus, the praxiological explanation of ju rid ical subjectivity takes the m odern social fact of individually constituted m entality as the basis for a descriptive and norm ative account of crim inal responsibility, but takes it in an entirely one-sided w ay: individually instantiated social agency is translated into individualistically con stituted , d esocialised , responsibility. Recognition of the social d im ension of in d iv id u a l a g e n c y tr a n s fo r m s o u r k n o w le d g e an d u n d e r s ta n d in g o f th e implications of such agency. Legal knowledge, tied to the crim inal law practice of punishing individuals, is founded upon the denial o f the social relations w hich inform agency where their recognition would radically challenge its legitimacy. It is this tying of know ledge to a particular, partial, m ystificatory view of agency that justifies the designation of legal knowledge as praxiological. O ne starting point for the sociology of law would thus be the investigation o f the v arious w ays in w hich legal praxiologies operate to govern social conduct and m ediate social relations, informing practices that are in the sam e m om ent real and unreal, ie, represent practical but distorted, particular, non-necessary interventions w ith in the social w o rld . S u ch an ap p roach can re co g n ise the sp e cific ity and particularity of legal form s at the same time as it relates them to, and explains them by, the broader social processes of which they are a part. Law must be understood m ethodologically, at the sam e time, in itself and in its otherness, and this is only possible by regarding it as a specific, historical, socio-political practice.

Conclusion M y brief conclusions, or perhaps alternatives to a conclusion, on the basis of this largely inadequate account o f its developm ent, are presented in the light of the two contexts w ithin which I have sought to understand legal theory. First, the problem s of legal theory are to be located in a historical-intellectual d evelopm ent that established a fram ew ork for future positions w hich contained important defects. Legal theory cam e out of a period of intellectual crisis, in which theoretical unities were sundered, leaving a m ixture of approaches which, for all that they are in dispute, have one thing in com m on: a one-sided approach to the p h en o m en o n o f law. T h o se th eo ries th at em p h asise la w 's h etero n o m y fail to account for its specificity; and those theories that em phasise its autonom y fail to account for its relatedness. Thus, no one theory is adequate. However, to com bine

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different theories will not produce a synthesis, only eclecticism . In approaching theory today, it is paradoxical that the exciting diversity of the m odern scene is a product of this process of fragm entation and decline occurring in the last century, so that the variation of the present com es out of and is caught up in the problem s of the past. The tendency is usually to one-sided understandings of the nature of law. This is the first context within which I seek to understand modern developments in legal theory. At the sam e time, I would stress as a more specific context the nature of the current conjuncture within which particular theories are constituted. We live at the end of the period of post-Second World War reconstruction, and it is this w hich p rov id es the presen t w ith its m ore sp ecific colou ratio n . W hat w e have w itnessed in this period is the co n stru ctio n , and then crisis, o f a th eoretically hegem onic project. That project was largely positivist, but with a m inimum of ideas stra in e d from th e n a tu ra l law tr a d itio n , an d b u ttr e s s e d b y th e n o rm a tiv e arg u m en tativ e approach o f m od ern A nglo-A m erican political philosophy. The iconic works in this tradition, which reached its head in the mid to late 1960s, were those of Hart (1961) and Rawls (1972). However, no sooner had this modern liberal project been consolidated than events in the form of the social strife of the late 1960s and early 1970s overtook it. The response to this w as a critical approach w hich began in legal sociology and the sociology of deviance, and reverberated in different forms through Critical Legal Studies and postm odernist approaches to law. It is this counter-tradition that has opened up the theoretical debate in the present period, albeit within the broader historical confines we have identified. The interest in legal theory today stem s not just from the vibrancy of the counter-tradition but from the responses to it that have been elicited from those whose ideas have developed out of legal positivism. There has on occasion been a w illingness to defend and renew the older tradition in more intellectually interesting ways, so that on all sides the level of theoretical engagem ent has been increased. In this dual context, it is notable that the current period replicates the classical period - in reverse. W hereas then, positivism emerged from the downfall of natural law, today the postm odern residues of natural law have begun to take their revenge. M eanw hile, lurking som ew here in the wings, tem porarily eclipsed by the bright lights of postm odernism , and not, perhaps, clear as to its future agenda, sociological approaches rooted in classical sociology await their return to the centre-stage. The result of all this theoretical endeavour may not be more satisfactory answers, but certainly it has produced a more stim ulating set of questions in an area of the social sciences that has for too long been m arked by 'leather tongued' sterility. I have sought to uncover the foundational and conjunctural historical elem ents behind this repetition in reverse o f classical ju rispru d en ce, and to suggest, in a necessarily lim ited manner, a way forward that can move beyond the different reductionisms p e r p e tr a te d by a tte m p ts to a u to n o m is e (p o s itiv is m , n e o -K a n tia n is m ) o r heteronom ise (natural law, postm odernism ) law. W hat is required is a historical and sociological ap proach w hich can grasp the duality o f law as a specific form of historically constituted sociality.

C h ap ter 3 From Law to Popular Justice: Beyond Antinom ialism

Popular justice: in search of a concept The sociology of law has long failed to understand the nature of popular justice. Boaventura de Sousa Santos has viewed it as central to the discipline, but he notes the increasing vagueness of discussion, so that 'the core debate is increasingly a debate about w hat is being debated' (1992, p 132). He further notes the failure to em phasise the challenge that popular ju stice m akes to liberal political and legal theory, in p articu lar to the u n derstand ing o f the state and law as auton om ous forms. My argum ent will be, inverting and extending his point, that the failure to understand popular justice itself also results from the failure to challenge the liberal idea of law. Until w e interrogate fully a certain w ay of understanding law, w e will not u n d erstan d p o p u lar ju stice. The latter term cov ers a n u m b er o f d ifferent phenom ena, but what governs its conceptual possibility in the sociology of law is the relationship of 'otherness' that is established between it and a liberal conception of law. If w e challenge the concepts of liberal legality, moving from a critique of law to an understanding of popular justice, we will find a more adequate way of talking about the latter. If w e do not do so, our com parative understanding of different system s of rule, particularly those we call popular justice, will remain imprecise. The con cep tu al failu re at the h eart o f the debate o v er p o p u lar ju stice h as a lo n g stan d in g W eberian form and a m ore recen t F o u cau ltian one. The cen tral problem is a falsely d ichotom ising tendency, an 'an tin o m ialism ',1 w hich has its main expression in the form al/inform al opposition in W eber's sociology of law, and which ram ifies into a series of dichotomies. These include form and substance, the legal (or bureaucratic) and the popular, the indigenous and the statal, the local and the national, the rational and the irrational, and the individual and the social. My argum ent will be that antinomialism places Western law on an imperialist pedestal, and sets popular justice up to fail. There is a need to cut Western law down to size (which is not the sam e thing as dism issing it, either theoretically or politically) and to give popular justice its due. This is done by a method which can explain what Western law and popular justice have (and have not) in com m on as differentially constituted juridical modes. I b e g in , h o w e v e r, by illu s tra tin g an tin o m y . In th e ir b o o k on co m m u n ity mediation in the US, Sally M erry and N eil M ilner write that popular justice is 'less inclined to rely on legal form s of discourse and more on the discourse of the world outside the legal system '. However, they also claim that 'm any of the procedures, symbols, rituals, and forms of language used in popular justice derive from state law ' (Merry and Milner, 1993, pp 4-5). They write that popular justice 'provides a stark co n tra st to the v io len ce and co e rcio n o f la w ', y et also th at it 'd o e s n o t I

The sense of antinomy I wish to convey is something like 'a self-contradiction by accepted ways of reasoning [which] establishes that some tacit and trusted pattern of reasoning must be made explicit and henceforward be avoided or revised' (Quine, quoted in Honderich, 1995, p 40). Antinomy, I argue, is deeply embedded in Western thinking aoout law.

| Law and the Beautiful Soul

necessarily produce a non-violent justice' (ibid, p 7). They claim that popular justice does not 'typically challenge the hegem ony of state law ', but also that it 'confronts the legal system with a persistent critique' (ibid, p 9). M erry argues that popular justice may involve a 'counterlegal order' arising from 'sp o n tan eo u s acts o f collectiv e ju d g in g and v io len ce' (ibid, p 31), bu t she also characterises it as a 'ju d icial institution located on the boundary betw een local ordering and state law ' (ibid, p 32). She characterises popular justice culturally (ie, in the way it is represented) as sim ilar to indigenous or local ordering, but practically as hom ologous to state law (ibid, p 35). H er four-part typology of popular justice forms identifies two types (the reform ist and the socialist) that are 'm ore closely tied to state law than to indigenous law ' (ibid, p 45), and two types (the com m unitarian and the anarchic) that are closer to indigenous ordering (ibid, pp 4 5 -49). W ithin this typology, the experience of Papua New Guinea is represented as falling under both the 'statal' reformist form and the 'local' com m unitarian form. M erry concludes that 'by and large, popular justice tends to reinforce and entrench relations of power rather than to transform them '. She also claim s that 'the argum ent that inform al justice is an expansion of state control by non-state means is only one side of the story' (ibid, p 61). M erry and M ilner may claim that the am biguities in their approach result from the am bigu o u s ch aracter o f p o p u lar ju stice itself, b u t it is surely the test o f a theoretical method that it can adequately locate the phenom ena it investigates. It should explain rather than sim ply embody, or reflect, ambiguities. In the authors' account, popular justice is trapped on a borderline betw een the statal and the local, forcin g it to look both w ays at o nce, b u t that b o rd erlin e is itse lf a theo retical con stru ct, and it n eed s in terrog ation and critiq u e if w e are to u n d erstand the phenomena under investigation. M y focus in the next (second) section of this chapter will be on the form of the antinom y that has been most central to the popular justice debate: the dichotom y between the formal and informal. I shall take this dichotom y to be central to Weber and the product of the neo-Kantian, essentially juridical, worldview that informs his w ork (see above, C h ap ter 2), and w hich therefore inform s the p o p u lar ju stice debate. Since W eber's view of law is fundam entally skewed, any view of popular justice that starts out from it will also be skew ed. I shall argue that a W eberian c o n c e p tio n o f law an d le g a l fo rm a lism g e n e r a te s a c o r r e la tiv e a n tin o m ia l conception o f inform alism and it is this that lies at the h eart o f the problem of popular ju stice.2 M y argum ent will be that in order to conceptualise the idea of popular or informal justice, we need to develop a methodology that can displace the co n ce p ts o f fo rm al law and ju stic e th a t g o v e rn o u r th in k in g . T h e fa ilu re to understand inform alism stem s from a prior failure to understand formalism.

2

There is a problem specific to critical analysis in using concepts such as 'law' and 'popular justice', or 'formal' and 'informal' justice, because such analysis must both use such categories as they are presented in experience (for what they are), and seek to establish their historical conditions of existence and limits (what they are not). The latter problematises the concept to reveal its inadequacy and incompleteness, while not denying its practical significance. Hence every use of terms like these should carry the academic equivalent of a government health warning, perhaps in the form of scare quotes, to show that one is handling them critically. For exploration and explanation of the methodological issues raised by a critical realist analysis of social forms, see Bhaskar (1979), Outhwaite (1987) and Sayer (1987).

From Law to Popular Justice: Beyond Antinomialism

W hat is to be put in the place of this antinomial problematic? One possibility is Fo u cau lt (F itzp atrick , 1987, 1992a). I also su g g est in the n ex t section th at the F o u cau ltian p o sitio n d oes n o t po ssess the theoretical reso u rces w ith w hich to explain the phenom enon either. The use of Foucault, indeed, only replicates and sustain s the p roblem o f false d ich o to m ies. In this regard, a Fo u cau lt-in sp ired approach tends to repeat mutatis mutandis the mistakes of the W eberian approach it p u rp o rts to su p ersed e. W h ich e v e r a p p roach is fo llo w ed , w e are le ft w ith an untenable sense o f 'the inform al', and it is this that leads to the kind of falsely dichotom ous and contradictory approach exem plified above. In opposition to these tw o approaches, I shall argue in the third section for a d ia le ctic a l ap p ro a ch w h ich d raw s up on Roy B h a s k a r's re ce n t c ritic a l re alist renovation of dialectic (Bhaskar, 1993,1994), and my own w ork on criminal law and legal theory.3 It is true that the idea of dialectic has already been canvassed in the popular justice debate and found wanting, but I shall argue that the concept that w as em ployed w as in fact itself antinomial and failed to take dialectic seriously. It w as the attem pt to apply a concept of dialectics that was at fault, not the concept itself. U ltim ately, I w ish to argue for w hat I think is a m ore subtle, historically and structurally more viable, account of the character of both legal and popular justice: one that is more sensitive to the phenomena in question than an approach that is governed by antinom ialism . I shall argue for an approach that recognises social con trol system s as in v olv in g d ifferent, h isto rically and stru ctu rally p articular, d ialectically constituted, architectonics o f law and justice: an approach that can supersede the antinom ialism of form al/inform al dualism s and thereby locate the 'in-betw eenness' central to the character of law (Darian-Smith and Fitzpatrick, 1999; see also below, Chapters 5 ,6 and 8). In the fourth section of the chapter I will seek to illustrate m y approach w ith discu ssion o f the debate on popu lar ju stice in one society, M ozam bique, in order to show w hat I think to be its strength. It m ust, however, be stressed that the prim ary aim of this chapter is theoretical, and it is not possible to clarify all the questions it raises, or apply its perspective broadly, in relation to an extensive and differentiated empirical field. M y argum ent will be that there exists a plurality of popular justice forms. The aim of the chapter is to make headway on a theoretical position w hich can adequately ground that plurality.4 One consequence of the failure to understand popular justice, save in antinomial terms, has already been indicated: that it becom es virtually im possible to think the concept at all. A further result, more directly practical and political, is that popular justice is seen as fundam entally concerned with social goals rather than individual aspirations in the m ediation of social relations. If form is opposed to substance then, before long, in d iv id u al righ ts are opposed to social interests, and a sim plistic opposition betw een the values of individual and social justice is established. This particular form of antinom ialism has both a radical and a conservative version. In 3

4

See below, Chapters 4, 5 and 7. The argument here rests on Norrie 1993b/2001b and also on a comparative and historical essay on criminal justice (Norrie, 1993b). The linking of criminal justice thinking to dialectical theory was developed further after this essay in Norrie (1998b and 2000). Cain (1985) is a bold attempt to develop such a position, but it suffers from an over-emphasis on standpoint and political function, and an insufficient analysis of the essential forms of, for example, 'professionalised justice'.

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| Law and the Beautiful Soul

the form er, p o p u lar ju stic e is p o rtray ed p ositiv ely , as affirm in g p o p u lar and collective over individual ends. In the latter, it is viewed negatively, as a kind of 'm ob rule' (cf Spitzer, 1982; Cain, 1985; Allison, 1990; Sachs and Welch, 1990; Scharf and Ngcokoto, 1990). Either way, popular justice is portrayed as separate from and inim ical to individual justice, but this, I shall argue in my conclusion, is a result im m anent in the theory deployed, rather than in the phenom enon itself. Popular justice form s may or may not be, as a m atter of historical account, anti-individualist, but this should not be theorised as a logically necessary characteristic.

The false antinomies of popular justice: W eber and Foucault The W eberian problem atic The 'original sin' is W eber's. Steven Spitzer, in his sem inal investigation of law and popular justice, sets out to 'decipher the dialectics of form al and informal control' (Spitzer, 1982, p 171, em phasis added), but he does so arm ed with the follow ing Weberian standpoint: 'Equality before the law ' and the dem and for legal gu aran tees against arbitrariness dem and a formal and rational 'objectivity' of adm inistration ... If, however, an 'ethos' not to speak of instincts - takes hold of the m asses on som e individual question, it postulates substantive justice oriented tow ard som e concrete instance and person; and such an 'ethos' will unavoidably collide with the formalism and the rule-bound and cool 'm atter-of-factness' of bureaucratic adm inistration. The propertyless m asses are not served by a formal 'equality before the law ' and a 'calcu lable' adjudication and adm inistration, as dem anded by 'bou rgeois' interests. Naturally, in their eyes justice and adm inistration can fulfil this function only if they assum e an informal character to a far-reaching extent. It m ust be informal because it is substantively 'ethical' ('Khadi-justice'). Every sort of 'popular justice' - which usually d o es not ask for reaso n s and n o rm s ... c ro sse s th e ratio n al c o u rs e of ju stice and adm inistration ... (Weber, 1991, pp 2 2 0-21)

'F o rm al and ratio n al' ju stice is op p osed to 'su b sta n tiv e ' ju stice , form alism to inform alism , and su bstan tiv e ethics becom e a m atter o f the m asses' irrational in stin cts. W e b e r's leg acy w as to lin k rad ical so cial ch an g e to w h at he called inform alism , and to oppose popular justice to form alism , defined as the giving of 'reasons and norm s'. In W eber's account, the connection betw een popular justice and mob rule is also foreshadowed. W eber's disdain for popular justice is not shared by Spitzer, w hose aim is a nonjuridical, non-alienated state of being, but the use of the W eberian antinom y still structures his 'dialectical' account. W hile his form al definition of dialectics reflects classical a n a ly se s (S p itzer, 1982, 1 6 9 -7 0 ), h is m eth od en d s up re p e atin g the W eberian antinom ies in order to ch art 'th e w ays in w hich m ovem ents toward form alism and informalism contain dynamics that transform them into som ething very different from w hat they appear or are proclaimed to be' (Spitzer, 1982, pp 172-73, em phasis added). Spitzer's dialectic is in fact W eber's antinom ialism dynam ised, and since the Weberian approach portrays popular justice as beyond 'reasons and norm s' - beyond form - this generates an inchoate basis for Spitzer's conception of popular justice. Thus, when he com es to consider popular change in M aoist China,

From Law to Popular Justice: Beyond Antinomialism

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he is forced to talk of the 'attack on " o ld " legal form and the search for "n e w " legal substance' (Spitzer, 1982, p 169). The problem with this approach is that it artificially separates out issues of form and substance. The old fo rm /n e w substance form ulation elides the question of substance in relation to the 'old ' form, and the question of form in relation to the 'new ' substance, and this is not ju st a question of shorthand description. W eber's approach sanctions the view that form and substance can be separated and set against each other, that popular justice is a substance, an 'ethos', that 'does not ask for reasons or norm s'. It lacks precisely fo r m , that w hich constitutes rationality. Spitzer's antinom ial conclusion, that either we risk sticking in the reassuring mud o f fo r m a lis m or rid e th e tig e r o f in fo r m a lis m , is s e t up b y h is W e b e ria n methodology. From W e b e r to Foucault In the light of Weberian antinom ialism , Fitzpatrick's prefatory quotation from Blake is appropriate: 'U norganised innocence: an im possibility' (Fitzpatrick, 1992a, p 199). 'U norganised innocence' is precisely w hat a concept of form al rationality posits as its o th er, w h e th e r th is b e v ie w e d fa v o u ra b ly o r n o t. It is in e ith e r c a se an im possibility, and this is the thrust of Fitzpatrick's Foucault-inspired critique of accounts of the Com m unity Boards Program in San Francisco (1992a). However, how successfully would a Foucaultian approach avoid the false dichotom y of the formal and the informal that Fitzpatrick rightly criticises?5 In Foucault, the informal is also constituted as the other side of a formal juridical realm. The juridical conception of action and actors operating with responsibility under law necessarily establishes as its opposite a non-legal dim ension in which multifarious powers, relations and agencies operate. However, this is not a realm in w hich the state lacks control. The inform al is the area in w hich the d isciplines operate, and in which power produces actions. The realm of law' establishes form al controls upon a juridical subject, but these controls are supported both within and beyond the juridical realm by the productive pow er of the disciplines. Thus, the inform al aids and abets the form al. Far from bein g opposed to it, the inform al secures the form al by offering other m echanism s of control; the two 'are distinct but the sam e ... w hat is involved here is a hom ology' (Fitzpatrick, 1992a, p 202). The immediate problem with this approach is that once again the possibility of popular justice is ruled out. Law backed by the disciplines squeezes out alternative counterlegalities so that we are driven beyond the m odem state's realm of control to the nations o f 'the periphery', so called, to find such things 'in places where the vitality of alternative traditions and the relative absence of disciplinary power have restricted the ability of state law to present an adequate synopsis of pow er and society' (Fitzpatrick, 1987, p 196). Fitzpatrick ultim ately suggests the necessity of 'the denial of alternative law in Western societies, not because it has been rendered insignificant in modern society, but because it is so significant' (ibid, p 197, emphasis added). H ow ever, it is hard to see w'hy this should be, given the d om inance of 5

Fitzpatrick's m ore recent work (1995b) makes clear his own current distance from these positions. They remain important, however, within the theory of popular justice, and that is why I consider them here.

| Law and the Beautiful Soul

d is c ip lin a r y p o w e r. P o p u la r a lte r n a tiv e s a p p e a r to b e o n ly p o s s ib le in 'th e p erip hery ' becau se of the d om inance o f the W estern lifew orld b y the disciplines, and therefore im possible under W estern conditions. H ow can it be otherw ise in a world in w hich people are only the effects of pow er, the 'elem ents o f its articu lation' (F o u c a u lt, 1 9 8 0 , p 9 8 ), u n le s s th e a lte r n a tiv e is c o n c e iv e d , p re c is e ly , as th e e xp ressio n o f 'u n o rg an ise d in n o ce n ce '? W here p o w er is all con su m in g , all that rem ains is either the 'acceptance of the system ' or an 'app eal to an unconditioned event' (Foucault, 1991, C hapter 2).6 T he deep reason for this im possibility, I suggest, is that Fou cau ltianism , w hile ap p aren tly opposed to W eberianism , in an im portan t w ay op erates as its m irror im age. For Weber, the form al or legal constitutes the m ode o f social organisation in m od ern society, w hile the inform al con stitu tes its logical and po litical opposite. W ith Foucault, there is a parallel d ichotom isation, albeit in different term s. Law a n d -d iscip lin e re p e a t in d iffe re n t g u ise th e fo rm -a n d -su b sta n c e an tin o m y . For Foucault, d isciplines underpin the ju rid ical form s, w hereas for Weber, substantive rationality threatens form al rationality. The term s o f the opposition are different, as is th e ir r e la tio n s h ip (th e o n e c o m p le m e n ta ry , th e o th e r a n ta g o n is tic ) , b u t th e o p p o sitio n rem ain s in p lace. In b o th , the d efin in g term is f o r m : form o f law as guarantee o f individualism , m arkets and rationality (W eber), versus form as m ask o f in d iv id u a l r ig h ts an d lib e r tie s (F o u c a u lt). F o u c a u lt r e p lic a te s W e b e ria n antinom ialism .7 Both in their different w ays involve the kind o f oppositions w hich m arginalise and render inchoate oppositional agency.

6

7

These are the invidious alternatives posed to Foucault by an anonym ous questioner {ibid). Foucault's argum ent is that a progressive politics does not m eet this choice if it is devoted to exam ining inter alia the 'possibilities of transform ation' accorded by the 'm ode of existence of d is c o u rs e s ' (ib id , p 70 ). H o w e v e r, w h a t tra n s fo rm a tio n is p o ssib le if d isc o u rs e s , like individuals, are inscribed by the workings of pow er? Either discourses conform to the laws of their own production, which m eans acceptance of the system , or one m ust have recourse to an outside, unconditioned event. Foucault wrestles with different aspects of this dilem ma in several places in his later work. Freedom , for exam ple, is explained as the internal condition for the working of power, but in his description of its 'intran sigence' and 'recalcitran ce', he places it tan talisingly beyond p o w e r's reach. W hen he w rites of an 'agon ism ' between pow er and the 'intransitivity of freedom', and describes this as 'inherent in all social existence’ (Foucault, 1982, p 223), as part of an argum ent for prom oting 'new form s of subjectivity' (ibid p 216), he com es close to undermining his own premise that subjectivity suggests 'a form of pow er which subjugates and makes subject to' (Foucault, 1982, p 212). A similar ambivalence seem s to be at work in F o u ca u lt, 1984, pp 4 5 -5 0 . W ith regard to resistan ce, F o u cau lt claim s th at 'g re a t radical ruptures' are possible, yet resistance 'is never in a position of exteriority in relation to pow er' (Foucault, 1981, p 95). See further Dews, 1979; Fitzpatrick, 1995b. In his 1972 discussion of popular justice with M aoists, Foucault writes that the 'idea that there can be people w ho are neutral in relation to the tw o parties, that they can make judgments about them on the basis of ideas of ju stice w hich have absolute validity, and th at their decisions m ust be acted upon, I believe that all this is far removed from and quite foreign to the very idea of popular justice. In the case of popular justice you do not have three elements, you have the m asses and their enemies. Furtherm ore, the m asses ... do not rely on an abstract universal idea of justice, they rely only on their own experience [and] purely and simply carry [their decisions] ou t' (Foucault, 1980, pp 8 -9 ). This is no different from W eber's position, although Foucault is an enthusiast for popular justice; indeed, he rather heroically 'out-M aos' the Maoists in this discussion, who argue, correctly in view of w hat I say below, that a state a p p a ra tu s , and c o n tro ls on it, are a p re re q u isite for p o p u la r ju stice in a th ird w o rld revolutionary society.

From Law to Popular Justice: Beyond Antinomialism

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Beyond antinomialism I: taking law dialectically O thers have remarked upon the failure of a 'dialectical' approach to popular justice because of its 'm echanistic' character (Cain, 1985; Fitzpatrick, 1987). Spitzer's work exem plifies the genuine problem of w hat a dialectical approach means and how it can overcom e Weberian and other dichotom ies. It will not be enough either to paint form and substance, or the formal and inform al, with the colours of history and politics, or sim ply to invert one's political view point - to shift one's com m itm ent from 'fo rm ' to 'substance'. We need to develop and apply a m ode o f dialectical analysis that forgoes antinom ialism if w e are to progress. In this section, I begin by outlining in schem atic fashion w hat a concept of dialectic means, and then m ove to consider in the following sections what role it can play in a theory of the formal and inform al, law and popular justice. As I have already stated, the key to unlocking p opu lar o r inform al ju stice w ill eventually be found in an understanding o f its W eberian antonym , legal formalism. Dialectic and critical realism The concept of dialectic has recently been developed by Roy Bhaskar (1993, 1994) as an elaboration of his critical realist philosophy. A limited and necessarily schem atic digression is necessary to locate this developm ent.8 The ram ifications of Bhaskar's w ork are many, and are only now beginning to be taken seriously (Collier, 1994, Chapter 7). For my purpose, the significant elem ents in his conception of the social sciences are those of relationality and totality. The form er entails the possibility of discovering the internal connections, the relations, betw een apparently disparate phenom ena such as form s of economic, political and legal life. Sociology, looking for relations am on gst phenom ena, seeks through totalising theoretical strategies to understand the nature of social totalities. Such a relational approach gives rise to a conception of sociology as 'concerned with the structure governing the relationships w hich are necessary, in p articu lar histo rical periods, for the reprod uction (and tran sfo rm atio n ) of p a rticu la r social fo rm s'. T h is ap p roach en tails a view that sociology is never 'sociology-in-general, only the sociology of particular historically situ ated so cia l fo rm s' (B h ask ar, 1979, p 56), w h ich m ean s th at the to ta lisin g tendency in sociology is always towards the totalities embraced by and understood in history. The aim of Bhaskar's most recent work is to develop this position by marrying it with the Hegelian dialectical tradition, but with the intention of going beyond the idealism and the unitarianism that govern and lim it Hegel. Bhaskar seeks a fuller understanding of the role of dialectics in thought but also in history. For H egel, d ia le c tic s in v o lv e a p ro ce ss o f d iffe re n tia tio n and n e g a tio n , the p o sitin g o f contradiction w hich is resolved in a further m om ent of integration. H owever, in H egel's approach, the new and deeper unity is always a return and restoration, for it is alw ays already present in the initial separation. H egelian dialectics never escape their startin g p o in t in an id ealist m onism w hich p osits as the end state o f the dialectical process a unity-in-diversity w hich is the product of mind.

8

The key books leading to his work on dialectic are Bhaskar (1975, 1979 and 1986). See also Outhwaite (1987) and Collier (1994).

| Law and the Beautiful Soul

An im portant starting point in Bhaskar's account is the decentring of mind and the insistence on ontologically real, em ergent dialectical processes operating in society and history. To Bhaskar's existing account of (inter alia) the nature of social scientific knowledge and of social relationality and totality, he now adds w hat he calls a 'second edge of developm ent' w hich includes characteristically dialectical categories expressed in ideas of negation and negativity, contradiction, becom ing and developm ent (retrogression and decay), spatiality and temporality, mediation and reciprocity (Bhaskar, 1994, C h ap ter 1). T hese rep resent only one p art o f a profound account of the role of dialectical thinking,9 but it is the com bination of an historical, relational approach to sociology with an insistence on the im portance of dialectical processes (and understanding of those processes) that I wish to carry into the analysis of law and popular justice. In particular, I want to em ploy a concept of d ia le ctic in the so c io lo g y o f law in p lace o f the a n tin o m ia l ap p ro ach I hav e described. To this end, I take from Bhaskar his account of dialectical connection and contradiction: The essence of dialectical connection is the idea of the internal relatedness of elements, their inherent, 'm olecular', connectedness. A dialectical connection exists between entities or aspects of a totality such that they are in principle distinct but inseparable, in the sense th at th ey are syn ch ron ically o r con ju n ctu rally in tern a lly related , ie both ... or one cxistcntially presuppose the other ... (Bhaskar, 1994, p 58)

It is the sense of existential presupposition that is m issing in W eber's antinom ial account of formal rationality. In that account, an ideal typical methodology insists upon the em pirical and historical links betw een, and therefore the coexistence of, different conceptions or aspects of law, but not their real bonding in necessary social connections. The ideal-typical methodology of abstraction hypostatises (and thereby misrepresents) one elem ent in an internally bonded, real social relation, rupturing its fundam ental interconnectedness. Form al rational law is wrenched apart from its substance in a way that denies an essential linkage; in the process the ideal type of rational legal form is both made possible and prioritised, while other forms, such as 'popular justice', are both denegated and denigrated. Linked to the idea of d ialectical connection is that o f dialectical contradiction. C o n trad ictio n p er se involves a situ ation in w hich a prem ise or end can n o t be satisfied save at the expense of another. Contradictions can be internal or external. W here they are internal, 'a system , agent or structure, S, is blocked from perform ing w ith one system , rule or principle, R, because it is perform ing w ith another, R l ' (Bhaskar, 1993: 56). A dialectical contradiction is a form o f internal contrad iction w h ere the co n tra d icto ry e lem en ts are in h eren tly in terco n n ected in the sen se d escribed abo v e. Su ch a co n trad ictio n in v olv es b o th in tern al related n ess and o p p o sitio n in that one e lem en t o f the d iale ctically related en tities n eg ates an e le m e n t in an o th e r, o r in th e ir co m m o n g ro u n d . T h is sen se o f the in te rn a l relatedness or necessary interconnection of contradictory elem ents is, I shall argue, central to an understanding of Western law. O f course, it is denied by any theory that portrays law 's base in form al rationality, but once we have seen the difference

9

Beyond this second level of analysis, Bhaskar also proposes third and fourth levels, concerned with 'totalising motifs of totality' and practice as 'active and reflexive engagement within the world'. These levels do not concern us nere.

From Law to Popular Justice: Beyond Antinomialism

that a dialectical understanding of Western, so-called form al rational law makes, we will be in a m uch better position to understand inform al or popular justice. Dialectic and law To return to where we started with Bhaskar and his relationship with Hegel, there is an important parallel between his project of decentring mind in order to establish a realist conception of dialectics, and the decentring task that needs to be performed w ith regard to law. The p ositiv ism of the m od ern legal w orld view w as given sop histicated expression in the neo-K antian thought of w riters as (apparently) diverse as Kelsen and Weber. Legal neo-Kantianism took up the characteristics of unity and rationality threatened by the collapse of the Hegelian system , and read them directly into law. Rather than seeing law as part of a dialectical progression of rational spirit through historical society, law becam e the immediate locus of reason. This non-m ediated identification was understood philosophically through Kelsen's 'pure theory', and was given a sociological turn by Weber. It is the ideal-typical, formal rational conception of law, on which is based the form al/inform al antinomy, that we need to decentre. W hat is required is a socio-historical approach which can grasp the duality of law as a specific form of historically constituted sociality (see above, Chapter 2, and also Norrie, 1997a). Such an approach reflects law 's own claim s, but at the sam e time critica lly exp lo res and d ecen tres them . It in v o lv es a resp ect for the 'in te rn a l' presentation of legal concepts (their treatm ent as i f they w ere form ally rational), coupled w ith a historical and d econstructive exposure o f the lim its of such an approach. Such a deconstruction takes us into the 'external' social and historical conditions of possibility of the internal presentation. It asks: w hat claims does law make and how does it sustain them; what is wrong with the claim s that law makes and the means of sustaining them; and in what social conditions and contexts does it becom e possible to seek to make and sustain them? Central to this deconstructive and decentring project is the concept of dialectical connection. The very idea of law as a specific form of sociality endorses the idea that law can only be understood dialectically, in its intrinsic relatedness to w hat it is not. Law is generated by, and is an expression of, broader social and political relations, but in the im age presented by lawyers, it is seen as independent, autonom ous and form ally rational. In its practice, it is presented as possessing its ow n specificity, but there rem ains an im portant difference between self-im age and purported specificity on the one hand, and the law 's reality on the other. The insistence on fundam ental in te rc o n n e cte d n e ss, k eep in g false ly a b stra ctiv e m e th o d o lo g ies at bay, is one important means of holding onto both sides of this difference: of recognising law's claims to specificity, while denying its independence. A second key idea is that o f d ialectical con trad ictio n , for it is this that both directly challenges the claim to independence, autonom y and form al rationality, and reveals the interconnectedness of law and its social context. It is through tracing law 's contradictions that we expose the claim s of form al rational law and disclose the relatio n s w h ich u n d erlie it. In this way, w e get to un d erstan d the d eep er h isto rical logic that u n d erlies the flaw ed self-u n d erstan d in g o f law and legal ideology. So-called form al law is a contradictory, hence irresolute (Darian-Smith and

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Fitzpatrick, 1999), 'm olecular' com pound reflecting the dialectically contradictory structure of the socio-political context which generates it. If w e start from this point, w e w ill fin d that o u r u n d e rsta n d in g o f b o th fo rm alism and in fo rm alism are qualitatively enhanced.10 I have already suggested that the fo rm alism /in fo rm alism dichotom y can be traced back to the late 19th century positivist and neo-Kantian traditions in Western thought, which posited a conception of formal closure as the basis for stable and legitim ate legal practice (Cotterrell, 1983; above, Chapter 2). Because of this nexus betw een theoretical argum ent and legal practice, the academ ic construction and defence of legal formalism does no more than take the self-understanding and self­ presentation of the lawyer, law 's self-image, as the basis for a scientific theory. The law, as Stanley Fish (1993) puts it, 'w ishes to have a formal existence', but there is a fundam ental gap betw een the wish and its fulfilm ent. Law needs to see itself as com plete, as im m une from social and moral interpretation, as 'norm atively closed', but the closure it achieves is alw ays and only fictive. Legal form alism in this sense is never achieved. It is manufactured and needs constantly to be maintained - in part by legal theorists who, like practical lawyers, act as if legal form alism were true. In Fish's account, the 'am azing trick' of the law is achieved rhetorically, by the actions of lawyers who continually act 'as if' formal legal interpretation were possible, even as their own argum ents reveal the 'as if' to be the fiction it is. In c o n tra s t to F is h 's rh e to ric a l re s o lu tio n o f the p ro b le m o f la w 's fo rm al possibility, I hav e d ev elo p ed elsew h ere the arg u m en t that legal fo rm alism is organised around the figure of the abstract legal subject. It is this figure that permits the instantiation of one moral and political discourse, the repression and exclusion of alternatives, and the denial that this is happening (Norrie, 1993a, 2001b; see also below, Chapters 4 and 8). Repression and exclusion are intrinsic to legal subjectivity and rationality, but because that w hich is repressed continually returns, these need to be worked at constantly. This is a role of legal actors, including academ ics who seek to rationalise law 's necessarily contradictory texts. O ne can understand the conjunction of academ ic reconstruction and legal practice that constitutes modern legal science as 'p raxiological', that is, as know ledge that is inherently tied to a particular historical practice, and therefore limited by the character of that practice (Norrie, 1993a, 2001b, Chapter 11; cf Bhaskar, 1979). It is this praxiological character that involves lawyers in bridging the gap and contradiction betw een law 's self-im age and its socio-political reality. Form al law is co n ce rn e d w ith a c h ie v in g n o rm a tiv e c lo su re , b u t th is in v o lv e s d iscu rsiv e ly elaborate exclusions of alternative social, moral and political discourses. Legal form is the imposition of one m oral and political narrative about how people ought to behave, dressed in a language o f form ality and universality that has to be constantly safeg u ard e d a g a in st altern a tiv e m o ral and p o litica l p o ssib ilitie s. Ju d g e s and academ ic lawyers, in the nam e of legal subjectivity and form al rationality, operate as the border patrollers o f this m oral-political discourse. Its fictive character is revealed by the con stan t need to repair the bou n d aries again st the corru p tiv e

10 What follows is a limited account of certain core concepts. A more developed approach would recognise the additional enhanced 'social' roles of the state in the 20th century Western state and the fragmenting effect this has had on legal forms (see, eg, Cotterrell, 1995).

From Law to Popular Justice: Beyond Antinomialism

invasion of alternative moral-political accounts - of legitim ate and illegitim ate uses of property, of violence, and of sexuality. The key concepts in m aintaining the possibility of closure are those of legal form and form al rationality: concepts organised around the ideology of the ju rid ical individual. This hom uncular figu re's abstraction and generality is the basis for m aintaining law as a seem ingly general and universal system of social control that is nonetheless politically, norm atively and historically specific and partisan. The 'logical integrity' of the system , as opposed to its historical and practical stability, rests upon a decontextualised conception of the individual subject that stands at the centre of its discourse. Through the manipulation of the individualist form s of the law, it maintains an appearance of universality in the face of the social, political and moral conflicts in which it participates. To take two exam ples: in the area of criminal law, it is the idea of the abstract responsible subject operating w ithin a legal code w hich blocks discussion of conflicting moral and political issues generated by that code (Norrie, 1993b, 2001b, generally); and in different contexts, it is the abstract rights-bearing subject w ithin a liberal private property system - introduced by v io le n c e and d e c e it - w ho b lo ck s the 'c u s to m a r y ' or 'tr a d itio n a l' lan d and en v iro n m e n ta l rig h ts o f 'firs t n a tio n ' or lo ca l p e o p le s. T h e se rig h ts b e co m e 'ad d itio n al and com p etin g' claim s superim p osed upon a system w hich largely excludes them in favour of an apparently more 'com plete', more logical, system of p roperty tenure (see, eg, Kelsey, 1993, P art 4; H iggins, 1995; Fitzpatrick, 1992b, pp 82-85, 89). L e g a l in d iv id u a lis m and fo rm a l ra tio n a lity are m o d e s o f e x c lu s io n and repression. A t the sam e tim e, it is through these conceptions that law establishes itself as the basis for a realm of freedom , in w hich the in d iv id u al's rights and interests are constituted and guarded (see below, Chapter 5; Norrie, 1993b, 2001b, C h apter 11). At the heart of law is a set o f con trad iction s in w hich the abstract juridical individual stands 'in the place of' socially contextualised individuality on the one hand, and 'against' general social and political interests on the other. The liberal su b ject o f law, the resp o nsible citizen it in stan tiates and w hich form al rationality adum brates, represents both a figure of inclusion (the bearer of rights against the state) and exclusion (the bearer of imposed duties to respect laws to which 'he or she has agreed'). Thus, a system that blocks and excludes particular m oral and political voices w ith one hand gives som ething back w ith the other: rights subjectivity w ithin a liberal legal order.11 From form al law to popular justice This limited sketch of the com plex individualist core at the heart of Western legal system s indicates a contradictory com bination of elem ents of form and content, in w hich the sp ecifics o f ju rid ical form are d ialectically related to the social and 11 Vivid examples of this process often emerge in colonial and postcolonial contexts in which liberal capitalist institutions are introduced to replace existing social orders. Thus in British India, colonial law conspired with Indian patriarchal power to exclude the moral and political voices of women, as in Cuha's powerful account of 'Chandra's Death' (Guha, 1987). However, it also sought to protect women in the name of liberal values, as in the efforts to abolish sail, the ritual immolation of a widow on her husband's funeral pyre (Stein, 1988). Today, Indian feminists utilise the law as a means of developing and protecting women's freedom, while recognising the social and political limits associated with that freedom (Stewart, 1995).

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| Law and the Beautiful Soul

p o litic a l c o n te x t o f lib e ra l c a p ita lis t s o c ie tie s . F o rm is a lre a d y in h e re n tly , 'genetically', a m ode of establishing and m aintaining a particular social and moral content, and of barring alternatives. Thus, legal form is set up as an exclusion of other forms and other contents. The crucial point for thinking about popular justice, however, is that this conception o f law is also the basis for the exclusion of other com binations of form and content. So-called legal or form al justice is dialectically connected to the exclusion o f w hat com es to be called 'in fo rm al' or, som etim es 'popu lar', justice, and w hat com es to be described in these 'o ther' terms can only be so described because of the w ork of exclusion and construction that goes into the m anufacturing of the particular form /con ten t relationship that is m odern Western formal law. So-called form al-rational law is one way of organising social control processes around the presentation of particular moral and political norm s under the figure of the abstract individual subject and the rule of law. Formal-rational law is one form, with its own particular organisational modes, an architectonic (see below, Chapter 4; Norrie, 1998b), of a dialectical form /co ntent relationship. However, it sets itself up as som ething rather different: as 'legal form alism ' in contradistinction to other nonformal modes. In so doing, it denies that it is the em bodim ent of particular contents, that it is a particular historical em bodim ent of a fo rm /co n ten t relationship, and that its casting of other such em bod im ents into the w ild erness o f the inchoate and incom prehensible is a deeply political act. If we perm it the W estern la w y e r's 'claim to form ' to define and to exclu d e, d iffe re n t arc h ite cto n ics o f ju stic e , ju d g m e n t and law are u n d ersto o d only as negations of Western law, as its antinomy. Form al-rational law is part of a particular, historical practice that is underpinned by a specific philosophical (neo-K antian) conception o f rationality, one that apparently separates form from any particular content. Its claim to universality seeks to evade the charge that it is a particular, historically constructed, dialectical com bination of formal and norm ative elem ents operating to exclude differently constituted architectonics o f form and content. W e b e r's co n ce p tio n o f law m u st be lo cated as m u ch in the cam p o f an aly tic jurisprudence as the sociology of law. However, the popular justice debate operates and applies his con strictiv e histo rical categ ories as the b asis for a su p p o sed ly adequate elucidation of the phenomena of popular justice. The irony in this should be c le a r: the p o p u la r ju s tic e d e b a te u tilis e s c o n c e p ts fo r u n d e rs ta n d in g a p h e n o m e n o n th a t w ere o rig in a lly d e v e lo p e d to e x c lu d e and d en y its v ery significance. M odern writers generally, although not uncritical, see more in popular justice of value than W eber did, but they w ork with one hand tied behind their backs because they continue to em ploy his schem e. Sm all wonder, then, that the very idea of popular justice should prove elusive.

Beyond antinomialism II: dialectics and popular justice I h av e arg u ed th at th ere h as b e e n a h ija c k in g o f the id e o lo g ic a lly re so n an t conception of 'form alism ' by Western law, a conception which in this manifestation em bodies social, econom ic and political interests in one particular fo rm /co n ten t architectonic. Popular justice m ust be seen as its antinomy, as what Western law is not, that is, as 'inform al'. This m eans that it becom es im possible to think seriously about the organisational architectonic of form /co ntent relations in so-called popular

From Law to Popular Justice: Beyond Antinomialism

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justice system s, and about their disparity and diversity. Popular justice is alw ays d e fin e d a g a in s t a fic tio n , an d th e re fo re is ta k e n fic tio n a lly in its e lf. O n ly occasionally do researchers w ho are thoroughly im m ersed in the social relations they investigate, together w ith the p articu lar m ed iation m echanism s that they gen erate, com m ent on the inapprop riaten ess of the W estern epistem ology. In a study o f popu lar justice in M ozam bique, G undersen m akes the point very well when she writes that: very few, if any, of the system s described under the heading of 'inform al justice' are inform al in the sense th at th ey are form less. W h at have som etim es been labelled 'informal' system s of law m ay be system s which exhibit different forms in com parison with one type of system w hich is used as a reference, nam ely W estern-styie form al courts of law. (Gundersen, 1992, pp 2 6 0 -6 1 )

She rightly cautions against the 'ethnocentrism ' in such an approach, although less polite w ords could be used. It is the idea o f differential ju rid ical architectonics em bodying p articular dialectical fo rm /co n te n t relations that I see as the key to developing an understanding of popular justice, and different popular justice forms. It is beyond the sco p e o f this ch a p te r to ap p ly such an idea in d etail to any particular version of popular justice, but I will indicate with an exam ple the force of this method in com parison to the antinom ial approach adopted by one leading writer. In A lbie Sachs's account of M ozam biquan popular justice, the phenom enon is cast in the form of a m om ent of ideal innocence: The people solve their problems, applying progressive new kinds of norm s, and it's the people themselves, organised, that do this, they express pow er ... and they achieve a very large degree of involvement and support from the com m unity in general ... [It is] a very rich experien ce, and a wonderful one ... to see justice transform ed into a true instrument of com m unity expression. (Sachs and Welch, 1990, p 123)

Sachs does not, however, integrate this identification of a 'truly' popular moment with his acknow ledgm ent of the role of the Frelimo-organised (and therefore statesponsored) 'dynam ising groups' in sponsoring and prom oting popular justice, or the leading role of the vanguard party in establishing the social and dem ocratic principles of the popular tribunals, although he acknow ledges the im portance of both (ibid, Chapter 5; cf Isaacm an and Isaacm an, 1982). Nor does he explain why creating popular justice in M ozam bique should require a synthesis of three distinct and contradictory dim ensions: the 'liberating and freedom -enhancing aspects of com m unity-based law ' (the mom ent of true com m unity expression), the need for strictly im posed state law 'to defend the gains o f in d ep en d en ce and the new so ciety ', and the application of 'w h at som e refer to as internationally accepted norms of justice', that is 'procedural rights and guarantees, com m only referred to as human rights' (Sachs and Welch, 1990, pp 15-16). Sachs points out that the demand for procedural rights w as initially generated by the theory and p ractice of the Frelimo party-state, and not by self-interested Western liberal institutions,12 but he 12 H ow ever, Sachs does not point out the co-determ ination of current rights discourse by Western self-interest and a technocratic elite within the Mozambiquan state (Hanlon, 1984; Utting, 1989, pp 15-16). In 1989, Frelimo formally abandoned its Marxist-Leninist ideology, supported IMF backed economic recovery plans and the principle of a mixed economy. These developments took place against the backdrop of a brutal, externally sponsored, civil war which closed down democratic participatory options, forced reliance on Western economic aid donors, and encouraged market reforms (Brittain, 1994).

| Law and the Beautiful Soul

does not explain how the experience of a Third World revolutionary state could give rise to so contradictory an am algam of state-encouraged social action ('popu lar participation'), state imposed pow er and state controls on itself. The result is a set of paradoxical conclusions about law, the state and emancipation. In the wake of the taking of state pow er by a Third World revolutionary party, id ealist talk o f p opu lar ju stice is perh aps to be expected. H ow ever, it m u st be tempered by the recognition that there will be, to the extent that the new state can exercise power, a necessary interconnection betw een the state and popular social relatio n s. Lines o f p o litical p o w er w ill e x ist, w ill b e created and m ain tain ed , between the people and the state. State pow er will be exercised in particular and contradictory w ays in relation to the social forces and movem ents which give their support to a n d /o r are governed by it. The social forces which give their support to the new state are at once the historically placed agents of social change, partners in prog ressive social stru g gles for d ev elopm ent and against colo n ialism , and the objects of what may becom e a centrist bureaucratic power with its ow n interests, capable of acting both against and with its people (W hite, 1983; Norrie, 1993b). In this contradictory context of co-operation and conflict, procedural rights appear paradoxically as both a necessary protection ngninst the state, and as barriers to progressive and liberating change led by the state. Similarly, as I shall argue below, com m unity-based law (popular justice) can genuinely have a liberating quality, but only because it is not wholly com m unity based, but com es in significant part from the state. Law and popular justice in M ozam bique had a necessary but am biguous place shaped by the context of Third World revolution. They lay between the urban and the rural, the 'trad ition al' and the 'm od ern ', the politically progressive and the reactionary, the authoritarian and the liberatory aspects of a com plex social context. Popular justice w as not pre-social, primary, or innocent. It w as always com plexly located in relations with the state and the underlying social structure. To say this, however, is not to say that it was com prom ised, captured, or that it failed to 'escape' the state, because such judgm ents measure the concept of popular justice against what is an im possible, ideal standard. The apparent paradoxes of popular justice in M ozam bique were a product of its dialectical situation within a contradictory field. It w as exercised in and through a relationship with the state and the conflicting social forces at play. It is only if we can see that popular justice in such situations involves a com bination of 'popular', 's ta ta l' and 'le g a l' m ech an ism s that w e can see that p o p u lar ju stice is alw ays situ ated and p articu lar, and o ften w hat its nam e su g g e sts it o u g h t not to be: dialectically com bined with law and state. That is w hat popular justice is, so that to talk of it as either a form of state pow er or as a locus of local power is to miss the p o in t: th at state and lo ca l p o w er w ere in h e re n tly in sep a ra b le . T h ere w as no 'b o rd e rlin e ' b etw een state p ow er and in d ig en o u s ord er on w h ich ag en cies of popular justice were located: such agencies alw ays-already instantiated dom inant social and political relations in the society as a whole, expressing them in particular form /content architectonics of mediation and judgm ent. C on sider the M ozam biquan experience of popular ju stice in the liberation of w om en. For Sachs and Welch, popular tribunals (or, as they also describe them, 'state courts' - sic!), 'draw n directly from the local com m unity' have been important

From Law to Popular Justice: Beyond Antinomialism

in su p p ortin g w o m en 's rights b y 'b a la n c in g ] out to a con sid erable exten t the advantages w hich m en enjoy in the society' (Sachs and Welch, 1990, p 17). They in c lu d e at le a s t o n e w o m a n , an d are re la te d to the w o rk o f the O M M , the O rg an isatio n o f M ozam b iq u an W om en. N ew so c ia list p rin cip le s o f m arriag e affirm ing the freedom and equality of the w om an were applied, according to the authors, 'w ithout strain' on the basis of the: concept of a voluntary union based on equality and the free assumption by the partners of rights and responsibilities. Although the judges m ight not alw ays have expressed themselves exactly in these terms, these were the principles that underlay their decisions ... (ibid, p 101)

However, in a society in w hich traditional social relations governed 90% of the population living on the land, and w here the authors acknow ledge the need to elim inate 'the structures of w om en's oppression' (ibid, p 97), it is not possible that the popular tribunals would not reflect the contradictory social forces at play. A propaganda and practice of m od em m arriage generated in the early liberated war zones by Frelimo, and later in the urban centres, had to com pete with arrangem ents reflecting the ideas and structures o f the traditional patriarchal peasant society. In later fieldwork, Gundersen (1992) confirm s that popular justice tribunals operated to provide mediatory compromises between traditional and new views of the roles of husband and wife; that there accordingly was strain in their practice; and that women mem bers of tribunals, appointed by the OM M , often reflected traditional values in their assessm ent of how w om en should behave. The strain produced by this process of mediation and control w as evidenced by the coercive, state-enforced character of these 'popu lar' decisions. G iv en the id eal u n d e rsta n d in g o f p o p u lar ju stice as 'a tru e in stru m en t of com m unity expression', it is hard to grasp the fact that tribunals could only em body em ancipatory norm s because they reflected principles established and prom oted by the Frelimo party-state. Thus, the transform ative and liberating aspects of the popular tribunal cam e from the state. This seem ing parad ox can only be understood in terms of the structures, forces and ideologies in operation in the society at large, and therefore em bodied and expressed through its form s o f m ed iation and control. Popular justice as a progressive social practice in M ozam bique was rooted in a set of social relations w hich w ere m ediated by a p articular architectonic of form and content at the level of the tribunal. That architectonic w as m arked by procedural inform alism 13 and dialogue, with coercive m ediation available, and it was coupled with (and enabled) the clash of contradictory political and social positions which were expressed and contained, not resolved or overcom e, within it. Popular justice, although never popular in the ideal sense suggested by Sachs, w as progressive and evolving. It conjoined social forces and political pow er to produce a developing com plex com bination o f ju rid ical form s and contents. The three dim ensions of socialist legality w hich Sachs identified, with all their contradictions, can only be understood if we discard the innocent, pre-social conception of the popular, and put in its place an historical and structural understanding of social relations within the Third World revolutionary state. Only from such an understanding can we move to 13 While it is necessary to hold onto the idea of informalism as an empirical description of a particular kind of procedural context, it is crucial to separate this usage from that which designates a particular form /content architectonic as informal (cf Gundersen, 1992).

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| Law and the Beautiful Soul

contem plate the contradictory form s of regulation such a society instantiates. This in v o lv e s th in k in g re la tio n a lly ab o u t the so c ia l and h is to ric a l to ta lity w h ich constitutes the contradictory crucible in w hich the juridical - any set of juridical relations, 'first' or 'third' world, 'E ast' or 'W est' - is formed.

Conclusion I began this chapter by opposing an abstract method of looking at issues of legal form that is only able to see issues o f form and content, the formal and the informal, and so on, in antinomial terms. I argued instead that a better method would insist on the d ifferential, internally organised , ch aracter o f fo rm /co n te n t relations in different contexts. Such a m ethod w ould recognise the d ialectical relation ships within such architectonics of law, justice and judgm ent, and also betw een them and the social, p o litical and h isto rical con texts w h en ce they arise and w hich they mediate. Such a view can then lead to a mode of analysis that can better understand the phenom enon of popular justice in itself. W hat em erges is the idea of specific, internally related, com binations of form and content, locally moulded as they relate to, and develop from, particular moral and political contexts and histories. Law is alw ays to be read, therefore, in term s of w hat it defines itself against, as alw ays occupying the relational space between its self-definition and its definition of w hat is o th e r to it. It is th is re la tio n sh ip o f 'in -b e tw e e n n e s s' th at a cco u n ts for its antinomial irresolution (see below, Chapters 5 and 6). W h a t I am a rg u in g fo r is th e c o n c e p t o f a d ia le c tic a l u n d e r s ta n d in g o f architectonics of form and content as a means of understanding both popular justice a n d W estern law. Su ch a co n ce p tio n w ou ld be the b a s is for a w id e -ra n g in g com parative analysis o f w hat we understand as law. W ith regard specifically to popular justice, such an approach would give a m uch more nuanced analysis of its character and dynam ics than w e are at present able to provide. The diversity of contexts within w hich different 'popu lar' architectonics of justice occur means that popular justice cannot have the hom ogeneous quality that the antinom ial approach necessarily gives it. Once we get beyond 'e ith e r/o r' thinking, w e can give credit to the crucial differences betw een different popular justice forms. It has always seemed odd that forms of justice generated by quite different social contexts such as exist in late capitalist, revolutionary socialist, post-revolutionary and post-colonial societies should all be lum ped together under the sam e heading of the 'popular'. However, if we define W estern law as legal form alism , this is encouraged and has profound effects on our ability to understand other 'non-W estern' juridical relations. Attem pts to typ olo gise will inevitably lead into the kind o f problem s outlined above in relation to M ilner and Merry. Understanding popular dem ocratic forms through an an tin o m ial p rism , w e are d riv en to a th e o re tical ch a ra c te risa tio n o f them as informal, whereas they are better understood as 'differently form ed'. The legal pluralist nom enclature in particular adds confusion to a difficult area. E v e n G u n d e r s e n , in h e r e x e m p la r y M o z a m b iq u e stu d y , fa lls fo u l o f th is terminology. She is alert to the im portance of holding onto an em pirical concept of the inform al (m eaning a m inim um of procedural requirem ents, see fn 13), w hile in sistin g that to d esc rib e w h at is m erely d iffe re n t in its fo rm as in fo rm a l is misleading. She also correctly stresses the connection betw een form and content in

From Law to Popular Justice: Beyond Antinomialism

assessing the character of a system of justice. However, she still endorses the term 'inform al' to describe 'a norm ative system outside the form al legal system '. This leads her to argue that: [t]he local popular tribunal [in M ozam bique] can best be conceived as an institution lo ca te d in the b o rd e rla n d b e tw een the fo rm a l and the in fo rm al sy ste m s of law . (Gunderson, 1992, p 261)

If popular tribunals should be seen as differently form ed from the W estern-style formal court of law, how can they also be said to exist between the form al and the informal? How is the m etaphorical terrain betw een the formal and the inform al to be described or delineated: what is the specific character (form?) of this borderland? W hat is at stake here, however, is not just our understanding, although that is clearly a first step to anything, but also practice. If we see popular justice as sim ply inform al, then it can be portrayed as incipiently auth oritarian , for there are no form al m ediations to protect the individual from the collective. P op ular ju stice becom es equated with 'm ob rule', a position central to the old Weberian standpoint, as w e have seen. There is no m eans of protecting people from the revolutionary m onster they have created; in Spitzer's phrase, it is a m atter of 'grabbing the tail of a passing tiger' (Spitzer, 1982, p 200). A ccepting this dichotomy, one is then drawn back uncritically onto the terrain of Western legal form alism , as in Sachs's call for 'respect for hum an righ ts', w hat he grand iosely calls 'p art of the patrim ony of humankind as a w hole'. In the process, as he says, socialist legality 'becom es less rather than more demarcated from bourgeois legality' (Sachs and Welch, 1990, p 16), and, one might also suggest, socialist society becom es rather less dem arcated from bourgeois society. However, as Sachs him self recognises, the need to rule through consensus meant that citizen's rights were already on the agenda for a socialist M ozam bique, and such rights could therefore be understood as part of the practical patrimony of the M ozam biquan revolution, not as som ething to be parachuted in from outside to an o th erw ise 'in fo rm a l', n o n -rig h ts-b a se d system . To p o rtray c itiz e n 's rig h ts as exogenous to a socialist system is clearly to delegitim ise that system in the nam e of other social and econom ic system s, which are unlikely in the long term to advance or em pow er the majority of the people in a Third World society like M ozambique. That, after all, is w hat popular justice is supposed to, and can, be about. Western legal concepts, like other form s of Western aid, do not com e w ithout strings attached. Societies seeking to encourage developm ent on the basis of selfdeterm ination encounter many difficulties. There is no need to add to these by a Western mode of analysis that fails to understand, on the juridical level as regards the concept o f popu lar ju stice, w hat self-d eterm ination m ight mean. I return to where I began, w ith de Sousa Santos (1992). If w e are to understand popular or com m unity ju stice, w e m ust interrogate the liberal concept of autonom ous law, which not only places itself on a pedestal, bu t also ordains that other m odes of social regulation m ust fail, conceptually and practically. The conceptual vagueness in our understanding of popular justice is a corollary of liberal law 's understanding of itself as firm and clear. If we tackle that understanding by placing relationality, infirm ity and un clarity at law 's centre, we can m ove beyond it to open up the different geo-historical and socio-legal worlds that have existed, and will continue to exist now and in the future.

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P a rt 2 Ju s tic e and Ju d g m e n t

C hapter 4 Legal and Moral Judgment in the ‘General Part’ [Ilntcntional agency provides the paradigm of responsible agency. This is why intention is the central or paradigm determinant of moral culpability ... As with morality, so with law. (Duff, 1990, p 102) We p o ssess indeed sim u la cra of m orality, w e con tin u e to use m any of the key expressions. But we have - very largely, if not entirely - lost our comprehension, both theoretical and practical, of morality. (MacIntyre, 1985, p 2)

Introduction In the dominant view, criminal law contains a 'general part' containing principles and rules which reflect a philosophical understanding of the relationship between the ind iv id u al, law and the state. This liberal and K antian u n derstand ing is elegantly expressed by Andrew A shw orth in the idea of respect for individual autonomy, from which stems desert for punishment (Ashworth, 1991). Criminal law is, or should be, reflective of the idea of individual choice, and penal sanction should only follow a freely chosen act. From these premises is born the subjective approach to crim inal law principles affirm ing the need for intention, foresight, knowledge and belief concerning actions and their consequences. These constitute, in A shw orth's term inology, the 'positive fault requirem ents' which have to be established in order to prove an offence (ibid, Chapter 5). Beyond these, however, there exist certain 'negative fault requirements' which operate to supplement and qualify judgments of responsibility that might otherwise be made on the basis of the positive requirem ents (ibid, Chapter 6). Into this category, there fall the various 'defences' - 'excuses' and (on some analyses) 'justifications' - which may negate responsibility otherwise established on the basis of the positive criteria. It is this relatively simple picture of a general part consisting of acts and mental elements, qualified by justificatory and excusatory defences, and based upon principles of individual autonomy, that I wish to examine. The picture does, however, have one complication worth mentioning. Ashworth notes 'how individualistic, even atomistic, are the assumptions implicit in the liberal theory which underlies the subjective principles' (ibid, p 132). No person is an island, and the subjective approach must sometimes be restricted in the light of the demands of social defence 'which one can expect to suffer in a society based on mutual co-operation' (ibid). Restrictions of this kind in the criminal law directly affect the 'general part', for example in the law of recklessness, where obviousness of risk supplements foresight as a ground of liability. Nonetheless, this approach is attractive both for its image of a society resting on individual autonomy and social co-operation, and for its simplicity. It seems to provide a relatively straightforward basis for organising the crim inal law, and it is also com pelling because of the relationship it posits between legal and moral judgment.

Law and the Beautiful Soul

At one level it is an axiom of liberal theory that there is a division betw een law and m orals, so that legal and m oral ju stice are essentially different. M ax W eber expressed this in terms of the distinction betw een law 's form al rationality (decisions d educed from existing rules) and substantive rationality (decisions based upon substantive ethical ideas: see above, Chapter 3). However, it is im portant to note that the separation o f 'legal form ' and 'm oral con tent' does not m ean that legal judgm ents of responsibility are lacking in moral significance. On the contrary, legal justice, although separated from 'substantive' morals and politics, is still regarded as morally legitim ate and legitim ating because it is based upon a universal respect for in d iv id u al au ton om y in a w orld based up on social co -o p eratio n . There is, therefore, as the p refatory qu otation from A ntony D u ff p roposes, a hom ology between the principles of the general part and broader principles of moral justice. The spirit o f K antianism w ithin the crim inal law inform s this overlap betw een judgm ents in law and in morality. Legal judgm ent is understood as a particular form of moral judgm ent - a morality of form - in the liberal tradition. I w ant to question the adequacy of the liberal tradition in relation to those aspects that I have said m ake it attractive. I will argue that the im age of individual and social life that it produces is in fact p artial; that the sim plicity o f its schem a is ultimately sim plistic; and that a key problem stem s from the Kantian nexus between legal and moral judgm ent. I shall make three argum ents against the idea that legal judgm ent shadow s or reflects m oral judgm ent. The first is that legal judgm ents based upon the responsibility of the subject fail fundam entally to capture the nature o f m oral ju d g m e n ts ab o u t resp o n sib ility for w ro n gd oin g ; ind eed , they act as b a rrie rs to su ch ju d g m e n ts. T h e arg u m en t here (w h ich is in the sp irit o f the p re fa to ry q u o ta tio n from A la s d a ir M a cIn ty re ) sta rts from th e sa m e c ritic a l observation as Ashworth, that liberal theory is too individualistic and atomistic in its conception of hum an subjectivity, but it takes it in a different direction. Rather than m oving to 'social policy' ideas as an alternative ju stificatory basis for legal judgm ent, I ask in the next (second) section how this individualism and atomism stru ctu re legal ju d g m e n ts o f gu ilt. I argue th at th ey lead to a h ard en in g and narrowing, a sclerosis, of judgm ent that drives a wedge between legal and moral ju d g m ent and, in the extrem e case, paralyses society 's ability to ju d g e crim e. I illustrate this by discussing the recent trial of two small boys for the killing of Jam es Bulger. M y second argum ent, developed in the third section, is that the legal sclerosis of moral judgm ent is the result of a historical and political process of suppression of alternative m oral and political ju dgm ents to those that ushered in our m odern world of private property and crime. The modern legal com bination of formalism and individualism (the 'atom ism ' to which Ashworth refers) is based on the figure of the responsible individual deserving punishm ent under form al law. The abstract leg al in d iv id u al ap p ears to 'rise a b o v e' m orals and p o litics, and th erefo re to constitute a legitim ation for judgm ent and punishm ent.1 I will argue that the legal 1

It is the presentation in liberal criminal law theory of a separation between (a) law as the embodiment of a formal morality and politics, based on the abstract individual subject, and (b) substantive moral and political concerns, together with the impossibility of that separation, that constitutes my main object of investigation here. Law's 'trick' through this separation is to present itself as a form of politics that is apolitical, as a morality purely of form. Thus, liberal criminal law theory both acknowledges and denies its politicality. Matthew Kramer (1994, pp 111, 118-19) misunderstands this crucial point in his criticism of an earlier essay on the law of recklessness (Norrie, 1992, p 45).

Legal and Moral Judgment in the ‘General Part’

individual is not m orally and politically neutral. It is the site of inclusion of certain moral and political views and exclusion of others. The m oral and political neutrality of the legal subject, on which is based the form al m orality and legitim acy of m odem legal judgm ent, is only an appearance, although one which has important practical effects. I will illustrate this in the third section by focusing on a primary separation that occurred in the crim inal law at the end of the 18th and beginning of the 19th centuries, a separation of motive and intention, w hich helped induce the sclerosis within legal judgm ent. M y third a rg u m en t is th a t the p e c u lia r d iv isio n b etw een legal and m oral judgm ent, w hose practical m oral effect and historical roots have been exam ined, in fo rm s and u n d erm in es the lo g ical stru ctu re o f the la w 's g e n eral p art, and esp ecia lly the co m b in a tio n o f m en tal e lem e n t, ju stific a tio n and e xcu se. T h is conceptual trinity, exam ined in the fourth section, is central to law 's 'architectonic of judgm ent'. It is a historically specific com bination of elem ents w hich operates to su p p ress d eep er m oral and p o litical issu es w ith in the law, and to m ain tain a m orality of form. These deeper issues, however, are only artificially repressed and therefore continue to irrupt within sophisticated analyses of the law 's logic. In this section I consider in particular D u ff's w ork on intention, justification and excuse (D uff, 1990, p 102), w h ich I see as an attem p t to ratio n alise and d efend legal judgm ent, but one which exposes in the process its fragile, irrational and repressive character. Finally, in a concluding section, I will relate the discussion o f the nature of legal and moral judgm ent to broader questions of the possibility of judgm ent in modern society with reference to them es in the w ork of M acIntyre (1985). I begin, however, with a case w hich illustrates in a practical way the ethical difference between legal and moral judgm ent, and the significance of legal judgm ent in our society.

The guilt of children and the sins of their fathers Sentencing two 11 year olds for the m urder of two year old Jam es Bulger, M r Justice M oreland described their crim e as 'a cunning and wicked act of "unparalleled evil and barb arity'".2 Echoing this condem nation of the boys, a senior policem an stated that 'These tw o were freaks w ho ju st found each other. You should not com pare these two boys with other boys - they w ere evil'. As they were driven from the courtroom , their departure was accom panied by shouts of 'kill them ' and 'hang them ' from an aw aiting crow d. In a rare show of m oral and social solidarity, a discourse of individual wickedness and evil had united the bench, the police and the crowd in judgm ent against two boys who, at the age of 10, had com mitted so terrible a crime. Such a judgm ent is sanctioned by the law, which allows a 10 year old to be found crim inally responsible, and normal rules of mens rea apply.3 Such a person can be as gu ilty in the eyes o f the law as any adult of the m ost serious offence. England has a low age of crim inal responsibility com pared w ith France (13), Germ any (14), N orway (15) or Spain (16) (although not with Scotland where 2 3

All rep orts are draw n from The G uardian (1993) 25 N ovem ber and The O bserver (1993) 28 November. The law has been subject to recent reform in part as a result of the Bulger case, leading to the abolition of the doli incapax presumption by the Crime and Disorder Act 1998.

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Law and the Beautiful Soul

the age is eight). However, there was som e concern expressed after the trial that the age of responsibility m ight not be low enough, for, had the boys been eight months younger at the time of the killing, they could have escaped punishm ent altogether. These categorical judgm ents of guilt and wickedness were undercut as soon as they w ere uttered. M r Justice M oreland underm ined his ow n view of the boys' w ickedness w ith his accom panying evaluation (presented as a non-judgm ent) of their families. 'It is not for me to pass judgm ent on their upbringing, but I suspect exp o su re to v io len t v id eo film s m ay be p art o f an e x p lan atio n .' S im ilarly the Detective Superintendent in charge of the investigation could say both that the boys 'had a high degree of cunning and evil' and that w hy the boys com mitted the killing 'w ill not be known for som e tim e'. However, if believed, the form er view can be a com plete answer to the latter question: the boys killed precisely because they were 'cu n n in g and ev il'. A nother policem an con trasted w h at he saw as the chilling coldness of one of the boys in the police station with the evening he w ent with three other burly officers to pick him up, and found only a small boy in pyjam as com ing d ow n the stairs. In order to interview and 'take instruction s' from this boy, his solicitor had to sit and play a Gam eboy with him for hours. T he legal attitu d e evinced in these ju d g m ents perm its a narrow , essentially unreflective attitude to the question o f individual responsibility and guilt. It does not look beyond the individual and his or her act. W hen a person viewed in this way does som ething terrible, there is no need for recourse to anything other than an ab stract m etap h ysical con cep tion o f w ick ed n ess to exp lain w hat hap p en ed . A disembodied concept of responsibility for crim e calls forth an equally disembodied explanation of its genesis. In the legal gaze, the boys in this case can be 'evil', yet their childishness evokes a sense of their innocence as victim s them selves. They are constructed as juvenile Jekylls and Hydes - unconnected em bodim ents of good (as children) and evil (as killers). O f course, other judgm ents abound in this case. There are the judgm ents of the child care experts who see 'disordered and em otionally inadequate fam ilies' and e d u ca tio n a l p ro b le m s, p ro b lem s o f in a d eq u a te p are n ts b re e d in g in a d eq u a te children in a cycle of deprivation. There are the judgm ents of the environmentalists w ho see in n er city liv in g , social d ep riv atio n and p o v erty as the root cau ses. However, none of these judgm ents seem s entirely adequate either: m any families would be classified under the headings of the child care experts, and an increasing num ber of children live in deprived inner city conditions, yet few com m it the kind of crim e that these boys did in Liverpool. Somehow, a convincing account evades us. In these circu m stan ces, it is tem pting to follow the line argued by som e in governm ent and the m edia4 that this was an isolated event from w hich there is nothing to be learnt. Yet surely this is also unsatisfactory. The problem is that all these judgm ents try to understand an event that can only be judged in terms of its synthetic com bination of social levels and individual factors united in one incident. It is a 'one-off case' that paradoxically is not a one-off case because it mixes social, educational and fam ilial circum stances w ith individual chem istry in a w ay that turns two not uncom m on boys into killers. In the w ords o f another 10 year old

4

F o r e x a m p le , the th en M in ister of S ta te D avid H u n t, and th e B B C 's H o m e A ffairs correspondent Polly Toynbee both made comments along these lines.

Legal and Moral Judgment in the ‘General Part’

Walton child: 'They were just your average scruffs - like the rest of us.' Som etim es 'your average scruffs' do cruel, violent things, w hich is to say neither that most do, nor that those who do are in som e way fundam entally different from the rest. The situation calls for a form of judgm ent that can unite appreciation of social and political environm ent with individual agency Such a form is extrem ely hard for the representatives of our various institutions - the governm ent, the media, the law, the caring professions, the police - to arrive at. The scale of the tragedy o f the death o f Ja m e s B u lger, and th e w ay it h ap p en e d , sits u n e a sily w ith the sim p lis tic judgm ents that have been made as to the causes and w ho w as to blam e. However, the trial of the boys w ho killed this infant highlights a general issue of judgm ent about crim e and punishm ent, one that is more starkly seen in this case because of the age and vulnerability of the killers,5 as well as their victim. I suggest that the failure to find adequate judgm ents in such a case is in substantial measure a result of the prim acy that society gives to law and legal judgm ent in the w'ay that it looks at these m atters. Law is the organising discourse for a process of ju dgm ent that ram ifies far be}'ond the courtroom . Its easy accounts of guilt and innocence and good and bad, echoed by ju d ges and police, and broadcast through the m edia, co n stitu te s o c ie ty 's sta rtin g p o in t. T h u s The G u ardian front p ag e on the d ay follow ing the convictions headlines its reportage with the m om ent of crim inal guilt ('B o ys gu ilty of B ulger m u rd e r'), and then, at the foot o f the p age, begin s the analysis w hich, potentially, subverts the banner headline ('Two youngsters who found a new rule to break'). The Guardian is known for its attention to social issues and does at least give these other accounts som e significance, but they are afforded a secondary position to that founded upon the law. In any case, because of law 's hegem ony, other accounts tend to accom m odate them selves to it. Psychiatrists, w ho could provide an alternative account of crim e in su ch c a se s, te stify to th e la w 's 'k n o w le d g e o f w ro n g d o in g ' te st. W ith o th er 'behavioural experts', they accept the law 's standard of normal responsible conduct, from which they construct an im age of the abnorm al individual as the exception to the la w 's ru le. O n the o th e r h an d , so cial e n v iro n m e n ta lists, fo cu sin g on the conditions of crim e, hardly address the question of w hy this person com mitted the crim e, leav in g the field o f in d iv id u al resp o n sib ility u n ch allen g ed by d efau lt. Politically, this may lead to a dualistic affirmation of the need both for a system of law that is hard on crim inals, and a policy to address the crim inogenic environment ('tough on crim e, tough on the causes of crim e'). Legal judgm ents, in other words, still set the agenda, and structure the field in w hich other discourses have their play. W hat they produce, routinely, is a kind of 'rush to judgm ent' in which precious few are able to catch their breath and look beyond the easy answers. We only notice this in a case like that of the two boys in the Jam es Bulger case, for the com bination of 5

My argu m en t is that the issue in this case goes beyond the question of the age of the defendants, and how children qua children should be judged. The fact that the killers in this case were children only brings out more starkly the abstract and narrow character of legal judgment. This is not to deny that Western systems can and do differentiate child from adult killers on occasion, as the recent French treatment of three bovs who killed a tramp shows. The m agistrate withheld the case from the press until the Bulger case w as finished to avoid co m p a riso n s. The boys w ere allow ed to retu rn to th eir fam ilies w ith o u t a period of confinement. Rather than demanding more severe treatment a I'anglais, it might be noted, French newspapers 'generally preferred to question the wisdom of submitting Jon Venables and Robert Thompson to a full blown trial' (The Guardian (1994) 23 March).

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Law and the Beautiful Soul

their age and the horror of their acts challenges the narrow and bounded categories of responsibility w e employ. Taking all the views that have been proffered, it is not that the prim e candidates for moral judgm ent are wrongly identified; it is rather the methodology by which they are judged, and the resultant quality of the judgm ents, that is at fault. The process o f ju d g m en t m u st take in the b ro ad er en v iro n m en t, social p olicy and conditions, because these establish the circum stances under which family life occurs and children grow up. It also includes the parents of the children, the surrounding neighbourhood, and ultimately the broader society. These are not easy judgm ents; they are multi-faceted and particularistic, recognising general circum stance in the m om ent o f ind ividu al agency. T hey m ust also, I suggest, include the tw o boys b e c a u se th e y w ere a c to r s in th e ir ow n 10 y e a r o ld w ay, a n d , tre a te d w ith com passion, they will have to com e to terms with w hat they did. Their crim e has, as Hegel put it, a 'positive existence' for them (Hegel, 1952, p 69). However, in moral terms, this single aspect of judgm ent ought not to be wrenched from its broader context and the m ultiplex of responsibilities this involves. S u c h a c o m p le x p ro c e ss o f ju d g m e n t, w h ich in v o lv e s a ll s e c tio n s o f the community, cannot be encapsulated in the finding of a crim inal court on the basis of black and white categories of guilt and innocence or good and evil. The law 's wigs and gow ns lend only a spurious gravitas because the legal categories hypostatise rather than con textualise. They sep arate event from structure and history, and fragm ent mom ents of socially produced agency. This is convenient administratively, for it identifies processable individual subjects, and politically, since it produces ready scapegoats and easy 'law and ord er' solutions for com plex social phenomena, but the judgm ents it produces are facile and backward looking. If th is criticism ap p ears a b stra ct and h y p o th e tical, I su g g est that one very concrete indication of the inadequacy of a legal discourse of judgm ent is the failure of a social control system imbued with it to com e up with any plausible view of how one m ight avoid a repetition o f so horrid an event as the killing of Jam es Bulger, hence the 'w isd o m ' that there is nothing to be learnt. In reality, there is nothing that can be learned becau se the d iscu rsive categories organise out the possibility. It is true that the legal process does have its im m ediate effects, both psychological and political, and som e of these, for the victim 's family for exam ple, are positive. A public record of wrong done seem s to help the process of mourning, to achieve som e sense of 'closure'. However, in the long run, for society at large, one e ffe c t is to tr iv ia lis e the is s u e s , to p ro v id e e a sy s o lu tio n s by m e a n s o f an in d iv id u a lis tic and m o m e n ta ry fo cu s u p o n a co m p le x s o c ia l p h e n o m e n o n embodied in individual agency. Geoff D yer has made the following point: Since C onrad it has becom e a cliche to talk of a journey to the heart of a n arrative darkness, but this w as the path the Bulger trial followed ... [At the end w e were still] left w ith the tan talisin g question 'w h y ?' ... Like this, w ith no one know ing w h y tw o unidentified children had com mitted such a crime, the nation would have felt thwarted. Justice m ay have been done but the hunger for a closure of the narrative which brought us right to the brink of some terrible insight would not have been assuaged. This is why - although he too refused to disclose his m otives - the trial judge had no choice but to allow publication of the boys' nam es; this is why The Guardian ... carried a huge picture of Bobby Thom pson on the front page. Narrative m ust not only be resolved, it m ust be seen to be resolved. (Dyer, The Guardian (1993) 12 M arch)

Legal and Moral Judgment in the ‘General Part’

Legal ju dgm ent seeks to establish the closure m oral narrative requires, but it is always inadequate, and this is apparent in the Bulger case. Superficially, the finding of guilt brings things to an end, but the deeper questions rem ain unanswered. The inad equacy of the con viction to close the case necessitates a further attem pt at closure in terms of a dem onisation of the two children - by publishing their names and photographs, and by labelling them as evil.6 This goes beyond the law 's own judgm ents, but it relies on the law 's initial conferral of guilt to set the ball rolling. Symbiotically, it both thrives on, and com pensates for, the law 's failure. Like others before, the social mem ory of Jam es Bulger and his killers will fade, but only until the next time, when we again w itness the dem onisation of lost innocents in a world they cannot com prehend.

Law’s sclerosis of judgment: the separation of motive and intention The argum ent of the previous section suggests the failure of law to reflect a deeper moral sense of judgm ent w hich synthesises contextual social particularity with the norm ative appraisal of individual agency. The Jam es Bulger case is not exceptional, only stark in its exem plification of the point because of the age of the killers. The legal judgm ent fails to reflect a broader m oral judgm ent of the w rongdoing in this case. The general problem is w itnessed in the murder cases of recent years where there is an im portant gap between the legal concepts mobilised to judge deaths, and the moral quality of the killings. The main legal concept is that of an intention to kill or cause grievous bodily harm (the m ens rea of m urder). H ow ever, the haphazard progress through the cases (N orrie, 1993a, 2001b, C h apter 3) suggests a deeper norm ative agenda that is unsatisfied by the law of intention. As Lacey, Wells and M eure put it, the legal categories of judgm ent operate, inadequately, in the place of moral judgm ents: Although often obscured by the conceptual apparatus of the law with its use of mental elements as a means of delineation, a m oral judgm ent is also being m ade ... [TJhere is an e v e r m o re d e s p e ra te s e a rc h for a m a g ic fo rm u la w h e re b y th e m u rd e re r ca n be distinguished from the m anslaughterer through the use of the notion of intention. (Lacey, Wells and Meure, 1990; see also Lacey, 1993a)

In the law o f m urder, the legal d efinition d oes not d istin gu ish actions that are substantially d issim ilar from a m oral point of view, for exam ple the d ifference between a contract killer and a mercy killer. The legal categories have to be teased and twisted to reflect the moral quality of killings in particular cases. A m an who shoots his beloved stepfather in a drunken race to load a gun after a family party is not morally the sam e as a w om an who puts petrol through a letter box and kills two young girls in order to frighten, or two striking miners w ho drop a concrete block

6

The process of demonisation and repetition was also illustrated by the case of Myra Hindley which remained in the headlines 30 years after her original convictions for murder. It seemed that she had to remain in prison for no reason connected with standard principles of penal administration, but only to assuage the sense of her evil, constructed in similar circumstances so long ago, and never allowed to dissipate.

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off a bridge to obstruct a m otor convoy and kill a taxi driver.7 All three are cases in which the law of oblique intention is m anipulated to produce a legal judgm ent that in som e w ays m atches a sense of m oral culpability. This is not possible w ithout substantial conceptual discom fort within the law. W hat is lacking in all these cases, and w ithin the law, is consideration of the different contexts and motivations that gave rise to these deaths. There is a moral d econtextualisation at w ork, w hich we can approach by exam ining the division between motive and intention within legal judgm ent. This division, 1 will argue, is one root source of law 's moral problem s, and is central to its general conceptual organisation, its architectonic, of judgm ent. I begin by exam ining two alternative discourses which historically threatened the discourse of the responsible subject w ithin the criminal law. The first is a discourse of need, the second a discourse of com peting (counter-) right. The form er states that a person broke the law because of acute personal or familial need. The latter claims that the breaking of the law was not wrong in the first place, but w as legitim ate in itself. If the social world was one of econom ic plenty and broad political and moral consensus, the law m ight dism iss such claim s as im pertinent or cranky. W here, h o w e v e r, p ro c e s s e d c r im in a lity w a s (a n d is) s tr u c tu r a lly lin k e d to s o c ia l differentiation, econom ic inequality, and to the protection o f a particular socio­ political order, this is not always so easy. The problems of need and counter-right were confronted by crim inal lawyers from the late 17th through to the early 19th centuries w hen capitalism was developing and consolidating its hold upon social relations, and w hen the liberal ideology of individual subjectivity w as dominant. That ideology could not im m ediately rule out disruptive discourses of need and cou nter-rig ht. The legal task at hand w as to draw the bou n d aries o f the legal subject-citizen in a way that 'respected' his or her liberty and freedom, but not too much. O ne central elem ent in the law yers' strategy w as the division of m otive and intention. A m od ern con cep tion o f m en tality con ceived o f the in d iv id u al as a purposive actor acting in the context of his or her environm ent, reacting to the opportunities and constraints w hich surrounded him or her. This was represented as a m odern subjectivity of intention and motive. Both could be taken as universal features of subjectivity: everyone forms intentions to act regardless of who they are, whence they com e, w hat they experience; everyone experiences the force of desires and fears, and is motivated by them to action. However, motive could go further: it could contextualise the subject in his or her social and political environment. The poor and dispossessed could say that their m otive was need, or could claim that they acted on right. M otiv e represented a threat to the law, and w as therefore e x c ise d fro m le g a l s u b je c tiv ity , from the ju r id ic a l a ttrib u te s o f re s p o n s ib le citizen sh ip . A b stract m en tal states o f in ten tio n , recklessn ess and agen cy w ere constructed as the mom ents of liberal legal subjectivity, to the exclusion of motive. Theft occasioned by hunger was known as the 'com m on excuse' in 18th century England. Writing in the 17th century, H ale noted the significance of motive only

7

These are the facts of three of the leading English murder cases: R v Hyam [1974] QB 99, R v M oloney [1985] AC 905, R v Hancock and Shankland [1986] 2 W LR 3 5 7 .1 pursued this argument subsequently in Norrie, 1999 and 2001b, Chapter 3.

Legal and M oral Judgment in the ‘General Part’

once in his crim inal law treatise, and that w as in order to reject it. Larceny b o m out of hunger o r lack o f clothing rem ained 'a felony and a crim e by the law s of England punishable w ith d eath ' w here there existed the intention to steal (H ale, 1972, pp 1, 54). A t the beginn ing o f the m od ern period of d evelopm ent o f a system atic crim inal law, the early V ictorian C rim in al Law C om m ission ers quoted w ith approval the sm ug judicial com m ent 'W e m ust not steal leather to m ake poor m en 's shoes', and the w ords o f the Scots crim inal law yer H um e: W hatsoever be the cause w hich im pels a person to the doing of those things, w hich are d estructive of the interest or bonds of society, his will is not on that acco u n t the less vicious or his nature the less d ep raved. (Crim inal Law C om m issioners, 1843, p 29)

H um e constructs the issue in term s o f the breach of a universal social interest (the 'bond s o f society'), bu t universality w as proclaim ed in opposition to the interests of the poor, for w hom poverty w as endem ic. As an excuse, how ever, it cut little ice. T h e s e c o n d c a u s e o f th e ru le c o n c e r n s n o t th e d e n ia l o f m o tiv e o u t o f com passion, w here com passion threatened to underm ine private property, bu t the squashing o f alternative d efinitions o f right and w rong. The po or m igh t no t ju st claim an absence o f m alice, but the positive existence o f rightful or good m otive on their side. T he late EP T hom pson m akes the point w ell w ith regard to the traum a of enclosure: V ie w e d fro m [th e c o m m o n e r s '] s ta n d p o in t, th e c o m m u n a l f o rm s e x p r e s s e d an altern ative notion of possession , in the petty and p articu lar righ ts and usages w hich w ere transm itted in custom as the prop erties of the poor. C om m on right ... w as local rig h t, a n d h e n ce w as a lso a p o w e r to e x c lu d e s tra n g e rs . E n c lo s u re , in tak in g the com m on s aw ay from the poor, m ad e them stra n g e rs in their ow n lan d. (T hom p son, 1991, p 184)

A new u n iversal d efinition o f right and w rong w as sou ght that could legitim ate p ro p erty e x p ro p riatio n w ith in new relatio n s o f p ro d u ctio n . It w as the p o litical success of these classes in forcing their interest and will that ensured that the legal reform ers could express legal rules, w hich w ere the product o f sharp social conflicts, in term s o f consensus, good com m on sen se and opposition to anarchy. The rule of private property becam e the 'ru le o f law ', so that attacks on the form er could be condem ned as attacks on a universal social good. Instrum ental in this process w as the creation o f an abstract and form al definition of hum an subjectivity that w ould c u t o ff r e fe r e n c e to s u b s ta n tiv e m o r a l a r g u m e n t. T h is a b s tr a c t an d fo rm a l conception o f hum an subjectivity w as central both to the philosophy o f the period, and to the crim inal law: The m otive by w hich an offender w as influenced, as distinguished from his intention, is n e v e r m a te ria l to an offen ce. If the p ro h ib ited a c t be d o n e, and be d o n e w ith the intention by law essential to the offence, it is com plete, w ithout reference either to any ulterior intention or to the m otive w hich gave birth to the intention. To allow any m an to substitute for law his ow n notions of right, w ould be in effect to sub vert the law ... [A] m an's private opinion could not possibly be allow ed to w eigh against the authority of th e law ... 'th o u g h h e (th e o ffe n d e r) th o u g h t th a t th e a c t w a s in n o c e n t, o r e v e n m e rito rio u s'... (Crim inal L aw C om m issioners, 1843, p 29)8

8

The last sentence in quotation m arks is from Hume.

Law and the Beautiful Soul

H ow ever, legal form alism cuts both ways. In choking off alternative social and political voices through the adoption o f abstract legal categories, legal form alism constricted its ow n potential for m oral judgment. It is that constriction that lies at the heart of the crim inal law today. We see it, as I have said above, in the law of murder, where a reliance sim ply on intention to kill or cause grievous bodily harm provides an ineffective basis for the judgm ent of the m oral quality of killings. Jam es Bulger's killers, under the law 's definition - its form alistic morality - are as guilty as anyone who intends to kill or do grievous bodily harm. This is juridically sim ple, b u t m o rally sim p listic. W hat is lack in g is a sy n th etic view o f the relation ship betw een mental state, social context and crim inal act; however, the possibility of syn th esisin g d ifferen t asp ects o f resp o n sibility and ju d g m en t w as con sciou sly suppressed in the foundation of the modern crim inal law.9 The apparent neutrality of the crim inal law 's individualist concepts of responsibility w as achieved at the cost of neutering the process of judgm ent.10 Law represents a sim ulacrum , a pale and am biguous doppelgtinger, of moral judgm ent. However, in the dom inant view, rep resen ted in the p refato ry qu o te from D u ff, m oral and legal ju d g m e n t are hom ologous. In the next section, I explore the w ay in w hich this relationship is presented in legal theory, and the flaws within it.

Law’s architectonic of judgment In the standard view, the structure of criminal law involves a 'general part' which applies ceteris paribus to the specific offences. The general part is com posed of actus reus and mens rea, which occupy the central position (cf Sm ith, 1989). W hile acts and in ten tio n s are cen tral to the e sta b lish m e n t o f crim in al resp o n sib ility , gen eral defences incorporating ideas of justification and excuse may operate where actus reus and mens rea have already been established in order to exonerate the accused according to the nature of the defence he or she has invoked. It is this conception of a general part in w hich m ens rea is central to legal judgm ent, w hile defences of justification and excuse are regarded as secondary and exceptional, that I describe as the arch itecton ic o f legal ju d g m ent. It is presented in orth o d ox accoun ts as com m onsensical and rational (if problematic in its detail), but I will argue that this particular shape of the categories of judgm ent is the result of the scleroticisation of judgm ent described above. According to Antony Duff, intention is integral to hum an action, and intended and intentional agency form the central paradigm s of responsible agency. This is true in both law and morality, so that Duff affirms this homology: The u n derlying assu m p tio n here is th at crim in al liability sh ou ld , in prin cip le, be ascribed in accord ance with m oral responsibility. A defendant should be crim inally liable only for con d u ct for w'hich she can p rop erly be held m orally responsible or culpable ... T hat is w hy m ens rea should be required for crim inal liability, and why intention should be the m ost serious kind of criminal fault. (Duff, 1990, p 103)

9 On the nature of this suppression in the law of recklessness, see below, Chapter 5. 10 On the ambiguous role of sentencing as a symbiotic, yet contradictory mode of judgment to that provided by the categories of legal responsibility, see Norrie (2001b, pp 45-46). Of course, mitigation is not available on a murder conviction, a contingency which serves to point up the failure of the legal categories to reflect a moral sense of wrongdoing.

Legal and Moral Judgment in the ‘General Part’

D uff's analysis is, however, ambivalent. On the one hand, intention in his account is central to both legal and m oral responsibility, so that he seeks to rationalise the m orality o f form that legal ju dgm ent entails. O n the other hand, becau se of his com m itm ent to an in terp retiv ist ap proach to ju dgm ent, D uff end s up pu shing beyo n d the leg al categ o ries and sh o w in g the irratio n al, m o rally su p p ressiv e, character of judgm ent within law 's architectonic. I deal with this in relation to three aspects of D uff's work. The first concerns his account of the relationship between intention, justification and excuse; the second involves his account of the nature of intentional agency; and the third relates to his critique of what he describes as the o rth o d ox co n se q u e n tia list and d u alist acco u n t o f c rim in a l resp on sibility . M y argum ent will be that in all three areas, D uff's discussion reveals the impossibility o f m ain tain in g a sep aratio n o f qu estio n s o f intention (form ) from the broad er co n text o f n o rm ativ e ju d g m e n t (co n ten t) in w h ich they are co n stru cte d . T he m orality of form, with intention as its anchor concept, is shown to be irredeem ably infected with, and unsustainable apart from, the broader norm ative context within which perforce it operates. L aw 's Kantian moral abstraction proves never to be enough. Intention, justification and excuse A central question for any explanation of law 's architectonic of judgm ent is why mens rea has pole position ahead of questions of justification and excuse. There is a prim a fa cie problem , as Duff notes. Questions of mens rea m ay not be sufficient to establish crim inal guilt, for an act may be intended, yet be justified or excused. This raises the q u estio n w h eth er intend ed ag en cy is tru ly the cen tral qu estion for c rim in a l re sp o n sib ility , o r w h e th e r m a tte rs o f ju s tific a tio n and e x cu se hav e overriding im portance. As regards ju stificatio n , D uff argues that this apparent problem can be met: One who justifies her action is prepared to answer for it, by showing it to be right: the p o ssib ility of a v o id in g b lam e o r crim in al liability by ju stifyin g ou r in ten d ed or in ten tio n a l a ctio n s, th e re fo re , d o e s n o t u n d e rm in e th e claim th a t in ten d ed and intentional actions are paradigm s of responsible agency. (Ibid, p 100)

As regards the latter, excuses operate with, not against, intentional agency, for they 'at least qualify, even if they do not w holly rebut, the ascription of intended or intentional agency' (ibid). Justification and excuse issues are therefore com patible with the centrality of intended and intentional agency to moral and legal culpability. The relationship is com plem entary rather than contradictory so that intention's primary position is valid. D ealin g first w ith ju stifica tio n , D u ff's an aly sis o f the relatio n sh ip betw een justification and intention hinges upon his understanding of responsibility, w'hich is cast in terms of answering for one's actions: To act with the intention of bringing a result about is to make myself fully responsible for that result - I m ust be ready to answ er for (to explain, to justify, to accept criticism for) m y action of bringing it about; and 1 bring about intentionally those effects for which I am held responsible. (Ibid, p 99)

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H art has show n, how ever, that there are a num ber o f different m eanings o f the w ord 'responsibility' (H art, 1968, C hapter 9), and although he does not identify D uff's conception of 'being called to respond' as one of them, it is doubtful w hether this idea reflects what is really required for either legal or moral responsibility W hat Duff, I think, is looking for (or at least needs) is som ething like H art's account of 'm oral liability-responsibility'. For H art too, there is substantial hom ology between le g a l and m o ral re sp o n sib ility . D iffe re n ce s, h e say s, 'a re d ue to su b sta n tiv e differences between the content of legal and moral rules and principles rather than to any variation in m eaning o f resp onsibility ' (ibid, pp 2 2 5 -26). H ow ever, H art explains such responsibility not in terms of being 'called to respond', but in terms of being 'm orally blameworthy, or morally obliged to make am ends for the harm ' (ibid, p 225). D u ff's account by com parison appears to describe a prelim inary situation prior to that of ascribing blam e, in which the issue of blam eworthiness has yet to be settled. To be 'called to answ er' is not the sam e as to have one's answers accepted or found wanting, and it is the latter that blam ew orthiness requires. Because the concept of responsibility-as-answerability does not settle the issue of responsibility-as-blam eworthiness, it cannot settle the proper relationship between intention and justification with regard to culpability. At best, it gives rise to a kind of prima facie culpability (cf Gardner and Jung, 1991 pp 559, 587). However, even this is questionable, for even such culpability depends on a proper allocation of matters of ju stificatio n alongsid e intention. Yet this is D u ff's chosen m eans of reconciling justification with intention. A s regards excuse, I will focus on D u ff's treatment of the twin excuses of duress and necessity, which present problem s for his analysis of the centrality of intention. Duff argues that intentional actions are done for reasons, and that this means that intention is linked to rationality. Duress and necessity claims: serve to rebut the presumption of rational com petence which ascriptions of intentional agency norm ally involve. Duress or necessity should excuse if the pressure to which the agent is subjected is so severe that it impairs her capacity to grasp, to weigh or to act on good reasons for action - to realise that and why she should resist the pressure, or to carry through a resolution to resist it. (Duff, 1990, p 102)

Note, first, that this is not the standard analysis of how duress and necessity operate in relation to intention. A ccording to the standard analysis, it m ay be perfectly rational to intend to com m it an act under duress because of the threat that has been made. There is no assum ption that the agent cannot grasp, w eigh or act on good reasons for action. He or she may perfectly well realise w hy the pressure should be resisted, and yet subm it to the duress. The use of reason may be w hat makes the duress potent. D u ff's account, I think, recognises as m uch in that he introduces the idea of 'good' reasons for action, but the significance of this goes against rather than for his argument. In introducing in effect a notion of morally substantive rational agency into his conception of intention, he reveals that it is not sim ply the issue of intention that grounds a notion of responsibility, but intention related to a particular, morally s u b s ta n tiv e c o n te x t. T h u s, d u re ss as e x c u s e fo rc e s D u ff in to a p o s itio n on responsibility in which a substantive moral addition is needed to supplem ent his analysis of intention. Intention involves acting from good reasons, not m orally

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neutral reasons. This, however, is a 'dangerous supplem ent'11 because it reveals that the m a tte r o f n o rm a tiv e c o n te n t is a ce n tra l and c o n stitu tiv e co m p o n e n t of responsibility alongside the factual ability to form intentions and act intentionally. To put it another way, duress and necessity are defences which operate to deny responsibility notwithstanding the existence of intended or intentional agency, and therefore they underm ine the claim that intention and intentionality are the central moral features of judgm ent. It transpires, in these cases, that excuses invoke broader issues of norm ative judgm ent as the basis for settling matters of responsibility, and that questions of intention and intentionality are relevant only within this broader context. W hile it is true that law 's architectonic of judgm ent focuses on intention and in te n tio n ality , the extrem e case s o f d u ress and n e c e ssity rev eal th a t the norm ally hidden substratum of these categories is moral and political. Duress and necessity force this norm ative b asis into the open, revealing that intention and intentionality are only the prim ary categories of responsibility so long as this deeper norm ativ e elem ent rem ains hid den. Inten tion can n o t be isolated as a p rim ary category on w hich to base responsibility ahead of issues of justification and excuse. It cannot be abstracted; it needs to be synthesised. The legal concept of responsibility norm ally seeks to suppress this contextually synthetic account of judgm ent in favour of a morality of form, in which apparently neu tral categ ories such as intention are given prim acy. P oten tially threatening n o rm a tiv e issu e s su ch as th o se o f ju s tific a tio n and e x cu se are p o rtra y e d as c o n ta in e d an d se c o n d a ry e x c e p tio n s . H o w e v e r, a s o p h is tic a te d a tte m p t to rationalise this position such as D uff's only shows the act of suppression and denial that goes into law 's architectonic. M oving to D uff's concept o f intention itself, we will see the continuing juridical need to suppress content in favour of a morality of form, and a vivid exam ple of the logic of legal practice in this regard. The normative foundation o f intentional agency Intention in D u ff's account includes both 'd irect' and 'oblique' forms. One either acts with the intention of bringing som ething about, or one brings som ething about not as one's intention, but as a foreseen by-product of one's actions. In the latter instance, one does not 'in ten d ', but one still acts 'in ten tio n ally '. W ith regard to oblique intention a question arises as to w hether we ascribe responsibility with regard to all or only some unintended but foreseen consequences. However, Duff observes that w e cannot ascribe every foreseen consequence to an agent because there is a moral dim ension involved: Ascriptions of intentional agency do not describe neutral facts: they express normative judgm ents of responsibility, in which we m ay disagree. (Duff, 1990, p 84; cf Williams, 1987, p 417)

Such norm ative ju dgm ents involve a potential m oral issue as to w hat an agent should take into account as an effect of his action. If an exam iner fails a student to 11 'To supplement jurisprudence, then, could be just a matter of making sure that valuable things are kept on board. The supplement provides what is lacking. It serves to complement and com plete that w hich is supplem ented ... But, as D errida has it, the supplem ent is also "dan gerous". The supplement is not fully assimilable. It remains outside, challenging the completeness and the adequacy of that which is within' (Fitzpatrick, 1991b, p 2).

Law and the Beautiful Soul

the student's serious detrim ent, the examiner, Duff argues, is not responsible even where the consequences are foreseen. It is part o f the norm ative role of an exam iner to ju d g e a s tu d e n t o n p e r fo r m a n c e a n d n o t o n th e c o n s e q u e n c e s o f th a t perform ance. Similarly, whether a doctor is crim inally liable for aiding and abetting un law fu l sexual intercou rse by p rescribin g con tracep tiv es to an un d erag e girl depends upon one's m oral view of the d octor's role: is it to the patient, or to the patient and the law? Depending on one's view, one will com e up with a different conclusion as to w hether the doctor intentionally aided and abetted the offence. This issue of substantive norm ativity has em erged in cases such as R v Steane [1947] KB 997 and R v Aiders [1915] 1 KB 616. Both were cases involving charges of intending to assist the enemy in time of war. In the former, Steane was acquitted b e cau se he b ro a d ca st for the G erm an s un der th reat o f d eath to his w ife and children; in the latter, A hlers, a Germ an Consul, was held not to assist the enem y by helping Germ ans to return hom e because he w as only doing his duty as a Consul. Both cases involve a norm ative judgm ent about the scope of w hat w as intended, since to broadcast and to assist repatriation were both actions that ceteris paribus would have the effect of assisting the enemy. S u ch q u estio n s in v o lv e m atters of m o ral and p o litica l ju d g m en t and raise centrally the question of what justifies a person in acting in a particular way. Thus, D u ff's analysis o f intentional agency un derm ines his accoun t o f intention and intentionality as sim ple paradigm s of responsible agency. Justification is a central and con stitu tiv e com p o n en t o f the ju d g m en t o f in ten tio n , part o f its in trin sic structure. Responsibility is 'm o lecu lar', not an adm ixture of separate 'ato m s' of intention, ju stification and excuse. H owever, this is w hat the law denies, for the historical reasons given in the previous section above, and it is this denial that drives a wedge between legal and moral judgm ent. The denial is achieved in practice by a forced repression. W hile Duff shows that oblique intention involves substantive norm ativity, he also notes that norm ative disagreem ent is 'm ore typically found outside the law than within it': O utside the law ou r different norm ative stand ard s (our different m oral values, for in sta n ce ) will g e n e ra te co n flictin g c rite ria of resp on sib ility, of rele v a n ce , and of intentional agency: but the law provides authoritative criteria which determine our legal responsibilities, the legal relevance of expected side-effects, and thus the scope (in law) of our intentional agency. (Duff, 1990, p 84)

An individual swim m ing naked in public view m ight have no oblique intention to expose herself indecently, and might insist that she is entitled so to swim. However, the law may hold that the conduct is intentionally disgusting and, no m atter what the person thinks, she 'will not be heard to deny that [she] cause[s] it intentionally'. In such a circum stance the law forecloses the issue of norm ative disagreem ent by in sistin g that the o b liq u e in ten tio n is p resen t w h atev er the in d iv id u a l's ow n norm ative view. The issue of judgm ent is settled by the court, according to its view of what is acceptable. The norm ative issue of what is justifiable is finessed by the law 's unilateral declaration of what the 'authoritative criteria' are to be. As with the d istin ction betw een m otive and intention, or the sid elining o f ju stificatio n and excuse, so in relation to intentionality we see the w ay in w hich matters of norm ative judgm ent are suppressed w ithin the law 's base categories. Once that is done, and

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these categories have been 'secured' against moral infection, issues of justification and excuse are perm itted as lim ited subsidiary categories within law 's architectonic. Law, in sep aratin g these issues out and prioritisin g a psycholog ical con cep t of intention, does not run with morality, but cuts against it. A good exam ple of how this splitting disrupts legal theory is seen in D u ff's troubled discussion of R v Steane. Taking this to be a case of intentional rather than intend ed assistan ce o f the enem y, there arises on D u ff's accoun t a substantive n orm ativ e qu estion (as w ith the d octor or the teach er) as to w h eth er S te an e 's assisting the enem y w as morally intentional. Rather than arguing the case on moral term s, how ever, D uff does w hat I argue the law does: he finesses the potential norm ative disagreem ent by positing a consequentialist argum ent as to w hy Steane should not be allowed to claim his assistance was unintentional: If w e deny that Steane intended to assist the enemy, because he intended to save his family, we must likewise deny that one who broadcasts for the enem y in order to earn money intends to assist the enemy. However, it would be outrageous to acquit such a person of 'doing acts likely to assist the enemy, with intent to assist the enem y'. Mr Steane's defence should have been duress, not lack of intent; his intention to assist the enem y was excused by the threats under which he acted. (Duff, 1990, p 93)

There is, however, a world of moral difference betw een Steane and a m ercenary that should, on D u ff's own analysis, be reflected in his con sid eration as to w hether Steane acted intentionally. This can be seen if we com pare D uff's treatment of R v Steane with R v Ahlers, where he argues on the moral issue. A hlers' intention 'w as sim ply to do his legal duty as consul, w hich required him to help enem y aliens return hom e when war began' (ibid). The difference betw een Ahlers and Steane is that the form er w as not a 'p riv ate citizen ' and his role and d uties as a C onsu l con stitute a m oral threshold o v er w hich the know n sid e-effect o f assistin g the enemy does not pass. This is, however, no more than an additional m oral judgm ent that the role and d u ties of a con su l are som ehow m ore v alid than th ose o f a husband and father. In both, there can be moral disagreem ent on D uff's account, and in neither can the moral issue be ruled out by a consequentialist argum ent. In foreclosing on the moral question of intentionality in R v Steane, and sidelining it to the excuse o f d uress, D uff d oes precisely w hat the law d oes in ord er to avoid c o n te s ta b le m o ral iss u e s aro u n d its p a ra d ig m c a te g o r ie s o f in te n tio n and intentionality. However, he does it against his own account of the moral substance of intention. Consequentialism versus interpretivism Law 's architectonic o f judgm ent thus privileges an apparently de-normativised (or de-politicised, de-m oralised) concept of intention and intentionality, relegating the 'difficult' moral and political issues to w hat is constructed as a subsidiary category of justification and excuse. There, in the law 's back alleys, they becom e relatively unim portant 'exceptions to a rule' rather than w hat they really are: constitutive elem ents of responsibility and judgm ent. If D u ff 's w o rk c a n b e s e e n as s e e k in g to d e fe n d an d r a t io n a lis e la w 's architectonic, his interpretive method also provides us with a theoretical tool for its critique. The most radical part of his Intention, A gency and Criminal Liability (which

Law and the Beautiful Soul

cuts against his rationalisation of law) sketches a critique of legal individualism , dualism and consequentialism . Duff argues that legal judgm ent entails a num ber of dualisms, the m ost important of which is the subjective/objective dichotom y within a consequentialist account of harm and blam e. For the consequentialist, harm is defined 'objectively' according to principles of political utility, and separately from questions of fault which operate as a side-constraint. Fault, in turn, stresses practical issues concerning subjective individual knowledge and control over the occurrence of harm , and it is for this reason that qu estio n s of intention are cen tral to the con seq u en tialist theory o f crim in al responsibility. C o n seq u en tialism therefore d ep oliticises or d em oralises the qu estio n o f crim inal harm by estab lish in g the bounds of harm 'objectively', and by identifying subjective responsibility for harm in terms of apparently 'factual' categories of knowledge and control. D u ff's critique correctly points out that this separation of subjective and objective com ponents m isses the synthetic nature of the m oral ju dgm ent of harm . Such a judgm ent attributes responsibility for murder, for exam ple, in terms of the moral quality of the mental state that is linked to a death: Both the m urder victim and the victim of natural causes suffer death. H ow ever, the character of the harm that they suffer surely also depends on the way in which they die. One who tries to kill me ... attacks m y life and m y m ost basic rights; and the harm which I suffer in being m urdered ... essentially involves this wrongful attack on me ... The 'harm ' at which the law of m urder is aimed is thus not just the consequential harm of death, but the harm which is intrinsic to an attack on another's life. (Ibid, pp 112-13)

Crim inal law, with its separation of mens rea (fault) and actus reus (harm), reflects the dualist position which Duff regards as inadequate. His argum ent is that the essence of m urder is not the consequence of death but the intrinsic harm in the attack on another's life. That intrinsic harm is paradigm atically present in a wilful killing, and therefore paradigm atically present when there is an intention to kill. Duff still insists on the centrality o f intention, but it is a m orally substantive conception that he invokes in his discussion of the intention to kill. It is not the factual issue of control o ver on e's con d u ct that is im portan t, but the m oral bad ness revealed by one's intention: Hum an actions are purposive: they are done for reasons, in order to bring something about; their direction and their basic structure is formed by the intentions with which their agents act. It is through the intentions with which I act that I engage in the world as an agent, and relate m yself m ost closely to the actual and potential effects of my actions; and the central or fundam ental kind of w rong-doing is to direct m y actions towards evil - to intend and to tn / to do w hat is evil. (Ibid, p 113)

D u ff's em phasis on the synthetic relation betw een law 's subjective and objective elem ents opens the door to the elem ent of moral evaluation in the establishm ent of any death as murder. It goes beyond the com bination of result and mental state, narrowly conceived in terms of factual or psychological intention. His interpretive analysis of judgm ent, w ith its unification of moral form and content, still makes intention a central part of the ju d gm ent o f w rongdoing but it at the sam e time decentres it. It is the 'm oral colo u r' of the intention that is now crucial, and on which the judgm ent is based. It is impossible to judge intention separately from the quality of the act that is being done. If we return to the exam ple of Steane and the m ercenary w ho both broad cast for the enemy, it is clear that S teane's (indirect)

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intention to assist the enem y in no way matches that of the mercenary. The moral colour of Steane's oblique intention is provided by his direct intention to save his fam ily. S te a n e d o es n o t see k in m o ral term s, 'to do w h at is e v il', w h ile the mercenary does. The interpretive account takes this into account in a way that the consequentialist cannot. D u ff quite righ tly takes us beyond the narrow u n d erstan d in g of ju d g m en t contained within the traditional consequentialist view. However, he also takes us, d espite him self, beyond the law 's d em oralised arch itecto n ic o f ju d g m ent. The radical and critical thrust of D uff's interpretivism takes us beyond law, but beyond law to what?

Conclusion: beyond legal judgment I hav e argued th at the creatio n o f a legal arch ite cto n ic as a m o rality o f form involved an attem pt to d em arcate a legal sphere that w as im m une from overt norm ative - m oral and political - questions. The practical effects of this can be seen in the trial of Venables and Thom pson for the m urder of Jam es Bulger (see the second section above). The sep aration of m otive and intention w as one central elem ent of an apparently apolitical and amoral sphere of judgm ent (discussed in the third section). The prioritisation o f mens rea over ju stification and excuse in the 'general part' is a corollary of this, for it was indeed matters o f justification (motive of right) and excuse (motive of need) which were suppressed by the central reliance placed upon intention in the prim ary act of separation. However, scrutiny of the logic of this architectonic o f separation and suppression reveals that questions of moral and political context are inseparable from questions of act and intention (see the last section above). Legal ju d g m ent seeks to d ifferentiate itself from m oral judgm ent, but fails. That which has been repressed returns. In this section, I seek to locate this return of a repressed connection to broader questions about the nature and possibility o f judgm ent in m odern society. Alasdair M acIntyre has written of an im passe in m odern thought resulting from the incom m ensurability of ethical claims: [W ]hcn claims invoking rights are matched against claims appealing to utility or when either or both are matched against claims based on som e traditional concept of justice, it is not surprising that there is no rational w ay of deciding which type of claim is to be given priority ... Moral incommensurability is itself the product of a particular historical conjunction. (M acIntyre, 1985, p 70)

The problem stem s from the invention of an autonom ous m oral individual as the source o f m orality in the m od ern w orld . T he price paid for this 'h o m u n cu lar' m orality (Norrie, 1991b, Chapter 9) is a failure to establish any sense of moral bonds beyond the individual. Utilitarianism , as M acIntyre puts it, is an inadequate attempt to replace trad itional m oralities w ith a p rincip le w ith w hich to 'co n te x tu alise ' individual acts. It fails to do anything other than create an opposition between the collective interest and individual autonomy. I agree with M acIntyre about this sense of incom m ensurability at the heart of the discontents of m odernity (cf Norrie, 1991b), and I also agree that the problem can be diagnosed as an historical one, as a result of the way that Western societies have

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b e e n c o n stru c te d in m o d e rn tim es. T h is c h a p te r can b e read as s u p p o rtin g M acInty re's project by show ing the w ay in w hich one aspect of how w e live through the law and its judgm ents - crucially contributes to, as well as reflecting, the broader m oral impasse. Thus, A shw orth's presentation of liberal crim inal law, discussed in the introduction, can be seen to reflect the righ ts/u tility antinomy, and the discussion of the failure to achieve a synthetic and contextual judgm ent in the Jam es Bulger case, in the law of murder, and around the concept of intention, stems from the structuring of judgm ent according to the law 's individualism. The historical dim ension is as important to the analysis presented here as it is to MacIntyre, perhaps more so. Indeed, I think it is possible, through a reading of the law 's individualism as a social and historical process of exclusion, to see a way of at least beginning to address one central failing of the moral analysis in After Virtue. M acIntyre seeks to re-establish a moral conception of the good life for man in the face of the individualism of the m odern world and the m oral fragm entation that flow s from it. His approach is to argue for a sense of com m unity and tradition, implicit in all moral discourse, w hich w e take forward into our conceptions of w hat is morally good. However, this leads M acIntyre into his own moral impasse because he h as alread y arg u ed th at it is p re cise ly the fa ilin g o f the m o d ern sen se of com m unity that has caused the loss of coherent m oral vision. In grounding his an alysis o f the m orality o f in d iv id u alism in the h isto rical d ev elop m en t o f the m odern community, he fails to establish the existence of an 'o th er' com m unity that can found a sense of moral order. The basis for an alternative sense of com m unity to modernity is denied by his historical m ethod, and M acIntyre is ultim ately forced into a leap of faith that som ehow it will be possible to construct, out of nothing, a new community. From som ewhere, we m ust find 'm en and wom en of good will' w ho can c o n stru c t 'lo c a l fo rm s o f co m m u n ity w ith in w h ich c iv ility and the intellectual and moral life can be sustained through the new dark ages which are already upon us' (MacIntyre, 1985, p 263). How these m ysterious 'm en and women of goodw ill' (at once a highly abstract and a very 'm odern' construction) can appear is not explained, and nor can it be, given his description of the moral failings of the modern individualist community. However, M acIntyre's quest appears legitimate. His ability to reveal the failures of the morality of modernity already implies a morality that could exist, even if he cannot adum brate it.12 M y suggestion is that through looking quite concretely at the historical way in which modern law' and politics scleroticised moral judgm ent, we are able to posit a sense of m orality beyond the law 's individualism , w ithin our already existing communities. M y method has not been to elaborate an alternative morality to that of the law, and thence to criticise the law for its failures. I have worked out of the failures of the law adequately to capture an im m anent sense of m oral judgm ent in both practical

12 In his subsequent w ork , M acIntyre (1 9 8 8 , 1990) ap p ears to slacken the historical and contextual strictures of A fter Virtue in order to argue for the possibility of reconstituting older moral traditions in the present. But it has recently been rightly noted that if he is to attach importance to the 'social embeddedness of thought and enquiry, [then] his largely negative view of m odernity continually threatens to underm ine any attem p t to root his positive proposals in the contemporary world of advanced industrial societies' (Horton and Mendus, 1994, pp 13-14).

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and theoretical settings. Thus, I have suggested the failure o f a law -dom inated universe of judgm ent to reflect a more profound sense of the com plexity of wrong evoked by the Jam es B ulger case, and I have argued that the law 's analysis of in te n tio n , ju stific a tio n and excu se u n su cce ssfu lly rep resses a m ore sy n th etic m ethodology o f judgm ent. The creation of our m odern categories of judgm ent is based upon a suppression of deeper moral possibilities which rem ain sensible and serious even if (and because) they appear legally im possible or impractical. D uff's co n cep tio n o f an in te rp re tiv ist m oral strateg y sh o w s the in ad eq u acy o f legal judgm ent, even as his rationalisation of the law defends a morality choked off by hom uncular forms of responsibility. Individualist legal form s repress other possible architectonics of judgm ent w hich do not go away: they lurk behind and within the contradictions of law.13 Part of M acIntyre's problem lies in the abstract way he uses history, representing the historical character of modern morality in vague socio-cultural terms. His main premise is that a cultural change occurred in N orthern Europe in the 17th and 18th centuries from w hich individual autonom y and the separation of morals, religion, law and aesthetics emerged (M acIntyre, 1985, pp 36-39). Later in his analysis, he recognises as a central characteristic of m odernity the existence of social conflict in m odem society, acknow ledging that we are 'fundam entally right in seeing conflict and n o t co n se n s u s at the h e a rt o f m o d ern s o c ia l s tru c tu re '. M o d e rn lib e ra l conceptions of morality, he argues, 'fu rnish us w ith a pluralist political rhetoric w hose function is to conceal the depth of our con flicts' (ibid, p 253). H ow ever, M acIntyre forges no real con nection b etw een the ind iv id u alism and the social conflict he identifies. On my analysis, the relationship between ideological form and structural context is stronger and more explicit. Legal individualism operates as a mode of exclusion and repression of alternative substantive view s of right and wrong, and the moral absences of m od ernity and law are based on that repression. The form s o f law scleroticise our sense of judgm ent not only because they stand apart from moral ju d g m e n t b u t also b e ca u se th ey stan d in the w ay o f a lte rn a tiv e , im m an e n t form ulations. We are not talking only, pace M acIntyre, of a concealm ent of social conflict, but of a repression of m oral and political alternatives in a structurally conflictual environm ent. This is achieved by virtue of the abstract individualist form s of law and morality, w hile the m oral contents that are excluded by law 's form alism keep forcing them selves back to our attention as felt 'lacks' to which we try to g iv e n am es. M u ch o f the tim e w e are u n ab le to a rticu la te w h at th ese alternative m oralities are, bu t this is exactly w hat we should exp ect given the historical experience of repression of which our own cultural im aginations are the victims. They remain necessarily inchoate. In this context, it m akes sense for us to look to alternative processes of judgm ent to try to understand w hat is lacking in our ow n legal and moral processes. O n a personal level, we may reflect on the processes o f judgm ent that we are fam iliar with with friends, in families, or som etim es in com m unities or the w orkplace.14 As 13 Thus, the antinom y of the formal and the informal discussed in Chapter 3 represses the possibility of alternative modes of judgment which are cast into the darkness of 'the informal'. 14 This is not to deny that these too are structured and conflictual environments, but they are not so clearly or so closely constructed around a legal architectonic of judgment.

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legal actors, w e may look to system s of 'alternative' or 'popu lar' justice that exist in the interstices of, or in opposition to, Western style system s such as described here. This is not the place to do other than indicate in very broad terms w hat we find in these other places of judgm ent.15 Frequently, categories of judgm ent are nuanced and more reflective than those of the state and the law. Judgm ents recognise the context of agency and m easure know ledge of background and com petence against action. There is not an ab stract standard, b u t a graded sense o f w hat a fam ily member, a friend, a colleague, a m em ber of the com m unity could have done, as well as w hat he or she did do, and there is also a reflexive sense o f the ju d g er's own role in relationships and the outcom es that they generate. There is also a sense that the result of judgm ents should be constructive and developm ental, not punitive and regressive. There is an em phasis on particularisation in the application of norms to individuals, and a correlative sense of the need to act flexibly with regard to the selection of norms. I can do no more than gesture at this discussion, but I think it is clear that the rough sketch I have outlined is closer to the alternative sense of judgm ent evoked by the Jam es Bulger case than the abstract conception of judgm ent that is generated by law, and that w as predom inantly and publicly applied in that case. Thus, my suggestion against M acIntyre is that a more critical historical methodology can help us to see that the alternative sources of moral judgm ent do not require a com plete rupture with the present as a social and political reality in order to search out a com m u nity 'b e y o n d ' w hat exists. T he o th er com m u nity that M acIn ty re seeks beyond our own is an illusion and an impossibility, but this should invoke relief not desperation. The resources to w ork morally and politically against the 'new dark ages' to which he refers already exist, suppressed, in the here and now. It is the sense of alternatives suppressed in the past and the present that burns in the late EP Thom pson's last w ork, Customs in Com m on: As capitalism (or 'the m arket') m ade over human nature and human need, so political econom y ... cam e to suppose that this economic man was for all time. We stand at the end of a century when this m ust now be called in doubt. We shall not ever return to pre­ capitalist hum an nature, yet a reminder of its alternative needs, expectations and codes m ay renew our sense of our nature's range of possibilities. (Thompson, 1991, p 184)

Thom pson rem inds us, pace M acIntyre, that w e need not go back to aristocratic A thens for a sense of m oral com m unity and tradition, for 18th century plebeian England will do just as well. O rdinary people, not extraordinary 'm en and women of goodw ill', sharing 'experiences in labour and social relations' generate their own moral judgm ents alongside 'the necessary conform ity w ith the status quo' (ibid, p 11). As in the past, such judgm ents can constitute the basis for alternative counter­ le g alities in the present. W hether they w ill do so w as som eth in g about w hich

15 Important discussions in a voluminous literature can be found in the following: Allison, 1990, pp 409-28; Burman and Scharf, 1990, p 695; Fitzpatrick, 1987; Fitzpatrick, 1992a, pp 199-215; Gundersen, 1992, pp 257-82; Sachs and Welch, 1990; Scharf and Ngcokoto, 1990; Spitzer, 1982. See above, Chapter 3.

Legal and M oral Judgment in the ‘General Part’

Thom pson expressed p essim ism ,16 and it is indeed hard to feel anything else in the present W estern social and political clim ate. H ow ever, we should understand that alternatives exist as part of 'o u r natu re's range o f possibilities', and not as a m ystical ideal for another com m unity, operating som ew here beyond the w orld in w hich we live. With M acIntyre, w e m ay agree that the dom inant intellectual structures of our social, political and legal w orld are not necessarily im m anent in hu m an existence, but are the politically achieved artefacts of a particular society. It is this historical and p o litic a l s tru c tu rin g o f la w 's a rc h ite c to n ic o f ju d g m e n t, re p rese n te d as a 'g en eral p art' o f m ens rea, ju stificatio n and excu se, that u ltim ately gu arantees its strength and longev ity N either its intellectual coherence nor its ability to reflect the m oral character o f ju d g m en t and responsibility in everyd ay life vindicates it.

16 And caution: see Thom pson's com m ents about 'rough m usic', a form of law that 'belongs to the people, and is not alienated, or delegated', but which is not 'necessarily m ore "n ice" and tolerant'. Rough m usic was 'only as nice and as tolerant as the prejudices and norm s of the folk allow' and Thom pson com m ents that 'Law and a bureaucratised police m ust have been felt as a liberation from the tyranny of one's "o w n "' (1991, pp 530-31). These com m ents are im portant in Britain today, where unpleasant forms of 'popular justice' have begun to em erge as a result of the perceived failures of the police and the courts to contain som e form s of criminality. The value of producing an analysis of the limits of the Western legal architectonic is to formulate a clear analysis of the strengths and limitations of such law. This can then form the basis for com parison with other architectonics of judgm ent in different times and places. The argum ent of this final section makes it clear that it is possible to conceive m orally and historically of the possibility of such alternative architectonics of judgm ent. This is a prelude to considering w hat role law-like regulation m ight play under alternative m oral, social and political arrangem ents. It is not to argue for the abandonm ent of law, as the previous chapter makes clear.

C h ap ter 5 T h e Limits o f Justice: Finding Fault in the Crim inal Law

Introduction: challenging the ‘penal equation’ Crim e is a serious social problem to which society does not have a serious answer. Loud voices say that if our stock responses fail, we need more of the same. It should be easier to d etect and con v ict crim inals, pu nishm ents should be harsher. The resulting calls for 'law and ord er', with increasing em phasis on the latter, rely on w hat w e m ay call the 'penal equ atio n'. This is the sim ple form ula, 'crim e plus responsibility equals punishm ent', that has informed our social control practices for 200 years. Crim e requires punishm ent as retribution and deterrence, and criminal justice qualifies individuals as deserving of the state's legitim ate sanctions. It is this sense of justice, responsibility and desert, justifying social control through criminal punishm ent, which is the focus of this chapter. C rim inal ju stice fixes a bad ge o f responsibility to the ind iv id u al's lapel, and th e re b y ju s tifie s re trib u tio n and d e te rre n ce . Yet w h o is s a tis fie d w ith th is? Retribution appears to evoke backward-looking ideas of revenge, while deterrence, pace alm ost every m od em H om e Secretary, hardly seem s to w ork (Norrie, 1993a, 2001b, Chapters 2 ,1 0 ).1 O ver the past 100 years, reform ers have sought persistently to move the system from these tired rationales. Calls for reparation, reconciliation, and mediation, as well as for increased use of diversion, non-custodial penalties and form s of interm ediate treatment indicate the need, perceived by many, for changes w hich can break the iron grip of the 'penal equation'. Legal justice is contrasted with reintegrative approaches (Braithwaite, 1989), with w hat can broadly be termed 'relational justice' (Burnside and Baker, 1994).2 However, as Sir Louis Blom Cooper has noted, such developm ents remain peripheral and for that reason sustain the m ain stream . M itig atin g its w o rst fe atu re s, they 'p o s itiv e ly ack n o w le d g e the centrality of the courts and prisons as the instrum ent to be deployed' (Blom Cooper, 1995, p 11). So w hat is to be done in terms of challenging this equation? Is it possible to move beyond it? Were w e to do so, would there be loss as well as gain? It is easier to acknow ledge problem s w ith the penal equation than to solv e them . As M ichel Foucault (1977) noted, the history of penal reform is as old as the penal system itself, and we should be aware of the pitfalls of grand designs. Blom Cooper calls for a new 'th eoretical un d erp in n in g' and a rad ical alternative to the crim inal ju stice

1

2

I argue there that retributive and deterrence theories have a common root in the individualism of Enlightenment ideology, and this accounts mutatis mutandis for the different problems both experience. My focus here is on criminal law and justice, so the discussion primarily relates to questions that are seen as being in their essence retributive. For a good summary of the contrasts and similarities between retributive and reparative ideas, see Zedner, 1994. While I use the idea of a 'relational' theory of punishment in my own work (Norrie, 2000), I distinguish a philosophical use of the concept from one that directly endorses particular practices of control and reconciliation in line with the overall thesis of this essay: see rn 18 below.

Law and the Beautiful Soul

system , but he d oes not provide one.3 W hile sym p athetic to the call for a new theory underlying a new practice, I will argue that a direct link betw een theory and p ractical reform m ay be problem atic. That is not to argue that theory does not illum inate the problems of crim inal justice, or that practice is not enhanced by it. It is to claim that the relation betw een theory and practice is intrinsically difficult. W hat is needed is a theoretical approach that can encapsulate an am bivalence in our assessm ent of the legal conception of justice, one that can explain its weaknesses, but also its strengths. It is important neither to reject totally nor to accept uncritically the conception of justice established by crim inal law. We need a theory which can take us beyond either w holesale rejection or broad acceptance of the present system. Such an approach would be sensitive to the unavoidable gap, as well as the links, between an adequate theory and a possible practice. M y approach will be to find a theoretical route beyond criminal law and justice, but to go 'beyond the law ' by going 'th ro u gh ' it. So doing, w e achieve a m ore com plex and sophisticated picture of what is at stake in the 'penal equation'. It is one thing, as crim inological thought from Italian positivism (Ferri, 1901) to Barbara W o o tto n (1 9 6 3 ), and now B lo m C o o p e r h as d o n e , to d ism iss le g a l id e a s o f retribution and deterrence as outdated, inefficient and unenlightened. It is another to engage with law to show through that engagement the limits, but also the strengths, of legal justice. It is im portant to stress the double-sided character of law. A legal approach contributes to the failure of crim inal justice to reflect society's moral and practical needs, but we must also recognise its positive side. In particular, we should reco gn ise the lib eral, in its ow n term s pro g ressive, cu rren t o f th in k in g w hich elaborates the virtues of law and, to som e extent, punishm ent. This approach to crim inal ju stice was m ost influentially expressed by H LA H art in the 1950s and 1960s (H art, 1968). It underpins the w ork o f crim inal law w riters like G lanville W illiams (1961), Sm ith and H ogan (1992) and Andrew Ashworth (1991). It insists that it is a moral strength of the crim inal justice system that it is law-based. This is true at the procedural level, at which civil liberties issues are contested (Ashworth, 1994; S an d ers and Y oung, 1994), b u t also in the su b sta n tiv e law as con cern s responsibility and punishm ent. Liberal theory argues that w e ought to punish only those w ho act freely, either in terms of their capacity or control over their actions. Law respects autonom y and personhood, and this is a value in itself. The problem com es, however, when we ask just what these liberal ideas mean. W hat, for exam ple, does it m ean to be a free or autonom ous crim inal given that (processed) crim e has alw ays been linked w ith structurally disadvantaged socio­ eco n o m ic b ack g ro u n d s? H ere w e e n co u n te r the b a sic flaw in 'ju stic e m o d e l' thinking: the problem of how to achieve 'just deserts in an unjust society' (American Friends Service C om m ittee, 1971; A shw orth, 1989; M urphy, 1979; N orrie, 1993a, 2001b, Chapter 10; Norrie, 1991b, Chapters 3, 9).4 However, we should not discard lightly the libertarian dim ension to liberal justice thinking. This is apparent if we reflect on the practical resonance that responsibility and freedom have for m odern society. Consider for exam ple the com plaints of prisoners undergoing discretionary, 3 4

Blom C oop er's only real proposal is for a return to the bipartisan political consensus on criminal justice issues which existed in the 1970s. In Norrie, 1991b, I argue for the historical continuity from Hobbes onwards of this problem for liberal retributive theory.

The Limits o f Justice: Finding Fault in the Criminal Law

indefinite sentences about the special, additional punishm ent and injustice in not knowing when they may be released. Consider too the ways the law 's categories of resp o n sib ility can reflect the m o ral feelin g s o f those w ho com e b efo re it. For exam ple, in the case of hom icide by a battered wife, it is im portant to many that the accused achieve w hat they see as the m ore just, w hile arguably still inadequate, v e rd ic t o f v o lu n ta ry m a n sla u g h te r th ro u g h p ro v o c a tio n . T h e a lte r n a tiv e o f dim inished responsibility, in pathologising the wom an, does not reflect the moral truth of the accused's position and is therefore experienced as unjust (O 'Donovan, 1991; M cColgan, 1993; Horder, 1992). Just and unjust: w e should recognise the paradox and am bivalence at the core of crim inal justice thinking. The 'penal equation' reflects serious m oral distinctions, but at the sam e time proves a flawed basis for a morally sound (retributive), or even effective (d eterrence based ), system of social control. We m ay agree w ith Stan Cohen, w ho some years ago described the legal concepts of guilt and justice as old concepts needed by a new criminology, but w e should reflect on the limits he found in such an argument. The legal approach, Cohen wrote, makes us 'forget that by the time m any offenders get to this wonderful justice system the dam age has already been done'. It is obvious, he says, 'to anyone who has spent five minutes in a court or prison that it would be blatantly unjust to return' to an undiluted legal approach (Cohen, 1979, pp 35-41). From one side, the 'penal equation' is part of the solution, from another, very m uch a part of the problem . The picture is am biguous. Any a d e q u a te th e o re tic a l u n d e rp in n in g , e v e n m o re so p ra c tic a l re fo rm s , m u st acknow ledge this m oral am bivalence about crim inal ju stice, and the form s that express it. This chapter is concerned with understanding this am bivalence and am biguity in three rather d ifferen t but related section s. In the next section , I seek to locate am bivalen ce and am bigu ity by con sid erin g the theoretical persp ectiv es w ithin w h ich leg al ju s tic e is u n d e rsto o d . M o v in g from the lib e ral a p p ro ach , w h ich essentially endorses the legal conception of justice, to the deconstructive approach, w hich essentially rejects it (while still seem ingly wishing to hold onto it), I outline a critical approach w hich w ould seek a stand p oint beyond eith er a m ore sim ple en d orsem en t or rejection. T h ereafter (third section ), I seek to show the m oral inadequacy of the legal conception of justice w ith regard to a central concept of crim inal responsibility (recklessness), and to explain this inadequacy in critical terms. I suggest that legal categories both reflect and deny moral issues of judgment and justice, and that there are historical, structural reasons why this should be so. There is a structural splitting of legal and moral judgm ent which explains what the law lacks in m oral term s and w hich explains conflicts in its discourse w hich it cannot overcome. In this section, I move from a broad focus on the theory of justice to a narrow er consideration of one category, recklessness, which is supposed to do justice in the law. My claim is that the broad critical standpoint developed in the seco n d sectio n can be b ro u g h t to b e a r on the in trica c ies o f su b sta n tiv e legal argum ent, and that exploring these intricacies illum inates the broader moral issues. In a fourth section , I develop the idea o f a sp lit betw een law and m orality by contrasting a legal conception of responsibility w ith a m oral conception derived from social psychology. M y argum ent is for the idea that ju d g m ent and ju stice th rou gh law o ccu p ies a 'sp a ce b e tw e e n ' the legal and the m oral. From th ese

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argum ents, I conclud e on the m oral lim its of crim inal ju stice and return to the p ro b le m a tic re la tio n b e tw e e n a th e o ry a d eq u a te to crim in a l ju s tic e and the possibility of practical reform.

Theorising justice Liberalism and justice If w e are going to confront crim inal law and justice, w e need first to consider the traditions within w hich they are understood. Our starting point has to be liberalism, for the theory of retributive punishm ent and crim inal justice is founded on it. Since I have already sketched this above, I will be very brief. Generalisations alw ays do violence, but there is an identifiable core to the liberal tradition which involves its c o n ce p tio n o f the in d iv id u a l as an a b stract, u n iv e rsa l su b je ct en d o w ed w ith capacities for rational action, autonom y and self-determ ination (N orrie, 1991b).5 The individual is a unified, centred being who acts as the basis for legitim ating the state, law and punishm ent. He gives consent to the state, or recognises its rational necessity,6 participating in its law as a rational legal subject. Punishm ent unifies political legitim acy and legal sanction. The rational subject receives punishm ent as 'ju st d eserts' from the state through the law. The 'penal equ atio n ' - crim e plus responsibility equals punishm ent - is founded, with many variations, on this kind of liberal bedrock. Poststructuralism and justice This liberal su b ject has been su bjected to su stain ed critiq u e from a v ariety of perspectives. The poststru ctu ralist approach, influential in recent years, stresses instability and disunity within the individual subject. It points to w hat is excluded by the con stru ction of the liberal ind iv id u al and it affirm s the m oral valu e of d iffe re n ce o v er u n iv e rsa lity (D errid a, 1990; D o u zin as and W arrin g to n , 1995; G oodrich, 1995). To the rational w ill of liberalism , it opposes hum an needs and sentim ents associated w ith 'the bo d y '. To abstract reason, it opposes em bodied being and particularity. It em phasises singularity, an ethics of the contingent, over universality. M ost importantly, it calls into question the idea of the individual as a unified, centred being, insisting on the fragmented character of subjectivity. I am not one but several persons, and my cen tral identity is a con struction d enying the difference within me. In order to be a unified subject, I must repress this otherness (Barron, 1993). This critique has important consequences in terms of showing how a theory of liberal law, which purports to include, excludes. A theory of what all individuals h a v e in co m m o n , lib e ra lism e x c lu d e s d iffe re n c e : o f g e n d e r, ra ce , cla s s and 5

6

I discuss the liberal m odel m ore full)' above in Chapter 4. For a historical survey of the development of the liberal theory of punishment from Hobbes to Hart, see Norrie, 1991b. For d iscu ssio n of the m od ern v a ria n ts of lib eral th e o ry in clu d in g its in d iv id u a list an d communitarian forms, see Norrie, 2000, Chapters 5 ,6 . For the contractarian tradition, see Hobbes, 1968; Beccaria, 1964; for rationalist approaches, see the German idealist tradition: Kant, 1965; Hegel, 1952. For discussion, see Norrie, 1991b, Chapters 2-4.

The Limits o f Justice: Finding Fault in the Criminal Law

community. It does so in favour o f a single, apparently neutral, standard that is in fact gendered (male), classed and aged (middle) and raced (white). However, there is, I would suggest, a danger of overkill. Liberalism as a locus of exclusion may be a fair a rg u m en t, b u t d oes it lead one to ex clu d e in turn the p o sitiv e e ffe cts of liberalism ? A system based on individual rights, on reason and universality surely has som e advantages. Poststructuralists w ho w ant to argue for legal o r hum an rights surely accept this, but then the question m ust be, on w hat basis? On grounds sim ply of 'strategy', w hich appears a weak, unthought-out basis, or on more solid theoretical grounds which concern the interplay between legal, personal, ethical and social identity, how ever these may be conceived in poststructuralist terms? Notw ithstanding attem pts to com e to terms with this question, there seem s to be an unresolved theoretical and m eth od olog ical tension in po ststru ctu ralism . In seeking a critical standpoint in w hat lies 'beyond', poststructuralism ultimately has a problem in com ing to terms with the forms of the social world as they are. Either it insists on the deconstruction of existing form s of subjectivity and reason (including those of the law), and therefore that the criteria for progressive political and moral change exist entirely beyond 'w hat is', in an unactualised and unactualisable 'other' place; or it illicitly returns to w hat exists, for exam ple, legal rights, seeing this as strategically necessary for moral and political practice 'in the m eantim e'. The latter approach is illegitim ate in terms of the method of deconstruction, but cries out to be im plem ented in the face of real, pressing injustice (see above, C hapter 2, below Chapter 8; cf Cornell, 1992; Douzinas and Warrington, 1995, Chapter 5).7 These sceptical com m ents notw ithstand ing, it is im portant to hold on to the p o ststru ctu ra list em p h asis on the partiality , the e xclu sio n ary and in com p lete character, of law and legal justice, and the difference that it masks, in order to probe the paradox and the ambiguity of legal justice I have described. However, w e need other theoretical term s w ith w hich to understand the Janus-like character of law, both its significance and its problematic character, for justice. Critical realism, dialectic and justice My approach is through the critical realist w ork of Roy Bhaskar and others in the philosophy of social science, and also draw s here on the w ork of Rom H arre in social psychology. I will first say a little about the basic outlook of critical realism and its recent 'dialectical turn' before exploring its relevance to justice thinking.8 Bhaskar's starting point is that social and historical processes are ontologically real and em ergent foundations for hum an being and that differently situated hum an bein gs act to reprod uce and (som etim es) transform such foun dations. H um an

7

8

C om pare D ouzinas and W arrin gto n 's ab stractio n w ith the 'p ra ctica l ap p lication ' of a Levinasian approach to human rights (Lyotard, 1993). The latter appears indistinguishable in its programmatic conclusions from a liberal approach. What follows is a very limited account of the dialectical and realist argument. In this book, there is a more developed account in Chapter 3, and in Chapters 8 and 9. See further Norrie, 2000, Chapter 4 and more generally Bhaskar, 1975, 1979 and 1989; Collier, 1994; Outhwaite, 1987 (on critical realism ) and Bhaskar, 1993 and 1994 (on the 'd ialectical tu rn ' in his philosophy). H arre's work (H arre, 1983; H arre, Clarke and de Carlo, 1985) is considered below, where I develop an alternative relational accoun t of responsibility to that of the retributive tradition. The relationship between dialectical critical realism and Harre's social psychology is a controversial one. For my own approach, see Norrie, 2000, pp 199-202.

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beings live in society and history by and through norm s, form s and relations that are historically structured and shaped, including those of the law. This is important vis-a-vis poststructuralism. Recognising that we are irreducibly part of an em ergent social and historical world, and that we are differentially situated in it, we can hold onto the insights of poststructuralism concerning difference and exclusion w ithout relating these to an abstract, ethical 'beyon d'. There is no m etaphysical 'o th e r',9 rather there is real em ergent history and d eveloping social structure, and these generate actual difference, conflict, change, som etim es crisis. Difference, 'som ething new ', is em ergent in real tim e, space and history. New perspectives and critical standpoints, new ways of looking at old phenom ena, including the phenom ena of law and justice, are produced in this process of emerging change and difference. A crucial aspect, which Bhaskar has recently developed, concerns the use of a d ialectical approach. The essence o f su ch an approach is given in the ideas of d ia le ctic a l co n n e ctio n and c o n tra d ic tio n w ith in a d ev e lo p in g so cia l totality. Dialectical connection exists: betw een entities or asp ects of a totality such that they are in principle d istin ct but inseparable, in the sense that they are synchronically or conjuncturally internally related, ie both ... or one existentially presuppose the other ... (Bhaskar, 1993, p 58)

D iale ctical con trad iction also refers to s itu a tio n s w here e lem en ts e x iste n tia lly presuppose each other, but in this case, they are also in conflict. Elem ents are in dialectical contradiction w'here one prem ise cannot be satisfied save at the expense of another, to w hich it is internally related. In this situation, 'a system , agent or structure, S, is blocked from perform ing w ith one system , rule or principle, R, because it is perform ing with another, R l ' (Bhaskar, 1993, p 58). This dialectical developm ent of critical realism highlights both continuity and d iffe re n ce w ith p o ststru ctu ra list theory. C o n tin u ity : w e can use the sen se of d iale ctical co n n ectio n and con trad ictio n to lo cate the p ro blem s o f d ifferen ce, exclu sio n and p artiality p o ststru ctu ralism id en tifies. D ifference: w e can do so w ithout being draw n onto poststructuralism 's m etaphysical plane if we recognise th a t th e s e p ro b le m s a re th e e ffe c ts o f s o c ia l a n d h is to r ic a l c o n flic ts and contradictions which penetrate and constitute the form s through which we live. If the world is contradictory, then w e need to understand phenom ena like law, legal ju stice and su b jectiv ity in their con trad icto ry aspects. T h eo ry m u st be able to identify and explain the different, opposing and exclusionary propositions that a social and historical phenom enon generates. Thus, a theory that claim s that both 'p ' and 'not-p' are true may offend against a system o f formal logic, but may more truly capture the different aspects of the object of investigation. W hat kind of theory can hold together for exam ple the argum ents, which are both held to be true, that law prom otes and obstructs equal opportunities (Lacey, 1993b)? H olding the different and contrad ictory propositions concerning a phenom enon together as a w ay of understanding its totality involves thinking dialectically. T h e ap p ro ach to leg al ju stic e ad o p ted h ere is n o t b a sed on w h at lies in a m etaphysical sense 'b ey o n d ', but on the contrasts that w e identify betw een the claim s of legal justice and other m oral and political claim s that emerge historically

9

For more on this reading of Derrida, see below, Chapter 8.

The Limits o f Justice: Finding Fault in the Criminal Law

within m odern social structures. O ur critical faculties exist on the sam e historical terrain as the social form s through w hich w e live. Living in the here and now, thinking d ialectically about the form s o f ju stice that em erge, explains both our satisfactio n s and d issatisfactio n s w ith legal ju stice. Law is con stituted by, and constitutes, social practices. As social beings in historical time and place, form ed by a m u ltitud e of historical and con trad ictory experiences, w e bear w itness to the moral and political values in law. We see w hat they include but also exclude and we have regard to other form s of justice that abut, com plem ent or negate legal forms. We can com pare and contrast legal justice with, for exam ple, relational justice, socalled 'popu lar ju stice', 'substantive ju stice', as w ell as form s o f ju stice in other co n te x ts lik e the fam ily or the w o rk p lace . T h ere is also im p o rta n t sco p e for com parative, historical and anthropological dim ensions, looking at form s of justice in societies different from our own (Abel, 1992; de Sousa Santos, 1992; M erry and Milner, 1993).10 These provide the real critical standpoints from which to exam ine the law. Before I move to develop a dialectical conception of justice, I have one further com m en t to m ake con cern in g the sig n ifican ce of d ev elop m en t and ch an g e in society. As our experience emerges in a historical period that throws up new views of the w orld, so we com e to re-evaluate our old judgm ents. In a world in which many of the old certainties and securities are disappearing, we revisit legal justice and w hat it can deliver w ith a different eye to that w hich seem ed approp riate earlier. W hile we remain sceptical and am bivalent about legal justice, we recognise the role its form s play in recording and resisting various form s o f tyranny. It is im portant to be able to say these things today, and the sam e will be true, probably truer, tomorrow. The question is w hether w e can develop a theoretical m ethod, adequate to our changing experience, for questions of law. W ith these com m ents about the theory of legal ju stice, and the relation ship betw een legal and other form s of ju stice, w e can now m ove to a m ore concrete analysis of ju stice in the crim inal law. Does law express a viable conception of justice? If legal justice is in its own terms consistently contradictor}', w hy should this be so? W hat does legal justice lack?

Justice and criminal law: the problem of recklessness The liberal subject lies at the core of the 'penal equation' and therefore at the core of the c rim in a l law. It is e x p re sse d , fo r ex a m p le, in A sh w o rth 's cen tral id ea of individual autonom y and choice as the basis for desert and punishm ent. From these p rem ises is born the d o m in an t su b je c tiv e ap p ro ach to crim in al law, and the 'general', 'positive fault requirem ents' of intention, foresight, knowledge and belief (Ashworth, 1991).11 Crim inal responsibility should be based upon a concept of guilt, w hich means on actual mental states, hence the term 'subjective'. However, even a defender of the liberal model must recognise its lim itations. A shw orth com m ents 'how in d ividu alistic, even atom istic, are the assu m ptions im plicit in the liberal theory which underlies the subjective principles' (Ashworth, 1991, p 132). Liberal 10 Discussion of such alternatives is not necessarily easy: it requires substantial conceptual clarification: see above, Chapter 3. 11 This section draws on and develops the fuller argument in Norrie, 1993a, 2001b, Chapter 4.

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theories of subjective right and justice need to be supplem ented by prem ises of a more social or com m unitarian kind, and this would be true, for exam ple, in the law of recklessness. H ow ever, the d evelopm ent of these ad dition al prem ises is not synthesised with the existing subjectivist categories. Rather, they are grafted on, producing an area of law in which there is substantial incoherence. W hat underlies this p rocess of graftin g? In w hat follow s, I shall exam in e three con cep tions of recklessn ess: the su b jectiv e, the o b jectiv e, and the recen tly no ticed con cep t of 'practical indifference' proposed by Antony Duff (1990). I will suggest that the last m entioned approach, w hich occup ies a curiously detached position in the law, discloses a deeper problem in its vision, one that takes our analysis beyond law 's justice and to its structural conditions of existence. Subjectivism versus objectivism in the law o f recklessness In the law of recklessness, there are two com peting and conflicting approaches based upon either actual foresight (the subjective approach) or the foreseeability (the objective approach) of a crim inal risk. The distinction m ay be explained by thinking of som eone lighting a fire in a haystack to keep warm at night (eg, R v Stephenson [1979] QB 695). If the haystack is burned down, there may be a charge of crim inal damage, but responsibility could be based on whether the person actually foresaw the risk of burning the haystack (the subjective approach), or w hether it would have been foreseeable to a reasonable onlooker (the objective approach), even if the person involved did not foresee it. The subjective approach says there m ust be foresight in fairness to the accused; the objective approach that people ought to com e up to a general standard of behaviour, in fairness to the rest of society. The objectivist case of R v Caldwell [1981] 1 All ER 96112 prompted apoplexy in crim inal law scholars (W illiam s, 1981; Sm ith, 1987). W hat w as regarded as an established bastion of 'subjectivism ', the law of criminal damage, had been hijacked by the judiciary. The old R v Cunningham [1957] 2 Q B 396 requirem ent of actual foresight of a risk was supplem ented by a new test of foreseeability to a reasonable person (see the later case of Elliott v C (A M inor) [1983] 2 All ER 1005). Pouring scorn on subjectivism , Lord D iplock proposed in R v Caldiuell a double test including subjective and objective variants. An accused was reckless if: (1) he does an act which in fact creates an obvious risk that property will be destroyed and (2) when he does the act he either has not given any thought to the possibility of there being any such risk or has recognised that there w as som e risk involved and has none the less gone on to do it. (R v C aldwell [1981) 1 All ER 961, p 967) 12 The recent case of R v C [2003] 4 All ER 765 has altered the practical criminal law landscape by overruling R v Caldwell and reverting to a subjective approach to recklessness in matters of criminal damage. This has rendered the following discussion obsolete as a description of the actual law. R v G has not, however, resolved the underlying dilemmas with which the law is faced: dilemmas of moral under- and over-inclusion with regard to culpability for acts that are in some sense 'reckless'. The judgment is indeed a disappointing one in that it reflects none of the academic discussion of the weaknesses of a subjectivist approach, preferring to focus only on its strengths. That these dilem m as remain in the law is witnessed by the m ove to an objective mental test for serious sexual offences under the Sexual Offences Act 2003 (where the concept of recklessness is subsumed within a general test of 'reasonable belief' as to consent), just as the law of crim inal dam age m oves back to a subjective test. The pre-R v G law accordingly remains instructive as to the underlying problems, which, it may be anticipated, will surface in some form or other in the years ahead.

The Limits o f Justice: Finding Fault in the Criminal Law

W hat evoked the scholars' outrage? A t one level it was the practical contradictions in the law. Sm ith and H ogan gave the exam ple of the unthinking defendant who points an air rifle at his victim and pulls the trigger. The pellet breaks the victim 's glasses, and destroys his eye. The defendant is responsible for the broken glasses b ecau se a fo re see ab ility test w orks in crim in al d am age cases, b u t not for the destruction of the eye, becau se a foresight test operates for offences against the p e rs o n . B e c a u s e o f in c o n s is te n c y , S m ith a n d H o g a n c a s tig a t e th e law as 'indefensible' (Smith and H ogan, 1992, p 67). These contradictions, however, also disclose deeper issues. Subjectivism, objectivism and ‘practical indifference’ W illiam s has a m ore theoretical criticism o f R v Caldivell (W illiam s, 1988). H is argum en t is that the tw o parts o f the D ip lock fo rm u lation are also inheren tly contradictory. O n a subjective test, all that would be required is foresight of som e risk, w hile part (1) o f the test pu rports to state that the risk m u st be 'obvious'. Furtherm ore, the jum bling of approaches means that the person who foresees a risk, bu t then rules it out in his ow n m ind, falls foul of neither the subjective nor the objective criteria. This is the so-called Shimmen loophole (Shimmen (1986) 84 Cr App Rep 7; see also Reid [1992] 3 All ER 673). A w ould-be karate expert boasted of his ability to aim a kick a fraction of an inch aw ay from a plate glass window. He smashed the w indow and w as charged with crim inal damage. He claimed that he had calculated and ruled out the risk, so could not be said to have given no thought to it, while having ruled out the risk in his mind m eant that he could not be said to have recognised the risk and taken it either. Unfortunately for him, Shimm en was caught because he said that he had elim inated 'as much risk as possible', suggesting he recognised that there w as still som e risk that he had foreseen and taken. He would not have been caught, however, had he slightly changed his story, and that story been b eliev ed . It w as su rely not the ju d g es' intention in R v C aldw ell to establish a loophole for a defendant such as Shimm en, but the attempt to com bine subjective and objective approaches had produced this lacuna in the law’. In short, the law of recklessness is theoretically and practically inconsistent and contradictory. U nable to settle on a m iddle way, it oscillates between subjective and o b je ctiv e ap p roach e s. W hy sh o u ld th is be so? A cco rd in g to fo llo w e rs o f the su bjectiv e view , the ju d g es in C aldw ell m an ip u lated the law in o rd er to m ake convictions easier, and in the process betrayed liberal principles of justice based on subjectivism. H ow ever the underlying problem is not the 'perfidy of the judges', but the inad equ acy of the m oral categories, su bjectiv ist and objectivist, for ju dgin g crim inal responsibility. The liberal principles them selves need to be exam ined. On the one hand, as Duff (1990, Chapter 7) has argued, subjectivism does not go far e n o u g h . W h ile it is a p p r o p r ia te to se e a w a re n e s s o f risk as o n e b a s is fo r responsibility, subjectivism cannot recognise the recklessness of he w ho does not foresee, but is 'practically indifferent' or callous, an attitude of w hat one might call cruel ind ifference that is not tied only to m atters of foresight or foreseeability. Callousness may be manifested in the failu re to foresee the risk to which conduct gives rise, so subjectivism is too narrow. On the other hand, objectivism is too b ro a d . W h ile it c a tc h e s th e u n th in k in g ly c a llo u s or in d iffe re n t p e rso n that su bjectiv ism m isses, it fails to sep arate the callou s from the stupid or m erely

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thoughtless. It also fails to recognise the special significance of subjective awareness as one form o f responsibility. W hat b oth su bjectiv ism and objectiv ism h av e in com m on, how ever, is a failu re to reflect a m oral con cep tio n of the substan tiv e quality o f actio n s and attitu d es that can b e called recklessness. Foresight and foreseeability never penetrate this dom ain w hile they rem ain central to the law. P ra ctic a l in d iffe re n c e , on the o th e r h a n d , re m a in s o n the o u ts id e , a c ritic a l standpoint that identifies a lack but one that is adm itted only at the margin into the legal analysis. The problem of inconsistency and contradiction is, then, not the result o f judges failing to make up their minds between different approaches, but of the inadequacy of each approach standing by itself. This leads to the desire to com bine them, but com bining them does not w ork either. Rather than com plem enting each other, they on ly exp o se th eir d ifferen t d efe cts, p ro d u cin g in the p ro cess the an o m aly of Shimmen. They are Siam ese twins of judgm ent, sym biotically linked, yet unable to coexist. Consistency, the hope for a rational rule of law, founders on the rocks of the raw ju rid ical m aterials, the antinom ial subjectivist and objectivist approaches to recklessness in liberal legal theory. It is not wrecked by sim ple judicial inconstancy. This conclusion, however, only leads to further questions. W hy the contradictions? W hat is so fundam entally awry with the law 's categories? Are the judges looking for som ething that they cannot find in the law, and which threatens to subvert it? The problem ’s social and historical roots There is a clue in the subjectivist case of R v Cunningham, which relied on Kenny's turn of the century definition of 'm alice'. This old legal term, still used in serious offences against the person, denoted subjective awareness of a risk for Kenny in so far as it co n cern ed reck lessn ess. K enny arg u ed , how ever, that this su b je ctiv e m e a n in g o f m a lic e h ad to b e d is tin g u is h e d fro m an o ld e r m o ra l fo rm o f recklessness. He wrote that 'in any statutory definition of a crim e, "m alice " must be taken not in the old vague sense of "w icked ness" in general' (Kenny, 1902, p 186; cited in R v Cunningham). That 'old vague sense' of w ickedness had been discussed by early m odem crim inal law yers in relation to the doctrine of implied m alice in the law o f murder. Foster described m alice as 'a heart regardless of social duty and fatally b en t up on m isch ie f', as the m an ifestatio n o f a 'w ick ed , d ep rav ed , and malignant spirit'. These full blooded m oral terms are not a m illion m iles away from D uff's callously reckless - practically indifferent - individual that the crim inal law ought to recognise, but does not. In pre-m odern times, lawyers recognised the need for what one can call morally substantive accounts of crim inal responsibility. By the tim e K enny w rote, how ever, at the turn o f the century, such an ap proach w as disparaged as 'vague'. W hat lay behind this change? A crucial pivot w as the w ork of the Victorian Crim inal Law Com m issioners, who reduced the old moral approach to malice to a question o f psychological wilfulness (v o lu n ta ry a ctio n w ith k n o w le d g e ), and th e re fo re , to a m atte r o f su b je c tiv e cognition. W ilfulness becam e the bridge between moral substance and mental form : It is the w ilful exposure o f life to peril that constitutes the crim e ... W here the offender does an act with manifest danger to life wilfully, that is w ith knoivledge o f the consequences, he m ay properly be said to have the mens mala, or heart bent upon mischief. (Criminal Law Com missioners, 1839, xxiv, emphasis added)

The Limits o f Justice: Finding Fault in the Criminal Law

The Crim inal Law Com m issioners also argued that the old m orally substantive approach led to 'danger of error and uncertainty in its application'. W hat should be seen as a m atter of fact, and therefore relatively uncontentious, becam e a 'm atter of law ' and 'involved in doubt' (Crim inal Law Com m issioners, 1843, p 23). Translating the old morally substantive conception of recklessness into a question of subjective know ledge was a way of avoiding contention and uncertainty, but it also led to the contradictions in the m odern law. N either subjectivism nor objectivism could reflect the m orally substantive aspects that are part of social judgm ents of recklessness, and which are caught, for exam ple, by D uff's form ulation of practical indifference. In exceptional cases where judges seek to reach beyond subjectivism , I think they are, su bcon sciou sly, look in g for legal categ o ries to reflect m oral ju d g m en ts of responsibility they think the law should embody,13 but the route is barred by the process of factu alisation and d em oralisation that w en t into the m aking o f the m odern criminal law. In R v Caldwell, they took refuge in an objectivist doctrine that mirrored the subjectivism they rejected. Neither approach, however, could reach the moral parts that a substantive morality might reach, because both were designed to close the door upon a crucial moral dim ension of recklessness. Moral argum ents that w ere too m u ch at large w ould b e co n ten tio u s and p o litical. T hey w ould threaten the routine working of a legal code in a time, as today, of disagreem ent as to w h a t c o n stitu te d rig h t and w ron g in g e n e ra l, an d m o ra l re c k le ss n e ss in particular. The apparently 'factu al', m entalistic approach seem ed to counter this s u b v e r s io n , b u t it b a rre d the d o o r to m o r a lly s u b s ta n tiv e c o n c e p tio n s o f recklessness. It gave the law categories of judgm ent, but categories w hich were forever damned in their ability wholly to reflect underlying moral judgments. E m ploying legal categories of subjective and objective recklessness to reflect social and m oral ju d g m en ts of resp o n sib ility and ju stice is alw ays therefore a question of fighting with one hand tied behind one's back. Crim inal law categories of fault, like recklessness, are presented in liberal theory as informed by a broader moral philosophical conception o f responsibility, and they are. However, they are also doppelgdnger, pale shadows of a moral and political substance that is excluded in the interest of the positivisation of law and depoliticisation of the courtroom. The so-called vagueness of the old approach resulted because old style m oral m alice was left at large in the community, and w as open to the conflicts and gradations of m oral ju d g m en t that exist there. T he foresightful, au ton om ou s ind ividu al w as linked to moral processes of judgm ent, because foresight is relevant to judgm ents of wrongdoing, but it w as also a w ay of excluding such judgm ents taken more broadly. These m igh t d isru pt the w orkin g of the law, the w orkin g o f legal ju stice, and therefore the operation of the 'penal equation' by introducing substantive conflicts into the law. R elatin g this to the th eory o f the p rev io u s sectio n , w e can u n d erstan d the s u b je c tiv is t/o b je c tiv is t c o n tro v e rsy in the law o f re c k le ss n e ss d ia le ctic a lly . Subjectivism and objectivism both necessitate and contradict each other as form s of legal justice em ergent within a particular historical context. These historical forms

13 The formulation of recklessness in cases like R v Stone and Dobinson [1977] 2 All ER 341 and R v Satnam and Keioal (1984) 78 Cr App Rep 149 can be understood as an imprecise reaching bevond the subjective and objective concepts available within the law towards a morally substantive approach (Norrie, 1993a, 2001b, Chapter 4).

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can be critically com pared with other view s on, or form s of, justice generated by m odern social relations, but excluded from the law.14 D uff's view, rediscovering an original m oral account of recklessness, is such a view. There is an historical lim it to legal ju stice w hich stem s from its d evelopm ent out of an engagem ent w ith the underlying social and political contradictions present in m od em English society, and w hich the liberal conception o f subjective ju stice (and equally, its objective tw in) sou gh t to exclu d e. In p o ststru ctu ralist term s, there is an 'o th e r' beyond subjectivism and objectivism, but it is the other of real history and em ergent social perceptions, and does not pertain to a metaphysical 'beyond'. It is with us, in the here and now, but it struggles to take its place in a law based on liberal subjectivism (and its objectivist double). At the sam e time, it must be remembered that a limited conception of justice is still a conception of justice, so that there is an overlap between the legal conception and broader conceptions glimpsed 'through a glass darkly' by the law and lawyers. It is this overlap that we will eventually consider once we have moved to develop further a dialectical sense of w hat justice and responsibility mean, this time from the 'inside'.

The sense of justice We began with a dilemma concerning the 'penal equation'. On the one hand, the liberal m odel o f ju stice is a sou rce o f d issatisfactio n . We keep con v ictin g and punishing so-called 'responsible individuals', but the attempt to deter only leads to the need for more deterrence, and we question the moral validity o f retributive ju stice. On the other han d , w e recognise the p ractical w ay s in w hich the law resonates w ith individual m oral experience. People hold onto a system that still carries a sense of justice, and this is not a m atter of sim ple 'false consciousness'. This am bivalence is also carried into the heart of crim inal law. There, in the exam ple of recklessness, we have a legal subject with foresight, a concept that is reflected in its o b je c t iv is t m irr o r , th e r e a s o n a b le p e rs o n te s t in R v C a ld w e ll. T h is le g a l su b ject/ob ject partially expresses and reflects issues of judgm ent but also m isses those central moral aspects of justice that m ay be described as 'm orally substantive'. The ‘internal’ and the 'external’ We are left with a view of liberal legal justice that stresses its paradoxical form. Can w e h o ld o n to th e se a m b ig u itie s w ith o u t a p p e a rin g p la in c o n tra d ic to ry ? In postm odern terms, we could perhaps sim ply accept the dilem m a, recognising that only a sense of w hat is strategic can tell us how to view' law. The limits of discourse, the finitude of m eaning, the need for a supplem ent, all force us to em brace the conflict. Becom ing playful or pragm atic, we acknowledge the way things are 'in a p ostm od ern w o rld '. In critical realist term s, by con trast, w e can draw upon a

14 It is significant that it was the issue of reckless rape that was instrumental in promoting a more critical perspective on the existing forms of recklessness. This resulted in large part from an emerging feminist consciousness in the 1970s that the existing forms of recklessness did not reflect what man)' women regarded as acceptable sexual conduct. A similarly critical, and potentially innovative, reflection on the law's justice is being developed out of the experience of women who have endured domestic violence in the law of provocation.

The Limits o f Justice: Finding Fault in the Criminal Law

historical and d ialectical understand ing of liberal law w hich holds together its contradictory aspects as expressions o f a particular social and historical totality. I view law as sited on an edge betw een abstract, general attributes of individual su b je ctiv ity (the p e rso n as ra tio n a l, in te n tio n a l, fo re sig h tfu l, v o lu n tary ) and representations of hum an agency as contextualised (crime as a product of socially and historically generated m oral conditions). This contradictory location has its p rovenance in the E nlightenm en t representation of a w orld o f free ind ividu als com ing together in civil society. However, crim e is a social problem generated in ways that can be statistically correlated. It can be located differentially in different socio-econom ic classes. This social context is refocused through law into a m atter of individual responsibility, justice and deterrence. Each criminal act is relocated from the social sphere, where crim e is produced, to the individual criminal agent, who is left, in less than splendid isolation, to 'carry the can'. It is this translation, which is also a repression, a refusal to see the individual as always-already social, that lies behind the dilem m as of legal justice and crim inal law. W hat is suppressed always returns, and I would trace the dilem m as produced as they surface and resurface across the terrain of criminal law 's 'general part'. As w e have seen, this argum ent has an 'external' historical and sociological form, but I now want to develop it to include an 'internal point of view '.15 We need to understand the social and political functions that legal individualism play, but we a lso n e e d , as I h a v e in d ic a te d , to u n d e rs ta n d th e re s o n a n c e s o f th e le g a l in d iv id u a list co n cep tio n o f ju stice, reflected , for exam p le, in the stru g g les of prisoners to have the penal equation restored, or battered wom en to have their story acknow ledged properly in and through legal categories. An 'extern al', historical and stru ctu ral ap p roach is in su fficien t to un derstand the am b iv alen ce w e fe e l towards the legal conception of justice. Questions of judgm ent and justice are not ju s t p o litic o -h is to ric a l e ffe cts o f a p a rtic u la r so cial s tru ctu re ; th ey p ose real existential and experiential questions for individuals and com m unities. There is an issue of m oral agency 'in sid e' the historical and structural questions as to how c rim in a l law re fle cts o r fa ils to re fle c t m o ral e x p e rie n c e . T h e s p lit b e tw e e n individual and social context is not only a 'structural decoupling' between law and society. It is also present for individuals as they negotiate the moral effects of their actions with regard to the law. In short, after the historical and sociolog ical critiqu e of the inad equ acies of crim inal law and the penal equation, there rem ains a liberal, in effect K antian, q u e stio n to b e ask ed : w h at d oes c rim in a l ju s tic e m ean for the in d iv id u a l? 16 However, it cannot be answered in a Kantian way, for that would take us back into the false unity of the liberal subject. We need to explain how it is that our categories of legal judgm ent give rise to moral ambiguity and paradox.

15 I use this phrase, associated as it is with Hart's legal positivism, with a measure of irony. The idea of two standpoints in social theory, one structural and 'external', the other agential or 'in te rn a l', is one th at is w id ely d e p lo y ed . I d ev elop it below , C h ap ter 8. It is to be distinguished from the liberal legal positivist use, which I have criticised (N orrie, 2000, pp 227-29) insofar as it purports to set up a clear distinction between the realm of law and other forms of knowledge and practice and to identify a specifically legal terrain disconnected from others. 16 I develop this argument further in Norrie, 1998b and especially in Norrie, 2000, Chapter 9.

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Selfhood and society One way to do this is to draw upon the 'new psychology' of Rom H arre (Harre, 1983). H arre's approach can be introduced by a quotation w hich focuses on the ambiguity present in the psychological experience of personhood. This concerns a sense, stated at its strongest in w hat follows, of both being and not being in control of ourselves and our actions: On the one hand we feel we know all the facts that impinge upon us, and we seem to be in control of the actions we perforin. We experience ourselves in one sense as being all­ knowing and all-controlling. But at the sam e time life does not go as w e want, and we do n o t u n d erstan d why. P erh ap s ou r con sciou s m ind is n o t after all the strateg ic controller of the system , but just the m iddle m anager of the mind ... subject to m ore co m p e llin g and lo n g e r p a tte rn s of a u th o rity . (H a rre , C lark e and de C a rlo , 1985, pp 24 -2 5 )

H arre is d escribing here the balancing of personhood betw een a sense of self as autonom ous, and the pervasive pull and push of social relations which create and m aintain that sense. A more com m on way o f experiencing this feeling may be in less black and white terms than Harre employs, but the am bivalence w e often feel as to how much we are in control of our lives hinges on the polarity he describes. In his account, the individual self is a project w rought out of social difference. Social and norm ative 'conversations' constitute the 'prim ary structure' of hum an life, since society always exists before the individual, who is delivered into, and develops a sense of being out of, a relationship to the social. Nonetheless, individual, personal being is a real phenom enon, for persons operate within a society that requires them to act as individual selves. The self is then a 'secondary' but necessary structure generated by, but differentiated from, the 'prim ary' social structure. Social relations are reproduced because persons exist both as role-playing individual agents and, more fundam entally, as selves. They are created out of a language of individual biography, identity and capacity for action. This language creates the sense of being a se lf 'b e h in d ' the social roles that in d iv id u als p erfo rm , alth o u g h , in H arre's account, the ability to be 'one's self' is intimately linked to, and generalised from, the ability to perform individual social roles. Individual selfhood is real, but inherently, dialectically, linked to the prim ary social structure through the playing of roles. The self is am biguously sited between a sense of itself as autonom ous and its location in social relations w'hich produce and m aintain it. This is illustrated, for exam ple, in the uncom fortable sense that while we feel in control of what we say or do, we som etim es appear only to speak the parts bequeathed to us by history and context. Thus, the child who vows never to speak to his children as his parents spoke to him is surprised to find as a parent the very sam e words com ing out of his mouth. The self is always in relation, which am ounts to saying that selfhood is a relation, at the sam e tim e as it understands itself as autonom ous. Being a person involves being in relation to others in time and space, and a denial o f that relation. The denial is an existen tial presupp osition stem m ing from the dualistic character of selfhood, for the act of denial (of sociality) is also an act of (individual) self-constitution. M astering a language of selfhood, we becom e selves, although not without a sense of ambiguity. We feel in control but, every so often, realise we are not.

The Limits o f Justice: Finding Fault in the Criminal Law

Selfhood, society and justice This am bigu ity translates into m oral ju d g m ents o f w rongd oing and a sense of justice. In ordinary m oral life, I suggest, we follow a two phase approach in which at first we are angry and seek to blam e, and then, later, proceed to judge the person more 'in the round', taking their circum stances and overall situation into account. We interpret w hat was done as part of a person's history w hich disposed them to actions of certain kinds regardless of their will. We 'explain' w hat they have done and, so doing, com e to excuse them. In m orally judging crim e, we do som ething similar. Even in the m ost dem onised cases, like those of a Rosemary West or Myra Hindley, we com e to w onder how they could have done w hat they did. We do not do this in order to deny the terrible wrong in their acts, but we are led to w onder about their ultim ate responsibility for them , no m atter w hat the law 's judgm ent may be. We also com e to see the refusal to understand and to contextualise by those who unthinkingly condem n as itself a failure of hum an bein g.17 Thus, our initial reaction of anger and condem nation may be followed by a sense that the criminal was also a victim . In so doing, w e move from the sense of the individual as an autonom ous agent (the law 's view) to that of the person as a being-in-relation. However, there is then a further third stage that is particularly significant and rem arkable w ith regard to serio u s crim es. A fter the initial sen se o f anger and condem nation, and the second stage of contextual interpretation, we go back to the question of responsibility in a more considered way. How many are really satisfied, for exam ple, with the sense that can be draw n from M yra H indley's late essay (The G uardian (1995) 18 D ecem ber) that the p erson w ho com m itted h er crim es w as 'another person' from the one H indley becam e? There rem ains a sense o f moral reckoning that corresponds to neither the im m ediate sense o f responsibility (the sense employed by the law), nor the diffuse, contextualising approach to w hich I have also referred. It is a floating sense of w hat doing justice means, one that is hard to pin down. It operates in the space between w hat a person did and the ways in w hich that person w as h erself created , a d ialectical sp ace betw een con flictin g alternatives, but a sense that is part of our lives as moral individuals and agents. P art o f this sen se in v o lv es com ing to term s w ith ev en ts w ith w hich w e are directly associated in our pasts, even those that are long past. This deeper sense of responsibility is particularly seen in the case of serious crim es com m itted m any years ago, by som eone such as M yra Hindley, and also in the case of prosecuting form er N azi war crim inals. The past may be 'another country', occupied by 'other people', yet the sense of injustice that a denial of past responsibility evokes, or the sense of justice that dem ands the trial of serious crim es done long ago is linked, I suggest, to the com plexity in understanding w hat individual life is as both a sociohistorical and a personal, self-based phenom enon. This sense o f the need to com e to te rm s w ith th e p a s t and to a c k n o w le d g e re s p o n s ib ility is a m ore c o m p le x phenom enon than that of individual responsibility w ithin the liberal theory of crim inal ju stice, but it clearly shares com m on aspects at a superficial level. Both involve a focus upon the individual, but the sense in which I am interested asks

17 One must distinguish the reaction of families of homicide victims from the kneejerk reaction of those who follow the tabloid press, although it is unlikely that families are helped to live with their loss by the views of the latter.

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more deeply w hat it means to be a person in a particular time and place (see below, C h ap te r 6, for fu rth e r d iscu ssio n ) ra th e r th an the m o m e n tary c o n ce p tio n of personhood accepted by law and legal theory. It is this sense of agency and selfhood as real yet am biguous and double-sided that I take from Harre, but we need to add to it if we are to understand the concept of justice with regard to the bulk of ordinary crime. M ost crim e mercifully lacks the horror o f child killing or w artim e atrocity, and therefore does not attract the broad and consensual condem nation that these do. M any form s of crim e, m ost notably crim es against property, occupy a contested social space in w hich conflicting views of right and wrong co-exist. Here, the 'norm ative conversations' in H arre's 'prim ary structure' are contradictory and com peting. They give rise to different view s of what is acceptable with regard to law-breaking. Social consensus about wrongdoing may historically be possible, but it is alw ays a produced, contingent and variable phenom enon, rather than inevitable in a society based upon deep-seated structural te n sio n s (R ein er, 1992). T h is h as a m ajor im p act on the sen se o f ju stic e in a c o m m u n ity and its m e m b e rs, and p re se n ts a fu n d a m e n ta l ch a lle n g e to any consensual interpretation of H arre's account of the relationship betw een selfhood and the social. The social conflicts w ithin H arre's primary structure inform persons and their conduct, and are part of the raw material of selfhood. Because m odern life is fundam entally inegalitarian and structurally conflicted, the actions of individuals are coloured by inequalities and conflicting m oral standpoints. Thus, we act as selves, as agents, as persons in control, but also as people located in structures that are conflictual, and this adds a further layer of com plexity into our explanations of the d u alism , the co n tra d ictio n s, the p arad o x e s in o u r ju d g m e n ts o f crim in al wrongdoing. Just deserts from one side is social injustice from another, and we feel the pull of b o th a r g u m e n ts . T h e re a re a lw a y s tw o s id e s to th e q u e s tio n o f c r im in a l responsibility. It is not that law is wrong to identify individual agency as important to moral responsibility. There is a link which provides law 's resonances with the moral lives of persons who act in particular ways. A gency is central to what we are as persons, but it is so in a more com plex way than law allows. The problem for law, for crim inal justice, for the penal equation, is that it is one-sided in its treatment of people b ein g in control. T here is a d ouble, linked exclu sion here: o f the social conditions of selfhood, and the structural conflicts which inform those conditions. Selfhood is real, but doubly conflicted - existentially and in terms of its location w ithin the historical con ditions of m odern society. The penal equation does its work, but only by ignoring the moral im port of these conflicts with regard to the ways we are constructed and the resulting, more com plex and am biguous, sense of justice this entails.

Conclusion W hat, however, could the crim inal justice system make of this? This chapter has developed som e of the ideas w hich underlie an am bivalent attitude to the 'penal e q u a tio n ', in clu d in g som e altern ativ es to it, w h ich can b e grouped un der the um brella of 'relational justice'. W hether it be m ediation, reparation, reconciliation or diversion, non-custodial or interm ediate treatm ent, there have been a num ber of

The Limits o f Justice: Finding Fault in the Criminal Law

attempts to break the 'penal equation' in favour of more 'relational' form s o f justice. If w e com pare relational justice in these senses w ith crim inal justice, the form er might be seen as morally more appropriate in the light of the argum ents advanced here. Relational justice involves a sense of the particularity o f hum an life, a sense of social engagem ent, and a sense of responsibility that is contextualised both in terms o f lo o k in g to the w r o n g d o e r 's p a s t a c ts a n d th e ir p ro v e n a n c e , an d to h is relationship with a com m unity that includes his victim. It returns the individual to the norm ative conversations out of which his agency emerged, offering the prospect of a reconciliation and a new beginning.18 C rim in a l ju stic e by c o n tra s t re m ain s stu ck w ith a b a c k w a rd -lo o k in g and desocialising view of the role of punishm ent, particularly insofar as it relies on imprisonment. It also has a static conception of individual responsibility, in which the in d iv id u al is seen as in con tro l, save in tig h tly circu m scrib ed excep tio n al situations. That sense of control is not an illusion. It is part of hum an agency, but it is partial. In a situation like provocation, w e see this as battered w om en push to recognise a contextually sensitive account of how they act when they are provoked. The aim in developing the defence is to push against its abstract boundaries and make it recognise the moral and political context in w hich provoked wom en act. The law is being pushed beyond its abstract conception towards an approach which sees the nature and meaning of 'being in control' as more com plex and ambivalent, but the m ovem ent is lim ited and hesitant. Because the sense of being in control involves ambiguity, not simple illusion, the law still touches the su b jectiv e u n d erstand ing of bein g a person. In situ ation s involving the relationship betw een the individual and the state, this is extrem ely im p o rtan t. Law s w h ich c o n fin e the lib e rty o f the su b je c t are p re c is e ly ru les concerning the am ount of control that the person has over his life v is-a-vis the p olice or the prison auth o rities. There is an irred u cible existen tial basis to the dem and for rights, because such a dem and is a dem and for control of oneself and one's conditions of life. This is not a m atter of w hat is strategic, but a moral demand based upon the sense of being a person, even if we know that that sense is a more am biguous one than liberal political theory allows. This is why law speaks to those who resist the discretionary pow ers of state officials, such as the H ome Secretary with regard to life sentences.19 Can we move from these theoretical views directly to the kind of radical reform of the crim inal justice system advocated by Blom C ooper (1995)? An am bivalent view leads to caution. Liberal law gives us a conception of a rights bearing subject at

18 Although this may be highly constrained in practice by the political context within which relational forms of justice are introduced (Dignan, 1992). The problem here relates to the danger from the criminal justice system 's point of view that an em phasis on relationality would open up the moral and political issues of justice that are closed off by the abstract individualism of the penal equation. On the other hand, and more likely, relationality can become the excuse for increased authoritarianism in the name of a community of which the individual is a 'failing' member. One has to distinguish two senses of 'relational justice', one philosophical, the other practical. One can endorse a relational approach theoretically (as I do: Norrie, 2000), while having serious misgivings as to its likely practical effects under modem political conditions. This is but one illustration of my general thesis: that there is a necessary disjuncture, and therefore an uneasy relation, between theory and practice in m odem society. 19 For development of this perspective with regard to the advent of the Human Rights Act 1998 in the United Kingdom, see Norrie, 2001c.

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a price. The subject enjoys formal rights, to the extent that he does, in a trade-off. Form al rights exist w ithin existing social and political arrangem ents. They allow subjects to speak, bu t in strictly lim ited term s. T here is a political closure that relatio n al form s o f ju stice w ould b egin to set loose, and it is this that I think condem ns relational justice to operate in the margins of the social control system , and to act only to ameliorate the main engine of social control, the crim inal justice system. Is th is n e c e ssa rily u n d e sira b le ? In one w ay it is. R e la tio n a l ju s tic e is less alienating, m ore m orally expressive and developm ental. A gainst this, however, crim inal justice does in principle operate a system of rights, reflecting the idea of being in control of one's actions. If w e were to move to a more relational approach, one that w ent behind the idea of the subject in control, would we not also be in danger of losing the defences relating to individual subjectivity that law in principle em b o d ie s? N o r is re la tio n a l ju s tic e as a p ra c tica l p h e n o m e n o n in an y sen se 'politically innocent'. Translated into proposals for action, relational justice is itself a historical and social practice, a form of control in a society in w hich structural inequality has a profound effect on the crim inal justice system. M oving beyond a formal system , it is potentially more invasive than law. In an authoritarian society, w hat may appear agreeable, relational m eans of dealing w ith offenders m ay in practice turn out to be more far-reaching form s of intervention into people's lives, sugar-coated in an enticing rhetoric. T he p ictu re o f reform that em erges is a nuanced one. If rad ical changes are sought, we need to ask w hat their consequences will be in the light o f a broad understanding of how law operates. We do indeed need a radical theory, one that can get to the roots of law. Such a theory must com e to terms with the ambivalences that w e exp erience in thinkin g about the penal equ ation. B earing in m ind the overall relationship between legal justice and the structural social injustice within w hich the equation operates, such a theory must criticise the absences and failures, but also recognise the positive aspects of liberal legality. There are political choices to be made. Such a theory may push for recognition of the needs of disadvantaged groups, where they are barred by the law 's decontextualising: this is the im port of the battered w om en and provocation debate. However, it must be conscious that this is a political task, and that, in the absence of the possibility of progressive change in the b ro ad er society, liberal legality m ay itself inv olv e a progressive agenda: this is the import of the critique of arbitrary discretion in life sentences. The upshot of this conclusion is to argue for a necessary but uneasy relationship betw een theory and practice. They operate at different, irreducible levels. Theory does not lead im m ediately to system atic practical conclusions, b u t that does not mean that it is irrelevant to practice, or that it cannot illum inate it. In truth practice can never escape theory. It is only a question of how adequate and explicit theory is. My argum ent has been that a contradictory and am biguous phenom enon like law needs a theory sufficiently sophisticated to capture contradiction and am biguity within legal form s without sim ply surrendering to it. Such a theory would treat law dialectically, in two ways. In its 'extern al', structural aspect, it would see it as a contradictory social phenomenon which both reflects and refracts modern historical conditions. In its 'internal', experiential aspect, it portrays it as a set of categories with som e limited purchase on the ways in which moral and political agents live under modern conditions.

C h ap ter 6 A lb e rt Speer, G u ilt and the ‘Space B etw een’

Introduction This chapter seeks to extend a theme in the last two chapters concerning the nature o f in d iv id u al responsibility. It d oes so, first, in relation to som e reflection s by A n th on y G id d en s (1991) on the n atu re o f g u ilt in 'la te m o d e rn ' so cie ty an d , second ly, in relatio n to the arg u m en t o f the p rev io u s ch ap ter co n ce rn in g the irreducible relationship between individual agency and social context, it then relates these them es to discussion o f one particular case study of the nature of guilt, the case of Albert Speer, as interpreted in an im portant book by Gitta Sereny (1995). The chapter is of a prelim inary and investigative kind, drawing on disparate sources. Its basic aim is to consider the role of 'com m unity' in the formation of selfhood in a way that steers a middle course betw een positions that would see the question of in d iv id u a l g u ilt or re sp o n sib ility fo r an act as e ith e r a d iscre te q u e stio n for individuals or for com m unities. Sereny's biography of Speer reflects the form er standpoint, G iddens' argum ent the latter. W hat I seek to do is to develop the idea of gu ilt or re sp o n sib ility as in v o lv in g a 'sp a c e b e tw e e n ' the in d iv id u al and the com m unity. In speaking o f guilt and responsibility, I w ill use these tw o term s in terch an g eab ly to reflect the sen se o f resp o n sib ility H LA H art (1968, p 225) describes as being 'm orally blameworthy, or morally obliged to make am ends for a h arm '.1 The chapter has three m ain sections. In the first, I introduce the argum ent by considering A nthony Giddens's w ork on the nature of self and com m unity in 'late' modernity. Central to this argum ent is a sense o f the historical developm ent of m o d ern ity such that w e can id en tify a period that is q u alitativ ely 'la te '. I am sceptical about this terminology, but it is not the categorisation of different phases of m odernity that is relevant here. Rather, I am interested in G id d en s's argum ent about the central im portance of the idea of com m unity in developing a sense of selfhood and responsibility. With this I agree, although I challenge his claim that such an idea is less important for us today. I argue for the continuing relevance of com m unity to ideas of individual responsibility and guilt. In the second section, I develop this argum ent by draw ing on a them e in m y ow n w ork concerning the developm ent of selfhood out o f com m unity (see above, C hapter 5). T hat w ork, draw ing on the social psychology of Rom H arre (1983) and the dialectics of Roy B haskar (1993), asserts the relation ality of the self, its 'in b etw e e n n e ss', or co­ m ed iatio n by the in d iv id u ated ag en t and his or h er com m u n ities. In d iv id u al id entity exists w ithin an ov erall, to talisin g , con text and its natu re is rad ically a ffe c te d th ereb y . P h ilo s o p h ic a lly , B h a s k a r d e v e lo p s th e c o n c e p t o f 'e n tity

1 i take this meaning to be consistent with Ciddens's description of guilt in the next section, though he adds a psychological element to the basic moral form. Hart finds this meaning at the core of the criminal law, where issues of guilt and responsibility of course meet. This essay, however, is not so much about the law as about the sense of guilt or responsibility with which it is linked.

Law and the Beautiful Soul

relation ism ' as a m eans of explaining how individual identity goes beyond the individual: To grasp totality is to break with our ordinary notions of identity ... It is to see things existentially constituted, and permeated, by their relations with others; and to see our ordinary notion of identity as an abstraction not only from [its] existentially constitutive processes of formation (gco-histories), but also from [its] existcntially constitutive inter­ activity (internal relatedness) ... When is a thing no longer a thing but something else? ... [I]n the domain of totality we need to conceptualise entity relationism. (Bhaskar, 1993, P 125)

This position, translated to the level o f social psychology, stresses that selfhood always exists 'in relation' but it holds onto the im portance of personal agency in social relations. The result is a sense of responsibility-in-relation, a reduction of the moral phenom enon neither to the individual nor to social relations. The im pact of relationality (com m unity) on agency and ju dgm ent is then explored in the third section through an analysis of Gitta Sereny's work of judgm ent on Albert Speer. My argum ent here is that there is a tension in Sereny's account, an am bivalence in her judgm ent, which stem s from an am biguity in her reading of the character of Speer. At various points in the book, Sereny refers to S p eer's attem pt in Spandau and beyond to becom e m orally a 'd ifferent m an'. Som e of the d ifficulties of judging Speer stem from the different meanings that can be given to this idea. Was Speer attem pting to beco m e ano ther p erson in a deep m oral sen se, or w as he, m ore calculatedly, seekin g just to reinvent him self as a person w ho could evade the condem nation on his head? Sereny takes the first position, while reading Giddens could lead to the second. For Sereny, Speer was w orking imperfectly towards his ow n redem ption as he w restled w ith guilt concerning his N azi past. This is an essentially liberal conception of the individual's rediscovery of his intrinsic moral values. From Giddens, we could read Speer as sw itching his 'stories' reflexively in order to accom m odate the needs of the m om ent in a world where universal moral values have been fundam entally eroded. Is there, how ever, a third p o ssib ility : did the p o st-w ar S p eer o ccu p y som e interm ed iate position betw een these tw o possib ilities, and, if so, w hat w as the nature of that position? Was his sense of guilt 'real', or w as it cultivated; or, was it both real and cultivated? More broadly, what does it mean to be a 'different m an' and w hat is the relationship betw een attem pts at developm ent of the self and a person's existence across tim e in societies w ith very different public m oralities? These questions are all posed by Sereny's account of Speer, and my suggestion will be that answers to them reside in the sense of the relationality of the self that I will develop. The dilem m as Sereny finds in judging Speer are real dilem m as in the sense that they reflect real issues about w hat it m eans to be an individual in m odern society.

Guilt, community and the self in late modernity I begin with certain them es developed by Anthony Giddens, and in particular with his discussion of the erosion of guilt as a m oral category in late modernity. For Giddens, guilt is 'anxiety produced by the fear of transgression' where the 'thoughts or activities of the individual do not match up to expectations of a norm ative sort'

A lb e rt Speer, G uilt and the ‘Space Between’

(G id d e n s, 1991, p 64). G u ilt c o n ce rn s th in g s d o n e or n o t d o n e , it c o n ce rn s wrongdoing, and it has as its obverse reparation. It concerns 'discrete elem ents of behaviour and the m odes of retribution that they suggest or entail': Guilt carries the connotation of m oral transgression: it is anxiety deriving from a failure, or an inability, to satisfy certain forms of m oral imperative in the course of a person's conduct. (Ibid, p 153)

So far, this sounds like a m odern version of Kant, perhaps m ediated by Freud, but for G id d en s, there is a social lin k b etw een the exp ression o f p articu lar m oral em otions and the nature of historical periods. He relates the experience of feelings of guilt to the periods of 'early', 'm ature' and 'late' modernity. In this last phase, he accep ts that 'g u ilt m ech an ism s p e rs is t' (ibid, p 153), b u t th e ir s ig n ifica n ce is substantially dim inished. The reason for this is the erosion o f established norm ative com m unities in late modernity. The individual lives less 'by extrinsic moral precepts but by m eans of the reflexive organisation o f the s e lf' (ibid, p 153), so that the 'characteristic m ovem ent o f m odernity, on the level of individual experience, is aw ay from g u ilt' (ibid , p 155). For G id d e n s, late m o d e rn ity m ark s a fu rth e r q u a lita tiv e in d iv id u a lisa tio n o f the e x p e rie n c e o f the s e lf so th a t its inw ard reflexivity is at the same time a result (and also a cause) of the erosion of the moral com m unities that previously held the self in check. This argum ent raises three questions. The first is w hether Giddens is correct to identify a dim inution of issues of guilt in late modernity. The second concerns the re la tio n s h ip h e p o s its b e tw e e n th e d e c lin e o f g u ilt and th e d im in u tio n o f community. The question here is to what extent it is correct to speak of an erosion of community, or to w hat extent, rather differently, one should speak of an emergent, or just more visible, fragm entation of com munities. The third question concerns the nature of the self, guilt and responsibility in G iddens's account: can we conceive of the self in G iddens's terms as self reliant and reflexive to the extent that issues of guilt and responsibility concern it less and less? First question: the diminution o f guilt in late modernity? At certain levels of society, Giddens may be correct to identify a trajectory of the dim inution of guilt, but I would question how far this goes. He him self hedges his bets by reco g n isin g that 'g u ilt m echanism s p e rsist'. Nor do I think that such persistence is only a 'throw back ' to an earlier period, for 'late m od ernity' itself continues to generate questions o f guilt, and questions o f w hat guilt means. For exam ple, one of the features of 'late m odernity', as Giddens (1991, p 4) describes it, is the risk o f the 'ris e o f to talitarian su p e rs ta te s', and this, to g eth er w ith the breakdow n of such states, throws up som e of the m ost poignant and im portant questions about the nature of hum an responsibility and guilt. Think, for exam ple, of the war crim es trials in the H ague, the 'C om m ission for Truth and Reconciliation' in South A frica, or the trial of East Germ an border guards after reunification. The issue o f g u ilt re m a in s one o f the m o st c o m p e llin g q u e stio n s in a w o rld in w h ich individual and collective atrocities are com m onplace and late m odernity remains as fascinated by such questions as any earlier period. Beyond violence associated with globalising phenom ena, think also of the concern, w hich includes but goes beyond

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prurience, with the guilt of individuals such as Rosem ary and Fred West, of the two boys who killed Jam es Bulger, of M ary Bell and of M yra Hindley. H ow ever, it m ight be argued that these cases support G id d en s's hypothesis. Perhaps the very fascination with guilt indicates, in Durkheim ian fashion, the need to hold on to a m oral reaction that is in fact going out of currency. O n the other hand, pressing D urkheim into service, perhaps these cases reveal a continuing m odern need to create the values of moral com m unity and to mark the boundaries of the unacceptable. The need to know how a person could have transgressed such boundaries is part of understanding how it is that com m unities exist where m ost people would not do such things. O f course, in these cases there is often more going on than meets the eye. The dem onisation of the two boys in the Jam es Bulger case, or in that of Myra Hindley, suggests that, beyond the horror of the crim es, these cases carry other social and political baggage. However, I believe these cases reveal a continuing focus on moral transgression as a 'late m odern' concern and this is so even if w e say that it is precisely the breakdow n of m oral com m u nities in late m od ernity that leads to an increased focus upon the w orst kinds o f norm ative transgression. Guilt m echanism s continue to remain important in modern society, and there is no sign of their diminution. H ow ever one understands this, Giddens does point to the significance in general terms of the existence of moral com m unities as a crucial factor in the creation of in d iv id u a l g u ilt. It is im p o s sib le to fe e l g u ilt w ith o u t fe e lin g th a t o n e has transgressed a norm , and im p ossible to feel that one has transgressed a norm w ithout som e sense o f a relationship to a com m unity to which a norm pertains. We need therefore to consider more closely the role of com m unity in modern society. Second question: the diminution o f comm unity in late modernity? This brings us to the second question concerning w hether we are w itnessing, as Giddens claim s, an absolute erosion of com m unity in 'late m odernity' or whether we are seeing, as I prefer, fragm entation and change in patterns of com m unity, together w ith a greater visibility of this process. There is a difference here. W hile Giddens suggests that the individual is thrown back on her own reflexive devices by the erosion of community, the alternative suggests the continuing existence of a variety of conflicting, perhaps overlapping and intersecting, com m unities rather than their overall absence. For exam ple, the rise and fall of super-states brought ab o u t by 'g lo b a lis a tio n ' has often led to a 'b a lk a n isa tio n ' o f v ery stron g and conflictual com m unities rather than to a reflexive individualism . In m aking this point, we pick up continuing them es in sociology about the significance of social, n ation al, class and gen d er con flict as structural and relational features o f late modern societies. Such features are of course present in G iddens's argum ent, but they are in a w ay relegated to a subsid iary position by his argum ent about the modern self and his or her guilt. The problem with com m unity may be not so much that it has gone away, but that conflicts between com m unities have either becom e sharpened or more visible or both. It is very important to hold onto this different notion of the nature and persistence of moral com m unity(ies) w hen w e think of the conflict betw een, for exam ple, a liberal dem ocratic and a fascist community, an issue that underlies m any w ar crim es trials from N urem berg onw ards, and w hich is

A lb e rt Speer, G uilt and the ‘Space Between’

d ir e c tly re le v a n t to th in k in g a b o u t, as w e w ill, A lb e rt S p eer. It is n o t th at 'co m m u n ity ' in the ab stract h as q u alitativ ely d im in ish ed to the ad v an tag e of flourishing individualism , but that the nature and conditions o f com m unity are changing. For som e, this may lead, it is true, to new opportunities to express their individuality, but for others, it m ay not. W hat appears as new forms of individuality may also end up as no more than rather circumscribed ways of being in community. H ow ever m atters develop, it seem s to m e that com m unities in their changing form s remain crucial to individual social and moral experience, and this situation requires us to think about how m odern individuals continue to develop in such contexts. Third question: the reflexivity o f the s e lf in late modernity? This brings us then to the third question. G iddens w rites of the negotiated and ch a n g in g n a tu re o f se lfh o o d in late m o d ern ity . S e lf-id e n tity in c re a sin g ly is 're fle x iv e ly ' m ain tain ed by in d iv id u a ls a p art from m o ral co m m u n ities. T hey maintain a biography about them selves through the 'capacity to keep a particular narrative going' (Giddens, 1991, p 54). This is an essentially fragile activity 'because the biography the individual reflexively holds in m ind is only one "story " am ong m any other potential stories that could be told about her developm ent as a self' (ibid, p 55). This ability of the individual to shift reflexively from one account to another fits with the idea of the erosion of guilt in late modern conditions. To avoid feelings of guilt, individuals are able sim ply to reinterpret life events. This account of the self generates a sense of both its fragility and its am biguity: if G iddens is correct, w e m igh t look to pin individual resp onsibility to a site w hence it has already, in structural term s, fled. The agent responsible for a particular act may resist feelings of guilt by reinventing herself as a 'different person' with a different story to tell as to why an action occurred. For exam ple, the move m ight be from a confession that 'I w as to blam e for " x " ' to 'you (society, my parents, teachers, etc) made me do "x ". I was a victim. The person who did those things is now no more for I have overcom e what you did to me'. This idea that selfhood is at the mercy of the different stories we could tell about ourselves seem s to me to have an elem ent of truth, bu t at the sam e tim e to be o v e rsta te d . To be su re, w e can all re c o g n ise e x a m p le s o f atte m p ts to av o id responsibility by reinterpreting the past. However, w e recognise these because they do n o t u s u a lly seem p la u s ib le o r a c c e p ta b le p ra c tic e s . It see m s to m e th a t reinvention in the face of w hat w e have been is hardly so sim ple, and that our sense of selfhood is hardly so fragile. G iddens does acknow ledge that the self is both fragile and robust: fragile for the reason stated , robust becau se 'a sense o f selfidentity is often securely enough held to w eather major tensions or transitions in the social environm ents within which the person moves' (ibid, p 55). W hat, however, is the nature o f this 'rob u st' aspect o f the self and w hat is the precise connection between these robust and fragile aspects? Giddens says less about the robust than the fragile side of selfhood. It seem s to involve a m inim um con tent perm itting continuity of the self, sufficient only to m aintain the basic attributes of personhood and fend off serious pathologies such as mental illness. How m uch continuity could Giddens perm it it given his thesis about fragility of the self? If the robust side of

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selfhood underpins the fragile side, does it produce the possibility o f a unified 'm eta-narrative' of the self? It is hard to see how it could, given G iddens's diagnosis of the late m odern condition of reflexivity. It m ust be sufficiently m inim alist to allow the switching of life stories and the conclusion that guilt is under attack in conditions of 'late m odernity'. That thesis, as I have said, is qualified, but it remains G id d e n s's m ain argum ent. Selfh o od can n ot be so robu st as to un d erm in e the question about 'late m odern' guilt: how would we hold a person responsible where th a t p e rs o n h as re in v e n te d h e rs e lf to e v a d e th e b la m e a s so c ia te d w ith h er transgression? T h is is G id d e n s's critic a l q u estio n co n ce rn in g the re fle x iv e s e lf u n d er the declining conditions of moral com m unity in late modernity. It seem s to me to hold a grain of truth: the sense of who a person is can change over time, particularly if the context and conditions of their lives also change. To look back at old acts in different times and places m ay be to be presented w ith a sense of a very different person from that of the here and now. A person may indeed tell a very different story of w ho they are now and w ere then. H ow ever, it seem s to me that 'late m od ern' personhood still involves a more 'robu st', 'm eta-narratival' quality than Giddens allow s. There rem ains a sense of selfhood across time and space that cannot be evaded sim ply by telling a different story. 'Late m od em ' selfhood may be subject to flux, but it is not so fragile as Giddens suggests. Guilt rem ains alive just because p e o p le w ho rein v e n t th e m se lv e s c a n n o t fu lly p u sh aw ay the acts they w ere associated with in the past. To put these three issues together, my suggestions against Giddens are: (1) that questions of guilt are alive and well in late modernity; (2) that this may be linked to the continuing im portance of community, in terms perhaps of the fragm entation of com m unities in conflict rather than a trajectory of absolute com m unity breakdown; and (3) th a t if the s e lf 's 'fr a g ility ' le a d s to th e p o s s ib ility o f the e v a sio n of responsibility, this observation has to be reconciled with the continuing need for individuals to com e to terms with what they have done even under 'late m odern' conditions, and the sense that individuals continue to feel guilty. To put this last point more concretely, the evasion of responsibility by the apparent reinvention of the self may be a strategy that is adopted by a guilty individual. These are points against G iddens's thesis, but I w ant to end by stating w'hy it rem ains important. W hat is significant is the intrinsic connection he posits betw een selfhood and community. He gives us a start in our exploration of ideas of guilt and community. H e points importantly to the relation betw een selfhood and com munity in the construction of guilt. M ore contentiously, he claim s that selves are able under 'late m odern' conditions to avoid the inner sense of guilt by freeing them selves from the receding claim s of community. G iddens's image of 'late m od em ' individuality has shorn his initial 'Kantian-Freudian' conception of guilt of both its affective and its morally imperatival qualities.2 However, how far m ust we follow this thesis and accept that the d eclin e o f com m u nity and the reflexivity o f the self lead to an erosion of the concept o f guilt? If the im pact of 'late m odernity' is less radical than G id den s thinks, w e can still hold onto the intrinsic relation betw een gu ilt and sociality he posits. 2

Although I will argue below that there still remains a close affinity with the Kantian subject in Giddens's position.

A lb e rt Speer, G uilt and the ‘Space Between’

Ambiguity about guilt, ambivalence about judgment In this section I con tin ue to in vestigate selfhood and com m u nity and how the relationship between the two affects notions of responsibility and judgm ent. I begin with the question of selfhood and relate this to the issue of moral responsibility and how a com m unity (a social audience) com es to blam e a person for wrongdoing. My argum ent is that audiences' reactions to a person w ho has done wrong reflect an ontological am biguity in selfhood, w hich arises from the dialectical relationship betw een selfhood and com munity. This argum ent retains the em phasis found in Giddens on the relationship between self and community, but insists, in a context of the c o n tin u in g e x iste n c e o f co m m u n ity , on the p e rs is te n t s itu a te d n e s s and relationality of the self. In the previous chapter (see also N orrie, 1998b, 2000), I suggested that people often have an am bivalen t attitu d e to the attrib u tion of fault stem m ing from an ambiguity in the nature of w hat it means to be a responsible individual agent. This am biguity feeds into m oral ju dgm ents o f w rongdoing and the sense of w hat it m eans to do justice. In ordinary moral life, ie, in relation to judgm ents of matters that do not concern crim e and punishm ent, we often follow a two phase approach. At first w e may be angry at w hat has been done and seek to blam e the person who has done wrong, but then later we may proceed to judge the person 'in the round', taking the context of their actions into account. We interpret w hat w as done as part of a person's history and situation. We 'explain' w hat they have done and, in so doing, com e to excuse or forgive them. Consider, for exam ple, in a non-punitive context the w ays in w hich w e judge what we regard as the reprehensible conduct of those we like with that of those we do not. In the latter case, we are likely to accuse, to insist on the wrongful agency of a 'b ad ' person, to condem n. In the form er case, perhaps initial irritation or anger at the bad act gives way to empathy, sorrow, explaining and excusing. This illustration depends, I would suggest, not just on the em otional orientation to the individual, bu t on tw o possible w ays of regarding agency. In one, agency is personalised or individualised to achieve an immediate sense of responsibility; in the other, agency is c o n te x tu a lis e d , w h ic h h a s th e e ffe c t o f q u e s tio n in g the im m e d ia te s e n se o f re s p o n s ib ility th a t co m es from p e rs o n a lis a tio n . Im p o rta n tly , the 'd u a lity of ju d g m ent' observed in this discussion reflects a d uality in agency itself: hum an beings are both acting persons and persons w ho act in contexts.3 To illustrate the link between 'personalising' and 'decontextualising' judgm ents and the nature of the agency that is judged, this time in a punitive context, take an exam ple i have used elsewhere (Norrie, 1998b). In the United Kingdom in the 1970s, a clim ate of what was later labelled as corruption developed in local government. Council officials and local developers becam e involved in relationships that were 3

This argument is informed theoretically by Bhaskar's account of the 'duality of structure and agency'. Under his transformative model of social action, agency 'reproduces a n d /o r more or less transforms, for the most part unwittingly, its conditions of possibility', which include 'social structures and their generative mechanisms ... the agent herself and, generally, what w as given, the donne ... which has now been reproduced or transform ed' (Bhaskar, 1993, p 155). This implies a duality of structure and agency, 'dual points of articulation' which are the 'differentiated and changing positioned-practices' within structures which agents occupy, reprodu ce and transform . Structures constitute the system of social relations in which intentional human activity occurs.

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too close and involved the acceptance o f hospitality and gifts by officials. These w ere later seen as bribes, but at the time they could be seen as sim ple em ollients or 'ju st the w ay things are d on e'. W hen these officials w ere ev en tu ally tried and convicted for accepting bribes, they were held to be guilty of corrupt acts, yet for m any at the time, it seem ed norm al activity within a particular culture. A t the same time, is it not possible that, at the back of their m inds, a part of them also knew that there was 'som ething wrong' in w hat they were doing? The point is that individual subjectivity m ay not be fixed w ith regard to a m oral code, but rather m ay shift between vocabularies of right and wrong which social contexts provide and agents mediate. Agents do things that can be interpreted in different and contradictory ways. We can either view the convicted councillor as a corrupt agent 'in control of his actions' and operating with a conventional moral vocabulary o f right and wrong (a personalising strategy), or as a 'victim of the tim es' (a contextualising strategy). M ost appropriately, w e should see both sid es of the question, but if w e do, w e recognise not just the ambiguity in our sense of individual responsibility, but also the am bivalence in judging that goes with it. The important point is that the ambiguity of responsibility and the am bivalence of judgm ent are dialectically related. They feed off each other in order to resolve w hat is essentially irresolute, the ju dgm ent of individual responsibility in the particular case. The tw o-sided character of agency thus gives rise to am bivalence in how an audience ju d ges conduct. U ltim ately, am bivalence about ju dgm ent is 'resolv ed ' according to the general social, political and moral standpoint of the onlooker. How does the onlooker view the actions of the friend or enemy, the actions of the local g o v ern m en t officer? Such qu estio n s inv olv e gen eral and p articu lar aspects. A friend's actions are judged as responsible or irresponsible in part on the basis that one is judging a friend, local governm ent officers in part on how one feels about such people. Consider, for exam ple, the likely d ifferent ju d g m ents of one w ho believes that local governm ent officers generally 'm ean well and try to do their best in difficult circum stances' and one w ho sees them as a 'drain on local resources'. W hat com es out is a judgm ent about individual responsibility for an act, but this is co n text-d riv en b ecau se p e rso n al ag en cy is co n text-em erg en t. T h ey can n o t be separated. The guilt of relatively benign council officials is one thing, but surely the exam ple is an easy one. W hat about the most serious crim es involving horrible violence? Does a sim ilar am bivalence and ambiguity operate there? I would argue that even in the worst cases, such as those of a Rosem ary West or Myra Hindley, we do still wonder how they could have done what they did and question the personalising strateg y that estab lish es th eir gu ilt. We do n ot do this in ord er to deny th eir w rongd oing, b u t we ask about their ultim ate responsibility for w hat they did. N othing m akes us excuse or forgive their acts, but w e still seek to understand contextually how they could have done them, how they could have becom e the sort of person w ho com m itted such crim es. T hu s, our initial reaction of anger and condem nation is followed by a sense that the crim inal was also, in a different sense, and one that does not dim inish the horror of w hat he or she did, a victim . In so doing, w e m ove from the sense of the individual as an autonom ous responsible

A lb e rt Speer, G uilt and the ‘Space Between’

ag e n t to th a t o f th e p e rso n as a s o c ia l p h e n o m e n o n . We p la ce th e crim in a l w rongdoer in his or her context.4 W hich of these tw o kinds of ju dgm ents is the right one? U ltim ately, neither. P ersonalising and con textualising involve contradictory responses, yet both are appropriate, if one-sided, reactions to the phenom enon. Both are evoked by one facet of individual being and agency. Condem nation is relevant for acts over which the individual has control, while em pathy and excusing are relevant for acts over which the individual has not. Both standpoints reflect som ething of w hat is going on but both are one-sided because they reflect only one aspect of an am biguous phenom enon, that is, the individual operating between agency and context. This is evidenced in a further third stage of moral reflection that is particularly significant and rem arkable with regard to serious crimes. After the initial sense of anger and condem nation, and the second stage of contextual interpretation, w e go back to the question of responsibility in a more considered way. How m any are really satisfied, for exam ple, with the sense that can be draw n from Myra H indley's late essay (The Guardian (1995) 18 D ecem ber), that the person w ho com m itted her crim es w as 'another person' from the one H indley becam e? There rem ains a sense of moral reckoning that corresponds to neither the im m ediate sense o f responsibility (the personalising sense described above), nor the diffuse, contextualising approach to which I have also referred. It is a floating sense of what doing justice means, one that is hard to pin down. It operates in the space between w hat a person did and the w ay s in w h ich th at p e rso n w as h e rs e lf c re a ted , a d ia le ctic a l sp ace b e tw e e n conflicting alternatives, but a sense that is central to our lives as moral individuals and agents. Part of this sense involves living with and com ing to terms with events in our p a s ts, ev en th o se th a t are lo n g p a s t. T h is d e e p e r s e n se o f r e s p o n s ib ility is accordingly particularly seen in the case of serious crim es com mitted m any years ag o , by so m e o n e su ch as M yra H in d ley , and a lso in th e cu rren t in te re st in p ro se cu tin g fo rm er N azi w ar crim in a ls. T h e p ast m ay be 'a n o th e r c o u n try ', o cc u p ie d b y 'o th e r p e o p le ', y e t the s e n se o f in ju s tic e th a t a d e n ia l o f p ast responsibility evokes, or the sense of justice that dem ands the trial of serious crimes done long ago is lin ked , I su g g est, to the com p lexity in u n d erstan d in g w hat individual life is as both a socio-historical and a personal phenom enon. However, a crucial m ediating factor in 'fixin g ' responsibility is the role played by the social audience - the com m unity - making judgments. With these considerations in mind, I turn now to consider a case study on the possibility of guilt.

4

If retributivist philosophy is the theoretical home of a personalising attitude to guilt, it is instructive to observe a leading m odem retributivist's acknowledgment of, and discomfort in relation to, the contextualising strategy. Michael Moore writes that 'Undeniably, many people soften their judgments about responsibility when they know more of the causal story behind a person's bad behaviour', but happily for the retributivist, this is no more than an example of philosophically im pure com m on sense [w hich] should not survive ... insights into its philosophical im purity' (Moore, 1997, p 512). In justifying a personalising strategy on the other hand, Moore is convinced that our feelings about wrongdoing are otherwise 'our main heuristic guide to finding out what is morally right' (ibid, p 115). See further Norrie, 2000, Chapter 5.

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The tw o Speers of G itta Sereny In h er b o o k on A lb e rt Sp eer, G itta S e re n y so u g h t to u n d erstan d th e 'o rig in o f H itler's evil' and 'S p e e r's realisation o f - and participation in - it'. Part of H itler's gen iu s w as to corru p t o th ers, and corru p tio n is in sid iou s, so that 'Sp eer, in the course of his grow ing relationship w ith Hitler, inevitably becam e - although for a long tim e unw ittingly - a part o f it' (Sereny, 1995, p 9). This is how Sereny describes Speer at the beginning of her book: Speer, I w as already convinced, had nev er killed, stolen, personally benefited from the m isery of others or betrayed a friend. A nd yet, w hat I felt neither the N urem berg trial n o r his books had really told us w as how a m an of such quality cou ld b ecom e not im m oral, not am oral but, som ehow infinitely w orse, m orally extinguished. (Ibid, p 10)

If he becam e 'm orally extinguish ed ', then his 'struggle w ith the tru th' (the title of Sereny's book), m ust have been a struggle to recover that w hich had been lost. At the very end, Sereny w rites as follow s: I c a m e to u n d e rs ta n d a n d v a lu e S p e e r’s b a ttle w ith h im self an d saw in it the reem ergence of the intrinsic m orality he m anifested as a boy and youth. It seem ed to m e it w as som e kind of victory that this m an - just this m an - w eighed dow n by intolerable and u n m an ageable g u i l t ... tried to becom e a different m an. (Ibid, p 720, em phasis add ed)

S eren y su m m arises the p rocess from m oral extin ctio n to aw aren ess. She d etails S p e e r's grow ing recognition o f 'H itle r's m ad ness' through tw o form ative w ar tim e experiences. The first w as at Posen, w here in a sp eech in O ctober 1943 H im m ler d irectly con fronted all the top N azis w ith w hat had been d one to the Jew s. The second concerned his ow n personal visit in D ecem ber 1943 to the 'D o ra' project, the u n d e rg ro u n d ro c k e t fa c to rie s b u ilt w ith slav e lab o u r, w h ere S p e e r w as ag ain directly confronted w ith w hat w as happening. A fter the war, Speer w as subject to the 're v e la tio n s o f N u re m b e rg ' an d w as co n fro n te d 'w ith the re a c tio n s o f the civ ilised w o rld '. H e cam e to realise the 'h o rro r o f w h at had been d o n e ' and to experience 'feelings o f personal gu ilt' w hich w ere illum inated by, m ost im portantly, a pastor at Spand au, Casalis, and his daughter, H ilde. In the context o f the solitude of a 20-year sentence at Spandau, Speer experienced a 'continuing and torm enting aw aren ess o f g u ilt' and 'o u t o f all this, there cam e to be an o th er S p e e r'. T his is S ereny's sum m ary (w ith a crucial p art o f one sen tence m issed out) o f the 'o th e r' Speer, a man w ho sought w ith all seriousness to com e to term s w ith his past: In this Speer, obsessed w ith a history he understood perhaps like no other m an, I found a great deal to like ov er the four years I knew him. This, I feel, had becom e the real Speer ... This w as a very serious m an w ho knew m ore about that bane of our century, Hitler, than anyone else. This w as an erudite and solitary m an w ho, recognising his deficiencies in hu m an relations, had read five th ousan d books in prison to try to un derstand the universe and hum an beings, an effort he succecd ed in with his mind bu t failed in with his heart. E m pathy is finally a gift, and cann ot be learned, so, essentially, returning into the w orld after tw enty years, he rem ained alone. U nforgiven by so m any for having served Hitler, he elected to spend the rest of his life in con fron tation w ith this p ast, u n forgivin g of him self for h av in g so n early loved a m onster. (Ibid, p 719)

A lb e rt Speer, G uilt and the ‘Space Between’

In this account, Speer sought resolution w ith his guilt, but rem ained essentially solitary H e could not ultim ately get there, but his effort in seeking to do so was what Sereny admired. In a new spaper interview, she states that 'to me, there was one extraordinarily redeem ing thing, that his sense of personal guilt was so deep' and that throu gh this gu ilt, he reg ained 'so m e o f his m o rality ' (The G uardian, Septem ber 1995). This is a com pelling and sym pathetic account of Speer, a man whom Sereny adm its she 'grew to like' (Sereny, 1995, p 3). It rests, however, alongside another story she tells. In the long passage I quoted above, I missed out part of one sentence. Just after Sereny has spoken of the 'real' Speer, there is a line in w hich she notes that for a brief period before he died, Speer discarded his 'm oral seriousness', and started boasting about his past. She states that she is convinced that he would have rediscovered his new moral self 'after the euphoria of his late-life passion had passed'.5 Sereny refers here to an affair Speer conducted in his final years with a w om an much younger than himself. In Sereny's estimation, this affair jolted Speer into a different moral outlook. The w om an with w h o m he b e ca m e in v o lv e d b e sto w e d u p o n h im 'u n lim ite d and u n c r itic a l acceptance' w hich w as to 'free him from the questioning self he had been for so long' (ibid, p 715). The fruit of this was observed in a phone call Sereny took from Speer shortly before his death in w hich he reflected self-satisfactorily on his life. She quotes him: 'W hat 1 wanted to tell you,' Speer said happily, 'w as that after all I think I haven't done so badly. A fter all, I w as H itle r's arch ite ct; I w as his M inister of A rm am en ts and Production; I did serve tw enty years in Spandau and, com ing out did m ake another good career. Not bad after all, w as it?' (Ibid, p 781)

Was this just a final deflection from contrition, as Sereny has it, or did it reflect another side to Sp eer that Seren y 's p ositiv e m oral im age o f him d ow nplayed ? Com pare her account of the end of his life with her assessm ent of its beginning. We have already seen Sereny com m ent on 'the re-emergence of the intrinsic morality [Speer] manifested as a boy and youth' (emphasis added) but this can be contrasted with w hat she says, only on the previous page, that Speer 'felt nothing' for the Nazi slaughter: There was a dimension missing in him, a capacity to feel which his childhood had blotted out, allowing him to experience not love but only romanticised substitutes for love. Pity, com passion, sym pathy and em pathy were not part of his emotional vocabulary. (Ibid, p 719, em phasis added)

These are tw o deeply opposed accounts o f S p e e r's youth, w hich offer crucially different lenses for the interpretation of his later moral behaviour. At varying points in the book, this 'o ther' Speer, lacking in w hat Sereny would call significant moral e x p e rie n c e , m ak es h im se lf felt. S p e e r cou ld w rite letters from S p an d au th at acknow ledged som ething o f his m oral responsibility, bu t these w ere ultim ately evasive. He could acknowledge feelings of guilt, but also consider his position in coldly calculating and strategic w^ays. In addition, it should not be forgotten that Sereny's w hole interrogation with Speer had to negotiate his continuing denial of 5

The full passage omitted, which belongs where I have placed the square brackets in the quote, is as follows: 'the one I am convinced - after the euphoria of his late life passion had passed he would have become again, had he lived on.'

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direct knowledge of w hat was happening to the Jew s under the N azis, so that his entire post N azi life involved a lie. Even his final apparent acknow ledgm ent of a form of direct com plicity he challenged later himself. Sereny encountered this 'o th er' Speer during her conversations with him, when she w o u ld o cc a s io n a lly trip a c irc u it in S p e e r 's m in d w h ich w o u ld re p la ce sym pathy and urbanity with som ething threatening and violent: Here was not the reasoning Speer, my urbane host. Here was Hitler's great Minister who had ruled Germany's economy and the lives of millions ... I was suddenly keenly and somewhat frighteningly aware ... of the authority coiled inside this man, which manifestly suppressed with constant deliberate effort, only burst out at moments of disappointment, intense irritation or weary anger. (Ibid, p 222) Again, at the very end of the book, Sereny counterposes the guilt-feeling Speer to the pragmatic Speer who gave up every consideration to satisfy his own ambition, and w ho 'm a n ip u la te d , c a jo le d , in trig u ed ag a in st and th reaten ed th o se w ho interfered w ith his pow er and his aim s' (ibid, p 718). In her interview w ith The Guardian, counterposed to the im age of Sp eer's deep sense of personal guilt was Sereny's acknow ledgm ent that 'Speer was a man of such m ulti-personalities and if you didn't understand that, you could not deal with him '. Thus at one level, Sereny w as forced to recognise Speer's m orally schizophrenic character, but the picture that d om inates her analysis is o f a m an w ho once w as lost bu t now is found, one 'w eighed dow n by intolerable and unm anageable gu ilt' w ho 'tried to becom e a different m an'. It is that figure, w hom she admires, who dom inates her biography.

Guilt: the space between In the light of Sereny on Speer, let us now return to our consideration of the nature of guilt and com m unity in the first two parts of this chapter. As regards the self, G id d en s su gg ested that an increasing in d iv id u al reflexivity erod es norm ativ e boundaries and leads to a dim inution of the sense of transgression that underlies guilt. The se lf is able m ore and m ore to create and recreate itse lf throu gh the fashioning of changeable narratives that position and reposition it according to the needs of the m om ent. Reflexivity underm ines transgression, w hich underm ines guilt. The reflexive self reinterprets its biography to suit the context, so that a sense of a unified self becom es increasingly problematic. There is a m inim al level at w hich this self remains robust, able to weather major transitions or tensions, but otherwise selfhood has becom e fragile. If we consider Speer in this light, one could interpret his conduct during and after the Second World War in terms of the 'fragile' aspect of Giddens's self. Relying on the m inim al 'robu st' side of selfhood to get him through the transition from Nazism to liberal democracy, Speer would be a person w ho reinvented him self to su it the ch an g in g tim es. M any p eo p le see S p eer in such term s: as an am oral opportunist out to promote himself. However, what then of the sense of guilt, on which Sereny focuses? As we have seen, Sereny's image of a 'm orally continuous' Speer, seeking to com e to terms with his past, is undercut by the 'other' Speer who irrupted into her narrative and con sciou sn ess from tim e to tim e. We m ight be in c lin e d , th e re fo re , to d is m is s S e r e n y 's v ie w a n d sa y th a t S p e e r w as ju st m anipulating her and anyone else prepared to listen to him. Perhaps, then, we

A lb e rt Speer, G uilt and the ‘Space Between’

would say that Giddens is right: Speer is an early exam ple of the reinvention of self in the absence of guilt and responsibility that is the hallm ark o f 'late m odernity'. However, I think we have to grasp the post war Speer in a more com plex way than saying either that he was an inherently m oral being (albeit incom plete: Sereny) or that he was a cynic and m anipulator (flipping stories of his life at will: Giddens). The truth seem s to involve capturing a sense in which both aspects could be true, and so doing, to m ove beyond both. A way into this com plexity com es from considering the role of com m unity in establishing guilt. Recall the second aspect of G id dens's account, the idea of the erosion of com m unity in 'late m odernity'. I suggested that another interpretation of 'late m odernity' m ight involve us looking as m uch at the fragm entation, conflict and c h a n g e b e tw e e n c o m m u n itie s as at the a b s o lu te ero sio n o f th e ir m oral influence. This seem s to me particularly important in thinking about Speer. The post w ar process from N urem berg onw ards represented a confrontation betw een the m oral v a lu e s o f tw o q u ite d iffe re n t co m m u n itie s, the fa scist and the lib eral democratic. W hen Speer w as charged w ith crim es against humanity, w hen he was confronted by the pastor Casalis at Spandau, w hen he w as asked by his daughter what he had known and done, when he w as interrogated by Sereny herself, when he w rote e x p lain in g for a p o st w ar so ciety w h at N azism had m ean t, he w as confronting in each case a condem natory moral outlook different from the one of which he had been a part. W hat we get from Sereny's analysis of Speer is the sense of a moral dialogue not ju st betw een tw o p eop le b u t b etw een tw o p o litical com m u n ities in w hich an individual, who passed historically from one to the other, was confronted with and was engaged by the condem nation of his past. From this, he developed, at one level of his being, feelings of guilt. It seem s to me that Sereny is not wrong to recognise his feelings of guilt, but these alw ays coexisted with careerist calculation. He both felt guilt and was 'a man of such m ulti-personalities' so that he could set guilt aside and revert to an underlying Nazi persona. This sets up an am biguity in her analysis. While recognising both sides of Speer, Sereny cannot bring them together. She gets drawn too close to the Speer she liked, while remaining both too acute not to note his other, deeply unattractive, side and unable to reconcile this with her account of his moral qualities. Hence her two accounts of the boyhood Speer: as both youthful moral individual and psychopath. The ultimate problem she faces is how to judge this level of conflict and com plexity in one man. It is this that causes the tension in her book. This problem of com plexity takes me to my own argum ent about the ambiguity of the self and the am bivalence of judgm ent in m odern society. Post w ar liberal dem ocracy established, at one level at least,6 different public norm s and judgm ents to those of fascism . N urem berg, Pastor C asalis, S p eer's daughter and Sereny all approach Speer from the judgm ent of the utter wrongs of the N azis, so that they im pose a judgm ental context upon Speer w ith w hich he becam e engaged. PostN urem berg involved a process of dialogue between one w ho had been a fascist and a liberal dem ocratic com m unity, and w hatever feelings o f m oral gu ilt occurred 6

Any full assessment of the gap between post war morality and that of the Nazis would have to absorb the lesson of the ways in which, as Tom Bower puts it, a blind eye was turned to murder in the post war denazification of Germany (Bower, 1997).

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w ithin Speer were invoked by that dialogue. The point seem s an obvious one, but its im pact on Speer is significant. Recall the two images Sereny provides: one of his intrinsic morality, the other of his cynicism. M y suggestion is that both currents ran through Speer in the post-w ar period. Speer was both the calculating careerist who k n o w in g ly turned his b ack on the con seq u en ces o f h is actio n s and end o rsed N azism , and one w ho evolved m oral responses to w hat he had done in his later years. The transition, how ever, w as never such that the later Speer com pletely subsumed the earlier. Speer's life spanned two different socio-political periods, and accordingly so too did his personality and his morality. A fter the w ar Sp eer w as really tw o Speers spread out across tw o historical con te x ts. D ialo g u e w ith Sereny, C asalis and his d au g h te r c o n te x tu a lise d his subjectivity in the liberal dem ocratic context, setting up a profound conflict with w hat he had been. This led to genuine feelings of guilt, but feelings that were not strong enough to lead him to draw a clear line against w hat he had been. The escape into a romantic and sexual affair in his last years can thus be seen not, as Sereny sees it, as a moral 'blip', but as the creation, as it were, of a 'm oral micro­ com m unity' with his girlfriend sealing Speer off from the broader liberal dem ocratic context. In this situation, his guilt could be set aside and his earlier am oral egotism and pride in his fascist achievem ents resurface. Similarly, the occasional irruption of h is v io le n t N azi p e rso n a th ro u g h the u rb an e lib e ra l d em o cra tic s e lf w as an indication of the different selves coexisting in the later Speer. W here does all this take us in relation to the questions of guilt and responsibility? I h av e b een try in g to get at the relatio n sh ip b e tw e e n the in d iv id u al and the com m u n ity as a n exus w ith in w h ich resp o n sib ility and g u ilt are estab lish ed . Individuals shift betw een registers of self-accounting, so that it is socio-political co n te x ts th a t 'f ix ' resp o n sib ility . W ar crim in a ls p ro v id e a p a rtic u la rly vivid illustration of this process because they move historically between quite different moral contexts of judgm ent. In the process their responsibility for their crim es, as a m atter of individual guilt, is som ething that they am biguously and am bivalently negotiate with their interrogators. Individual guilt and responsibility are thus real categ ories w hich w e need to understand , bu t con textually and dialectically, as processes, by individuals, of symbiotic engagem ent within different socio-political communities. They do not as a result, however, possess a com plete fluidity, so that no judgm ent becom es possible. Recall that in my reference to M yra Hindley, I suggested that beyond an im m ediate finding of guilt and a contextualisation of personhood, there was a further third step. At this point, it was possible to ask whether, taking into account what was done and the context within which it was done, there could be an acknow ledgm ent by a person that it was he or she who had done the wrong, even taking into account a context that was different and distancing from the here and now. Such an acknow ledgm ent, in d ialogu e w ith a com m unity, is possible and necessary; it is the price of agency, even under conditions not of our own making. The evid ence o f S eren y's account is that Speer had such a d ialogu e - w ith his daughter and with Casalis - but that he never took the third, morally totalising, step of fully ackn o w led g in g for h im self gu ilt for w hat had occurred. The ultim ate problem w as that he lacked the character fully to acknowledge and condem n w hat

A lb e rt Speer, G uilt and the ‘Space Between’

he had done and been and therefore lacked a full sense of his own guilt as an agent in another time and place.

Beyond ‘individual’ and ‘community’ in the philosophy of punishment I w ant to end by locating the foregoing in the con text o f problem s w ithin the philosophy of punishm ent. The dom inant tradition here is broadly Kantian in the sense of a reliance on 'notions of personal agency, responsibility, and the moral law' (Bird, 1995, p 439; cf G ardner, 1998). Such a sen se o f ind iv id u al resp o n sibility informs in different ways the analysis of guilt in both Giddens's and Sereny's work. With Sereny, the idea of a man com ing to terms with his guilt is plainly Kantian in this broad sense; but the sam e is true in a rather more refracted way with G iddens's em phasis on the isolated, reflexive individual of late modernity. Indeed, one might say that G iddens's individual, freed of the norm s of a community, is living out the s o lip sis tic q u ality that H an n ah A ren d t find s in K a n t's failed m oral law , the categorical imperative. The categorical im perative requires the rational individual to agree with him self because it 'is based upon the necessity for rational thought to agree with itself' (Arendt, 1961, p 220). Such an unconnected individualism is n ot so far from the 'reflexive organisation of the self', but it clearly misses the continuing linkages I have sought to dem onstrate between individual m orality and the historic com m unity(ies) of w hich it is a part. If m uch m odern philosophy of punishm ent proceeds in this broadly Kantian mode (eg, von Hirsch, 1993; Moore, 1997), there have been attem pts to link issues of re s p o n s ib ility to q u e s tio n s o f co m m u n ity , and a sen se o f d ia lo g u e b e tw e e n individual and community. For exam ple, A ntony Duff (1986, 1996) has w ritten of punishm ent as a process of com m unication betw een individual and community. However, I have argued elsewhere (Norrie, 1998b, 2000, Chapter 6) that Duff retains an e s s e n tia lly K a n tia n n o tio n o f the re s p o n s ib le s u b je c t w h ic h he h im s e lf underm ines by his attem pt to locate that subject within a broader community. At the sam e time, he fails to recognise fully the m oral effect on issues of guilt and blam e of acknow ledging what com m unity means in modern Western societies with their structural social conflicts. In this regard, D uff's m ove is not a new one, bearing a strong resem blance (though there are im portant differences) to the w ork of the late 19th century English H egelians, TH Green and Bernard Bosanquet (Norrie, 1991b, Chapter 5) who were earlier initiators of a com m unitarian political philosophy. Green and Bosanquet were Victorian inheritors of the idealist tradition of Kant and Hegel, and their w ork was designed to relocate w hat they saw as the too ideal individualism of the G erm ans in a more realistic sense of the nature of m odern cap italist society. View ed in this persp ectiv e, the past and p resent con cern s of com m unitarian w riters are really the other side of the Kantian heritage against which they frequently rail; they are still dancing to a Kantian tune. Indeed, if we follow A rendt's interpretation, Kant w as him self an enthusiastic participant in the in d ividiialist-com m unitarian pas de deux. She d escribes a strikin g philosophical con trast b etw een K an t's critiq u e o f m oral reason and his critiq u e o f aesth etic judgm ent. In the latter, she identifies a different relationship betw een the individual and the com m unity in which, contrary to the categorical imperative, 'it would not

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I

be enough to be in agreem ent with one's ow n self', but rather there would be a relationship w hich involved 'being able to "think in the place of everybody else'". Under w hat Kant called an 'enlarged m entality', the power of judgment: rests on a potential agreem ent with others, and the thinking process which is active in ju dging som eth in g is not, like the th o u g h t p rocess of p u re reaso n in g, a d ialog u e between m e and myself, but finds itself always and primarily, even if I am quite alone in making up m y mind, in an anticipated com m unication w ith others w ith whom I know I must fin alli/ com e to som e agreem ent. (Arendt, 1961, p 220, em phasis added)

To be sure, K ant's target in the critique of aesthetic judgm ent is quite different from moral wrongdoing, but there are parallels. A rendt continues that aesthetic judgm ent is both im possible without, and lim ited by, the nature of community. As regards the necessity of community, judgm ent: cannot function in strict isolation or solitude; it needs the presence of others 'in whose place' it m ust think, w hose perspectives it m ust take into consideration, and without w hom it never has the opportunity to operate at all. As logic, to be sound, depends on the presence of the self, so judgm ent, to be valid, depends on the presence o f others. (Ibid, em phasis added)

As regards the lim itation of judgm ent by virtue of its place in community, Arendt observes that it: is endowed w'ith a certain specific validity but is never universally valid. Its claims to validity' can never extend further than the others in whose place the judging person has put himself for his considerations. (Ibid, p 221)

She concludes that judgm ent 'is a specifically political ability', the ability 'to see things ... in the perspective of all those who happen to be present'. As such, it is 'one of the fundam ental abilities of m an as a political being'. I suggest that Kant, on A rendt's rendition, got at least as close to issues of guilt and responsibility in his discussion of aesthetics as he did in his moral philosophy. His emphasis on the role of com m unity and its relationship with the individual, far from the solip sist bar o f the categ orical im p erativ e, id en tifies the p lace w here judgm ent occurs, and which generates the complexity, am bivalence and am biguity I have sought to identify here. Community, as I hope I have made clear, is not the w hole story, but it is an integral part of it. It is only in a com m unity that the floating s to rie s o f the s e lf that G id d e n s id e n tifie s th eo retica lly , and S e re n y id e n tifies biographically can be 'fixed'. M y approach locates a 'site' of judgm ent that is both w ithin a com m unity and a means of bringing to bear judgm ent on individuals for w hom guilt is a possible m oral sentim ent. This involves a more com plex, dialectical, u n d e r s ta n d in g o f in d iv id u a ls an d c o m m u n itie s th a n in d iv id u a lis tic or com m unitarian approaches have been able to provide. I w ant finally to anticipate one serious possible objection to the foregoing and at least to indicate how it m ight be met. The objection would be that in m oving our debate beyond Kantianism and into an area w here m orality operates between an in d iv id u al and a com m u nity, the force of an ab so lu te m o rality is lost. K an t's categorical imperative might have proved em pty in practice, but at least it marked a site w here d eo n to lo g ical issu es w ere d iscu ssed as real m oral p o ssib ilitie s. In locating guilt and judgm ent som ewhere betw een individuals and com m unities, one

A lb e rt Speer, G uilt and the ‘Space Between’

may be com m itting oneself to the dangerously relativist view that all that exists morally is the m orality o f com munities. To do no m ore than id en tify one p o ssib le resp o n se to this o b jectio n , let us consider briefly Roy Bhaskar's discussion of an exam ple provided by Isaiah Berlin (Bhaskar, 1994, p 110). Berlin contrasted four descriptions of what happened under N azi rule in Germ any: 'the country was depopulated'; 'm illions of people died'; 'm illions of people were killed'; 'm illions of people were m urdered'. Language is the place w here com m unities in conflict can seem to agree on 'the facts', w hile d isag reein g fu n d am en tally on their m oral im port: think o f 'eth n ic clean sin g '. However, w hat Berlin's exam ple shows is that, while all four of his statem ents are true, it is the last that is 'not only most evaluative, [but] also the best (ie, the most precise and accurate) description of what actually happened' (Bhaskar, 1994, p 110). Bhaskar's moral realism relates the description of social phenom ena to their truth content, and their truth as adequate descriptions, where relevant, to their truth as moral descriptions. The fourth statem ent's factual and moral truth 'turns not on the subject's interest in the subject matter, but on the nature of the subject m atter itself and criteria for its adequate description and explanation' (ibid, p 110). In the last sentence w e could talk just as easily of the 'com m unity's interest' as the 'subject's interest'. This reference to a moral realist underpinning to the discussion of the historical and com m unity m ediation of individual responsibility requires to be developed, but I will conclude on the main them es of my argument. The issue of legal or moral g u ilt is a com p lex one th at d efies the easy an sw ers o f those w ho assu m e the existence of a fixed, responsible individual subject, or argue for the 'late m odern' erosion or reflexivity of all subject positions. Central to the establishm ent of guilt is the dialectical relationship betw een a subject and his or her historically evolving com m unities. Speer's am bivalence concerning his guilt, reflected on but not fully understood by Gitta Sereny, illustrates such a relationship. W hen all was said and done, Speer had not decisively moved to acknow ledge his guilt, and it is on that basis that he is ultim ately judged: as a person w ho confronted w ith the evils of N azism re m a in e d at h e a rt a N azi. H o w ev er, he had fe lt g u ilt, and it is the p hen om enal textu re and p o ssib ility o f this am b igu o u s su b ject p o sition I have sought to explain, by a relational theory of responsibility.

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C h ap ter 7 From Crim inal Law to Legal T heory: The Mysterious Case o f the Reasonable Glue Sniffer The qualitative m om ent is preserved in all quantification, as the substrate of that which is to be quantified. (A dorno, 1973, p 43)

Criminal law: problems and approaches Crim inal law theorists live in times that could be described, relatively speaking, as 'interesting'. A t the core of m odern argum ent is an ongoing conflict, explicit or im plicit, betw een the dom inant 'orthodox subjectivist' tradition of the textbooks and law, and a host of critical persp ectiv es w hich can be broad ly described as 'm orally contextual' or 'substantive'.1 The dom inant tradition relies upon a formal model of individual responsibility resting on psychological traits w hich reveal a person to be in control of her acts (intention, foresight, voluntariness, rationality). The critical opposition insists that the moral context or substance, for exam ple, of an intention are as im portant if not more so in gauging responsibility (Norrie, 2001b, Chapter 3). Thus, under the law of murder the contract and the mercy killer may b o th b e e q u a lly re s p o n s ib le , b o th p o s s e s s in g the in te n tio n to k ill, b u t the contextualist would say there is a world of moral difference betw een the two which the law o u g h t to re fle ct. T h is c h a p te r w ill try to h ig h lig h t and e x p la in the significance of this conflict. M y im m ediate target will be one consequence of it, the 'reasonable glue sniffer' in the law of provocation (Norrie, 2001a), but the argum ent then m oves from the particular to the m ore general con flict betw een 'orthod ox subjectivism ' and 'm oral contextualism ' in the law. As regards the law of provocation, it is in a bad state at present after a string of C ourt of Appeal and House of Lords decisions. In these cases, the courts wrestle with precedent, but they also engage with the underlying moral problem s reflected in legal concepts. The question that emerges is how to establish a general standard for ju d g in g p ro v o cation w hile attend in g to the in d iv id u al p articu larity of the accused. Hence the idea of the 'reasonable glue sniffer' (R v M orhall [1995] 3 All ER 658), the 'reasonable im m ature person' (R v H um phreys [1995] 4 All ER 100), the 'reasonable obsessive' (R v D ryden [1995] 4 All ER 987), or even, if the case of an A ustralian stalker w ere transposed to this country, the 'reasonable erotom aniac' (S tin g e l v R (1 9 9 0 ) 171 C L R 3 1 2 ), an o x y m o ro n if e v e r th ere w as on e. T h e underlying issue concerns how we exam ine and explain this tension betw een the g e n e r a l an d the p a r tic u la r in the law . S o m e m ig h t se e it as an in e v ita b le

1

For general discussion, see Duff, 1990; Dennis, 1997; Gardner, 1998; Norrie, 2000, Chapters 2, 5 and 6. I use these terms to express dualities in the law that can variously be described as involving a 'formal' versus a 'substantive' morality, or an abstract formalism in opposition to a contextualised understanding of legal concepts.

2

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consequence of submitting hum an actions to the governance of rules. I will present four argum ents that suggest a m ore com plex problematic. These concern: first, the tension betw een m oral judgm ent and legal form ; secondly, the relation betw een individual justice 'internal' to law and an 'external' social justice; thirdly, the 19th century foundation of the crim inal law in abstract individualist categories; and, fourthly, law 's involvem ent in an historically specific dialectic of the universal and the particular. Let us look at these in turn. Crim inal law antinomies Q u e s tio n s a b o u t th e re la tio n sh ip b e tw e e n law an d m o r a lity are c e n tra l to discussions of legal responsibility. My own view is that crim inal law is as much a moral as a technical legal business, and crim inal lawyers, though they may try to, cannot avoid this conclusion. If they try to, the moral issues have a habit of biting back, and this is evidenced by legal confusions going to the law 's very heart. In the present or im m ed iate past, the law has entertained at least three d ifferent and co n flic tin g m e a n in g s o f in te n tio n 2 and fo u r o f re c k le ss n e ss .3 T h is is cle a rly unsatisfactory, and my first argum ent is that the underlying problem is that criminal law seeks to be both a set of technical legal rules and a m eans in an im portant, but not necessarily obvious, m oral sense of 'doing ju stice'. There is a duality of law w hich involves an uneasy and unstable relation betw een legal form s and m oral values. If there are moral problems within the criminal law relating to w hat it means to do justice, why should this occur? Any argum ent about what is 'w ithin' the criminal law must reckon with how a sense of w hat is internal to law is constructed, and what then lies 'outside' it. My second argum ent concerns the relationship between individual ju stice w ithin the crim inal law and a broader sense o f social ju stice, w hich is seen as lying beyond it. M y argum ent will be that what lawyers essentially think of as a com m onsensical separation betw een two distinct domains and sets of questions does not work. The problem s w hich haunt crim inal law can be traced finally to a false but primal separation betw een individual justice and social justice, such that the latter is taken to involve issues extraneous to legal justice. M y claim is that it is this ultimately unsustainable separation betw een two concepts of justice w hich con stitu tes the d eep stru ctu re u n d erly in g the p rob lem s o f law, be it in re latio n to p ro v o ca tio n , or any o th er o f a ran g e o f p ro b lem atic c rim in a l law concepts. It also informs the unsatisfactory intellectual split betw een the orthodox

2

3

Intention as purpose (R v Steane [1947] 1 All ER 813), intention as purpose plus foresight of virtually certain side-effect (R v Woollin [1998] 3 WLR 382), intention as purpose plus foresight of (highly) probable consequence (Hyam v DPP [1974] 2 All ER 41). While R v M oloney ([1985] 1 All ER 1025) first formulated the Woollin approach, it also refers favourably to Steane, and opens the door to the H yam -style guidelines developed in R v Hancock and Shankland ([1986] 2 WLR 357) and R v Nedrick ([1986] 1 WLR 1025). Woollin arguably has not entirely shut the door on the Hyam approach (Norrie, 1999), which is independently endorsed in the case of the accessory to murder (R v Poivelt and Daniels; R v English [1999] AC 1). For general discussion of motive and the law of intention, see Norrie, 2001b, Chapter 3. A d v e rte n t reck lessn ess (R v C u n n in g h am [1957] 2 QB 3 9 6 ), a d v e rte n t or in ad v erten t recklessness (R v C aldwell [1981] 1 All ER 961), recklessness as practical indifference (R v Satnam and Kewal (1983) 78 Cr App R 149), recklessness as committing a crime of 'basic intent' while intoxicated (DPP v M ajewski [1976] 2 All ER 142). See now R v G [2003] 4 All ER 765, discussed above at p 82.

The M ysterious Case o f the Reasonable Glue Sniffer

subjectivists and the m oral contextualists described above. N ote that I do not say that qu estion s o f ind iv id u al ju stice w ith in the law are im m ed iately red u cible to questions of social justice. That w ould be to deny the real, practical and intellectual substance of legal form s and their relative autonom y. I do, how ever, insist that a fuller un d erstan d in g o f how these form s w ork inv olv es ap p reciatin g the porous boundaries o f law, and how it nests in a broad er social and historical 'dialectic of ju stice'.4 This is both its con text and w hat it enacts, an absent presence that it both denies and em bod ies in the act o f separation. Invoking the social history o f m od ern law brings m e to m y third m ain argum ent about the nature o f legal ju stice. T he reason for these splits and problem s in law concerns the nature o f the legal individualism that inform s discussions of crim inal law and justice. O ur m od ern law begins in the early 19th century w ith a separation of the individual from her social and m oral context. This allow s the law to find the individual responsible for her acts in isolation from questions o f the social causes of action, and o f social responsibilities for w hat occurs (N orrie, 2001b, C hapter 2). This separation of the ind ividual from the social is carried into legal categories by virtue o f a m od el o f in d iv id u a l re sp o n sib ility th a t e m p h a sise s the p e rs o n 's 'fa c tu a l', psychological control o f her actions, through her intentions, foresight, voluntariness and so on. T his is how a technical understanding of crim inal responsibility is built u p th ro u g h d o c t r in e s o f m e n s r e a , in o p p o s itio n to c o n c e p tio n s o f w h a t is substantively m orally significant about m ental states. Thus, the law separates off, for exam ple, questions of intention, w hich are central to culpability, from questions of m otive w hich are said to be irrelevant (W illiam s, 1961, p 31; Sm ith and H ogan, 1999, pp 77-79). H ow ever, it is the question of m otive, the 'w h y ' question, w hich carries the m oral pu nch , and ultim ately, the law cannot do w ithout it.5 W hat has been left out therefore has to be allow’ed back in, even though the legal concepts had ordained its exclusion. M odern crim inal law com es thus to be founded on a series of fa lse sp lits , o r a n tin o m ie s, b e tw e e n m o tiv e an d in te n tio n , d ire c t and in d ire ct in te n tio n , s u b je ctiv e and o b je ctiv e form s o f re c k le ssn e ss, issu es o f o ffen ce and d efe n ce , ju stific a tio n and e xcu se, and so on. U ltim ately, th ese can be traced to deeper splits b etw een 'factu al' and 'n orm ative' accounts o f basic legal categories, betw een 'internal' and 'extern al' accounts of crim inal law, and betw een questions of individual and social ju stice.6 T hese splits derive from the abstract con cept o f the 4

5

6

This is a stronger claim than to say that criminal law simply presents opposing and conflicting v ie w s . F o r e x a m p le , as re g a rd s the s p lit b e tw e e n o r th o d o x s u b je c tiv ists and m o ra l contextualists, it entails the view that m oral contextualism is invoked by the limits of the orthodox subjectivist approach and possesses an intrinsic connection in the form of a shared focus on individual justice and responsibility to the exclusion, marginalisation, a n d /o r false separation of issues of social justice and responsibility. This is one of the central claim s in Norrie, 2000 and is argued briefly below, in the conclusion to this chapter. The prefatory quote from A dorno describes a dialectical relationship involving antinomy. The law has its own correlates in the ideas of 'technical' or 'factual' forms of responsibility (m atters of 'quantity') and opposing 'morally substantive' ('quality') approaches. Thus, the point is not that the law as a whole is uninterested in m otive, but that it organises its interest in a particular way. M otive is excluded from the central categories of the 'definition of the offen ce' (m ens rea and a ctu s reu s) bu t th ere are inclusions elsew h ere, such as in the defences. However, the search for a m otive-free law of intention fails, as does the effort to distinguish 'offence' and 'defence'. These are false but necessary separations (N orrie, 2000, Chapters 7 and 8). For m ore on these oppositions, see Norrie, 2000. For debate on a distinction between a realm of retributive legal justice and one of distributive social and political justice, see Duff, 1998; Horder, 2000; Norrie, 2000, pp 22 -3 0 .

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individual at the law 's core. Relating this back to my first two argum ents, it is this historically achieved abstract individualism w hich engineers the prim al separation between legal and social justice, and which enjoins a split between legal and moral judgm ent. Universals and particulars If disjuncture, split and separation constitute the province of legal justice, how do these con stitute a pattern or logic o f the law ? H ere I w ant to d evelop a fourth argum ent concerning the idea that law em bodies a dialectic of justice. This involves the relationship betw een the 'universal' and the 'particular' in the law. W hen we h o ld so m e o n e up to le g a l ju d g m e n t, w e b rin g that p e rso n u n d e r ru le s and categories that derive their legitim acy from the fact that they appear to transcend the immediate context and the interests of the judgers. For exam ple, in the move to set up international tribunals of crim inal justice to adjudicate war crim es, the aim is to establish neutral and im partial organs according to universally acceptable codes of law. A sim ilar claim is m ade for dom estic crim inal law, particularly through categories of responsibility w hich are relevant to individuals of every class and c re e d . O n e can c a ll th is an 'E n lig h t e n m e n t ' v ie w o f r e s p o n s ib ility fo r its com m itm ent to universal criteria of justice. Against this, there are a num ber of criticism s of universal justice. At one level, there is the kind of deconstructive criticism that says that seeking the universal is a means of denying the particular. The universal in fact involves a series of partial standards m asquerading as a universal. At another level, it is the kind of criticism that says that the claim to do u n iv ersal ju stice d o es no m ore than p ro v id e a legitim ating cover for history's w inners, either as a class, a nation, or a religion. Thus, the charge is laid that so-called universal justice is the partial justice of the powerful. Here is a quote from the fem inist legal w riter M argaret Davies, which focuses on the relationship between the universal and the particular: On the whole, jurisprudence is about universals. It is about distilling general principles and discerning w hat is essential and what marginal. Jurisprudence takes the central case as the universal ... The whole liberal tradition has been one in which the central case of the hum an being has corresponded to the central case of the man ... The practice of thinking solely in terms of universals, rather than in terms of the specificity of particular situations and relationships, casts everything as a variation on the sam e set of standards, and perpetuates hierarchy in our modes of being and knowing. (Davies, 1996, p 91)7

Could w hat Davies says of jurisprudence not equally be said of criminal law: that its universal categories occlude and repress? The difficulty with the charge is that it seem s to involve both truth and overstatement. On the one hand, it seem s wrong to th in k that the idea o f a universal b asis for crim in al ju stice is an u n im p ortant aspiration and requirem ent in doing justice. We should all be treated according to universal rules. On the other, it is no doubt true that in the nam e of legal justice, 7

Davies's analysis is directed primarily at the false universalisation implicit in the notion of 'man'. There are, however, dear convergcnccs between her approach and that adopted here. For a brief attem pt to describe the theoretical links, see below, C hapter 9, fn 1. The links between a feminist approach to criminal law and that adopted here are discussed in Lacey, 1998b, 197-201. I have used feminist perspectives in discussing the impact of insanity and diminished responsibility laws in the criminal law (Norrie, 2001b, pp 188-93).

The Mysterious Case of the Reasonable Glue Sniffer

many unjust things pass, and that the abstract universals of legal responsibility are im plicated in this. The m odel of the responsible individual looks, from D avies's standpoint, to be a way of avoiding central truths about the particular situations of individuals w ho com e before the crim inal courts. In the m ain it is the poor, the p o o rly e d u ca te d , th ose w ith the lo w e st life c h a n ce s w ho g et co n stru c te d as 'responsible' individuals under the law 's universal categories. Thus, we are pushed both to endorse and to reject universalism. Is there any w ay of understanding the conflicting dem ands for both a universal standard and to 'attend to the particular'? I am going to suggest a dialectical way of looking at this that helps us to hold these two aspects together in our thought, and, I believe, to explain the law 's ow n intrinsic dynam ic. I will suggest that we can build an understanding of legal justice that enables us to discern a system atic dialectical pattern in how law handles the splits, oppositions and separations (the antinomies) described above. We live, I shall argue, in a legal world that embodies and lives a dilem m atic or antinomial structure of justice issues. I will explain this as a 'dialectic of the universal and the particular', in a slightly more developed form below. I will argue that, w hether we like it or not, this dialectic underlies and inform s central debates in the crim inal law. This is so both in relation to provocation, and to the battle betw een orthodox subjectivists and moral contextualists, the two illustrative foci for my discussion here. Crim inal law lives this dialectic. To conclude this introduction, let me outline how the chapter proceeds in its two main sections. In the first of these, I develop the idea of a dialectic of the universal and the particular in two ways. First, I exam ine som e decisions of Lord Edm undDavies in the area of duress and necessity. These em body the plight of w hat I call the hum anitarian judge, that is the judge who is required to do justice through law, but appreciates the limits of w hat this means. I will then side-step to consider how the greatest philosophers of modern times, Kant and H egel, spoke about criminal justice. From the House of Lords to G erm an idealism: these are, deliberately, two very different discussions. I w ant to show the connections between Enlightenment philosop h y and m od ern legal p ractice, and how they reflect the sam e kind of thought pattern. In b oth discu ssions, I w ill be focusing on the idea o f crim inal justice as involving a universalisation of individual justice, but I will be identifying also the limits of that universalisation. This entails recognising the way in which the law 's universalising strategy is undercut by a 're-particularisation' associated with questions of social justice. These two discussions are grouped together under the gen eral h ead in g o f exp lo rin g the relatio n sh ip betw een the u n iv ersal and the particular in legal and moral judgment. In the second main section, there is a gearshift in the chapter as we m ove to look in greater detail at a specific legal artefact, the 'reasonable glue sniffer' in the law of provocation. This is presented as an exam ple of the broader con flict in the law betw een 'orthodox subjectivism ' and 'm oral contextualism '. These two topics are grouped u n d er the head in g o f the relatio n sh ip betw een the 'fo rm a l' and the 'substantive' in legal judgm ent. I will discuss the ways in w hich the modern law operates an uneasy balance between form al, orthodox subjectivist w ays of stating cu lpability and the substantive critiqu e o f the m oral con textualists. I w ill then con clu d e in a final section by lin k in g the arg u m en t o f the tw o m ain section s together. Legal conflicts between form and substance will be related to questions of

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individual and social justice and the dialectic o f the universal and the particular. I will conclude that to live under the crim inal law is to live this dialectic and to do so through the experience of antinomy. In this way, the tw o m ain sections, on the u n iv ersal and the p articu lar and the form al and the su b stan tiv e, are b ro u g h t together. The relationship between form alism and substantivism (or contextualism ) in crim in a l law e x p re sse s an u n d e rly in g c o n flic t b e tw e e n u n iv e rsa lism and particularism , and both sets of oppositions are set in m otion by the law 's historically constituted abstract individualism. The antinom y that underlies all this, but whose nam e dare not be spoken, is that between individual and social justice.

Criminal justice: the universal and the particular Crim inal justice and the hum anitarian judge As a judge in the Court of Appeal and the House of Lords in the 1970s and 1980s, the late Lord Edm und-Davies delivered judgm ents in many im portant cases. As a result of dialogue with textbook writers in the orthodox subjectivist tradition, this w as a period o f intellectual ferm ent in the crim inal law and judgm ents by Lord E dm und -D avies often captured the pu lse o f the legal m om ent.8 The follow ing sam ple does not purport to reflect Lord Edm und-D avies's overall contribution to criminal law, which was substantial, but to highlight important issues within it. O ne area of the crim inal law that has alw ays caused problems is that occupied by the tw in d efen ces o f d u ress and n ecessity .9 W h en a p e rso n acts u n d er e ith e r d efen ce, she acts u n d er a th reat to life or serio u s injury from an o th er p erso n (duress), or from an im personal situation (necessity). In the case of D PP fo r Northern Ireland v Lynch [1975] AC 653, the House of Lords had to decide w hether a man involved, under threat to his own life, as the driver to a m urder in N orthern Ireland could claim duress. O ne argum ent w as that he should be convicted, and that the proper place to reflect the duress involved was not through a form al legal defence b u t throu gh m itigatio n of his sen ten ce. R ejectin g this on the ground o f d oing in d iv id u a l ju s tic e to th e d e fe n d a n t, L ord E d m u n d -D a v ie s had th is to say. M itigation: at least m akes for neatness. N o m atter how terrifying the circum stances which have impelled a man (and, indeed, which might have impelled most men) to transgress the criminal law, he m ust be convicted ... The trouble about such neatness is that it may work intolerable injustice in individual cases. (Ibid, p 707)

8

9

Relevant cases in this period were Hymn v DPP [1974] 2 All ER 41, DPP v Morgan [1976] AC 182, DPP v M ajewski [1976] 2 All ER 142, DPP fo r Northern Ireland v Lynch [1975] AC 653, Abbott v R [1977] AC 755, R v Caldwell [1981] 1 All ER 961. For a full biographical and analytical essay on Lord Edmund-Davies, see Hall, 1985, p 18. This continues to be the case in light of the emergence of a recent necessity defence of 'duress of circumstances' and the recognition of necessity as a defence to murder in the case of Re A (Children) [2000] 4 All ER 961 (see Norrie, 2001b, Chapter 8).

The Mysterious Case of the Reasonable Glue Sniffer

This strongly moral argum ent w on the d ay Lynch, however, was the driver to the killing, the aider and abettor rather than the actual perpetrator. He was a 'principal in the second degree'. In the slightly later Privy Council case of Abbott [1977] AC 755, the question, following Lynch, was w hether the defence was also available to a 'principal in the first degree'. To distinguish betw een degrees of involvem ent in a crim e is often hard, som etim es im possible. H owever, the m ajority in A bbott held th a t the d e fe n ce o f d u ress w as n o t a v a ila b le to the d e fe n d a n t as the actu al perpetrator. A bbott was on a capital charge in Trinidad and Tobago, so this was no m inor m atter, and Lord E dm und -D avies cau stically scorned the argum en t put forward by the majority: It has to be said with all respect that the majority opinion of their Lordships am ounts, in effect, to sid e-step p in g the decision in Lyn ch an d , even w ere th at con stitu tion ally appropriate, to do it without advancing cogent grounds. (Ibid, p 772)

T h e co m m itm e n t h ere is s till to d o in g in d iv id u a l ju stic e . Ju s tice in v o lv e s a com m itm ent to the rational interpretation of the precedent case. It involves treating lik e c a s e s a lik e , w h ic h in tu r n e n t a ils a c o m m itm e n t to a p ro p e r lo g ic a l u n iversalisation o f d ecisions. D oing ju stice involves treating like cases alike. It locates the in d iv id u al d ecision w ith in an over-arch in g set o f ru les so that the particular case is decided by how it falls within the generally applicable categories. If Lynch goes one way, then Abbott m ust be treated under the sam e rule unless his case can be properly distinguished. However, matters are not alw ays so clearcut from a judicial point of view. Let me take as a third illustration one further case on which Lord Edm und-Davies sat, this tim e in the C ourt of A ppeal. This w as a necessity case called London Borough o f Southwark v Williams [1971] 2 All ER 175. A hom eless family with a five year old child and a five m onth old baby had illegally entered a derelict property, and the borough w anted to evict them . The question before the cou rt w as w hether the couple could use necessity as a defence to trespass. The court held that they could not for the defence was unavailable in English law. considering the situation, Lord Edm und-Davies lamented the plight of the families but could see nothing the law could do to help. He spoke of the 'deep depression' that anyone of 'even ordinary sym pathy' (ibid, p 80) would feel for the fam ily's plight. The defence of necessity w as not, how ever, av ailab le to them . Lord D en n in g in the lead in g ju d g m e n t explained w hy not: If homelessness were once adm itted as a defence to trespass, no-one's house could be safe. Necessity would open a door which no man could shut ... The plea would be an excuse for all sorts of w rongdoing. So the courts must for the sake of law and order take a stand. They m ust refuse to adm it the plea of necessity to the hungry and the homeless; and trust that their distress will be relieved by the charitable and the good. (Ibid, p 179)

T h is case is one o f the few in w hich the issue o f in d iv id u al ju stice is d irectly counterposed to a deeper sense of social justice and injustice. Doing individual legal justice to Williams would have involved granting him the defence of necessity, but to do so would have meant looking four square at the plight of the hom eless, and therefore at the social dispensation of public and private property at the time. It would have meant aligning the crim inal law 's view of individual justice w ith the

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I

needs of the hom eless family. The law, however, could not, or would not, go there. This was not becau se individual ju stice did not require it, for there w as a clear matter of necessity in play on which the decision m ight have rested. The problem was that giving Williams a defence would m ean recognising not just an individual's need but a system atic social problem with consequences far beyond the individual case. Ind ividu al ju stice through the law w as therefore p artition ed off from the broader questions of social justice, despite the recognition that such partitioning occasioned 'deep depression' for one required to do it.10 Note also that this decision points up the problem of legal individualism. W ho is 'the individual' that legal justice recognises? This is not a straightforward question. We can think of the individual in abstract terms as the intending, acting, voluntary subject, or as the socially and m orally located person, in this case the hom eless parent acting under necessity. The law declines to accept the second, more rounded, image of the person in his or her context, opting for an abstract individualism. This serves to draw a line between what can be done w ithin the law and what must be done outwith it, by the 'charitable and the good', if it is to be done at all. The point to take from this concerns the lim its of legal universalisation. Law 's categories of responsibility are cast in a set of rules which insist on doing individual justice, but the individual to whom justice is to be done is not to be understood as the hom eless person. He can be the individual under personal threat (duress), but not the ind iv id u al u n d er env ironm en tal or social threat (n ecessity). The law 's universal categories accept certain aspects of the individual's situation, but draw a line against the social particularity of hom elessness. Justice, such as it is in London Borough o f Southw ark v W illiam s, is m aintained by refusing to p articularise, and rem aining at the level of abstract universality. The philosophical idea o f crim inal justice: K ant and Hegel It is a long w ay from the C ou rt of A ppeal sitting in 1971 to the E nlightenm ent theories o f p u n ish m en t o f K ant and H egel (N orrie, 1991b, C h ap ters 3 and 4). However, as I will now suggest, there are sim ilar dilem m as in their philosophies con cern in g the u n iv e rsal and the particu lar, and the lin k b etw een in d iv id u al crim inal and social justice. The idea of individual justice under general law is not a new one, and nor is the problem as to w hat individual justice means. The m odel of m odern law is one derived from liberal Enlightenm ent thinking, so how did the lib e ra l E n lig h te n m e n t its e lf c o n fro n t the p ro b le m s o f the u n iv e rsa l and the particular, and of individual and social justice? The key point to note is that of universalising the moral law In Kant, reason and the moral transcen d s the p articu larities universalisation:

Kant and Hegel both see criminal justice as a matter in the name of the freedom of the individual subject. law universalise individual responsibility so that it of actu al life. Ju st p u n ish m en t is a resu lt o f this

10 At this point, an argum ent can be advanced concerning the different institutional roles of different parts of the state, in particular, the courts and the welfare agencies. A delimitation of the defence is possible if it can be shown that the problem of homelessness is dealt with by another state agency. For discussion of this issue, see Duff, 1998; Horder, 2000; Norrie, 2000, pp 22-30.

The Mysterious Case of the Reasonable Glue Sniffer

W hen ... I e n a ct a pen al law a g a in st m yself as a crim in al it is the p u re ju rid ical legislative reason (hom o noum enon) in m e that subm its m yself to the penal law as a person capable of com mitting a crime ... (Kant, 1965, p 105)

Contrast this universal, rational individual with the person com m itting the actual crim e. This is the individual located in his or her particular context who is in a strong sense different from the rational individual. He or she is: another person (hom o phaen om enon) along w ith all the others in the civil union who submit themselves to this law. (Ibid)

Th e su b je ct w ho ju stifie s the n orm and su p p o rts ju s t p u n ish m e n t is thu s an abstractly rational person who stands apart from the actual person. It is abstract rational thinking (noumenality) which grounds universal law in the form of the 'pure ju rid ic a l le g isla tiv e re a s o n '. T h u s crim in a l ju s tic e is a c h ie v e d b y a b stra ctly universalising (the noumenal) from the particular person (the phaenom enal) in favour of a rational abstraction of the individual. This 'universalised p articu lar', however, im m ediately runs into philosophical trouble, and breaks down in problem cases. The image of a universally free subject cannot deal with cases such as those of the m other w ho kills her illegitim ate child, or the soldier w ho kills in a duel. In these cases, social conceptions of honour and shame force the soldier and the m other to do the crim inal acts. Kant acknowledges that society itself, not the individual: is responsible for the fact that incentives of honour am ong the people do not accord (subjectively) with the standards that are (objectively) appropriate. (Ibid, p 107)

By 'subjective', Kant means 'particular' (or, his word, 'phaenom enal'); by 'objective', he means 'universal' (or 'noum enal'). Justice, which is achieved by 'universalising the particular', is undercut by the need in a society that is, in K ant's words, 'barbaric and underdeveloped' (ibid) to acknow ledge the particular situation of the actual criminal. We cannot hold the wom an or the soldier responsible in the normal way, for w e m ust recognise the circum stances in w hich they acted. The result is that, again in Kant's words, 'public legal justice as administered by the state is injustice from the point of view of the people' (ibid). Justice according to the universal moral law and relating to the abstract universal subject is underm ined by the actual state of society and the social identities of particular persons. Society, w hich is 'barbaric and underd eveloped ', is in short to blam e for w hat has happened. In this way, individual right (justice according to universal law) is underm ined by social wrong (injustice according to the nature of society). Logically, this happens because what began as a philosophical move to universalise away from the particular is put into reverse as the universal is 're-particularised' in the face of killing for honour. M oving from Kant to H egel, w e see a sim ilar dialectic at play. C rim e and its rig h tfu l p u n ish m en t is u n d erstood as a d isco v ery o f the u n iv ersal w ithin the particular. Punishm ent is 'a right established within the criminal him self' for: his action is the action of a rational being and this implies that it is something universal and that by doing it the criminal has laid down a law which he has explicitly recognised in his action ... (Hegel, 1952, p 170)

Kant and Hegel are very sim ilar on this point. They both see justice as a matter of a universal principle derived from individual freedom and reason. However, just as

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Kant had problem s with the particular contexts of the unmarried m other and the duelling soldier, so H egel has a problem , this time w ith the broader issue o f poverty. A g ain st the u n iv e rsa lism o f ra tio n a l b e in g , p o v e rty a sse rts the n e e d s o f the particular. It dem ands 'subjective aid ... arising from the special circum stances of the particular case' (ibid, p 149). It also leads to a 'loss of the sense of right and w rong' and even to repudiation of the possibility of universal order: A g ain st n a tu re , m an can claim no rig h t, b u t on ce so cie ty is estab lish ed , p o v erty immediately takes the form of a w rong done to one class by another. (Ibid, p 277)

Thus in H egel, as w ith Kant, there is a crisis of universal ju stice resulting from particular social conditions. The universalised abstract individual is contrasted with particular individual conditions in contemporary society. In Hegel, the problem of individual right and social wrong, what, in modern terms, we call the problem of 'ju st deserts in an unjust society' (Hudson, 1998; A shworth, 2000, pp 214-15; Norrie, 2001b, pp 209-12), is like an open wound. U niversalising the individual away from her particular context is reversed by this pervasive social problem. We are returned from the universal to actual conditions, particularity, with a bum p. From the move to vindicate individual justice (universalising the individual), w e are returned to the actual individual's location in an unjust society. In H egel's own term s, w e could say that we have a new, inconclusive, dialectic in operation, one of the 'universalised p a r t ic u la r ' b e in g re tu rn e d to th e 'r e -p a r tic u la r is e d u n iv e r s a l'. T h e re is no tran scen d en ce here o f the kind for w hich H egel is fam ou s, rather the reverse. H egel's account is left unresolved, a great dialectical m ovem ent subjected to stasis by an unrelenting social condition.11 For n o n -H eg elian s, this d ialectical fo rm u latio n is an in tellectu al m ou thful. However, I think it is a way of explaining the underlying dynam ic of the criminal law. It links together not only K ant and H egel, but also both philosophers with m odern judgm ents on the law of necessity in the English appeal courts. There we saw how the universalistic justice of the law hit a lim it w hen it confronted the problem of hom elessness. The law was not prepared to make the concession Kant and H egel m ade in term s of re-particularising away from the universal, b u t not w ithout regret, with 'deep depression' for the hum anitarian judge. The need to reparticularise was felt, even if it w as not acted upon. I w ant therefore to carry this id ea o f a d ia le ctic o f u n iv e rsa lisin g the p a rtic u la r and re -p a rtic u la risin g the universal forward. Once we have looked in more detail at the developm ent of law around ideas of orthodox subjectivism and moral contextualism , w e will return to it to see how it inform s this development.

11 What is universalised is an abstract image of a free individual, which is then opposed by the need to see individuals in the particularity of their social conditions, their needs and so on. Of course, if poverty were a truly general condition pertaining to crime, then it and its relation to need would have the greater claim to be seen as 'the universal'. This then highlights the contingency in the abstract universal model of the free individual which classical retributive thinking (and m utatis m utan dis the law ) is based upon. It is because of this elem ent of contingency (falseness) in juridical univeralisation that I describe the dialectic of law as the 'universalisation o f the particular', which then must be followed bv the 're-particularisation of the universal', rather than a simple 'dialectic of the universal and the particular'.

The Mysterious Case of the Reasonable Glue Sniffer

Criminal justice: form and substance I am now going to undertake the gear change I described at the beginning of this chapter. I am going tem p orarily to leave the u n iv ersal and the p articu lar and proceed to general problems of the criminal law today, beginning with the prosaic and som ew hat improbable case of the reasonable glue sniffer. M y argum ent will be that the problem s associated with this character stem from the dom inance of the orthodox subjectivist standpoint in this area of the law. Analysing provocation in som e d etail p erm its us to see how orth od o x su b jectiv ism w o rk s, and how its failures invoke a need for a m orally substantivist response. From this platform , I will then describe more generally the conflict betw een orthodox subjectivism and moral substantivism as two different theoretical approaches in the law. These are the two m ain themes of this section. I will then return in a concluding section to the theme of the universal and the particular, linking it to the clash betw een formalism and substantivism in the law. In that section, I will bring together my accounts of the plight of the hum anitarian judge and of Kant and Hegel with the problems of crim inal law theory today. It is how ever now to the law 's more im m ediate problems that I turn. Provocation: the problem o f the reasonable glue sniffer In 1991, Alan M orhall got involved in a fight with a friend who had nagged and chided him over the fact that he w as addicted to glue sniffing (R v M orhall [1995] 3 All ER 658). Morhall beat his friend over the head with a ham m er and eventually stabbed him w ith a dagger. The friend died and M orhall w as convicted for his murder. M orhall appealed on the ground that he had been provoked and that in considering the provocation, the jury should have been able to take into account the fact of his addiction to glue sniffing. It is M orhall's case that gives rise to the second part of this chapter's title. The English law on provocation has both a factual and a regulative aspect. The factual aspect concerns w hether the accused in fact lost his self-control such that he could be said to have been provoked by things said or done by his victim . The regulative aspect is the requirem ent that what w as said or done should have been enough to make the reasonable person do as the accused did (s 2 of the H om icide A ct 1957). W ho is the reasonable person in this situation? The question can be put in terms of the old case of R v Bedder [1954] 2 All ER 801. If an impotent man is taunted by a w om an with whom he tries to have sex so that he is provoked into killing her, is the fact that h e w as im potent to be taken into account in determining w hether the reaso n ab le p erson w ould h av e lo st se lf con tro l in su ch circu m stan ces? Is the reasonable person to be read as the reasonable im potent person? If not, how can one m ake sense of his losing his self-control? U nder the then existing law, B edder's characteristic was not taken into account. In the later leading case of R v Camplin [1978] 2 A ll ER 168, however, the House of Lords held that the reasonable person is one:

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having the pow er of self control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him. (Ibid, p 174)

O n th is b a s is , th e fa c t th a t B e d d e r w a s im p o te n t sh o u ld be r e le v a n t as a characteristic going to the gravity of the provocation, and should be taken into account in consid ering the reaction of the reasonable person. Should M orhall's characteristic of addiction to glue sniffing then be taken into account in considering w hether he w as provoked to lose self-control? The Court of Appeal thought not, because the concept of self-addicted glue sniffing was inconsistent with the concept of a reasonable man. The House of Lords rejected this view, holding that the mere fact th a t a c h a ra c te ris tic w as d iscre d ita b le did not m ak e it irre le v a n t to the reasonable person test. It seem s then that one can depict the law as licensing the idea of the 'reasonable glu e s n iffe r ', ju st lik e the reaso n ab le im p o te n t m an in B edder. T h ere are two problem s here. The first concerns the question w hether there should not be some moral cap on the characteristics that can be taken into account. In Australia, a recent case involved an o bsessiv e p erson stalkin g a young w om an w ho then becam e provoked into killing her boyfriend (Stingel v R (1990) 171 CLR 312). It seem s that in th is co u n try , th e s ta lk e r c o u ld u se h is c h a r a c te r is tic o b s e s s iv e n e s s (h is erotom ania) to help explain w hy he w as provoked. Is there then no end to the h o rrib len ess o f a ch aracteristic th at the law is prepared to recognise as being relevant to the test of provocation? It appears not. Although Stingel's characteristic has been discussed as one the law should not adm it (R v Smith [2000] 4 All ER 289, pp 3 0 8 -0 9 , 311, per Lord H offm ann), it is not clear that there is a real reason for disallowing it. T he second problem con cern s the very idea of the 'reaso n able glue sn iffer'. A ccording to Lord Goff in R v M orhall, talking thus is to caricature the law because all that 'reasonable' means is 'ordinary'. We should therefore speak of the standard of self control expected of the 'ordinary' rather than 'reasonable' glue sniffer (R v M orhall [1995] 3 All ER 658, p 665). However, to talk of the standard of self control to be expected of an 'ord inary' glue sniffer is no more helpful than to talk of a 'reasonable' glue sniffer. How is the jury to gauge how an ordinary person with such a characteristic would react? An 'ordinary' person with an obsessive character or addiction acts like an obsessive or addicted person acts. If the law ceases to say 'reasonable', we get out of the difficulties of talking about such odd creatures as the 'reasonable obsessive', but the underlying problem still exists. Opening law up to the c h a r a c te r is tic s o f th e a c cu se d s u b je c tiv is e s th e re g u la tiv e te st b e y o n d recognition. From being a form of control upon the use of the defence, it is in danger of becom ing an open invitation to it. This second problem is even m ore developed than R v M orhall suggests. R v Camplin [1978] 2 All ER 168, p 174 talks about the relevance of sex and age together w ith such o th er 'c h a ra c te ristics as they th in k w ould affect the grav ity o f the provocation to [the defendant]'. This suggests a limit on adm issible characteristics (other than sex and age) to those directly linked to the provocation. It suggests that

The Mysterious Case of the Reasonable Glue Sniffer

one can distinguish characteristics w hich bear on the gravity of the provocation from those bearing on the person's general level of self-control (A shw orth, 1976, p 300), adm itting only the form er as relevant to w hether the reasonable person is p ro v o k e d . It s u g g e s ts th a t w e c a n d ra w a lin e b e tw e e n m a tte r s th a t a re 'provocative' and persons who are 'provocable' (Smith, 1995). However, this is not necessarily the case. For som eone like the im potent m an in R v Bedder, the taunt concerning his im potence is more provocative, and therefore he is more provocable, because of his impotence. We cannot appreciate his 'provocability' w ithout knowing of the gravity, the particular 'provocativeness', of the taunt to him. If the law is to do justice to his particular situation, it has to recognise that he is more provocable than the average person precisely because of the characteristic at w hich the provocation is aimed - precisely because it is more provocative to him. O nce this is conceded, however, there is no logical reason w hy any characteristic which would make him m o re p r o v o c a b le s h o u ld n o t e q u a lly b e ta k e n in to a c c o u n t. In s h o r t, if p rov ocativ eness d ep en ds upon provocability, then pro v o cability is the issu e .12 However, if the subjective provocability of the accused is ultimately what is at stake, then it becom es harder to deny the relevance of any characteristic, w'hether it is the direct subject of provocation or not. This conclusion was accepted by Lord Diplock in R v Camplin, who agreed that: in strict logic there is a transition between ... a characteristic that m ay be taken into account in assessing the gravity of the provocation ... and ... a characteristic to be taken into account in determ ining ... the degree of self-control to be expected of the ordinary person ... ([1978J 2 All ER 168, p 174)

However, he held that the distinction w as 'of too great nicety' to be upheld. The result o f this 'tran sitio n ' has been an opening of the gates to a w ide variety of ch a ra cteristics. In v ario u s E n g lish cases, w e hav e e n co u n tered alo n g sid e the reasonable (or ord inary) glue sniffer figures like the reasonable o bsessiv e (R v Dryden [1995] 4 All ER 987), the reasonable depressive (R v Smith [2000] 4 All ER 289), and even the reasonable im m atu re and attention seekin g ind ividu al (R v Hum phreys [1995] 4 All ER 1008). Thus, the law 's plight on the defence of provocation is, first, that there is no moral cap on the characteristics which can lead to provocation, and, secondly, that there is no control on the characteristics w hich can be said to increase general provocability. 'R e aso n ab len e ss' or 'o rd in arin e ss' hard ly check the standard of co n d u ct to be exp ected of the o b sessiv e, the d ep ressiv e or the im m atu re and attention seeking. O f course, the law is not happy with this outcom e and recent cases in the Privy C ou ncil and the H ouse of Lords have sought to restrict the defence. Luc v R [1996] 2 All ER 1033 sought to limit characteristics by requiring a

12 The con trary argum ent, that 'p rovocativen ess' and 'provocability' can be satisfactorily distinguished, lies behind the judgments in cases such as R v M orhall [1995] 3 All ER 658 and Luc v R [1996] 2 All ER 1033. It is supported by Ashworth (1976, p 300); for a fuller argument in favour of the position taken here, see Norrie, 2001a, pp 321-22. For other recent commentary on the English law, see Gardner and Macklem, 2001a, 2001b.

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direct link betw een the provocation offered and the accused's characteristics, but it failed to ad d ress the in trin sic lo gical lin k b etw een the p ro v o cativ en ess o f the victim 's deeds and the resultant rising provocability of the defendant such that provocability is the underlying issue. It failed to address Lord Diplock's point that the distinction betw een provocativeness and provocability is of 'too great nicety'. It w as p ro p erly n ot follo w ed in the latest H ouse o f L ords case of Sm ith, w hich maintains Camplin's open door to subjective characteristics. Smith is therefore both correct in its elucidation o f the law and inadequate in its ability to provide any control on the characteristics that are to be taken into account in determ ining the result of a provocation p lea.13 All that is o f real interest in Smith is w hether the in d iv id u a l w as in p s y c h o lo g ic a l c o n tro l; all the m o ra l iss u e s a b o u t w h ich characteristics should be taken into account and how their adm ission should be regulated are lost.14 W hat is the underlying problem in the law of provocation? If we dig down a level, we find that the issue can be understood in terms of m atters of 'justification' and 'excuse' (Ashworth, 1976; Horder, 1992). The law has moved from a position w here provocation w as regarded as a question of the right response, a (partial) justification for killing, to one in w hich it is regarded as a m atter of wrongdoing, but excused. Under the pre-m odem law, provocation existed as vindicated anger and rightful retaliation. An insult had been made and honour was at stake. The accused acted in a state of righteous, and even controlled, anger, with no need for him to lose his self-con trol. K illing w as in short a righ tfu l and ju stified reaction. The m odern law is quite different. In the 19th century, it moved away from the idea of controlled righteous anger to a vision of provocation as resulting from wrongful but p a rtia lly fo rg iv ab le loss o f self-co n tro l in the face o f the p ro v o k in g con d u ct. W hereas rage and loss of self-control had previously not been of the essence of the law, the Victorians moved it to the centre of the picture. The issue now becam e not th a t the accu se d had d o ne s o m e th in g rig h tfu l, b u t ra th e r th a t he had d o ne som ething w rong for w hich he could be partly excused. P rovocation, reducing murder to manslaughter, was seen as a 'concession to hum an frailty' rather than a reflection of m orally justified anger. W hat does this tell us? The core of the law has shifted from the question of how m orally provocative the provocation w as to how psychologically provocable the

13 The Australian approach is to establish two questions where the English approach has one. Where there is a loss of self-control, the first question is whether the provocation was capable of causing an ordinary person to lose self-control, and the ordinary person is attributed any relevant subjective characteristic of the accused. The second question is: where the ordinary person would have lost self-control, was the provocation such as could cause the ordinary person to act as the accused did? H ere, the ordinary person involves an objective test, adm itting only the characteristic of age (Bronitt and McSherry, 2001, pp 265-73). The two questions seem to be focused on much the same issue; perhaps this is why different decisions to reflect or reject individual circumstances are inconsistent, serving only to 'function as a distorting echo of contemporary fears and concerns' (Wells, 2000, p 99). 14 In Canada and the US, this problem has led to calls to address openly the normative content of the ordinary person test: what are the morally acceptable 'ordinary standards' of reaction to particular forms of provocation? (Boyle, 2000 (Canada); Nourse, 1997 (US)). My argument is that the modern law has evolved precisely to avoid addressing openly normative questions, which leaves a dilemma. On one hand, there is a problem in moving to a terrain of openly contestable moral judgments; on the other, it is the case that the law must reach sotto voce for just such moral judgments under the cover of supposedly neutral formal categories (Norrie, 2001a, pp 3 2 2 -3 0 ,3 3 5 -4 4 ).

The Mysterious Case of the Reasonable Glue Sniffer

accused was, and ought to be, in the circum stances of the provocation. In moving from ju stific a tio n to e x cu se , p ro v o ca tio n h as m oved from a m a tte r o f m oral judgm ent to a question of psychological fact. The question o f w hat level of selfcontrol is reasonable is tacked onto the factual question, while questions of moral right and w rong, or a bro ad er m oral, con textu al ju d g m ent of w hat w e should expect from the accused are, in formal terms at least, cut out of the reckoning.15 The law is accordingly unable to impose any m oral cap on the defence, for moral issues have been literally ruled out of court. The problems of provocation stem from the adoption of an orthodox subjectivist standpoint stressing factual mental states such as cog n ition , foresight and, in this case, loss of p sych o log ical self-con trol. The 'reaso n able glue sn iffe r' is a con sequ en ce o f this m od ern ev acu atio n o f m oral substance from the law of crim inal responsibility. The problem with the law of provocation lies with its adoption of an orthodox subjectivist approach to crim inal responsibility. In this regard, it represents but one instance of a general tension in the law between orthodox subjectivism and morally substantive approaches to responsibility. I will now explore this tension between form and su bstan ce m ore g en erally in the law before m oving to a con clu d ing section in which I link these problems to the idea of a dialectic of the universal and the particular. ‘Orthodox subjectivism’ versus ‘m oral contextualism’ C entral to the form ulation of the m odern crim inal law has been the 'orth od ox su b jectiv ist' approach w hich first em erged in the nin eteen th cen tu ry w ith the Victorian Crim inal Law Com m issioners, but which w as given post-w ar significance by the w ork of G lanville W illiams and Smith and Hogan (Williams, 1961; Smith and H ogan, 1999; see Lacey, 1998a for discussion). Their w orks have been extrem ely in flu e n tia l in to d a y 's crim in a l law. In the 'o rth o d o x s u b je c tiv is t' ap p ro a c h , subjective wens rea is part of a package of ideas that emphasises that the individual is in c o n tro l o f h is or h e r a c tio n s . T h u s, p ro o f o f in te n tio n or fo re s ig h t, o f v olu ntariness o f agency and o f rationality, are all signs that the person w as in control when the crim inal act was com m itted. Provocation leads to a partial excuse precisely because the accused was not in control when the crim e w as committed. This idea of a self in control is the 'orthodox subjectivist' agent in the form of an autonom ous subject, responsible for her fate. Since around 1980, this approach has been subjected to a certain kind of criticism. First, it was noted that, despite incessant and som etim es quite polem ical argum ent from leading academ ics, the law stubbornly refused to be com pletely persuaded by the orthodox subjectivist line (Lacey, 1985). For all that judges seem ed generally interested in 'subjectivist principle', so-called 'policy argum ents' kept intruding in

15 As noted above, this is not a claim that moral issues are in fact avoided; rather, they come into play indirectly. Thus in England the process of opening up the reasonable person to particular characteristics was largely driven by the moral figure of the battered woman who kills her partner (Thornton [1992] 1 All ER 306; Thornton (No 2) [1996] 2 All ER 1023; Ahluwalia (1992] 4 All ER 889). In other countries, other figures animate the debate: in Australia, male panic at hom osexual advance and questions of ethnicity have also been significant (Bronitt and McSherry, 2001). In the US, N ourse's accoun t (N ourse, 1997) reflects concern about the availability of the defence to the male when a female partner leaves home.

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ju d ic ia l th in k in g . O n e v iew w as th at su ch h a p p e n in g s sim p ly re v e a le d the com prom ise that principle had to m ake in a less than perfect world; another view, how ever, w as that subjectivist principle w as rightly rejected in certain cases. For exam ple, in rape, the argum ent was made that it was wrong to rest the defendant's liability on w hether he knew his victim w as not consenting to sex, or on whether he was aware that there was a risk she was not (Wells, 1982). That placed too m uch em phasis on safeguarding the defendant and not enough on protecting the victim in circum stances where it would both be easy to enquire about consent, and selfse rv in g n o t to do so. T h e re w as an e le m e n t o f m o ral c o m p la in t a g a in s t the defendant w ho d id n't respect his partner sufficiently even to consider if she was consenting to sex. To make this argum ent w as, how ever, to enter into a d iscussion of the m oral context in w hich agen cy occurred. Increasingly acad em ics began to argue that co n sid eratio n s o f m oral con text or su b stan ce w ere sig n ifican t to d eterm in in g liability alongside questions of the accu sed 's subjective m ental state. Subjective control might be a necessary, but it w as not a sufficient condition. Thus, Andrew Ashworth began to argue that the principle of subjective fault had to be balanced w ith a general social welfare principle (Ashworth, 1999, pp 27-32), and Antony Duff argued that judging wrongdoing w ent beyond the question w hether the accused was in subjective control of his actions (Duff, 1990). For Duff, it was the ill will manifested in a person's actions, w hether he intended or foresaw a particular result, that was im portant (ibid, pp 113-14,177). Crim inal lawyers now began to resurrect ideas that up to this point had been regarded as only of historical interest. The idea of a killing being accom panied by 'ind iscrim inate m alice', an old yet persisting Scots law notion, regarded as essentially void for vagueness in the English debate, began to re-feature in the law of m urder alongside the debate w hether death or serious injury had to be foreseen as a virtual certainty or a (high) probability (Goff, 1988; c f R v W oollin [1998] 3 W L R 382, rem arks o f Lord H ope). In the law of recklessness, Duff suggested a form of 'practical indifference' (callousness) which did not necessarily involve foresight, but equally did not include all those who would com e w ithin an objective reasonable person test. The judges appeared to agree, identifying a form of reckless rape where the defendant w as indifferent or 'could not care less' w hether his victim consented, w hether or not he had foreseen the risk she did not consent (R v Satnam and Kewal (1983) 78 Cr App R 14). M oral contextualism or substantivism is not just seen in cases exhibiting a moral ill will. It is also seen in cases where a defendant possessed a morally good will, yet at the sam e time had the necessary technical m ens rea for a crime. Here, the judges are torn betw een acknow ledging that the crim e is constituted (mens rea is present) and trying to avoid that conclusion. A num ber of cases in this area concern the m edical profession. A doctor who drugs a terminally ill patient knowing that it is v irtu ally certain this w ill h asten d eath p o ssesses in p rin cip le the m ens rea for m urder, yet the conclusion is m orally counter-intuitive. A jury may therefore be directed, as one w as recently, that only purpose to kill will satisfy the mens rea for murder, despite the fact that foresight of virtual certainty is an alternative form of intentional liability (Arlidge, 2000). In another case involving doctors, it w as held

The Mysterious Case of the Reasonable Glue Sniffer

that a doctor who supplied contraceptives to an underage girl did not aid and abet unlaw ful sexual intercourse, even if he knows that to be the consequence of supply (Gillick v West N orfolk and W isbech Area H ealth A uthority [1986] AC 112). Per contra, this narrow ing of the law of intention to exclude its indirect form (foresight of the crim inal result as a virtual certainty) was recently rejected in a case involving conjoined tw ins (Re A (C hildren) [2000] 4 All ER 961, pp 1012, 1029). There it was held that doctors separating M ary and Jodie knowing that Mary would die would intend to kill Mary, their only refuge against a charge of murder being a defence of necessity, or perhaps self defence. H owever, w hen it cam e to dealing with the Hum an Rights Act 1998, under w hich everyone has the right (European Convention, Article 2) not to be intentionally deprived of life, the judges held that no doctor could be said to kill intentionally in the circum stances of Re A (Children) (ibid, pp 1050, 1068). The intention to kill under the Hum an Rights Act 1998 was given precisely the m eaning they had rejected w hen considering intention under the law of m urder (Norrie, 2001b, pp 56-58). In this case, one can say that the judges first reject, then accept, the existence of a contextual m oral threshold concerning how intention is to be judged. They alternate their definition of intention to achieve the desired moral result, that the doctors can operate to save Jodie. The underlying problem is that the legal concept of intention in its technical, de-m oralised form is out of phase with the intuitively desired moral result. In consequence, there is a need to m anipulate the category to achieve the right conclusion. One is tempted to say here that the road to legal hell is, quite literally, paved with good intentions. In a different kind of case, a defendant broadcast for the N azis to save his family from the concentration camp (R v Steane [1947] 1 All ER 813). He w as held not to intend to assist the enem y but only to intend to save his family, despite the fact that only by assisting the enem y could he save his family. In modern parlance, it was virtually certain that broadcasting would assist the enemy. This case predates by 30 years the in tellectu al ch alle n g e to o rth o d ox su b je ctiv ism p osed by the m oral contextualists, but it reveals the intrinsic structural problem for the law. There is som ething m issing in term s of m oral ju d g m ent from the factual, psychological form s of cognitive responsibility the law deploys. The law m isses the underlying contextual and substantive moral concerns that alone perm it a sense of justice. To sum m arise, we see a law that is orthodox subjectivist in its fundam ental forms being challenged by the kinds of argum ents that reflect an interest in the substantive moral context, where this manifests either a morally good or a m orally ill will. The existence of a factual psychological state (the core orthodox subjectivist dem and) is not m orally sufficient to determ ine culpability, yet the law rem ains essentially orthodox subjectivist. It insists that we need to know about intention, foresight and the rest, but such know ledge is not enough to attain the proper judgm ent. This g e n e r a l p ro b le m o f th e in a d e q u a c y o f m e n ta l s ta te s p a ra lle ls the p ro b le m encountered in the previous section of the 'reasonable glue sniffer'. There, too, the factual issue w hether the accused w as in control w as insufficient to answ er the

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moral question within legal judgm ent: is the accused culpable for an offence and, if so, w hich one? In all these areas, orthodox subjectivist form s have to be manipulated to m eet the m orally contextualised need for ju dgm ent. It is this con flict betw een form and substance, between orthodox subjectivism and moral contextualism , that underlies the law 's problems. W hat remains to be seen is how this relates to the broader issue of a dialectic between the universal and the particular outlined in the first half o f the chapter. To that matter, I now turn.

Living with antinomy I now want to link the idea of a dialectic of the universal and the particular and of in d iv id u al and social ju stice on the one hand w ith the d ilem m as o f form and su b stan ce, o f 'fa c tu a l' p ro v o catio n and its m o ral reg u latio n , and o f o rth od o x subjectivism and m oral contextualism in the crim inal law, on the other. Abstract individualism and legal universalisation The key idea which links all this together, the judgm ents of Lord Edm und-Davies, the thought of Kant and Hegel, the m ysterious case of the reasonable glue sniffer and the conflicts and problems around orthodox subjectivism , is the concept of the a b stract in d iv id u al d iscu ssed in my in tro d u ctory com m ents. It is the abstract individual, separated from the social problems that underlie crim e, that is the basis for legal universalisation, and which leads to the threat of a return to the particular. In London Borough o f Southw ark v W illiam s, a hum ane and com passionate judge confessed the 'deep depression' which accom panied denial of the necessity defence to W illiam s. To deny the defence w as to stay w ith the universal, abstract legal individual and so doing to exclude the social particularity of the hom eless. For Kant and H egel, d oyen s of E n lig h ten m en t th in k in g , the m etap h y sical in stin ct is to p re se n t ju stic e as a u n iv e rsal ela b o ra tio n o f in d iv id u al freed om and reason. H ow ever, th eir ab stract ratio n al ind iv id u al is re-p articu larised as the sham ed mother and soldier, or more generally under conditions of poverty, which transform universal justice into the wrong done by one class to another. W hat about provocation and the dilem m as around orthodox subjectivism? Here a g a in , it is th e a b s tr a c t in d iv id u a l th a t is, as it w e re , r e s p o n s ib le . L e g a l individualism is couched in term s of supposedly neutral, universal, factual and p sy c h o lo g ica l m en tal sta te s so th at le g a l p rin c ip le s a p p e a r to b e o f gen eral application. They are to assum e none of the particular moral features of the actual, social individual. The provoked person under the modern law is just a person who loses control, not one with a particular moral claim as to why he lost control. That person is then regulated by a reasonable person test which sets a universal standard for measuring loss of control. However, the test will not w ork because it needs to know som ething about the particularity of the accused if it is to get any kind of h a n d le on ju d g m e n t. Ju s t as K a n t n e e d s to kn o w w h a t to do w ith th e re ­

The Mysterious Case of the Reasonable Glue Sniffer

particularised m other or soldier, killing out of sham e, so provocation needs to reparticu larise the reasonable p erson as the reasonab le p erson w ho is im p otent, a d d ic te d to g lu e s n iffin g an d th e lik e . H o w e v e r, o n c e th e p r o c e s s o f re particularisation of the universal individual is underway, it is very hard to stop it. The insistence on 'v alu e-n eu tral' universalism around an abstract m odel of the in d iv id u a l fro m th e v e ry b e g in n in g m e a n s th a t th e p ro c e s s o f m o ra l contextualisation is one that p ossesses no clearly articulated m oral boundaries. Provocation of necessity involves m oral categorisation, but this occurs in a legal environm ent where all the substantive moral categories have been neutralised in advance by an orthodox subjectivist standpoint. Finally, w hat of the problem s o f orthodox subjectivism more generally? I have a lre a d y said th a t leg al in d iv id u a lis m e n ta ils a s e e m in g ly n e u tra l, fa c tu a l, psychological set of categories. It therefore lacks the substantive or contextual moral information that can make criminal law judgm ents align w ith the moral judgm ents that are necessary. The 'm oral contextualists' recognise this, and seek to supplement the legal categories with the additional moral information that is necessary. This is a particularising supplem ent to the universal mental states of intention, recklessness and the like. Abstract universalisation and re-particularisation In conclusion, I want to represent all the moves w e have discussed in terms of the law 's claim to universal justice around an abstract model of the individual, and an ensuing, necessary 'retu rn of the p a rticu la r'. In London Borough o f Southw ark v Williams, the particular is there but it is rejected, at emotional cost to the hum ane judge. In Kant and Hegel, it is there, and it underm ines their grand theory of a universal crim inal justice. In provocation, the particular is introduced to make the universal reasonable person test w ork, and it ends up by overrunning it. In the debate around orthodox subjectivism , the particular is the moral contextualisation that says that this intention or piece of recklessness is a good one, w hile this one is bad. W hy does this happen? M y argum ent is that the problem for law is that it is founded on an abstract, and therefore false or partial, universal, in the form of the abstract legal subject, rem oved from the social context of actions. The problem of legal u n iv e rsals and the retu rn o f the p a rticu la r is the p ro d u ct o f the p rim al sep aration betw een legal ind ividu al and social context. T his w as a historically engineered separation relating to the need to extricate individual legal (and moral) responsibility from social responsibility and argum ents about w hat was socially just. It is for this reason that the separation betw een individual and social justice represents the 'deep structure' of criminal law debates, even if they rarely mention it, or see it as 'external' to an 'internal' conception of law. It lurks as a ghostly trace, an absent presence, in the law. I s h a ll fin ish w ith m y ra th e r c u m b e r so m e and o p a q u e d ia le c tic , o f 'th e u n iv ersalised particular and re-p articu larised u n iv ersal', lin king it w ith a w ell know'n aphorism of O scar W ilde. It seem s to m e that dem ands for legal ju stice always face us with a quandary. We are urged to 'reach for the stars' of a universal

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justice that can transcend the partial and particular and set w orldly matters to right. At the sam e tim e, w e kn ow en o u g h o f the w ay s o f the crim in al law , at b o th dom estic and international levels, to acknowledge that its practices are already too m uch of this world to resolve our need for a transcendental justice. A t the domestic level, we know that crim e is a social problem associated with poverty, deprivation and poor life chances, and that crim inal justice is in reality a prosaic and profane means of social control. A t the international level we are also only too fam iliar with the claim that crim inal justice is the justice o f the pow erful, 'v icto r's ju stice'. We seem , in con trast to the u n iv ersalisin g id eal's urge to reach for the stars, to be w allow ing in the gutter of som e very u n pleasant particularities. We seem to be caught in a dilemm a between law 's claim s and its realities. However, it m ight also be said that these claim s represent a genuine need and aspiration for the law. It might be suggested that they indicate a mom ent of real utopian possibility (Adorno, 1973, p 150). They provide a glim pse of a judgm ent we should like to be able to make in a world that would be better than ours and for which we could strive. In that sense, legal debate and practice leave us, like Wilde, in the gutter, but looking at the stars.

P a rt 3 Law, H is to r y and Ethics: T h e N a tu re o f C ritiq u e

C h ap ter 8 From Critical to Socio-Legal Studies: T h re e Dialectics in Search o f a Subject

My argum ent, however, is that the m ost vigorous forms of Hegelianism in the twentieth century have been thoroughly unconscious of the fact. (Barnett, 1998, p 296) It is im portant to understand that when logical contradictions are com m itted, they are real constituents of the Lebenswelt. (Bhaskar, 1993, p 58)

The gap between critical and socio-legal studies This ch ap ter is con cern ed w ith the relatio n sh ip b etw een b ro ad ly socio lo g ical approaches to law, with an em phasis on social and historical processes, and critical or 'cultural' approaches with an em phasis on ethical interpretation. N icola Lacey (1996, p 143) has suggested that there is a 'seem ingly unbridgeable gap' betw een critical legal theory and socio-legal studies, w hich she attributes to the narrow and pragm atic horizons of the latter. There is a question, however, as to w hether the relationship is not imperilled on the other side, by the way in which critical legal theory d eals w ith sociolog ical issues. The question is starkly raised in Jacques D errid a's influential essay 'F orce o f law ' (D errida, 1990), w here he d escribes a 'critique of law ' that is 'possible and always useful'. This is 'a critique of juridical ideology, a desedim entation of the superstructures of law that both hide and reflect the econom ic and political interests of the dom inant forms of society' (Derrida, 1990, p 941). Useful it may be, but Derrida leaves this 'sociological' critique well alone in fav o u r o f his p u rsu it o f a 'm o re in trin sic s tru c tu re '. T h is in v o lv e s the 'v e ry emergence of justice and law ' in a 'perform ative and therefore interpretive violence' (ibid). This deeper critique is ethical rather than socio-historical in its form. T h e d istin ctio n rep resen ts a cle ar an d , giv en the im p o rtan ce o f its auth or, emblematic break for critical legal studies. This is not just because Derrida says so little about the first (sociological) critique, but because the elaboration of the second ethical critique proves perfectly possible without reference to it. As a consequence the ethical critique operates not with the 'desedim entation of the superstructures of law ' but, w hatever the underlying intention, against it: the sociological critique is marginalised in 'Force of law '. It could be that this is just a m atter of the content of one essay, and certainly it is not the case that all those w ho have been influenced by d eco n stru ctio n h av e as a resu lt renou nced the exam in atio n o f the so cial and historical forces w hich inform the law. H ow ever, it can n either be denied that deconstruction has licensed w ork of an abstract ethical kind, nor that D errid a's work has been extrem ely influential in critical legal studies (Cornell, 1992; Douzinas and W arrington, 1995).1 I would suggest that there is a theoretical issue within the d e c o n s tru c tiv e e n te rp r is e th a t o u g h t to b e a n a ly s e d so th a t w e can b e tte r understand the gap between the 'social' and the 'cultural' or 'ethical' critique of law. 1

My discussion is of Derrida's essay 'Force of law', which I have sought to read in the light of general commentaries on Derrida's work (Norris, 1991; Lechte, 1994; Barnett, 1998). Nor is my aim to address the range of responses in law to Derrida. Compare for example the work of Cornell and Douzinas and Warrington (1995) with that of Schlag (1990,1991 and 1997). [contd |

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T his chapter accordingly reflects upon the bifurcation o f critical routes in critical and so cio -leg al stu d ies. It exam in es 'F o rce o f law ' from the p o in t o f view o f an interest in w hat deconstruction m eans and does and a concern as to w here it leads. W hy n o t sim p ly d iscard D errid a? For reasons that w ill b eco m e clear, D errid a's 'fo u n d a t io n a l a c t o f v io le n c e ' s e e m s to m e p r o b le m a t ic , y e t I b e lie v e th a t deconstruction rem ains im portant for critical analysis. This m ay seem a paradoxical p ositio n becau se fou n d ational violence is at the core o f his critiqu e o f law. If w e cou ld a n a to m ise the d ifferen t asp ects o f h is essay, h o w ev er, w e cou ld p erh ap s identify ju st w hat is o f im portance in deconstruction as w ell as w hat is problem atic. We m ight thereby find a w ay o f relating it m ore closely to the sociological them es 'force o f law ' m arginalises and o f addressing w hat is gained and lost in the 'ethical turn' in critical legal studies. Perhaps w e could then synthesise the critical pow er of d e c o n s t r u c t io n w ith th e s o c io - p o lit ic a l q u e s tio n s th a t a re in v o k e d b y th e 'd esed im entation ' o f law and power. In short, my questions are these: can w e relate d ec o n stru c tio n to th e lo n g -e sta b lish e d c o m m itm e n t o f th e so c io lo g y o f law to understand law as a site o f structured social pow er, conflict and struggle? Can w e find a theoretical w ay o f brid ging the gap betw een critical and socio-legal theory? T hree dialectics an d the legal subject I shall argu e, con tro v ersially for som e, that the key to u n d erstan d in g D errid a's deconstructive critique o f law lies in locating it in the dialectical tradition, and in p articular in D errid a's am bivalent attitude to H egel. I w ill also argue that in order to unite w hat is im portant in deconstruction w ith issues o f social structure and power, it is n e c e s s a r y to lo c a te th e D e r r id a /H e g e l r e la tio n s h ip w ith in th e fu r th e r d ev elo p m en t o f the d ialectical trad itio n inau gu rated by R oy Bhaskar, d ialectical critical realism (Bhaskar, 1993, 1994). The paper therefore has three m ain sections on (in o rd e r) th e d ia le c tic s o f H e g e l, D e rrid a an d B h a s k a r. In c o m p a r in g an d c o n tr a s tin g th e s e th re e , I w ill h a v e re c o u rs e to th e ir d iffe r in g v ie w s o f law throughout the chapter. M y aim w ill b e to link dialectical w ays o f thinking about law to w ays o f seeing it as a site and source o f socio-historical power. M y aim will be to anatom ise the deconstructive m ethod in a w ay that show s w hat is im portant w ithin it, and w here it falls dow n, in furthering this project. [contd] The profound influence of Derrida and poststructuralism generally on feminist legal studies should be noted. There is an im portant nexus here concerning the legal subject. Nicola Lacey has suggested that there is a 'striking affinity between the feminist argum ent about the contours of the legal subject and that developed within critical legal theory such as that in the criminal law sphere' (Lacey, 1998b, p 198). I also see strong connections m ore broadly between feminist theory and the approach developed here. W hat Ralph Sandland (1998) discusses in deconstructive vein as 'double m ovem ent feminism' describes an approach whose emphasis on 'being and not-being' can be understood as dialectical, and it is significant to recognise the H egelian inheritance in the theorists D rucilla C ornell (1992) and Judith Butler (1987) he d iscusses. W here there is a difference relates to the term s in w hich a D errida-influenced philosophical program m e deals with the problem s it identifies. Thus, as Sandland points out, recent divergent work in double m ovem ent feminism by theorists like Cornell (1995) and Luce Irigaray (1993) seems 'simplv, as a pair, lo repeat the liberalism /determ inism (or radicalism) opposition ... of m uch "m odernist" feminism' so that 'w e seem to be back where w e started' (Sandland, 1998, p 330). The resulting antinom y in feminist legal theory between equality and difference shadows D errida's ow n antinomial approach to law, as outlined below. Sanclland suggests that 'this is precisely where double m ovem ent feminism would expect us to be' (ibid) but he still feels the need to identify a 'third w ay'. This seeks to achieve resolution of the problems he has identified either 'in practice', which is never a solution, or in 'pointing, again, to the beyond' (ibid, pp 334 -3 5 ), D errida's own ineffable conclusion, discussed below.

Three Dialectics in Search o f a Subject

Shortly, we shall com e to the three m ain sections of the chapter. Before w e do, I identify in the next section som e com m on ground for relating Hegel, Derrida and Bhaskar to each other, and for understanding law within the dialectical tradition. The com m on ground is provided by the critique of 'identity thinking'. As will be explained, this is the (contested) idea that objects have a fixed and stable identity, which form s the basis for logical-analytical m odes of thought. Law in particular requires to be able to organise itself around such stable ways of thinking, and legal subjectivity constitutes one source of such fixity. Identity thinking will operate as the key focu s as w e m ove throu gh the three d ialectics of H egel, D errid a and Bhaskar.

Some common ground: identity thinking A t the core of m odern W estern law is a nexus betw een (ontological) questions co n ce rn in g b e in g - a b o u t the n atu re o f s u b je ctiv ity and re sp o n sib ility - and (epistemological) questions concerning the nature of legal thought. In the latter, a logical-analytical m ode of reasoning possesses a virtually unassailable position. This analytical paradigm supposedly system atises law, but oddly, it keeps breaking down (see, eg, Norrie, 1993a, 2001b). W hy does this happen? O ne answer is that it is destabilised - literally - by its subject matter: its conception of the responsible legal s u b je c t. It is c o n flic ts w ith in th a t co n ce p tio n th at u n d e rm in e the a n a ly tica l paradigm. The need for a stable, fixed legal subject reflects a broad problem in w estern philosophy and society that Theodor Adorno, w riting in the dialectical tradition, calls 'identity thinking' (1973,1993; cf Jarvis, 1998, Chapters 6 and 7).2 Such thinking is central to modern analytical philosophy. Bertrand Russell, for exam ple, wrote that there are a 'ce rta in nu m ber o f self-e v id e n t lo g ical p rin c ip le s' w hich 'm u st be granted before any argum ent or proof becom es possible' (Russell, 1973, p 40). They include: (1) The law o f identity: 'W hatever is, is.' (2) The law o f contradiction: 'N othing can be and not be.' (3) The law o f excluded middle: 'Everything m ust either be or not be' (ibid, p 40). If one considers these 'self-evident' laws, there is a clear connection between the epistem ic principles of logic contained in (2) and (3) and the ontic principle of id e n tity co n tain e d in (1). L o g ic, a c h a ra c te ris tic o f th o u g h t, d ep en d s on the possibility of a fixed identity or point of origin, a characteristic of being, such that 'w hatever is, is' (law 1). Sim ilarly, analytical logic requires that 'w hatever is not cannot at the sam e time b e' (law 2) and that 'everything must either be or not be' (law 3). Logic is tied to a certain view of the way tilings are, and this gives it its characteristics. An entity m ust in essence be, as John Lechte puts it, 'sim ple (ie, free of contradiction), hom ogeneous (of the sam e substance, or order), present to, or the sam e as, itself (ie, sep arate and d istin ct from any m ed iation )'. It m u st exclude

2

This chapter does not discuss Adorno's critique of identity thinking. It will become clear that such a critique is shared by thinkers in the dialectical tradition as diverse as Adorno, Bhaskar, Derrida (as I argue) and Hegel. How their different dialectics handle the critique varies significantly. On Adorno, see below, Chapter 9.

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certain features: 'complexity, mediation, and difference - in short, features invoking "im p u rity " or com plexity' (Lechte, 1994, p 106). Yet such features constantly return to disrupt analytical thought. Lechte's com m ents usefully flesh out the dialectical critique of identity thinking, bu t they are interesting for anoth er reason. Significantly, they form p art o f an exposition of the w ork of the deconstructionist Derrida rather than a dialectician such as A dorno or Bhaskar. This brings us to our com m on ground. In D errida's essay on law, a critique of identity thinking - although not in that nam e - is a key elem ent. Law is a natural target for deconstruction because of the pervasiveness there of 'logico-form al paradox' (Derrida, 1990, p 959). This can be dem onstrated, he writes, around ideas of 'the proper and of property', and, m ost significantly for my focus, 'o f the s u b je c t... of the responsible subject, of the subject of law (droit) and the subject of morality, of the juridical or moral person, of intentionality ... and of all that follows from these' (1990, p 931). Such ideas about the legal subject are the sou rce o f 'co m p lexity , m ed iatio n and d iffe re n ce ' in L ech te 's p h rase, for they generate 'logico-form al paradox' in law'. I return to this passage below, for it is at the nub of my interest in Derrida. For the m om ent, however, it is important only to see that the p e rsp e ctiv e it em b races reveals com m o n ground w ith the d ialectical tradition of w hich Adorno and Bhaskar are a part. As with deconstruction, dialectics views the denial of the inherent com plexity of basic entities as wrong. As Bhaskar puts it, analytical reason involves exclusion, an illicit 'contra-position of the logical norm s of identity and non-contradiction' and a false 'presupposition of fixed subjects' (Bhaskar, 1993, p 394). Dialectical thought by contrast is 'the art of thinking the coincidence of distinctions and connections'. The so-called law o f identity at the heart of analytical reason is challenged because 'identity presupposes non-identity, and non-contradiction [implies] incom pleteness and ch an g e', so that 'id en tity is alw ays an abstraction from a process or set of p ro cesses o f fo rm atio n ' (Bhaskar, 1993, p 190). For Bhaskar, qu estio n s of n on­ identity, incom pleten ess and change are encapsu lated in his con cep t o f 'en tity relation ism ', a con cept w hich offers a direct challenge to identity thinking and w hich shares important com m on ground with deconstruction. To recapitulate, these different but overlapping critiques of identity thinking lie at the h eart o f this chapter. The critiq u e o f id entity thinkin g brin g s to geth er the deconstructive and dialectical approaches, and is also central to the critique of law. M y aim is to develop a dialectical critique of identity thinking as it relates to the concept of the legal subject. That is the source of my interest in Derrida, but I want through that interest to consider the nature of the gap betw een critical and sociolegal studies identified by Lacey. Linking these two concerns, I wish to consider the structure of m odern classical dialectics and, in so doing, to relate deconstruction to it. Thus, the paper's 'three dialectics in search of a subject' are, in progressive order, those of Hegel, Derrida and Bhaskar. The subject in question is that of the law, its object, the nature of identity thinking in law'. I turn now to our three dialectics and their treatment o f identity thinking.

Three Dialectics in Search o f a Subject

Beyond identity thinking? Hegel’s non-dialectical dialectic In this section, I consider the critical and conservative elem ents in H egel's original dialectical schem e in order to establish a basis for exam ining later approaches like those of Derrida and Bhaskar. Three m om ents in dialectical thinking To understand Derrida's views on the deconstruction o f law, it is necessary to relate them to the m odern dialectical tradition. It is necessary therefore briefly to start at the beginning of m odern debate, with H egel's reaction to the antinomies in modern Western philosophy identified by K ant (Kant, 1993; H egel, 1975, pp 76-79, 116-19). H egel's solution to Kantian antinom ialism was to acknowledge contradiction and seek to resolve it within a progressively developing dialectical system of thought. Such thought was conceived as part of a real evolving natural, social and historical totality, groping its w ay tow ards a rational unity. The seem ing contradictions of th o u gh t could be recognised and 'su b la te d ' (preserved and tran scen d ed ) in a p ro cess o f d ev e lo p m e n t th at w as both p h ilo so p h ica l and p ra ctica l. D ialectic in v o lv ed a m o v e m e n t b etw een th ree m o m en ts: from w h a t H egel called the Understanding (U), to negative (critical) Dialectical reason (D), and from there to positive speculative Reason (R). The m ovement is represented in Figure l : 3

(failure o f reason > return to D)

Figure 1: Hegel: the separate moments in the dialectical process U = Understanding D = negative Dialectical Critique R = positive speculative Reason

The first of these m om ents, U nderstanding, is the place of analytical or identity thinking in H egel's schem a. In Understanding, Hegel says that knowledge 'begins by a p p re h e n d in g e x istin g o b je c ts in th e ir s p e c ific d iffe re n c e s ' p ro d u c in g a 'stereotype o f each in [its] isolation '. Thou ght acts here 'in its analytic capacity, where its canon is identity, a sim ple reference of each attribute to itself' (Hegel, 1975, p 114), so that, as M ichael Inwood (1992, p 81) puts it, 'concepts or categories are taken as fixed, sharply defined and distinct from each other'.

3

The U -D -R designation of the three moments of the Hegelian system is drawn from Bhaskar, and will be used below to discuss deconstruction and dialectical critical realism. This figure is a variant on Bhaskar (1993, p 22).

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In the second stage, of negative Dialectical Critique (D), contradictions appear. Fixity, definition and distinctiveness, the 'finite characterisations' o f the object, 'pass into their op p o sites' (H egel, 1975, p 116). D ialectic is 'th e ind w ellin g tendency o u tw a rd s by w h ic h th e o n e -s id e d n e s s an d lim ita tio n o f the p r e d ic a te s o f u n derstand ing is seen in its true light, and show n to be the neg ation of them ' (Hegel, 1975, p 117). M ore simply, Inwood (1992, p 81) writes that when we reflect on the seem ingly sim ple analytical categories of the U nderstanding, 'one or more contradictions em erge in them '. These are not ju st contradictions in our subjective concepts or ideas, but also reflect conflict and change in the objective world which ideas reflect. O f this objective world, of w hich thought is a part, Hegel writes that: We are aw are that everyth in g finite, instead of being stable and ultim ate, is rather changeable and transient; and this is exactly w hat w'e m ean by that D ialectic of the finite, by which the finite, as implicitly other than w hat it is, is forced beyond its ow'n im mediate or natural being to turn suddenly into its opposite. (Hegel, 1975, p 118)

Dialectic involves the 'grasping of opposites in their unity or of the positive in the negative'. Recalling Russell's 'self-evident' laws of logic, H egel's view is that formal contradictions, expressed in split and fragm entation, antinom y and aporia, are to be exp ected w ithin an aly tical th o u g h t. The m u tual exclu sio n o f o p p o sites - the analytical w atchw ord of the U nd erstan ding - m ust give w ay to the d ialectical principle of the identity of exclu sive opposites, as Bhaskar (1993, p 20) puts it. F o rm al-lo g ical or an aly tical reaso n in g is acco rd in g ly a necessary b u t lim ited k n o w led g e form su fficie n t for the U n d erstan d in g (k n o w led g e at the lev el of com m on sense or em pirical science), bu t it needs to be subjected to a negative m om ent o f d ialectical critiqu e. T his is the first m ov em ent o f the D ialectic (the identification o f split, contrad iction and antinom y), before a further m om ent of sublation of the contradiction through the w ork of dialectical reason occurs. From the stage of negative Dialectical Critique (D), we thus m ove to the third m om ent of positive speculative Reason (R), which 'apprehends the unity of terms (propositions) in their op p o sition ' (H egel, 1975, p 119). This involves, to quote Inwood again, 'a new, higher category, w hich em braces the earlier categories and resolves the contradiction involved in them '. Dialectical Critique identifies the ways in w hich analytical categories, w hen pressed, reveal how they presuppose their opposites, 'radically d ev elo p in g ] the flaws that they contain and mak[ing] them "pass ov er" ... into another concept or category' (Inwood, 1992, p 82). Speculative reason then repairs the contradiction by revealing how a new richer, more com plete, unity can be forged out of seem ing conflict. How, then, does this theoretical structure operate in relation to a phenom enon like law ? In co n sid erin g this q u estio n , w e w ill id en tify a problem in H eg el's dialectical method. H e g e l’s philosophy o f law: a genuinely dialectical account? The m ovem ent from the position of the U nderstanding to a m om ent of negative Dialectical critique, and then to a further m om ent of positive speculative Reason is seen in H egel's account o f law. As regards legal U nd erstanding, he w rites that logical deduction 'is certainly an essential characteristic of the study o f positive law ', but he adds that such analytical reasoning 'has nothing w hatever to do with

Three Dialectics in Search o f a Subject

the satisfaction of the dem ands of reason or w ith philosophical science' (H egel, 1952, p 20). Legal categories, far from having the fixity that analytical reasoning presupposes, 'pass over into their opposites as a result of their finitude and their dialectical character', a process that is observed by negative dialectical critique (ibid, p 32). H ow ever, the P hilosophy o f R ight restores ratio n ality to law through the positive w ork of speculative reason. Right and ethics, 'the actual world of justice and ethical life', are com prehended in thought and thereby 'invested with a rational form, ie, with universality and determ inacy' (ibid, p 7). That form depicts 'the rich inward articulation of ethical life' and 'the architectonic of that life's rationality' (ibid, p 6). The negative and positive aspects of dialectical reason thus lie at the heart of H egel's account of law. Yet there is a possible tension betw een H egel's negative d ialectical critiq u e o f con cep ts and his su b seq u en t em p lo y m en t o f a p ositiv e specu lative m ethod. H is insistence that p hilosop h y is the 'app rehension o f the p resen t and the actu al, not the erectio n o f a b e y o n d ' d oes not n ece ssarily sit com fortably with his insistence that 'philosophy is the exploration of the rational'. The form er statem ent is com patible with his negative dialectical method (D), the la tte r exp resses the p o sitiv e s p e cu la tiv e m eth od (R ). The tw o on ly co m b in e, h o w ev er, if w e are p e rsu a d e d by the cla im o f p o s itiv e s p e cu la tiv e th o u g h t genuinely to have synthesised thought and reality: that indeed 'W hat is rational is actu al and w h at is actu al is ra tio n a l' (ibid, p 10). V iew in g the w orld and its categories before us, the negative dialectical critique may in fact pull us away from the positive speculative conclusion. It may lead us to the view that reason and the modern world in fact stand against, rather than complete, each other. In my study of H egel's philosophy of punishm ent (Norrie, 1991b, Chapter 4), I arg u ed th a t th is w as in d eed th e c a se . R easo n w as used to re c o n c ile so c ia l con trad ictio n s in the m od ern in stitu tio n o f p u n ish m en t, but it only did so by e x c lu d in g su ch c o n tra d ic tio n s from the p h ilo so p h ic a l u n d e rsta n d in g o f the institution. As a result, issues o f social conflict, which threatened to tear apart ideas o f re s p o n s ib le s u b je c tiv ity , o f the ju s t m e a su re o f p u n ish m e n t, and o f the impartiality of the criminal justice system , can be identified lurking unreconciled at the margins of his philosophy (Norrie, 1991b, pp 77-85; also see above, pp 119-20). They occupy such a position not because they are marginal issues, but because the speculative philosophical method m akes them so. Thus, H egel managed to unite theory (reason) and practice (actuality) by being highly selective in the actualities that he perm itted his theory to reflect. He only united them on th eory's term s, shutting out those aspects that did not fit. This is a particular way of m aking a g e n e r a l p o in t a b o u t H e g e l. F o r a ll h is in s is te n c e on th e p h ilo s o p h ic a l com prehension of the actual world, an ontologically realist dem and, his practice was governed by an idealist philosophy in which thought was always in the driving seat. The price of Hegel's failure to synthesise theory and practice is a theory which seeks to deny or ignore the conflicts it is supposed to rationalise. The effect is to return the analysis to the con trad iction s w ith w hich it started, and so d oing to reinstate them. Since they have not been resolved, they becom e part of the accepted ontological furniture of the world. This leads, as Bhaskar (1993, p 27) puts it, to the 're-appearance of a Kant-like rift' in Hegel's representation of reality. In effectively establishing reason as the arbiter of reality, Hegel gives it a fixity and certitude it

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does not deserve and is untrue to dialectical method. Reason is used to 'fix' reality, and is in the p ro ce ss itse lf g iv en a c erta in fixity, u n d e rm in in g its d ia le ctica l character. Down this path, H egel's idealism is guilty of the sam e crim es of which it accuses the Understanding. It sees things in a one-sided, detotalised way, so that H egel's idealist dialectic itself needs to be exposed to dialectical critique. O ne can see this in H egel's d iscussion of legal reasoning. In the P hilosophy o f R ight, H eg el w rite s, as w e hav e see n , th a t lo g ical d e d u ctio n is an 'e s se n tia l characteristic of the study of positive law'. However, this 'deductive method of the Understanding ... has nothing to do with ... reason or with philosophical science' (H egel, 1952, p 20). The latter starts from the failu re of such concepts, and their inherent tendency to 'pass over into their opposites as a result of their finitude and th eir d ialectical c h a ra c te r' (H egel, 1952, p 32). For H egel, how ever, th is bold statem ent of the inad equacy of the U nd erstan ding for grasping law' ultim ately seem s hardly to m atter for legal practitioners can, it transpires, carry on pretty much as before. Thus, in his Logic, H egel presents the Understanding of law as 'alw ays an elem ent in thorough training' which consists in 'grasp[ing] the objects in their fixed character'. Such training then flows into legal practice: 'the judge m ust stick to the law, and give his verdict in accordance with it, undeterred by one motive or another, allowing no excuses, and looking neither left or right.' He m ust 'fix his eye on the definite point in question' (Hegel, 1952, p 114). But if the negative dialectical critique of law is valid, how can the practical judge find things so easy? W hen pressed dialectical!}/, would not a verdict 'in accordance with law ' pass over into its opposite? H ow could one 'stic k to the p oint in q u estio n ' if it turns out that the po in t in question contains its own dialectical negation? W here categories necessarily break apart in theory and in practice, it is im possible to m aintain w hat in effect is a theoryp ractice sp lit betw een the p h ilo so p h y o f law and the theory o f legal practice. H owever, this is w hat H egel calls for: a 'K ant-like rift' appears in his argum ent between theory and practice. A world safe for the Understanding It is as if the speculative method of Reason (R) can restore the disruption caused by th e n e g a tiv e D ia le c t ic a l c r itiq u e (D ) a n d r e in s ta te th e c a te g o r ie s o f th e U nderstanding (U). For Hegel, as Bhaskar puts it, 'Positivity and self(-identity), the very characteristics of the understanding, are always restored at the end of reason' (Bhaskar, 1993, p 27), so that one might say that Hegelian dialectic ends up m aking the world safe for the U nderstanding, against the radical im plications of its own negative critical m om ent. Because of this (ultim ately) undialectical character of H egelian d ialectic, it m akes a bad startin g -p o in t for d oing w hat H egel said it should: apprehend the present and the actual, comprehend what is. Always there is the rid er th a t su ch a p p reh e n sio n is the e x p lo ra tio n o f the ra tio n a l, b e cau se com prehension of w hat is 'is reason' (Hegel, 1952, pp 10-11). This rationalisation of the real turns a critical analysis into a buttress for the Understanding, while failing to resolve, and thereby surreptitiously maintaining, the underlying contradictions contained within its categories. There is a failed engagem ent between reason and reality which underm ines the U -D -R progression. M arked in Figure 1 above as the broken arrow ed line back from R to D, it effectively delivers H egel back to the contradictions at D that R was supposed to transcend. The failure of R leads to a fall back to an uncritical antinom ialism at D.

Three Dialectics in Search o f a Subject

If we now turn from Hegel to Derrida and deconstruction, we shall see how this U -D -R m ovem ent, with a fallback from R to D, is shadow ed by Derrida, leading to a different but parallel impasse.

Beyond identity thinking I: deconstruction as dialectic The previous section has set out H egel's critique of identity thinking, explored its significance to law, and exposed the problematic character of its rational resolution (at R in Figure 1) of the conflicts (at D) that H egel's negative dialectical critique had established. In this section, I exam ine Derrida's deconstruction of law in the light of the foregoing, in order to consider its limits as a critical form of knowledge. To do so, I w ill invert the order of the previous section. I w ill begin by outlining the co n trib u tion o f d eco n stru ction to the critiqu e o f law, and then con sid er som e problems w ith it. I will then argue that the lim its of deconstruction stem from its character as a form of dialectics within the Hegelian tradition. As dialectical theory, d eco n stru ctio n d iffers sig n ifica n tly from th at o f H egel, b u t also h as m u ch in com m on with it. It shares a m om ent of negative Dialectical critique (D), w hich is seen in deconstruction's persistent search for 'logico-form al paradox' (Derrida, 1990, p 959). It also possesses an inverted counterpart to H egel's rationalising strategy (R) in the shape of deconstruction's 'm ad', 'm ystical' moment. In w hat follows, I have termed this m om ent, which is the foundational act of violence Derrida finds before the law and reason, 'unReason' (uR). This characterisation reflects both the idea that we are dealing with a 'm adness' before reason, and also indicates the parallel place o f this m om ent in D errid a's th o u g h t to that o f sp ecu lativ e reason in H egel's. Derrida's parallel m ovement is described in Figure 2:

(fallback to D, into antinom y)

Figure 2: Derrida: the separate moments in the deconstructive process U = Understanding D = negative (Dialectical/Deconstructive) Critique (of 'logico-formal paradox') u R = unReason: deconstruction as ethical 'madness' before reason

Note that, as with Hegel, there is a fallback into antinomy, a rediscovery of 'Kantlike rifts' in Derrida. These he calls aporias, as we will see below. I begin, however, by ou tlin in g how d econ stru ction prod uces w hat I argue is D e rrid a's n egative dialectical/deconstructive critique of law (D). W hile supporting this critique, I recall the two approaches to law w hich D errida identifies in 'Force of law ', the socio­ political and the ethical, and the m arginalisation of the socio-political that ensues. H ow and w hy d o es this m a rg in a lisa tio n o ccu r? I argue th at it is en ab led by Derrida's use o f the inverted counterpart to Hegelian reason (uR) just described. I

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employ this analysis to com pare and contrast H egel and Derrida, and to show how D errida's location w ithin the H egelian tradition leads him to reinstate antinom y uncritically as the core of his account of law, while the social and the historical is excluded from consideration. Deconstruction as negative dialectical critique o f law In Derrida's essay on law, he w rites that deconstruction 'is generally practised in two ways or styles, although it most often grafts one on to the other'. One w ay takes the 'apparently ahistorical allure of logico-form al paradoxes' while the other, 'm ore historical or more anam nesic [recollective], seem s to proceed through readings of texts, m eticulous interpretations and genealogies' (Derrida, 1990, p 959). Historical gen ealogy and the d em onstration of logico-form al paradox are em inently suited, Derrida suggests (ibid, p 931), to legal analysis because law 's em phasis on formal lo g ic is also a state m e n t o f its ow n ahistory, and b o th in v ite d eco n stru ctio n . D econstruction starts by 'destabilising or com plicating the opposition betw een ... law, convention, the institution ... and nature ... with all the oppositions that they condition' (ibid, p 929). A central concept in Derrida's thought is that of differance, a term which signifies the constant slippage of m eaning from sign to sign. M eaning is never com plete, and the consequent identification of 'differences' within concepts is alw ays 'd e fe rre d ' w ith in an aly tical th o u g h t (cf N o rris, 1991, p 32). Linked to differance is the idea o f su p p lem en ta ry , the idea of an additional elem ent introduced to buttress an argum ent which proceeds to underm ine its main prem ises. There is always surplus m eaning, a supplem ent that is both necessary to the concept and too much, going beyond it (cf Fitzpatrick, 1991b, p 2). Deconstruction also brings out, as we saw in our discussion of identity thinking, the parad oxes o f values contained in the ideas of the proper and property, the subject, the responsible subject, the subject o f law and morality, the juridical and m oral p erson, and m en tal states such as in ten tio n ality (D errid a, 1990, p 931). D errida d oes not develop these ideas bu t they are clearly sugg estiv e for legal analysis. I have argued indeed in previous chapters that problem s associated with the opposition betw een legal and m oral responsibility do engender conflicts and contradictions around the idea of the responsible legal subject. Legal categories, expressed in 'tech n ical' ju rid ical term s, exclude and repress broader m oral and p o litic a l m e a n in g s th ro u g h a c o n c e p tio n o f le g a l s u b je c tiv ity . A lth o u g h deconstruction has not been my approach, I find com m on ground with Derrida. These problems can be related to the undecidability of categories, their invocation of su p p le m e n ta rity and d iffera n ce. S u ch p ro b le m s are in d ee d , as D e rrid a says, problem s of the legal subject qua responsible subject, and problem s of the juridical individual. To relate this to w hat has been said already, the com mon ground around these concepts exists by virtue of the critique of identity thinking with which we started, and which we pursued through Hegel. It is the nature of the legal subject and its 'id en tity ' that generates the d ialectical/d econ stru ctiv e conflicts in legal thought. Thus Derrida's w ork can be seen to involve a negative Dialectical critique (D in both Figures 1 and 2 above) of the com pleteness of legal subjectivity and any logic based upon it. The point is that there is a real rapprochem ent betw een dialectical and deconstructive approaches around this m om ent of negative dialectical critique in

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the probing of 'logico-form al paradox', but that this is not enough. We must also bear in mind w hat I said in Chapter 1 about the gap betw een the ethical and the sociological in Derrida's thought. Consequently, we need to consider more fully the nature of deconstruction and its nature as dialectical theory. If deconstruction relates D errida to the negative critical side of H egel, and thence to the possibility o f a critiqu e o f legal categ o ries, I sh all now argue that there is an o th er sid e to his thought w hich links him - albeit in an inverted way - to H egel's ethical rationalism. Here we need to com pare Derrida as the purveyor of 'm ad', 'm ystical' unReason (uR) with H egel as the philosopher of positive speculative Reason (R). I begin by recalling the two critiques of law described in the introductory section. Two critiques o f law and deconstruction We saw in the introduction to this chapter that Derrida identifies two critiques of law, but only pursues one. The first, which he sees as useful but puts aside, is 'a critique of juridical ideology, a desedim entation of the superstructures of law that both hide and reflect the econom ic and political interests of the dom inant forms of society' (Derrida, 1990, p 941). Such a critique is 'possible and alw ays useful', but Derrida is more interested in a second critique of a 'm ore intrinsic structure', which involves the 'very em ergence of justice and law ' and w hich consists in a 'coup de fo r c e ... a p erfo rm ativ e and therefore interp retiv e v io len ce'. Such v io len ce is a foundational act and as such is 'neither just nor unjust', neither 'legal nor illegal', a foundation that is 'm ystical' (Derrida, 1990, pp 941-43). This fundamental coup de force gives rise to the main problematic of 'force of law '. This problem atic is founded on oppositions between legal justice as regular and calculable, and a deeper sense of justice that goes beyond law, that is singular and incalculable, and which ultimately evades description. This second critique entails a seem ingly deeper sense of deconstruction than that w hich w e have already discussed. It goes beyond exploring logical paradox or historical genealogy into a more com plex ethical project that links deconstruction to a quest for the m eaning of justice. At this deeper level, deconstruction of a present legal justice resorts to an 'infinite "id ea of ju stice", infinite because it is irreducible, ... owed to the other ... before any c o n tra c t... without calculation and w ithout rules, w ithout reason and ... rationality'. This infinite justice involves a 'm ad n ess' and 'perhaps another sort of m ystique', and deconstruction 'is mad about this kind of justice' which 'isn 't law, [and] is the very m ovem ent of deconstruction at w ork in law and the history of law ' (Derrida, 1990, p 965). Justice in this sense is elusive and ineffable. On the one hand it appears to be an absolute and infinite m om ent that is u n ca p tu ra b le in la n g u a g e o r fo rm , on the o th e r it seem s to be the sp ace o f m ovem ent betw een the finite and the infinite, a restless and unsettled space of critiqu e. W hichever reading is correct,4 it is im portan t to see that in D errid a's

4

There is an ambiguity between justice and deconstruction as dynamic, restless and processual, that exists in an intermediate place, an 'interval' and a more static and absolute - if ineffable conception of justice, caught in the idea of justice as undeconstructible: 'Justice in itself, if such a thing exists, outside or beyond law, is not deconstructible. Deconstruction ... takes place in the interval that separates the undeconstructability of justice from the deconstructibility of droit [la w ]...' (Derrida, 1990, p 945).

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account, d econstruction stands for both a m om ent of critiqu e, o f history and o f form al logical parad ox, and for a broad er eth ical critiqu e that inv okes a m ove beyond history and paradox, to a m om ent of foundational 'violence'. This second critique leads D errida to m arginalise the social and historical d im ension in his account of law and this seem s to me fundam entally problem atic for the lim it it im poses upon a critical project. It appears to present a m etaphysical barrier to a social and political critique of law. The reason it does so, I will now argue, is that in it, Derrida reveals the problematic side of his allegiance to the Hegelian tradition. D errida as Hegelian At first sight, this linking of Derrida and Hegel may seem unlikely. For Christopher Norris, Derrida's deconstructive critique exposes H egel 'to a dislocating m ovement beyond all grasp of d ialectic', w hile dialectic is seen as bu t 'on e chapter in the W estern tradition of logo-centric discourse pushed up against its lim its' (Norris, 1991, pp 76, 87). Hegelian dialectic is then surely a part of the problem rather than the solution for deconstruction. Recent work, however, depicts a more am biguous view of H egel's relationship to Derrida. Stuart Barnett sees H egel as em bodying 'both the culm ination of the Western philosophical tradition and the beginning of its dissolution'. Com pared with deconstruction, Hegel represents not only the 'm ost com plete m anifestation of that w hich deconstruction seeks to un do' but also an o pening up of 'th e p ossibility of the task o f thinking difference' (Barnett, 1998, pp 26-27). The am biguity is in Derrida himself, w ho can write both that a 'definition of differance ... would be precisely the limit, the interruption, the destruction of the Hegelian releve wherever it operates' (Derrida, cited in Barnett, 1998, p 26) and that H egel is him self 'the thinker of irreducible differance' (Derrida, 1977, p 26).3 W hy does Hegel occupy so am biguous a place in Derrida's thought? T h e a n s w e r lie s in r e c a llin g th e d is tin c tio n b e tw e e n the tw o d ia le c tic a l m ovem ents in Hegel: of negative Dialectical critique (D) and positive speculative R eason (R) (see Figure 1 above). The first is the intellectu al labour involved in fin d in g 'th a t ev ery th in g fin ite, instead o f b ein g stable and u ltim ate, is rather changeable and transient' so that 'the finite, as im plicitly other than w hat it is, is forced b ey o n d its ow n im m ed iate or n atu ral b e in g to tu rn su d d en ly in to its opposite' (H egel, 1975, p 118). The second is the work o f resolution (at R) of the conflicts identified at D by the unifying power of speculative reason, the recognition that 'W hat is rational is actual and w hat is actual is rational' (Hegel, 1952, p 10). Com pare this with Derrida. We saw how deconstruction initially reflects Hegel's idea of pushing concepts to their limits, of displaying within them their paradoxical and contradictory character. In terms of the U -D -R m ovem ent, deconstruction in this sense is a (D) mom ent of dialectical negation. W hat of the latter, further, mode of deconstructive critique - as the m ovem ent betw een the finite and the infinite, or as the m om ent of a mystical infinitude (madness)? Here lies a significant difference betw een Hegel and D errida, though ultim ately it is insufficient to take Derrida beyond Hegel. Derrida refuses the second dialectical move of reconciliative Reason (R), declining to repair the dialectical contradiction that deconstruction has brought 5

For discussions of Hegel, see Derrida (1977, 1978 and 1986). This ambiguity gives rise to a parallel ambivalence in Derrida's understanding of his own position vis-^-vis the modern classical tradition in philosophy: see Derrida (1990, p 966).

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out. To the contrary, the aporias of the finite and the infinite are sustained so that the re fu sa l to m o v e fro m D to R h o ld s o n to a le v e l o f c ritic a l n e g a tiv ity in the deconstructive enterprise. A t this point, the further move he m akes to what I have called u n R easo n (uR ) d istin g u ish e s him from H egel, b u t by how m u ch ? M y suggestion is that there remains a close parallel in the overall pattern of H egel and Derrida's thought. Both possess an abstract m etaphysical m om ent (R in Hegel, uR in Derrida).6 Further, it is this shared m etaphysical patterning that leads Derrida, like Hegel, to m arginalise social pow er and historical structure in his philosophy. This returns Derrida ultimately, like Hegel, to an uncritical acceptance of the most basic antinom ies of m odem society. D e rrid a’s ‘Kant-like rifts’ and his lim it 'M ad n ess', or u nR eason (uR), acts for D errida as a pseud o-free m om ent w hich serves ultim ately to return his p hilosop h y to the antin om ies id entified by the negative d econstructive/dialectical critique at D. The significant discussion of law in 'force of law ' is taken up w ith the recitation of a series of 'aporias' of justice and droit which remain the unresolved terrain of the law (Derrida, 1990, pp 959-73). In fact, says Derrida, there is only one aporia that takes m any form s, that between finite law and infinite ju stice (ibid, p 959). H is elaboration o f the aporias w hich entrain this basic form is acute, but w’hat exactly is he telling us about the nature of law that is not already known? The distinction betw een the finite and the infinite could be dutifully re-rendered as the general opposition between the particular and the universal, while justice versus law echoes the tired opposition betw een natural and positive law. This representation of well-know n oppositions in new language is accom panied by an indication that legal justice should both be transcended and not transcended (ibid, pp 947, 971), which is just to repeat the aporia in Derrida's own philosophy. Thus his pow erful insistence on negative dialectical critique ends up m arching us back into the arm s of the law and its existing antinom ies. The old oppositions are sim ply repeated in modern forms, producing no great flurry in the jurisprudential dovecotes. At the sam e time, there is another price to be paid with Derrida in terms of the marginalisation of the social, the political and the historical in the critique he sets aside. Like Hegel, he has a negative dialectical critique accompanied by a further metaphysical position. W hat Hegel sought to resolve through speculative reason, D errid a refers to as the 'm a d ' and the 'm y s tic a l', to the m e ssia n ic tra d itio n associated with Levinas, to provide a m om ent beyond, that is always-still 'to com e' (Derrida, 1990, p 959). Deconstruction in this 'd eep er' metaphysical form is still in the orbit of K ant and H egel,7 and, as a result, steers critical thought in an immediate

6

7

Derrida (1999, p 249) denies that he is guilty of metaphysical abstraction, for deconstruction in pursuit of 'messianicity' refers in 'every here-now to the coming of an eminently real, concrete event'. The problem is that what he calls the 'real' and the 'concrete' involves 'the m ost irreducibly heterogeneous otherness', which is always coming, and never arrives. In other words, this is a metaphysical and abstract conception of the real and the concrete. At one level, but only one, Derrida would accept this. As Christopher Norris notes, mostly, Derrida acknowledges that he has to 'bore from within', so that his own work is 'inseparably tied to Western philosophy' (Norris, 1991, p 49). But Norris also notes that there is what he describes as a 'theme of Utopian longing for the textual "free play" which would finally break with the instituted wisdom of language which 'emerges to anarchic effect in some of riis later texts', and which by implication is Derrida's 'way out'. My argument is precisely that this is not a way out.

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ethical direction. Recall the critique of law that Derrida sets aside, the one that deals with 'juridical ideology' and the 'desedim entation of the superstructures of law that both hide and reflect the econom ic and political interests of the dom inant forms of society' (ibid, p 941). It rem ains at the margin of the essay silenced by the seem ingly deeper critique of violence associated w ith his ineffable metaphysical ethics of law and justice. We should have learned enough from Derrida him self about centres and margins to rem ark upon the significance of this silent critique on the m argins of 'force of law '. Equally, if deconstruction, in its negative critical m om ent is concerned with revealing and recalling the forgotten history of concepts, should not this socio­ p o litic a l critiq u e be an in trin sic and n e c e ssa ry asp e ct o f d ec o n stru c tio n , not som ething to be politely acknowledged then ignored? W hile Derrida may reject the w ork o f positive specu lative Reason after his negative D ialectical critiqu e, it is noneth eless a m etaph ysical critiqu e as the neg ativ e m irror of H egel - p o sitive speculative unReason, w e might say - that is Derrida's refuge. Such a critique takes us to a place of em pty transcendence w hich in fact m arginalises the recourse to history and politics that deconstruction in its negative dialectical form had invited. With Derrida, the issues are short-circuited by a reference to a m etaphysical violence which is ahistorical and can only tell us that every law in every time is derived from a justice that lies beyond its particularity. D errid a and the socio-legal In my introductory com m ents to this chapter, I asked if there was not som e basis in modern critical legal theory for the failure of dialogue with socio-legal theory. This, I arg u e, is it: th at w o rk d e riv in g from D e rrid a , in m o v in g from the n e g a tiv e d eco n stru ctiv e (d ialectical) critiqu e o f con cep ts to a con cep tio n o f the ethical, bypasses the terrain of the social and the political. It ends up with a reflection on existing social form s and practices w hich em braces their actuality in the nam e of general categorical oppositions such as that betw een the finite and the infinite. This is not to say that much good work is not done in the nam e of deconstruction in the m anner of its genealogical style, or through its negative critical approach w hich causes tall concepts to tremble. However, because of its insistence on an abstract ethical m om ent of transcendence, deconstruction has an inbuilt counter-tendency to m a rg in a lise the h is to ric a l and the g e n e a lo g ic a l an d , o n ce the co n ce p ts hav e trem bled, they tend to be restored to their previous positions in the world. This happens becau se the route has been blocked that would link such concepts to historical structures and social power. T h e q u e s tio n th en is w h e th e r it is p o s s ib le , a fte r H egel and D e rrid a , to understand d ialectical method or d econstru ctive critiqu e in a w ay that avoids immediate and em pty ethical conclusions and reconnects it with the social and the historical. To provide a partial answ er to this question, I now turn to dialectical critical realism.

Beyond identity thinking II: dialectic and socio-historical critique I say a 'partial' answ er because there is an initial problem to mention. Dialectical critical realism in v olv es a d ev elo p in g and p o ten tially far-reach in g th eo retical

Three Dialectics in Search o f a Subject

project, but it is one that is both incom plete and contested.8 It is indebted to the w ork of Roy Bhaskar, but this has undergone several developm ents, and there is substantial debate w ithin critical realism both as to how consistent the different phases in his thought are, and as to w hether his dialectical philosophy is internally co n siste n t. T h is issu e is p a rtic u la rly p ro b le m a tic h ere, for p re cise ly w h at is contested with regard to Bhaskar's dialectics is the relationship between the social and historical critiqu e of identity he develops and the nature of the ethics that should accom pany it. I do not think that dialectical critical realism , as currently form ulated, has got this right (Hostettler and Norrie, 2003). Thus, at the very point where I wish to find a w ay in dialectics beyond Hegelian and Derridean metaphysical abstraction, dialectical critical realism fails to provide a full answer. N onetheless, this approach does offer a way forward in that it places a s tro n g e m p h a sis on re in sta tin g a lev el o f so c io -p o litic a l c ritiq u e w ith in the dialectical process as a sine qua non of ethical judgm ent and practice. It therefore provides a counterpoint to the dialectical theories w e have considered by making Derrida's first, marginalised, question central to the critique of identity. I propose therefore to focus narrowly on the relevance of the level of socio-political critique to the q u e s tio n s o f id e n tity and lo g ic a l th o u g h t w h ich w ere e x a m in e d in the Introduction, while acknow ledging the incom pleteness of the argum ent as a whole. In so doing, I want to preserve the negative Dialectical m om ent (D) in both Hegel and Derrida, but to relocate it away from the direct ethical or m etaphysical nexus that they give it (either as R or uR). I do this by insisting on social and historical co n te x tu a lisa tio n as the n ecessary p relu d e to eth ical and p ractical q u estio n s. Dialectical critical realism enables this w ithout having resolved som e of the further questions it necessarily prompts. C om pared to the d ialectical schem ata exam ined thus far, B h ask ar's dialectic conceives of four dialectical m om ents where Hegel and Derrida see three. Located between the world of social phenomena and their ethical judgm ent is the level of socio-political structure and history. N egative critical w ork at D is further related to th e c r itiq u e D e rrid a m e n tio n s b u t s id e lin e s , th e 'd e s e d im e n ta tio n o f th e superstructures ... that both hide and reflect the econom ic and political interests of the dom inant forms of society' (1990, p 941). It is only on the basis of a grounded social and historical critique of the structural foundations of the form s of identity that a dialectical ethics and practice should be erected. To the U -D -R m ovem ent of the Hegelian dialectic (and its Derridean counterpart, U -D -u R ), Bhaskar establishes a richer m ovem ent from U to D (this rem ains constant in all three thinkers) to SocioH istoric C ritiqu e (SH C ), and thence to ethics and practice (E +P ), as set out in Figure 3:

8

Bhaskar and N o rrie, 1998 provides a brief overview , but one that does not bring out sufficiently the problems in the field. W hat follows is in part my own interpretation of how the dialectical critical realist schema should be presented.

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U ------------------------►

D ------------------------►

SH C --------------* - E + P

Figure 3: Bhaskar: moments in the dialectical critical process U = D = SHC = E+P =

Understanding negative Dialectical Critique Socio-Historic Critique Ethics and Praxis

In term s of this schem a and the com m ents above about the lim its of dialectical critical realism , my focus w ill thus be upon the m ovem ent from the critique of identity (at D) to the level of Socio-Historic Critique (SHC). I will not seek to clarify the further m ove to ethics and p ractice (E +P ). T he essen tial con cep t I w ish to develop is that of 'entity relationism ' as the dialectical critical realist opponent of identity thinkin g. E ntity relation ism p o sits the so cio -h isto rical relatio n ality of phenom ena and the consequent failures o f identity to w hich this gives rise. One could approach it in a variety of w ays. I will introd uce the con cep t through a discussion of Bhaskar's treatment of the relationship betw een structure and agency as a meta-problem in social science. This leads to a view of agency, subjectivity and identity in a relational field that is intrinsically social, historical and dialectical. In the field of law, this can be related to Derrida's 'logico-form al paradoxes', which are seen directly as the site of issues of the 'desedim entation' of power. It is therefore an appropriate way into thinking about the dialectical critique of law. Dialectical critical realism and the critique o f identity thinking Before its dialectical turn, critical realism evolved the key idea o f 'ontological depth' as a w ay of explaining how phenomena are related to and explained by structures u n d erly in g them . T h is con cep t lies at the core o f d ia le ctical critical realism 's insistence on the im portance of the socio-historical critique of identity. I begin by explaining the idea of ontological depth and then move to see how it grounds the stru ctu re/ agency problem atic in social science. Thereafter, I m ove to the idea of 'entity relationism ' which lies at the core of dialectical critical realism.

Ontological depth Critical realism evolved out o f an orientation to the natural sciences, in which it maintained a central distinction between questions of ontology (what the world is like) and of epistem ology (what we know of the world). For science to be possible, it is necessary to posit a world that contains ontological depth, that is a view of the world as made up of natural kinds, emergent properties, and causal structures, all existing within a stratified whole. Scientific investigation consists in the exploration and explanation o f the w o rld 's phenom ena in term s o f their location in such a whole (Bhaskar, 1975,1997). From that starting-point, Bhaskar w ent on to develop a parallel account of the social sciences w hich acknowledged both the sim ilarities and the intrinsic differences betw een the subject m atters of natural and social science (Bhaskar, 1979,1998; cf Benton, 1977; Outhwaite, 1987; Sayer, 1992; Collier, 1994). As

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with the natural sciences, the social sciences deal with em ergent properties, causal structures and a stratified world, but unlike them, the ontological depth of the social world is mediated by hum an agency. W hile social structures are a social scientific analogue of causal structures in nature, 'unlike natural m echanism s, they exist only in virtue o f the activities they govern and cannot be identified independently of them ' (Bhaskar, 1979, p 48). Such activities are the product of hum an beings qua intentional agents, so that social structures do not exist in d ep en den tly o f their intentional actions, or their conceptions o f w hat they are doing when they act. Yet social structures are ontologically real entities in social life, underpinning, enabling and conditioning activities and identities.

The structure/agency problem This ontological relationship between social and historical structure and intentional agency and subjectivity in the social sciences brings us to the point at which critical realism addresses the agency-structure problem. Here, Bhaskar seeks to overcom e a longstanding dichotom y in sociology betw een the voluntaristic tendencies of the Weberian tradition and the reificatory tendencies of the Durkheimian. He develops a 'Transform ative M odel of Social A ction' in which 'social structure is a necessary condition for, and m edium of, intentional agency' but intentional agency is also 'in turn a necessary condition for the reproduction or transform ation of social form s' (Bhaskar, 1993, p 154).9 In the con nected ness of social structure and ind ividu al identity and agency, there is a two-way relationship. From the view point of identity and agency, 'intentional causality w ould be im possible w ithout m aterial causes which pre-existed it' and, from the view point of structure, 'social material causes exist only in virtue of the embodied intentional agency which reproduces a n d /o r transform s them ' (Bhaskar, 1993, p 155). This ontological relation of structure and agency involves both mediation of agency by structure and the reproduction and transform ation o f structure by agency. It entails 'd ual points o f articu latio n ' of stru ctu re and a g en cy w hich are the 'd iffe re n tiate d and ch an g in g p o sitio n ed practices' which hum an agents occupy but also act to reproduce or transform . It is these which constitute the structural system s of social relations in w hich intentional h u m an activ ity o ccurs. U nd er this m od el, tran sfo rm ativ e activ ity 'rep ro d u ces a n d /o r m ore or less transform s, for the m ost part unw ittingly, its conditions of possibility', which include 'social structures and their generative m echanism s ... the agent herself and, generally, w hat w as given, the donne ... w hich has now been reproduced or transform ed' (Bhaskar, 1993, p 155).

9

Lurking behind these apparently simple statements lies a large debate in the social sciences between a variety of theories that have sought to un derstand the relationship between structure and agency. To the fore in this has been the work of Antony Giddens (1979), with which Bhaskar at one time found substantial agreement. However, Margaret Archer (1995) has show n, and developed, the im portant im plicit differences between the two approaches. Describing Giddens s structuration theory as conflating structure and agcncy, and as eliding their differences, she argues that the transformational model can sustain, as Bhaskar claims, a 'genuine concept of change, and hence of history', while the weakness in Giddens's approach is seen in his inability to account for 'stability and change in social system s' (both quotes in Archer, 1995).

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Entity relationism This approach to the stru ctu re /a g e n cy problem w as evolved in B h ask ar's predialectical work (Bhaskar, 1979,1998). However, his work of the early 1990s argues th a t th is a n a ly s is p r o v id e s a b a s is fo r, in d e e d n e c e s s it a t e s , a d ia le c tic a l reinterpretation. Here we com e to the idea of entity relationism , where the lines betw een structure and agency blur. The dialectical quality o f being-in-structure means that hum an life should be seen as a social and relational 'flow, differentiated into analytically discrete m om ents' with each m om ent seen as 'subject to multiple and conflicting determ inations and m ediations' (Bhaskar, 1993, p 160). The prim ary category in this social flow of individual being is that of dialectical connection. This describes a situation in w hich 'entities or aspects o f a totality ... are in principle distinct but inseparable, in the sense that they are ... internally related, ie both ... existentially presuppose the o ther' (Bhaskar, 1993, p 58). The domain of dialectical connection is one in w hich there is the existential constitution, or perm eation, of one social entity by another. T h is so cio lo g ical idea o f b oth the d istin ctiv en e ss and the in sep arab ility of different social entities invokes ideas of the ways in which concepts or identities are b o th e x p r e ss e d as c o m p le te an d re m a in e s s e n tia lly in c o m p le te . It in v ite s com parison w ith a D erridean concept such as supplem entarity or the lim it, but there is n o th in g m y stical or m etap h y sical in this real d ia le ctica l relatio n sh ip between different entities. Bhaskar m akes dialectic em erge out of a social terrain, at a level at which socio-historical critique is engaged (SHC in Figure 3). He invites us to ponder the extent to which em ergent social entities such as people, institutions, tra d itio n s, id e n tities and a ctiv itie s not on ly p resu p p o se th eir p a rticu la r g e o ­ histories, in the sense of being dependent on them for their meaning, but also 'are existentially constituted by [them] as a crucial part of their essence'. For this reason, such entities 'contain their relations, connections and interdependencies with other social (and natural) things' (Bhaskar, 1993, p 54). Crucial to dialectical thought is to see identity in its connectedness with the totality of which it is a part, so that it is intrinsically relational: To grasp totality is to break with our ordinary notions of identity ... It is to see things e x isten tia lly con stitu ted , and p erm eated , by their relation s w ith o th ers; and to see our ordinary notion of identity as an abstraction not only from [its] existentially constitutive processes of formation (geo-histories), but also from [its] existentially constitutive inter­ activity (internal related n ess)... W hen is a thing no longer a thing but something else? ... |I]n the domain of totality w e need to conceptualise entity relationism . (Bhaskar, 1993, P 125)

This 'entity relationism ' involves a radical developm ent and correction of the 'law o f id en tity' in identity thinking, w ith w hich w e began this chap ter (sec above, p 135). Now 'w hatever is' is intrinsically at the sam e time not itself, but som ething else. A fluid, dialectical sense of identity requires us to see 'our ordinary notion of identity' as an abstraction not only from geo- and socio-historical process, but also from the in tern al re la tio n a lity of en tities w h ich in itia lly ap p ear sep arate and distinct. O n an 'entity relational' understanding of identity, any posited identity will alw ays entail an exclusion of som e thing or things that seem ingly lie behind or b e y o n d it. Id e n tity p re s u p p o se s n o n -id e n tity so th a t an y sen se o f id e n tity presupposes incom pleteness and change. Identity is an abstraction from a process or set of processes of form ation so that it is always 'under threat' from w hat appears

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as different, but is in fact part of it, and from change, which leads an entity to becom e som eth in g o th er than it is. T hu s, to id entity thinkin g, B haskar o pposes entity relationism as a conceptual grounding for the existence of fluidity, supplementarity and the limit. But note that entity relationism is forged out of a meta-problem in the social sciences, not at an edge betw een w hat exists and w hat lies in a purportedly m etaphysical 'beyond', viewed either as a positive speculative reason (Hegel), or a mad, m ystical unreason (Derrida). Entity relationism and legal subjectivity In this last section , I w ill con sid er b riefly the im plications of d ialecticisin g the structure/agency problem for law in terms of the identity of the legal subject and the nature of legal reasoning. O nce one sees that questions of identity are fluid, and that that fluidity can be located directly w ithin a social scientific fram ew ork, it becom es possible to explain the dynam ics of a social institution like law dialectically and sociologically at the sam e time. The structure-agency m eta-problem becom es the basis for seeing how legal subjectivity is both constructed and deconstructed historically and politically within given social relations and structures. One must, however, exam ine subjectivity from the two intersecting standpoints donated by the structure-agency m eta-problem, that is from the standpoints o f both structure and agency. H av in g d on e so, I co n clu d e by lo ca tin g legal reaso n in g in an e n tity relational view.

Legal subjectivity from the standpoint o f structure From the standpoint of structure, conceptions of legal subjectivity (identity) act as m odes of selection - of exclusion and inclusion - of the relations that inform entities. The seem ingly universal legal subject is in fact a social and historical figure, whose abstract characteristics function to instantiate a political and moral order, and to exclude alternative and com peting voices and claim s (see above, Chapters 3 and 4). The legal categories that Derrida (1990, p 131) identifies as ripe for deconstruction, such as the 'responsible subject of law and m orality', the 'juridical or moral person', and the 'intentional agent', invite the identification of w hat prove to be their false limits, their contradictions and meaning-slides, and their necessary but disruptive supplem ents. This is not pace Derrida because they are form ed on the site of an inau g u ral v io len ce but b ecau se th ey in stan tiate a p articu lar m oral, social and political order, w ith its own violence. In excluding alternatives to this order, they render opaque the broader social relations through and in which moral and legal subjects live. From this standpoint, law is a structuring system w hich, with its individualistic emphasis, hypostasises the individual and thereby lays responsibility at her door. Invoking individual responsibility is a process of individualisation of social and relatio n al p ro blem s, and a m eans o f ev acu atin g d ifficu lt m oral problem s and p o litical co n flicts by the claim o f a realm of seem in g con sen t as to the 'b asic principles of social life' (N orrie, 1998b, pp 106-14, 119-23). It is this sense of the structural effects of legal responsibility that is caught in Roland B arthes's view (1973, p 45) that law 's universal language lends a 'new strength to the psychology of

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the m asters' by taking 'other m en as objects, to describe and to condem n at one stroke'. However, while the law may seek, as Barthes continues, to be 'ignorant of everything about the actions themselves, save the guilty category into which they are forced to fit', it cannot do so, for the real practicality of law 's categories assures their disruption at every turn. Such disruption, as I argue below in discussing legal reasoning, is the basis for law 's continued analytical failures. Identity thinking, as the constitution of an analytical logic based upon the existence of a responsible subject, is pulled 'every which w ay' - and loose. The problem is that individualist legal categories deny the social, political and moral relationality with which the subject is suffused, but this relationality forces itself back into the legal p ictu re w herever p ossible. The su b ject is con structed through legal-m oral concepts w hich are understood in a 'tech n ical', 'fo rm al' or 'factu al' way, w hich obscures their essential ('su bstantive') moral qualities. It is these moral qualities that em body the relational aspects of subjective experience, and lead to a set of 'shadow ' concepts and theories which operate as oppositional doppelgdnger. The result is a field o f legal and p h ilo so p h ical theories in w hich antinomial views of the legal subject and legal responsibility abound.

Legal subjectivity from the standpoint o f agency There is a second way o f looking at this. The Transform ative M odel of Social Action insists that com m u n ities, stru ctu res and d isco u rses (ie, stru ctu ral figures) are them selves produced and reproduced, varied and transform ed, by agents. Agency is real and significant, and not just an effect of structure (Archer, 1995). M aintaining th is d u a lity e n ta ils the th e o risa tio n o f a 'p e rs p e c tiv a l s h ift' (B h ask ar, 1993, pp 115-16, 401), w herein causal explanations at the level of the stru ctu ral also necessitate accounts from the point of view' of agents in terms of their substantive reasons, intentions, motives and so on for acting. W hat does it m ean to be an individual agent? Bhaskar sees it as a 'pow erful particular', a psychic and physical source of action in the world. It is 'em bodied intentionality which earths social life', and in turn 'real reasons for action', based upon 'inform ed or misinform ed desire', 'com prise the existential agent's intentional causality'. Forms such as intentionality and the giving of reasons for action render agency accountable, according to Bhaskar, even where its forms are 'routinised or habitual' (ibid, p 164). These com m ents about the individual m ust be read in the light of Bhaskar's discussion of the dialecticised subject. This involves relationising the su b je ct so th a t its acts, in te n tio n s, reaso n s are seen in the co n te x t o f the 'centrification, fragm entation or alienation of the subject', and of 'conscious and unconscious' aspects of subjectivity. The subject m ust be understood in the context of 'the open system ic, m ultiply and conflictually determined nature of the aspects at p la y in o u r in te rn a l p lu r iv e rs e s ' (ibid , p 167). T h is g iv e s rise to a re la tio n a l conception of the agential subject, in w hich agency becom es a synthetic practice a ch iev e d o u t o f d iffe re n c e . S u ch a c o n ce p tio n can be lin k ed w ith the m o st sophisticated w ork in social psychology w hich insists on the significance of agency as a real achievem ent, but one that always remains part of a process of construction of agential categories within and by social relations. The subject is both itself and som ething else, som ething that lies beyond itself. Subjectivity involves living in a

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'space betw een' what one is and is not (Harre, 1983; 1998; Norrie, 2000, Chapter 9; also see above, Chapters 5 and 6). W hat d oes this m ean in term s of resp o n sibility in, and beyond , law ? W hen people act, they act in a social and m oral context, and in a com m unity or set of com m unities, how ever these may be established or identified. Subjectivity involves being-in-relation, and therefore responsibility is shared with others in com m unities in a skein of mutual and structured com plicities. In a relational model of subjective responsibility, justice em braces the subject and her context, blurring the boundaries. Judgm ent is com plex and 'distributive', rather than sim plistically individual and retribu tiv e. T h is giv es rise to an am b iv alen t sen se o f ju d g m e n t in w h ich it is recognised that responsibility extend s beyond the subject to the com m u nity of which the subject is a part.

Entity relationism and legal reasoning B e tw e e n the o u tr e a c h o f a re la tio n a l c o n c e p tio n o f r e s p o n s ib ility an d the suppression of that outreach in law lie the problem s of legal analytics. Identity thinking involves a d eep interconnection betw een a con ception of bein g and a conception of thinking about being. An exclusionary sense of identity (Russell's law 1, above, p 135) licenses analytical reasoning (his law s 2 and 3). Placing entity relationism at the core of an alternative account of identity radically affects our u n d e r s ta n d in g o f re a s o n in g . T h in k in g d ia le c tic a lly in v o lv e s th in k in g th e coincidence of distinctions and connections, as w ell as the contradictions w ithin basic entities. Thinking analytically involves the thinking of distinctions separately from connections and in the absence of internal contradictions. Dialectic therefore becom es 'the great "lo o sen er"' of the hold of analytic thought, perm itting 'em pirical "open-texture" ... structural fluidity and interconnectedness' (Bhaskar, 1993, p 44) in place of the formal definitions and logic associated w ith identity theory. Dialectical thinking threatens the analytical m om ent because in 'thinking the constellntional unity o f identity ... and change', w e are required to see it as 'a case when w'e w ant to say that a thing both is and is not itself' (Bhaskar, 1993, p 183). This challenges Russell's 'self-evident logical principles' based on the 'law of identity' (1973, p 40). It is a 'blow at the heart of analytic reason where ... everything is w hat it is and not another thing' (Bhaskar, 1993, p 183). The precise nature of this threat to legal categories stem s from the ways in which categories of legal judgm ent reflect in a distanced and m ism atched way broader relation al categ o ries o f ju dgm ent. Legal categ ories are cut again st the broader, shared sense of responsibility outlined above. M oral judgm ents beyond the law, based on locating the individual within a broader context, jar w ith legal conceptions that deny that context. It m ust be rem em bered, however, that legal conceptions have been engineered socially, politically and historically precisely to deny context (Norrie, 1993a, 2001b, Chapter 2; see above, Chapters 3 and 4). There is a dysphasia here, and judges who consider the moral issues before them in individual cases are faced with a tension between two standpoints of judgm ent. On the one hand, they are faced w ith the legal categ o ries that have b een elabo rated on the b asis of concepts that are understood as 'factual', 'technical' and 'substantively amoral'. On the other hand, they m ust have regard for the position of real hum an agents and the

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social, m oral and p o litical d ilem m as they face. So m etim es the p o litical issues involved lead to an im m ed iate closure o f the legal issues, and the ju d ges hold s tro n g ly to the ju r id ic a l c a te g o rie s o f re s p o n s ib ility . T h e y u se , in d e e d , the exclusionary structural conceptions of legal responsibility to shut out the political issues. O n other occasions, however, the m oral issues that lurk beyond the legal concepts provoke sym pathy am ongst judges, and they are forced into a dialogue betw een them and the pre-existing legal categories. In such situations, they are forced to recognise the limits of the legal concepts, and to push against them .10 This pushing and pulling of the concepts betw een the subject and her context can n o t leave legal reaso n in g un tou ched . W here an u n d erly in g m oral issu e is accom m odated, legal reasoning m ust find ways of controlling its im pact on the new developm ent of the legal concept. The innovation has to be controlled lest it admit too much. Legal judgm ent is often therefore on a dialectical edge betw een w hat legal concepts were designed to exclude, and what, in appropriate circumstances, they are d esired to ad m it. In this p lay b etw een tw o e ssen tially con n ected yet co n flictin g ord ers of ju d g m en t and resp onsib ility , m o rality -in -, and m oralitybeyond-, law, the prim ary victim is analytical legal reasoning. The underlying point to note here, however, is that analytical modes of thought are p o w e r-in v e ste d , so that their id e o lo g ical sh ap e m u st be m ain tain ed and buttressed against the ravages of the relational conflicts and contradictions they traverse (cf Bhaskar, 1993, p 116). If a power-invested analytic is to be maintained in the face of the disruption it itself invokes, it requires a variety o f discursive and practical techniques to m anage it. In law, ideological 'tru th ' is m aintained by a v a rie ty o f m e a n in g -slid e s and fictiv e c o n stru c tio n s , by 'fix e s ' and 'fu d g e s ', exceptions and exem ptions, and unrationalised inclusions and exclusions w hich su p p lem en t (D e rrid a 's w ord ) an aly tical reason in g. T h ese 'te ch n iq u e s o f legal reaso n in g ' (th at are n ev er nam ed as such) stand alon gsid e the accep ted legal architectonics: of the general and special parts, mens rea, actus reus, justification and excuse, and so on. These go to establish the identity of the legal subject, and need to be protected from their ow n incoherence in the face of the relationality law denies. Analytical reasoning qua legal reasoning is a way of exercising social and political po w er and is inform ed by p o w er relatio n s, it is a m ean s o f c ry sta llisin g and expressing those relations. Analytical reasoning is not in itself innocent.11 Analytics set up concepts and identities that embody, and legitim ate by em bodying, powerful and conflicted social practices. Just as, in the case of General Pinochet, the question

10 See the plight of the 'humanitarian judge' discussed in Chapter 7. Compare for example the cases of R v Steane (1947J 1 All ER 813 (admission of relational context through manipulation of legal category of intention, leading to acquittal for man who broadcast for the Nazis) and R v C h an d ler [1964] AC 7 63 (d enial of relatio n al co n te x t by holding to legal categ o ries distinguishing 'motive' and 'intention', leading to conviction of anti-nuclear protestors). See Norrie, 1993a, 2001b, Chapter 3 for discussion of these and other relevant cases. 11 According to Bhaskar (1993, p 176), it assumes 'the shape of an unself-conscious ideology o f the normalisation o f past changes and freedom s, and the denegation o f present and future ones'. Here it is necessary to develop B haskar's point, and to recognise the double-sided nature of the analytical tradition with regard to power. It normalises past changes and freedoms, but also past repressions, as the history of criminal justice makes clear (Thompson, 1975; 1991; Hay el al, 1977).

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whether a brutal dictator should be called to account can becom e a legal m atter of 'sovereign im m unity', so can the social, political and historical problem s of crim e becom e translated into a legal architectonic establish ing ind ividu al culpability. Social practices are interventions in the conflicts that pow er relations engender, but, as mediated by law and legal reasoning, they seek to lose the latter's sm ell in the nam e of neutrality and form al logic.

Conclusion O ne of D errida's signal achievem ents has been to perm it critical thinkers the use of a dialectical language that helps us to understand the nature o f phenom ena in a conflictual and contradictory social and political world. There are two paradoxes in this conclusion. First, m any attracted to Derrida would not see deconstruction as falling within dialectics. A s Barnett says, however, postm odern thought is 'caught in a Hegelian labyrinth' wherein one 'need never mention the nam e of H egel' (Barnett, 1998, p 25). Secondly, the w hole emphasis of Derrida's essay on law is away from the 'desedim entation' of social and political power, as we have seen. H ence my aim h as b een to sh o w how the fo rm s o f d e c o n stru c tio n can be lo cated w ith in a dialectical theory that can make them relevant to pow er and conflict. In so doing, I have sought to show' a way of bridging the 'seem ingly unbridgeable gap' identified by Lacey between critical and socio-legal theory. This involves holding onto w hat is valid in Derrida and making it available to a sociology of law interested in issues of social and political power, structure and history, a 'post-poststructuralist' sociology of law. The argum ent developed here leaves im portant questions unansw ered. If the negative D ialectical critiqu e d eployed by b oth H egel and D errid a needs to be steered away from the abstract m etaphysics and directly ethical standpoints that gov ern their p h ilo so p h ies (eith er as p ositiv e sp ecu lativ e R eason, or as 'm a d ', 'm ystical' unReason); if there is a need to embed the negative critique in the social, political and historical conditions of a given period, this leaves open the ultimate question where the ethical and the m etaphysical fit into the overall picture. Neither Derrida nor H egel is wrong to insist on the ethical dim ension to hum an living, their error lies in directly founding critique upon it in a way that by-passes the sociohistorical conditions w hich predicate conflict, contradiction and antinom y. This chapter does not answer this question, but it has sought to provide a foundation on which it may be properly raised. The two following chapters seek to bring together the e th ica l and s o c io -h is to ric a l d im e n sio n s th ro u g h e n g a g e m e n t, first, w ith A dorno's negative dialectics and, secondly, with H egel's treatment of the Beautiful Soul.

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C h ap ter 9 H o w Does Freedom Lie? A d orno, Negative Dialectics and Law

As if real history were not stored up in the core of each possible object of cognition; as if every cognition that seriously resists reification did not bring the petrified things in flux and precisely thus make us aware of history. (Adorno, 1973, p 130) A radical is one who cannot ... believe ... that w hat w e see now is pretty m uch all we w'ill ever g e t ... (Eagleton, 2001, p 101)

Introduction BUI Bowring (2002) has objected to what he sees as too gentle a critique of law in my work, one that leaves too m uch of it, morally and politically, in credit. In contrast to my kindliness, he suggests an alternative starting point in the w ork of Theodor Adorno. A dorno's N egative Dialectics has much to say about law that has remained unnoticed, and that is in his view m ore radical. There is som e truth in this, Adorno could be extrem ely critical of law. A close reading of N egative D ialectics reveals, how 'ever, th a t alo n g sid e the n e g a tiv e th in g s A d o rn o had to say, som e w ere su rp risin g ly p o sitiv e. It is hard to reco n cile tw o ra th e r d iffe re n t sid es to his argument. To add to the problem, his view of law is linked to an account of human freedom , but that account is neither clear nor univocal. In fact, it too is contradictory, so that a first reaction to A dorno's view s on law is to find them deeply confusing. However, Adorno had som e extrem ely penetrating things to say about law and its relation to freedom, and more generally to the Kantian philosophy that underlay it. The first and main task of this chapter is therefore to retrieve and explicate A dorno's account of law, and to seek to make best sense of it. To do so, it is necessary to bring the different aspects of his account into alignm ent lest his overall argum ent is lost in a num ber of com peting, one-sided statem ents of his position. The chapter also has a second task, w hich is undertaken in order to achieve the first. It concerns w hat A dorno m eans by 'negative dialectics', and this entails, so I will argue, bringing his theory into dialogue with 'dialectical critical realism ', which is the philosophical basis for my ow n view of law. Dialectical critical realism is a philosophical system developed by Roy Bhaskar which has much in com m on with negative dialectics. In som e ways, negative dialectics is a forerunner of dialectical critical realism, but it also contains im portant differences, and these, I shall argue, contribute to its im perfect and conflicted quality. They also feed into the problems with A dorno's view of law. Thus, I shall contend that to give the best statem ent of what Adorno had to say about law is to push his negative dialectics further in the direction of a critical realist dialectics than Adorno him self would have wanted to g°The chapter has four sections. In the first, I introduce three views of law to be found within Negative Dialectics. I show how the first and second view s contradict each other, and how the third view (concerning the freedom that underlies law) is open to two com peting and contradictory interpretations. In anatom ising A dorno's conflicting views of law, this section raises the question why his philosophy should

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disclose such difficulties. In the second section, I briefly introduce the difference betw een realist and idealist approaches to philosophy, draw ing upon B haskar's philosophy. I focus on his argum ent that modern philosophy, including its critical v a rietie s, is cau g h t in a ten sio n b etw een an im p licit re alism , and an e x p licit idealism .1 The argum ent is advanced as a prelude to exam ining in a third section how N egative Dialectics handles this tension. Finally, the fourth section argues that the tension between realism and idealism underpins A dorno's conflicted account of law, and that it m akes best sense when the historically realist direction present in his philosophy (see the first prefatory quotation for an exam ple of this) is emphasised in relation to his view of law.

Freedom and law in modern society: Adorno’s three views In this section, I discuss three views of freedom in A dorno's reading of Kant and law in N egative Dialectics. In the first, modern freedom is viewed negatively as an em anation of w hat he calls 'iden tity thinking'. In the second, it is view ed m ore positively. Here liberal form s of freedom are given a degree of approval in a reaction against the negative identitarian critique A dorno has him self developed. A third view is at a d eeper level, and con cern s the profound im pu lse to freed om that Adorno finds hidden in the Kantian account of modern freedom , and therefore in the modern law. Adorno view s this deeper level in two different, conflicting, ways, and I d escrib e b oth h ere. My aim in th is sectio n is to m ap the m u ltip le and conflicting views of freedom and the juridical to be found in Adorno, with a view to understanding, in later sections, w hat these conflicting views import, and how best they can be brought together. First (negative) view: freedom as identity In his m agisterial discussion of K ant's philosophy of freedom , and elsew here in N eg ativ e D ialectics, A d o rn o m ak es it clear th at the id eas th at go into m od ern thinking about freedom and its legal expression, ideas like those of responsibility, equality, the free act and the just punishm ent, are central to the wholly problematic form o f th o u g h t th a t he c a lls 'id e n tity th in k in g '. S u ch th in k in g in v o lv e s a 'subsum ptive logic' that draws things under concepts that can never be adequate to them, and this leads to a suppression of w hat is not subsumed. W hat is suppressed does not, however, go aw ay; rather it rem ains as a contradiction attached to the thing under its identitarian concept: The nam e of dialectics says no m ore, to begin with, than that objects do not go into their concepts without leaving a remainder, that they com e to contradict the traditional norm of adequacy. Contradiction ... indicates the untruth of identity, the fact that the concept does not exhaust the thing conceived ... Dialectics is the consistent sense of non-identity. (Adorno, 1973, p 5)

1

'Hegel would not have been wrong if he had described the history of philosophy as that of explicit idealism and im plicit realism ' (Bhaskar, 1993, p 308). For different accoun ts of Adorno's work, see Rose, 1978; Jarvis, 1998; Bernstein, 2001. The argument here is based on a close reading of Adorno's Negative Dialectics rather than his work as a whole, and is therefore provisional.

H o w Does Freedom Lie? A do rno , Negative Dialectics and Law

In this light, a ju rid ical claim em anating from K antian thinking about freedom , such as that em bodied in the idea o f equality under law, is no m ore than the identitarian principle in action. Form al legal equality is a m ode of exclusion, a form o f 'equalitym ongering': It is p r e c is e ly th e in s a tia b le id e n tity p r in c ip le th a t p e r p e tu a te s a n ta g o n is m by su p p ressin g co n tra d ictio n . W h a t to lerates n o thing th at is n o t like itself th w arts the r e c o n c ile m e n t fo r w h ich it m is ta k e s itse lf. T h e v io le n c e o f e q u a lity -m o n g e rin g reproduces the contradiction it elim inates. (Ibid, pp 1 4 2 -4 3 )

In the follow ing longer passage, the link betw een identity thinking and law is m ade explicit: In la rg e m e a su re , the law is the m ed iu m in w h ich evil w in s o u t on a c co u n t of its objectivity and acquires the ap p earan ce of good ... L aw is the prim al phenom enon of irration al rationality. In law the form al p rin cip le of eq u ivalen ce b ecom es th e n orm ; everyon e is treated alike. A n eq u ality in w h ich differen ces perish secretly serv es to p ro m o te in e q u a lity ; it b e co m e s the m y th th a t s u rv iv e s a m id st an on ly seem in g ly dem ythologised m ankind. For the sake of an unbroken system atic, the legal norm s cut s h o rt w h a t is n o t c o v e r e d , e v e ry sp e cific e x p e rie n ce th a t h as n o t b een s h ap ed in advance; and then they raise the instrum ental rationality to the rank of a second legality s u i gen eris. The total legal realm is one of definitions. (Ibid, p 309)

Form al (legal) egalitarianism is the form in w hich inequality is prom oted. Though counter-intuitive to liberal thought, such a view is not unique in critical thought.2 It is the stringent w ay in w hich A dorno pu rsu es it that is arresting: T hese [legal] b oun ds, id eo lo g ical in th em selv es, tu rn into real violen ce as th ey are sanctioned by law as the socially controllin g authority, in the adm in istered w orld in particu lar. In the d icta to rsh ip s th ey b ecom e d ire ct violen ce; indirectly, violen ce has alw ays lurked behind them . (Ibid, p 309)

Fo rm al legality, th en , rep resen ts a form o f real b u t in d irect v io le n ce , and w h at sep arates su ch legality from d ictato rsh ip is n o t esse n tially the fo rm o f law, but w hether the violence used is 'd irect' or 'ind irect'. Both legal rule and d ictatorship represent form s o f v iolence, as does the search for equality. W hat is true o f legal equality is also necessarily true o f the freedom that underlies it, as well as its other exp ressio n s su ch as co n cep ts o f resp o n sib ility and p u n ish m en t. A ll o f them are form s o f identity thinking and as such expressive of an underlying cruelty: But the paradoxical ch aracter of K ant's doctrine of freedom strictly corresponds to its location in reality. Social stress on freedom as existen t coalesces w ith undim inished repression, and psych olog ically , w ith co e rciv e traits. K antian eth ics, an tagon istic in itself, has these traits in com m on w ith a crim inological practice in w hich the dogm atic doctrine of free will is coupled with the urge to punish harshly, irrespective of em pirical conditions. (Ibid, p 232) On the side, K ant's inw ardly brittle ethics retains its repressive aspect. H e glories in an unm itigated urge to punish ... In its contem p t for pity, pure practical reason agrees with the 'G row h ard !' of N ietzsche, its antipode. (Ibid, p 240) 2

For exam ple: 'And this universal language (law) com es just at the right time to lend a new strength to the psychology of the m asters: it allows it alw ays to take other men as objects, to describe and condem n at one stroke. It is an adjcctival psychology, it knows only how to endow its victims with epithets, it is ignorant of everything about the actions themselves, save the guilty category into which they are forced to fit' (Barthes, 1973, p 45).

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Id e n tity is a b o u t s u p p r e s s io n , e q u a lity is a b o u t in e q u a lity , fre e d o m an d resp o n sib ility in the K an tian d o ctrin e are abou t rep ression . V irtu ou s K an tian concepts concerning freedom turn into their negative opposites before our eyes. Since it is of their very nature to act in this way, there is little room for a nuanced view. M odern form s of freedom view ed through the identitarian critique are not what they seem: they are a means of repression. Second (positive) view: a liberal reaction The above uncom prom ising attack on the m odern 'K antian-juridical com plex' is certainly prom inent in A dorno's N egative D ialectics? H owever, it is not the only view there present. It is important to note that there are other passages which have a less negative view of law and its correlative terms. For exam ple, here is a passage on law 's form al equality w hich contrasts w ith the d ism issal of such equality seen above; indeed, law is held up here in a strong positive contrast to the rule of (fascist) dictatorship: Though failing to provide us with a positive casuistry for future action, this [juridical] formalism humanely prevents the abuse of substantial-qualitative differences in favour of p riv ilege and ideology. The G erm an critics w h o found K antian form alism too rationalistic have show n their bloody colours in the fascistic practice. (A dorno, 1973, p 235)

There is a qualification in this support for Kantian form alistic freedom : it fails to provide a 'positive casuistry', a guide to w hat should be done. N onetheless, the d is tin ctio n b e tw e e n K an tian fo rm a lism and fa s cistic 's u b s ta n tiv is m ' cle a rly con trad icts the id entitarian critiqu e. No longer is the form er seen as 'in d irect' v iolence in com parison w ith its fascist 'd irect' form . They are seen as opposed rather than as points on a continuum of violence. The sam e is true in the following longer quotation, w hich finds positive things to say about Kantian freedom and responsibility. In this longer quotation, Adorno calls Kant's discussion of the will a 'cover concept' (Oberbegriff). This is a negative com m ent aligned with the critique of identity: such a concept 'covers' by hiding an underlying state of affairs. However, having said that, Adorno still sees the Kantian will as 'progressive' and as an 'assist to freedom '. Through the Kantian philosophy, the subject becom es 'm oral for itself' and 'protected from the v io len ce' o f a hierarchical society. D espite its layer of falseness, the Kantian will is also the basis for the im portant gain for freedom of individual moral conscience: The will [is] the cover concept of acts or their m om ent of unity ... In what thus happens to it theoretically, how ever, there is som e truth desp ite all fla g ra n t contradictions ... The individual im pulses' objectification in the will that synthesises and determ ines them is their sublimation, their successful, delaying, perm anence-involving diversion from the prim ary goal of the drives. Kant faithfully circumscribed this by the rationality of the will ... The discovert/ was [nonetheless] progressive: it kept the judgment about particular impulses from being m ade casuistically any longer ... This ivas an assist to freedom . The subject becom es moral fo r itself; it cannot be weighed by standards that are inwardly and ou tw ardly particu lar and alien to the subject. O nce the rational unity of the will is

3

It is the position B ow ring (2002) argues for and from in his review of m y P u nishm en t, Responsibility and Justice (Norrie, 2000).

H ow Does Freedom Lie? Adorno, Negative Dialectics and Law

established as the sole m oral authority, the subject is protected from the violence done to it by a hierarchical society - a society which ... would judge a m an's deeds w ithout any previous acceptance of its law by his own consciousness ... Kant's relegation of ethics to the sober unity of reason was an act o f bourgeois m ajesty despite the fa ls e consciousness in his objectification o f the will. (Ibid, pp 2 3 8 -3 9 , em phasis added)

This is a difficult passage, but its tendency is clear. W hile there are qualifications, A dorno affirm s the progressive character of K ant's account of m odern free will. T h u s, his w o rk rev eals not ju st the id en titarian , n eg ativ e, critiq u e o f m odern freedom, but also a certain positive support for it. Taking these two sides together, we see that Adorno has a conflicted view of the Kantian-juridical com plex. There is an opposition between seeing the concepts of legality under the critique of identity as exclusionary and repressive, and seeing them, in a more positive, recognisably liberal wray, as enabling and expressive. Com paring A dorno's two views, one could suggest that they indicate a lim it in his philosophy, one represented by just the kind of antinom ial thinking found in the Kantian tradition he him self criticises. Before we m ake any ju dgm ents, how ever, we m ust recognise that alongside these two views of Kantian freedom , Adorno develops a third. Third (underlying) view: the impulse to freedom In the following passages, Adorno links the Kantian free will and ego, foundations of law, to an underlying conception of freedom. It is first presented as possessing a m ysterious 'pre-tem poral' or 'archaic' quality: The daw ning sense of freedom feeds upon the m em ory of the archaic impulse not yet steered by an y solid 1. The m ore the 1 cu rb s th at im p u lse, th e m ore c h ao tic and questionable will it find the pre-tem poral freedom. (Adorno, 1973, p 221)

Adorno speaks here, som ew hat mystically, of a protean originary m om ent when 'the untamed im pulse that precedes the ego' w as 'banished to the zone of unfree bondage to nature' (ibid, p 222), but he insists that this inchoate, primal, banished impulse still echoes in the modern juridical idea of free choice. Later, he links this idea to Kant, w hose ideas o f freedom are held to evade, and yet to reflect, this underlying impulse. In the follow ing passage, A dorno contrasts what he calls the 'jolt' of freedom within willed action with Kant's em asculation of the will as either the p h a e n o m e n a l e x p re ssio n o f an act in a ca u sa l c h a in in n a tu re , or as the noum enal pure reason. N either view captures the essential quality of free will: The subject's decisions do not roll off in a causal chain; what occurs is a jolt (ein Ruck erfolgt) ... Consciousness, rational insight, is not simply the sam e as [the] free act. We cannot flatly equate it with the will. Yet this is precisely what happens in Kant's thought. To him, the will is the epitom e of freedom ... because it contracts into that necessity w hich coincides w ith reason ... As the pure logos, the will becom es a no-m an's land between subject and object. (Ibid, p 228)

The idea o f a 'jo lt', or an 'im p u lse', is the underlying, truly hum an, elem ent in K an t's m etaphysics, but it is caught in neither the account of phaenom enal nor noumenal freedom. It is nonetheless the true moment of human free will that lies behind Kant's causal ('phaenom enal') and rational ('noum enal') accounts. W hile it is passed o v er in K antian d o ctrin e, it is also im p licit as its best m om ent, the 'heartbeat of the res cogitans', the 'addendum ' both in and beyond Kantian theory:

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The im pulse, intram ental and som atic in one, drives beyond the conscious sphere ... With [it], freedom extends to the realm of experience ... Its phantasm ... is the phantasm of re co n cilin g n a tu re and the m ind ... It is a flash of light b etw een the p o les of something long past, som ething grown all but unrecognisable, and that which som e day might com e to be. (Ibid, p 229)

W hat it m eans to be truly hum an is there in Kant as absence and as im m anent presence, as that which K ant seeks to suppress, but implies despite him self. The idea of an 'im pulse', a 'jolt', a 'flash of light between the poles' is reflected, but as a trace ('so m e th in g lo n g p a s t', 'a rc h a ic ', 'p re -te m p o ra l'), in cu rren t n o tio n s of freedom. This is central to A dorno's thinking, but it is not easy to grasp. It leads to a range of questions: w hat is the provenance of this underlying freedom, what is its purpose, w hat is its status in the story of hum an being? O ne way o f getting at these questions is to consider the relationship betw een the impulse to freedom and history. We have seen how, for Adorno, it is som ething 'pretem poral' - a residue of a time before thinking and the separation between thought and action. However, A dorno is not clear about this. Elsewhere, he suggests that the impulse has to be understood as a m atter o f m ediated historical development, and in this, he gives it a more concrete, time-specific, instantiation. W hen speaking, for exam p le, o f K a n t's e xclu sio n o f 'th e im p u lse ', he co n trasts K a n t's acco u n t of freed om w ith S h ak esp eare's d ep ictio n o f H am let's plig ht. A dorn o p raises the specific force given to the impulse to be a free individual in the play. He sees this as indicating the 'self-em ancipating modern subject's self-reflection', with a resulting sense of the reflexive 'd iv ergence o f insight and action' (ibid, p 228) in m odern human being. 'To be or not to be,' the existential decision at the play's heart, is a m atter o f real choice, of ju m p in g into history, not a result of eith er cog itativ e, noum enal, reason or causal, phaenom enal, determ ination in Kantian term s. The choice, and the freedom it expresses, is, however, profoundly related to a particular historical period: Whole epochs, whole societies lacked not only the concept of freedom but the thing ... Likew ise, freed om , w hich w ith o u t im p airm en t can only be achieved u n d er social conditions of unfettered plenty, might be wholly extinguished again, perhaps without leaving a trace. (Ibid, p 218)

In this view, freedom and unfreedom , together w ith the form s freedom takes, are an em ergent property of an historically developing social system , which expresses both the developing potential of hum an being and the ways it is blocked under modern conditions: Freedom is a m o m e n t... not to be isolated, and for the time being it is never m ore than an instant of spontaneity, a historical node, the road to which is blocked under present conditions. (Ibid, p 219)

In summary, w e have seen that Adorno gives us three different views of law and freedom , that the first two are in conflict, and that the third admits of two different, and also conflicting, interpretations. D eploying A dorno's critique of freedom , of Kant and of law is thus no easy matter. How are the first and the second (negative and positive) views of freedom to be held together, and how is the conflict between the pre-tem poral and historical account in the third underlying view to be resolved? M y an sw er has two parts. T he first is that draw ing these three view s together

H ow Does Freedom Lie? Adorno, Negative Dialectics and Law

depends upon understanding why there are conflicting pre-temporal and historical approaches to the third. The historical approach is to be preferred. The second is to argue that com ing to terms with the conflict in the third view of freedom involves an enquiry into the underlying philosophical prem ises of the negative dialectics. T hat in turn involves an engagem ent w ith dialectical critical realism w hich will bring out the conflicting realist and idealist directions in A dorno's philosophy and also in his account of law. I start with the latter part: the underlying philosophical conflict in Negative Dialectics, which I start to approach in the next section.

Realism and idealism: the need fo r a depth ontology In this section, I will introduce a key distinction from Roy B h askar's account of critical realism between realist and idealist philosophy. W hile the form er insists that h u m a n k n o w le d g e re la te s to o b je c ts b e y o n d it s e lf , th e la t t e r s tr e s s e s the ind ep endence of the hu m an m ind in its con stru ction o f an o bject w orld. I w ill em phasise w hat Bhaskar sees as the tension w ithin m odern Western philosophies, including critical theory, between an im plicit realism and an explicit idealism. My argum ent in the follow ing section will then be that A dorno's negative dialectics reflect this tension, but we need first to understand w hat the tension is, and how it might arise in m odern critical philosophy. Three standpoints in the philosophy o f science Bhaskar's argum ent is that Western philosophy is generally governed by idealist fo rm s th a t r e s t in te n s io n w ith te n d e n c ie s to w a rd s re a lis m . T h e r e s u lt is 'com prom ise form ations' incorporating idealist and realist strains which he terms 'irrealist'. These form ations typically involve realist inflected forms of idealism, or inadequate forms of realism w hich are governed by a dom inant idealism. The key elem ent m issing in such philosophies is a sense of the w orld's ontological depth. Critical realism 's main claim is to be able to theorise such depth. B haskar d ev eloped his p hilosop h y in itially in the form o f w hat he called a 'transcendental realism' which he later renamed as 'critical realism ' (Bhaskar, 1989, pp 189-92), and then developed further in a dialectical form as dialectical critical re alism (B h ask ar, 1993). W h ile th ere are s ig n ific a n t ch a n g es in the m ov e to dialectical critical realism, the underlying theory has in im portant ways remained con stan t. It starts from the v iew that in the p h ilo so p h y o f scien ce, tw o m ajor stand p oints have d om inated , com peted w ith each other, and at the sam e time com plicitly excluded a third. The two dom inant standpoints are em pirical realism (for exam ple, in forms of positivism ) and transcendental idealism (in Kantian and po st-K an tian philosoph y). W hat has been excluded is the third transcendental (critical) realist position.4 Critical realism developed out of an understanding of the philosophy of science. It stresses the need for theory building in order to identify and to explain the generative mechanism s, causes and structures3 which underlie 4 5

The argument is first made in Bhaskar (1975). Compare Bhaskar (1986), Chapter 1 and (1994), Chapter 1. Bhaskar (1993, p 226) explains the relationship between these terms as follows. Generative m echanism s are 'the causal pow ers of structurally efficacious things'. This m eans that 'causality begins with the concept of the transfactual efficacy of the generative mechanism or the causal powers of a structure' (ibid, p 240).

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empirical reality. That theory building is linked to a conception of the ontologically real distinguishes it from all forms of subjectivism and idealism in the philosophy of science. That it em phasises the depth-explanatory nature (Bhaskar, 1989, pp 189-92) of scientific enquiry, reflecting the layered and structured character of both natural and social relations, marks its difference from all forms of em piricism and empirical realism. The aim of such enquiry is to get beneath the surface of things to what lies underneath and animates them. This could be, for exam ple, to uncover the tectonic plates w hich cause geological upheaval in the natural w orld, or to identify the causes of poverty or violence w hich cause upheaval in the social world.6 Getting beneath the surface o f things involves the idea of ontological depth as a real feature of the natural and social world, and therefore of any theory that will be adequate to it. Let us explore the consequences of these three approaches to the philosophy of science in som e more detail. As regards (Kantian) transcendental idealism, critical realism agrees that theory building involves subjective mental activity, but insists that this involves an engagem ent w ith objects of a world that is real and can be known. Epistemological relativism is a feature of all knowledge, but is offset by an ontological realism w hich grounds, but does not guarantee, such know ledge. As regards em p irical realism (p ositiv ism , em p iricism ), critical realism agrees that experience of a real world is possible and necessary, but, against it, insists that this is not a sufficient basis for scientific understanding. Knowledge requires active theory building and testing in order to provide depth explanations of the stratified reality that underlies the surface form s given to experience. C ritical realism sees both transcendental idealism and em pirical realism as inadequate to explain a world that involves ontological depth. This leads them to collaborate in unstable form ations of ideas. Thus Kant, the transcendental idealist, ends up conceding that he is at the sam e time an em pirical realist.7 W hat is m issing in this com bination, however, is an y sen se o f th e o n to lo g ica l d ep th th a t u n d e rlie s th e e m p iric a l, and w h ich transcendental enquiry should be directed to excavate, elucidate and explain. A focus on subjective form s of knowledge com bined with direct em pirical means of accessing the world (transcendental idealism plus em pirical realism) will not cure this absence. All it can do in fact is to m arginalise attem pts to place ontological depth at the core of our understanding of how knowledge and explanation work. C ritical realism is thus opposed both to idealism and to inadequate form s of realism (like empirical realism), and to their combination. Such com binations have a tendency, just because they are inadequate and shallow form s of realism, to fall back in to id e a lism , and to m erge w ith id e a lism in d iffe re n t u n sta b le m ixes. This com bination of inadequacy and instability is what characterises philosophies of the n a tu ra l and so cia l scie n c e s as they reach in c o n siste n tly b e tw e e n a lte rn a tiv e positions, none of which are adequate to an account of how knowledge develops. In the p ro ce ss, w h at g ets sq u eezed is the idea o f a th eo rised u n d e rsta n d in g of 6

7

There are, of course, important differences as well as similarities between investigations of things in the natural and social world, just as there are important differences and similarities in the things of these worlds. Bhaskar (1979) is directed at coming to terms with both kinds of difference. This is one of the points on which Bhaskar and A dorno agree. A dorno also sees Kant's empirical realism as a sign of the failure of his idealist philosophy. I discuss this in the next section.

H ow Does Freedom Lie? Adorno, Negative Dialectics and Law

o n to lo g ica l s tra tific a tio n and d ep th , sq u e e z e d b e tw e e n an o v e r-re lia n c e on subjective know ledge on one side and a purely positive and em pirical account of the world on the other (Bhaskar, 1994, pp 54-62). It is th e s e fo rm s o f id e a lis t an d e m p ir ic is t k n o w le d g e , fo r c in g o u t an u n derstand ing o f both subjective theory con struction and objective ontological depth, that Bhaskar terms 'irrealist'. The terms 'idealism ' and 'irrealism ' overlap but are not quite the sam e. Irrealist form s of philosophy include both those that are explicitly idealist, plus those which illicitly splice together form s of idealism and in a d e q u a te fo rm s o f re a lism , su ch as the 'e m p iric a l re a lis m ' K an t e n d o rse s alongside his 'transcendental idealism '. For Bhaskar, a standard irrealist pattern in philosophy is to com bine idealism with a weak com pensatory realism. Irrealist compromise formations These basic ideas were elaborated by Bhaskar in his pre-dialectical writing, but they are giv en stro n g exp ression in his d ialectical thin k in g, w here he sp eaks m ore explicitly about the travails of irrealism . Irrealism is specifically characterised by unstable com binations of form s of subjective idealism and em pirical realism so long as it operates in the absence of depth explanatory realism. W ithout that, philosophy either directly endorses, or falls back into, irrealism, and the problem with irrealism is that it lacks. It lacks in essence the concept of ontological depth, a sense o f what lies under (or traverses - 'transfactually') the fact patterns of the w orld, and which can be addressed through constructing theoretical know ledge. W hat is crucially m issing is an understanding of 'the transfactuality of relatively enduring causal structures and generative m echanisms in open system s' (Bhaskar, 1994, pp 54-62). This leads to w hat Bhaskar (1993, p 402) calls the 'prim al squeeze' on 'em pirically controlled scientific theory and natural necessity alike'. If w e lack a concept of ontological stratification, of the depth and endurance of causal structures, we lose a sense of the w orking of causes (natural necessity) in the natural and social worlds, arid in their place we substitute a fall-back reliance on either form s o f idealism or form s of em pirical realism or both. If w e cannot grasp depth, we fall back to surface (empirical realism), and from surface, w e fall back to subjective m ind (idealism) and the k n o w in g su b je c t. T h e e m p iric a l, in s u ffic ie n tly g rasp e d as e x p re ssio n of underlying cause, slides inexorably into alignm ent with the w orkings o f subjective mind. N atural necessity and causal explanation get squeezed between the domains of m etaphysics, w here idealism dom inates, and the em pirical, w here positivism dom inates. G iven that the resu lt o f the squeeze on stru ctu re and depth is the form ation of unstable philosophical com prom ises, Western philosophy is m arked by swings between idealist and inadequately realist m odes of thinking. It is this p rocess of fall-b ack , o f sp licin g form s o f idealism and incom p lete realism, that I now w ant to argue runs through A dorno's N egative Dialectics, first in his general account of how social know ledge operates (next section), then as it affects his account of law and the Kantian view of m odern freedom (final section).

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Realism and idealism in N e g a tiv e D ia le c tic s This section identifies tw o different and conflicting view s in N egative D ialectics, representing realist and id ealist tend encies in A d o rn o's w ork. I con sid er them sequentially, in the process com paring and contrasting A dorno's standpoint with Bhaskar's. M y argum ent will be that Bhaskar and Adorno have much in com mon, but that A dorno's strong realist dim ension is not pushed far enough, and that in ultim ately decisive w ays, he reverts to an idealist standpoint. The predom inant character of his negative dialectics thus becom es its com prom ise irrealist form. The realist side of his thought is sum m arised in his insistence on w hat he calls 'the preponderance of the object' (Adorno, 1973, p 183), the idealist side in his view of the d o m in an ce o f 'th e co n ce p t' in sh ap in g social life. M y strateg y w ill b e to highlight first the realist aspects of A dorno's philosophy, then its idealist side. Adorno as re a lis t ‘preponderance o f the object ’ Ostensibly, there is much to com mend Adorno as a realist and in this section 1 will high ligh t five d ifferent aspects: A d o rn o's accoun ts o f 'referen tial d etach m en t', 'depth ontology', 'prim al squeeze', essence and appearance, and reification. (While the terms in inverted com m as are Bhaskar's rather than A dorno's, I will argue that these realist concepts do important w ork in Negative Dialectics.)

Referential detachment Like Bhaskar, Adorno sees referential detachm ent as a first step in thinking. This is the reco g n itio n that the kn ow in g su b ject p resu p p o ses an o b ject to be know n, distinct from itself. Bhaskar describes this as 'the detachm ent of the act of reference from that to w hich it refers', establishing 'the existential intransitivity of a being and the p o ssib ility of ano ther reference to it'. T h is, he says, 'is a con d itio n o f any in te llig ib le d isco u rse at a ll' (B hask ar, 1994, pp 5 2 -5 3 ). In A d orn o , e x iste n tia l intransitivity is described, less elevatedly, as the 'indissoluble som ething': T here is no Being w ith o u t en tities. 'S o m eth in g ' - as a co g itativ ely in disp ensable substrate of any concept, including the concept of Being - is the utm ost abstraction of the subject-m atter that is not identical with thinking, an abstraction not to be abolished by any further thought process. (Adorno, 1973, p 135)

Thinking presupposes the thought, w hich presupposes the object w hich is to be thought: 'W ithout specific thoughts, thinking would contravene its very concept, and these thoughts instantly point to entities' (ibid, p 136). Thus the entw inem ent of (thinking) subject and (thought) object is the entw inem ent of epistem ology and ontology8 for Adorno, just as it is for Bhaskar. Referential detachm ent is a crucial starting point in any realist u n derstand ing o f the natu re o f kn ow led ge and its relationship to what is known.

8

Ontology in the sense of a realist understanding of being and the limits of the present. This is part of what Adorno (1973, Part 1) calls the 'ontological need' that he finds expressed in Heidegger, albeit in a false, sublimated, form.

H ow Does Freedom Lie? Adorno, Negative Dialectics and Law

Depth ontology To separate know ledge of a thing from the thing itself is only a first step. N ext com es the question how know ledge appropriates the real, and here again there is an essentially realist understanding brought to bear by Adorno. It includes a depth ontology of causes, conditions, structures and their generative mechanism s, which theoretical know led ge identifies and explains. For A dorno, as for Bhaskar, the bankruptcy o f Kantian philosophy is seen in the split that allows Kant to say that 'the "transcendental idealist" is also an "em pirical realist'". This is an adm ission of d efeat. K an t's acceptance o f this point 'p araly ses the specifically philosophical im p u lse to b la st a h id d e n tru th ou t from b e h in d th e id o ls o f c o n v e n tio n a l consciousness' (Adorno, 1973, pp 72-73). The impulse to bring som ething hidden into view is central to A dorno's negative dialectics, just as it is caught in Bhaskar's critical realism . Recall that B haskar opposes both transcen d en tal idealism and empirical realism as a pair blocking the possibility of 'hidden truths' that could be revealed by depth explanatory enquiry. It is just this impulse, indeed, that drove B h a sk a r to fo rm u la te th e id ea o f tr a n s c e n d e n ta l, or c r itic a l, re a lis m . B oth philosophers embrace the notion of ontological depth which knowledge strives to grasp and understand.

Primal squeeze Again, the term is Bhaskar's, but its sense is identified in Adorno. It is the idea of a stru ctu red , tran sfactu al w orld that gets squeezed betw een form s o f su b jectiv e philosophy and shallow em pirical conceptions of the real. The result is a failure to see both ontological depth and the significance of theoretical enquiry in grasping su c h d e p th . L ik e B h a s k a r, A d o rn o a tta c k s e m p ir ic a l re a lis m (p o s itiv is m , empiricism). Insisting on the ontological significance of the object, he nevertheless refuses to grant it the form of pure im m ediacy such as em piricism would suggest. Empiricism registers som ething of w hat Adorno calls 'the object's preponderance', but it does so in w hat he calls a 'sensualist reduction of things' (Adorno, 1973, p 187) that fails to see that the object is 'm ore than pure factuality'. There is more to the w orld in its ob jectiv ity than ju st the facts that p ap er its surface. There is also, however, more to facts, as it were, on their subjective side. The idea of a 'factuality w ithout definitions', or of a world com posed separately of 'factuality and concept' is im possible. Putting these together, kn ow led ge involves both con stru ction of theory and excavation of the w orld's depth: 'w hat we may call the thing itself is not positively and immediately at hand. He who wants to know it must think more, not less' (ibid, p 189), but at the sam e time 'the thing itself is by no m eans a thought product' alone (ibid, p 189). These com m ents about a world expressed by, but being m ore th an , the factu al, and re q u irin g th e o re tica l re fle ctio n to ap p ro p riate it, anticipate critical realism. Similarly, Adorno foreshadows Bhaskar's criticism of the w ay empirical realism folds back into idealism , through its 'sensualist reduction of things', whereby 'the thing' is falsely understood as 'im m ediately to hand' (ibid).

Essence and appearance These are all philosophical points stated in the abstract. Adorno gives more concrete expression to his realism in his discussions of the relation betw een essence and appearance and the concept of reification. As for the former, he distances his use of

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these categories from H egel's. Essence and appearance, he w arns, are categories d eriv e d fro m 'tra d itio n a l p h ilo s o p h y ', b u t in A d o rn o 's o w n a c co u n t, 'th e ir directional tendency is reversed'. Essence can 'n o longer be hypostatised as the pure, spiritual being-in-itself'; rather it becom es what 'lies concealed beneath the facade o f immediacy, of the supposed facts, and which m akes the facts w hat they are'. Essence is 'the law of fate (Verhimgnis) thus far obeyed by history, a law the more irresistible the more it will hide beneath the facts'. It is only recognised 'by the contradiction between w hat things are and w hat they claim to be' (Adorno, 1973, p 167). The search for 'essence' is a search for ontological depth, for w hat 'm akes the facts w hat they are', for the 'fatefulness' of a historical development. It is a reaction to a flat, em piricist, conception of ontology which Adorno refers to as 'appearance'. Again, Adorno and Bhaskar's positions are close.

Critique o f reification As for reification, A dorno links the surface discussion of the concept (its 'em pirical' m anifestation) to the underlying socio-historical conditions w hich generate and e x p la in it. H e a rg u e s th a t 'th in g n e s s ' re la te s n o t to a 's u b je c tiv e ly e rra n t co n scio u sn e ss' b u t rath er is 'o b je ctiv e ly d ed u ced from the social a p rio ri, the exchange process' (Adorno, 1973, p 190). This process 'has real objectivity and is objectively untrue at the same tim e', but reification as a 'form of consciousness' is the 'reflexive form of false objectivity' and must be understood in a depth ontology underlying condition and cause: The trouble is with the conditions that condemn mankind to impotence and apathy ...; it is n o t p rim a rily w ith p e o p le and w ith th e w a y c o n d itio n s a p p e a r to p e o p le ... Reification is an epiphenomenon. (Ibid, p 190)

To sum m arise, these com m ents reflect an ontological understanding in which depth explanation o f a stratified world is sought, the need for theory as the m eans to explain that world is argued for, and a critique of irrealism is begun. A convincing case can be made for seeing Adorno as a critical realist avant la lettre. However, that is not the w hole story. There are other aspects of A dorno's thought in w hich his realism is supplem ented by strongly irrealist tendencies, to which I now turn. Adorno as idealist: predom inance o f the concept In the positions we have considered, Adorno has endorsed a realist ontology as the basis for understanding the hum an world and knowledge of it. However, he does not sustain it, and this is seen in two crucial areas. First, it is seen in his further discussion of the logic of scientific explanation where he explains the process of theory building in terms of a weak subjective notion of the 'constellation'. Here he falls back (with qualification) to a W eberian neo-K antian m ethodology to explain the relationship between concepts and history. Secondly, it is seen in the idealist trap that he sets for him self at the end of Negative Dialectics in terms of his understanding of the impasse in w hich critique finds itself. I will discuss these two points in three su bsection s d ealing w ith: the role o f the 'co n ste llatio n ' in theory bu ild ing and explanation; A dorno's use of Weber as the key exem plar of constellational thinking; and the ultimate impasse in his w ork concerning the possibility of critique. In these argum ents, A dorno's ability to sustain the standpoint of referential detachm ent or

H ow Does Freedom Lie? Adorno, Negative Dialectics and Law

o f a d e p th o n to lo g y is c a lle d in to q u e s tio n . H is o w n in s is te n c e on th e 'preponderance of the object' (Adorno, 1973, p 183) is undercut by a reversion to the subjectivity of the concept. He him self falls back to idealism, and becom es a victim of his own 'prim al squeeze'.

Constellations and theory building Adorno has argued for an ontology of structures and depth w hich it is the task of k n o w le d g e to g ra sp , to 'b la s t a h id d e n tru th o u t from b eh in d th e id o ls o f conventional consciousness'. How is this to be achieved? The nub of his position on the process of scientific explanation concerns the idea of a 'constellation' within w hich subjective concepts operate, and which Adorno w ants to represent as linking such concepts to 'the object' of knowledge. However, there is an obvious problem for Adorno in establishing such a linkage if we recall the central blocking role that concepts play in his philosophy. Concepts are in this view the devices by which 'identity thinking' operates. They are part of a 'classifying procedure' that obstructs knowledge of the object. This is a fundam ental elem ent in his thought: that we are trapped by conceptual thinking never to see what lies beyond our concepts, which serve to exclude the truth of things. Now, however, a tension: we have also seen that A d o rn o b e lie v e s in referen tial d etach m en t. T h is in v o lv es the e xisten ce o f an objective world beyond our subjective concepts, which our concepts explain, and which is not reducible to them. How can he reconcile his belief that concepts explain the objective world w ith the view that they block that world from us? A dorno's answer to this problem is the idea of the constellation. As well as their blocking role, concepts can 'enter into a constellation [... which] illum inates the specific side of the object'. Constellations o f concepts 'represent from w ithout w hat the concept has cut away w ithin'. They gather 'around the object of cognition' and in so doing, they 'p o ten tially d eterm ine the o b ject's in te rio r': they 'attain in think in g w h at w as necessarily excised from thinking' (Adorno, 1973, p 162). W hile the concept blocks, concepts in constellation illumine. This m ove against the blocking pow er o f the concept is surely too easy. The concept by itself cannot but form alise, exclude, freeze, identify, but, it transpires, all that is necessary is that concepts be grouped together and the problems of identity thinking evaporate before the explanatory pow er of the constellation. W hat the concept alone actively denies, the com bination of concepts actively prom otes. The constellation may be m ade up of subjective concepts involving identity thinking, but this does not stop it revealing the objective conditions blocked by such thinking. T h in k in g con stellatio n ally in v olv es bein g aw are that 'so m eth in g in d iv id u al is objective as sedimented history', that is understanding its ontological depth as real history. Yet, the constellation is also the group of concepts by w hich the thing is identified and its truth obscured. In order to reconcile these irreconcilable positions, the process of scientific enquiry assum es a m ysterious, blind aspect: B eco m in g a w a re o f th e c o n s te lla tio n in w h ich a th in g s ta n d s is ta n ta m o u n t to deciphering the constellation which ... it bears within it ... Cognition of the object in its co n ste lla tio n is co g n itio n of the p ro ce ss sto re d in the ob ject. As a co n stellatio n , theoretical thought circles the concept it w'ould like to unseal, hoping (hoffend) that it might fly open like the lock of a well-guarded safe-deposit box: in response, not to a single key or a single number, but to a combination of numbers. (Ibid, p 163)

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To say that structured conceptual (theoretical) investigations can map the structures of the world is a reasonable claim from a realist standpoint. But if the constellationin-thought really deciphers the constellation-in-the-object, why is the problem of the concept of identity thinking so fundam ental for Adorno, as it plainly is? In addition, if the constellation-in-thought perform s the function of deciphering reality why only the 'h o p e ' that the lock m igh t fly open, rather than the k n o w led ge that, knowing the code, it will? Either the constellation-in-thought reflects the problems of individual concepts or it is a genuine tool for scientific enquiry and method. It is hard to see that it can be both, but A dorno's twin accounts o f identity thinking and the need for real h isto rical kn o w led ge estab lish a real tension in his neg ativ e dialectics. Given the importance of the critique of identity thinking to Adorno, sustaining the em phasis on real historical discovery becom es difficult, and it is the first view that ultimately prevails. Adorno, however, still wants som e sense of how scientific knowledge - through concepts - is possible. The concept has to play a double and contradictory role in his thought, to w hich the idea of the constellation purports to be a solution. W hat em erges here, how ever, is a strong idealist tendency in the negative dialectics, w hich posits a fundam ental gap between subjective concept and objective world. A dorno's deploym ent of the notion of the constellation is a means of reconciling the 'exp licit idealism ' of his idea of the concept with the 'im plicit realism ' which wants to affirm the scientific value of concepts, and which informs all the p o s itio n s d iscu sse d in the p re v io u s sec tio n . T h e te n sio n aro u n d the constellation reveals both tendencies at play in his work.

Weber versus M arx Pursuing this conception of the constellation, it is hard to see how it can reflect the p ro b le m s o f s u rfa c e and d e p th , e s s e n c e an d a p p e a ra n c e an d o th e r re a lis t distinctions with w hich Adorno otherwise works. If concepts represent 'surface', or appearance - w hat thinking obscures - then their com bination can also only reflect surface. To 'constellate' surface appearances is not to achieve depth. That there is a problem here is indicated by the exam ple of con stellatio n al thinking he gives. D espite his obvious substantive and m ethodological debts to M arx, seen in the d iscu ssio n o f e sse n ce and ap p earan ce, in the role o f com m o d ity exch an g e in positing reification, and generally in the objective history of concepts, it is M ax W e b e r 's n e o -K a n tia n id e a l-ty p ic a l m e th o d th a t A d o rn o u s e s to illu s tr a te constellational thinking. Adorno acknow ledges that Weber was of 'positivistic bent' and also a 'subjectivist' in epistem ology (ie, he embodied aspects of both subjective idealism and em pirical realism), but he holds that Weber understood ideal types as 'aid s in ap p roaching the o b ject'. W hile W eber w as a 'n o m in alist' in his use of concepts, Adorno argues that 'som e of the nature of the thing will com e through' in his sociology. Adorno applauds Weber because he 'explicitly rejected the delimiting p ro c e d u re o f d e fin itio n ... and asked in ste a d th a t s o c io lo g ic a l c o n c e p ts be "gradually com posed" from "individual parts to be taken from historical reality"'. W eber's method of 'com posing' concepts may look 'only at the subjective side, at cognitive procedure', but the 'subjectively created context - the "co nstellatio n" becom es readable as sign of objectivity' (Adorno, 1973, p 165).

H ow Does Freedom Lie? Adorno, Negative Dialectics and Law

M y aim here is not to deny the validity of A dorno's assessm ent o f Weber, but to point to the lim ited nature of the W eberian position from a realist standpoint. One can agree that W eber's ideal-type model does indeed represent an advance in terms of its insistence on building concepts out of historical material. However, it is also seriously limited by its failure to contem plate notions of generative mechanism , or underlying cause and structure, those crucial elem ents which make up a structural depth ontology. In short it does not look for causal structure and depth, though it m ay hint at such things, and is ultim ately ontologically shallow. As Bhaskar (1979, p 39) puts it, it is 'con strain ed by [a] con tin u in g com m itm en t to an em p iricist o ntology'. A d orn o's use of W eber to exem plify the constellation thus raises the question why he ignores M arx at this point, when he uses him so frequently for his substantive theoretical understanding. Here is Bhaskar's critical realist com parison o f M arx 's m ethod ology w ith that o f W eber: w hereas W eber is caugh t betw een empiricism and idealism, M arx's approach: is not a one-sided accentuation in thought of an equivalent aspect of an undifferentiated empirical reality, but an attem pt to grasp w hat is really accentuated (or, as it w ere, lop­ sided) in reality; and its focus is causal, not taxonom ic. (Ibid, p 167)

In rem aining, despite reservations, at the level of W eber's ideal-typical m ethod, A dorno confirm s the counter-tendency to his ow n realism . In the constellation, thinking and explanation are not rooted in the structured nature of things, but remain at the level of concepts. Subjective (conceptual) thinking is given prim acy here, despite A dorno's conflicting insistence elsewhere in Negative Dialectics on the 'preponderance of the object'.

Impasse in negative dialectics At the m ost fundam ental level, and against the grain of the depth realism in his w o rk , A d o rn o 's th eo ry o f k n o w le d g e is u n a b le to go b e y o n d an e m p iric is t conception of reality. His constellational theory is a 'flat' theory of the structure of concepts and how they map onto reality. This leads to a revindication of idealist thought, for the failure to think ontological depth ultimately supports reversion to subjective, conceptual thinking. This is seen in the fam ous sense of im passe that characterises the final part of Negative Dialectics. Adorno (1973, p 145) had said that to 'criticise ... im m anently means to criticise ... from outside as w ell' and that the 'possibility of internal immersion requires ... externality' (ibid, p 163). He insists on the 'preponderance of the object' and the 'indissoluble som ething' as the basis for understanding the problem s of conceptual thinking. However, in the end, Adorno acknowledges the trap laid by his idealist view' of the concept: that there can be no externality or outside. Dialectics accordingly 'is obliged to make a final move ... it m ust now turn even against itself'. 'C ontrary to its ow n tendency,' critique must 'rem ain w ithin the m edium of the concept' and 'can reach no further than [the] claim of identity' (ibid, p 406). From being a way of reaching beyond the concept, dialectics becom es involuted and self-devouring. The idea of dialectics ruthlessly criticising itself certainly has a pleasingly radical sound to it, and it is indeed true that dialectics m ust remain self-critical. However, A dorno's acknow ledgm ent that it is im possible to go beyond the concept is the price exacted by his irrealism. It turns dialectics into a self-defeating proposition:

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Dialectics is the self-consciousness of the objective context of delusion; it does not mean to have escaped from that context. Its objective goal is to break out of the context from within. (Ibid, p 406)

This is paradox dressed up as dialectics. How can dialectics be the consciousness of the 'objective context' if it has not in som e w ay 'escaped'? How can it possess an 'objective' goal, if it is located essentially 'w ithin'? Dialectics in this contradictory fram ew ork has to be both herm etically caught within the realm of the concept and able to break out of it. It is both subjective awareness that cannot go beyond the concept and a view of its objective context. It is knowledge only of the concept and knowledge of it as delusion. It is both required to remain within identity and to go beyond it. Adorno does not explain how these paradoxical requirem ents are to be sustained. U ltim ately Negative Dialectics is reduced to incoherence. W hy should this be so? M y argum ent is that this is the result of the conflict betw een realist and idealist tendencies in A dorno's thought. The problem is that the subjectivist problem atic of the concept, even when constellationalised, is sustained. A dorno him self fails to 'break out' from the concept, yet this is precisely w hat is r e q u ir e d b y h is s u b s ta n tiv e p o s itio n s o n 'r e f e r e n tia l d e ta c h m e n t ', th e 'p r e p o n d e r a n c e o f th e o b je c t ', a 'd e p th o n to lo g y ', th e 'p r im a l s q u e e z e ' in philosophy, the realist sig n ifican ce o f essen ce and ap p earan ce, the critiq u e of reification, and the references to real historical developm ent throughout the text. A conception of a stratified, depth ontology is required in order to reposition subject and concept fully in the subject-object dialectic. Adorno knows this but is blocked9 from theorising it. He insists in principle upon the 'preponderance o f the object' over the subject, he insists on the historical understanding of essence, and the link betw een philosophical form (identity thinking) and social and historical practice. However, his theory of knowledge and being reflects a limit in his philosophy, with the result that his dialectics find their ultimate structure in their ow n dilemm atic antinomy, an unresolved dialectic of the internal and the external, the subject and the object, the real and the ideal. A dorno's implicit realism, then, does not go far enough in its attack on the idealism and con seq u en t irrealism that u ltim ately govern N egative Dialectics. We have now identified a con flict betw een realist and id ealist tendencies in A dorno's thought. Ultimately, the latter gets the better of things, m aking negative dialectics an uneasy com prom ise form ation, ensuring its tense and contradictory form s and its ultimate impasse. I now w ant to move on to consider the significance of this instability, this fall back into irrealism , for A d o rn o's accoun t of K antian freedom and the juridical under modern conditions with which we started.

Understanding modern freedom : realism and idealism in A d o rn o ’s th ree views W hen discussing Kant, hum an freedom and its m odern juridical form s, A dorno was divided between, first, a negative view subsum ing these under the term s of his c ritiq u e o f id e n tity th in k in g ; seco n d ly , a p o s itiv e re a c tio n a g a in s t h is ow n

9

A dorno's own term (1973, pp 3 8 4 -9 0 ) to denote a self-im posed limit, particularly in the Kantian philosophy.

H ow Does Freedom Lie? Adorno, Negative Dialectics and Law

identitarian critique in qualified defence of liberal terms; and, thirdly, a view of the way originary hum an freedom underlay, and w as expressed inchoately in, modern social forms. This third view was expressed contradictorily in both ahistorical and historical terms. How are we to understand these different view s, and achieve a sense of the overall im port of A dorno's position? The initial problem is to con sid er the con trad ictio n betw een seeing ju rid ical freedom as a form of violence and as a defence against violence. A t a political level, the antinom ialism in the first two views of freedom probably stem s from a conflict betw een the d o m in an t critiq u e o f identity th in k in g in his p h ilo sop h y and his reflection on the differences betw een liberal m odernity and fascism . How could A dorno, w ho lived through the experience of N azi Germ any, not reflect on the differences between liberal capitalism and fascism ? The identitarian critique comes uncom fortably close to failing to d istinguish the different form s of political life under capitalism . However, the conflict betw een the critique and the liberal recoil against it only makes prom inent the antinom y im m anent in his argum ent, it does not create it. U nderlying these tw o approaches w as a third w hich sought to link discussion of freedom to a basic impulse of the hum an condition. On the nature of this, Adorno remained ambivalent. In places, he described it as pre-tem poral and pre-social, som ething lost to hum ankind but still som ehow echoing in its practices. In other places, he linked it to the nature of hum an species being as it has evolved socially and historically. He describes the impulse to freedom as emerging in limited and attenuated form s under m odern social conditions. In this final section, I will consider the implication of this ambiguity in A dorno's third view of freedom. I will link it to the tension between realist and irrealist standpoints in his philosophy, and argue that we best understand the relationship betw een his three views of freedom if we adopt the realist standpoint that is present but incom plete in his work. Pre-tem poral or historical freedom? Let us first consider the consequence of linking the negative and positive view s of freed om in the first tw o ap p ro ach es to the third in e ith e r its h isto rica l or its ah istorical form . W h eth er taken h isto rically or pre-tem p orally, the im p u lse to freedom has an inchoate quality. It lacks com pletion, lurking as a trace elem ent that is experienced but not given proper expression within m odem conceptions. In the pre-tem poral view, this inchoateness is doubled by the m ysterious absence of a ground from w hich such freedom could em erge. A ll that we know is that true freed om ech o es from a tim e b efore tim e, b efo re society , w here the 'u n tam ed im pulse' resides. W hen was this time, and how was it possible? It is not at all clear that any plausible answ er could be given to such questions. In the historical view, in contrast, the m ystery of freedom is not so m ysterious, for its inchoateness in the present is u nderstood w ithin the social and historical d ev elo p m en t o f hum an species being. Both its em ergence and its lim ited form are accounted for by the nature of subject-object relations under m odern social and econom ic conditions. W hile m odern freedom retains its latency and partiality, this can be explained according to an historical analysis of its structural em ergence under modern social

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conditions, in terms of an historico-anthropological account of hum an natural and social evolution. The freedom expressed in m odern juridical form s rem ains blurred and incom plete, but its ground of existence does not, and it ow es nothing to a questionable m etaphysics of the pre-temporal. This difference betw een the two views of the underlying nature of freedom is important because it reflects the conflict between realism and idealism in Adorno's w ork, explored in the m iddle sections of this chapter. T he pre-tem poral view is aligned to the idealist argum ent that it is im possible to overcom e the dom inance of the concept. If identity thinking subsum es all thinking and practice within its ambit, then any genuine m om ent of freedom (how ever unform ed) must be one of pure origin, a protean m om ent or elem ent precedent to the social and historical first steps of the species. As soon as one moves into the social and temporal, one moves into lan g u ag e and th e re fo re the p riso n h o u se o f co n ce p ts. A ny e lem e n t o f social positivity involves bringing hum an life into the realm of the historical, and therefore subsum ptively within identity-thinking and under the concept. A dorno's lengthy critique of H eidegger's metaphysics m akes it clear that he is alert to the problem s of an originary m om ent (Adorno, 1973, Part 1). However, he him self falls prey to it, alb eit in his c h a ra c te ristica lly allu siv e fash io n , w ith his idea of p re-tem p oral freedom . This idea fits w ith the id ealist con ception of the inescap ability o f the subsum ption of being to thought. If thinking predom inates, then the concept has priority and all conceptions of freedom m ust be brou ght under the identitarian critique. If concepts dominate hum an being and act repressively towards it, where could Adorno find the basis for an underlying genuine, if fragile, freedom save in echoes from a time before concepts? In providing such a mom ent, A dorno's idealist reliance on the identitarian critiqu e forces him to have recourse to the kind of foundational metaphysics he otherwise condem ns. In con trast to the idealist side o f A d orn o 's philosophy, the d iscu ssion o f an underlying, emergent, freedom that is consistent with the historical developm ent of human being under given social relations reflects the realist tendency in Negative Dialectics. This finds its place in all those aspects of his approach discussed in the first half of the third section above: argum ents for referential detachm ent and for a depth explanatory realism, the identification of the problem of primal squeeze, the recastin g of the relatio n sh ip b etw een essen ce and ap p earan ce, the critiq u e of reification, the insistence on the 'preponderance of the object'. It is present in his consistent linking of historical form s and social relations to forms of thought. All these elem ents are reflected in a view of a latent potential for hum an freedom , glimpsed 'through a glass darkly' in its actually existing forms under m odern social conditions. Even though he did not sustain it, his argum ents for the social, historical and anthropic bases of the pulse of freedom under modern conditions express the depth realism that lies within Negative Dialectics. However, they rem ain in conflict with an ultimately dom inant idealist insistence on the suprem acy of the concept (in effect, the 'preponderance of the subject') that coexists there, and w hich is given expression in the pre-temporal conception of the pulse to freedom.

H ow Does Freedom Lie? Adorno, Negative Dialectics and Law

Relating the three views o f freedom The reason for labouring the conflict betw een idealism and realism in A dorno's philosophy relates to the question how we may best bring together his three views of freedom: the identitarian critique, the liberal reaction, and the underlying view (in w hat we now see to be its realist and idealist forms). If w e take the antinom y of freed om rep resen ted by the first tw o o p p o sin g v iew s, w e need som e w ay of understanding how these views could be held together in A dorno's account. The third underlying view of freedom is potentially the way to move towards a more com plete u n derstand ing o f the w ay freedom w orks under m od ern conditions. H owever, this is so only if we adopt the realist, historical approach in N egative Dialectics, eschewing the idealist, pre-temporal one. If the underlying im pulse to freedom is given an idealist, pre-tem poral cast, it cannot bring the first tw o view s into a cog en t relation w ith each other. If the underlying freedom represented in the 'jo lt', the 'im pu lse', the 'flash of light', is sim ply an echo from a time before time, it can only be an 'accidental' addendum to m odern antinom ial practices. In them selves, these would have to be seen, as the id e n tita ria n c ritiq u e s tip u la te s , as d ev o te d e n tire ly to the p re d o m in a n c e of subsumptive logic and identity, to unfreedom . Because of the dom inance of identity and its exclusion of everything beyond it, there would be no ground, other than that of a supplem entary, unw arranted assertion, on w hich to base anything positive within the m odem conception of freedom. There is no way of linking the traces of a 'lost' freedom in a time before time to a valued temporal freedom today. Were this possible, A dorno w ould have to lim it the w rit of the concept in his identitarian critique, which means giving the critique up. He cannot say that the positive aspects of modern freedom in his second view em body the pre-temporal pulse to freedom w ithout underm ining the n egative critiqu e in his first view. In aligning a pre­ tem poral pulse of freedom to freedom w ithin the m odern juridical com plex, he would have to concede that his argum ent concerning identitarian logic is one-sided and incomplete. At the sam e time, politically, it would be foolish and irresponsible for one who lived through the Nazi period to deny the validity of liberal forms of freedom, lim ited though they may be. The point is that this political need cannot be reflected in A dorno's philosophy so long as he m ain tain s the id e alist in siste n ce on the sco p e o f id e n tity th in k in g expressed in his first negative view of modern freedom. That view cannot explain an intrinsic, although troubled, link between freedom s past and present, and would therefore need to resort to an extraneous sense of 'the political' on w hich to base itself. It cannot theorise the im portance of m odem freedom, lim ited though it may be, as brought out in A dorno's second, positive view. By contrast, deploying the realist side of Adorno m akes it possible to hold both the id en titarian critiq u e and the qu alified d efen ce o f liberal form s w ithin the juridical com plex together in a dialectically fuller perspective. To put it shortly, it is o f the e sse n ce o f freed om in its v a rio u s m od ern fo rm s, to w h ich K ant gav e philosophical expression, that it, first, embodies limited forms of freedom, and that, secondly, these form s are also in fundam ental w ays turned into their opposite, form s of oppression, under modern conditions. These are the contradictory legal effects of m odern subject-object relations. Thus, the freedom to exchange becom es

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the necessity to sell one's labour; the respect for individual responsibility becom es the repression o f state punishm ent. However, at the sam e time, the declarations of freedom retain their im portance as a lim ited m eans of opposing arrogatory power. T h e y p e rm it a le v e l o f ex p r ess io n o f the in te re s ts o f in d iv id u a ls , as w e ll as e s ta b lis h in g a m e an s fo r th e ir rep ressio n (see fu r th e r N o rrie , 1 9 9 3 a , 2 0 0 1 b , Chapter 11). The problem w ith m od ern (bourgeois) society in this view is neith er that it e x clu d es all freed o m (th e n e g a tiv e id e n tita ria n c ritiq u e ) nor th a t it d irectly embodies freedom (the second, positive, view: the view of liberalism). Rather, it is that m odernity delivers freedom in a limited and alienated way. Freedom is denied in the m om ent and in the forms in which it is expressed, although expressed it still is. Kantian theory, when approached critically and read for its absences as well as for w'hat it says, is the most sophisticated philosophical statem ent of this position. 'Freedom ,' says Adorno, 'is a mom ent [...] not to be isolated, and for the time being it is never more than an instant of spontaneity, a historical node, the road to which is blocked under present conditions' (Adorno, 1973, p 219). This is a situation where Kantian subjective freedom , w hich has its ow n points of purchase on the world, turns into its opposite because subjective freedom is shaped by the objective world of w hich it is a part. A constant theme of N egative Dialectics, on its realist side, is what Adorno calls the 'preponderance of the object', the insistence on reading the subjective within the objective: In ourselves ... we discover neither a positive freedom nor a positive unfreedom. We conceive both in their relation to extra-m ental things: freedom as a polemical counter­ image to the suffering brought on by social coercion; unfreedom as that coercion's image ... W hether or not there is autonom y depends upon its adversary and antithesis, on the object which either grants or denies autonom y of the subject. (Ibid, p 223)

However, w hat is expressed as a lim ited freedom under m odern conditions, for all its problem s, also participates in som ething deeper, a social and historical evolution of the quality o f being human. Such a vision of the hum an condition, latent and unfulfilled, speaks through the lim its of the existing form s in w hich freedom is expressed. W hat lies underneath those forms and is signalled by their presence is the promise of a real autonomy. This presses at the limits of w hat is expressed or un d erstoo d as a ctu a lly e x istin g auton om y, as so m e th in g in ch o ate w ith in the present: som ething already there, but also still 'to com e'. H um an freedom is expressed in m odern Kantian accounts of the free subject, but only in a partial way. Its underlying quality, expressed in, and turned against itself through, m odern social relations is brilliantly caught by A dorn o's com plex and conflicted account of negative dialectics. A realist reading of the potential for human freedom in its socio-historical contexts brings out A dorn o's argum ent because it links the underlying impulse to freedom within m odem society to an appraisal of its contradictory and lim ited form s in the here and now. An idealist reading to the contrary leaves us with a sense of the contradictions in m odern form s of freedom, bu t no u n d erstan d in g o f w hat holds these con flicts together. In resortin g to a mystical past that could not in truth be known in the present, it only adds to the mystification that already surrounds the subject.

H ow Does Freedom Lie? Adorno, Negative Dialectics and Law

P u sh in g A d o rn o 's 'im p lic it re a lis m ' a g a in s t the 'e x p lic it id e a lis m ' o f h is id e n titarian critiqu e brin g s out the ground ed h isto ricity o f the d ilem m as and incom pleteness of m odern freedom. It helps us to see how freedom 'lies' in a double sense under m od em conditions. First, it lies in a structural and objective sense w ithin an anthropo-historical context that shapes and form s the possibilities for freedom available to hum an beings under particular social conditions. Secondly, it lies in the different subjective sense that it misstates the nature and lim its of hum an freedom . Read through a realist lens, A d o rn o's negative dialectic o f law sheds brilliant light on how far humanity has travelled, and how far it still has to go, in its pursuit of freedom.

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C h ap ter 10 Law and the Beautiful Soul

Bliss w as it in that dawn to be alive ... When reason seemed the most to assert her rights, When m ost intent on making of herself A prim e Enchantress ... Not favoured spots alone, but the whole earth, The beauty wore of prom ise ... (W ordsworth) The type of spiritual life cultivated by the M oravians ... and popular w'ith sentimentalists in Hegel's day. (Hegel, 1952, p 345)

Introduction This chapter is about Hegel, the moral expressivism of the Enlightenment, and the nature of law. It takes as its focus H egel's diverging analyses of the Beautiful Soul1 in his early and m ature w ork, arguing that the transition from the form er to the latter involves a move to legitim ate modern law. In doing so, som ething important is lost, and the loss can be b riefly d escribed by con trastin g m y tw o p refato ry quotations. W ordsworth's famous lines on the French Revolution ('As it Appeared to Enthusiasts at its Com m encem ent') express the full idea of the Beautiful Soul as it was born in the time of the revolutionary Enlightenment, in its prom ise to remake the w orld in the im age of enlightened reason. W hile the first line has becom e som eth in g o f a clich e, to be treated iron ically as rom antic naivety, it is w orth recalling the moral passion, conviction and hope for a better world it reflects. The second quotation is TM K nox's sum m ation of the Beautiful Soul as it is treated in H egel's Philosophy o f Right (1821) and his earlier Phenom enology o f Spirit (1807). From being a spirit to move the times, the Beautiful Soul is forced, in a very short period of time, into a by no means exalted M oravian exile. W hat caused this transition in its fortunes, what does it tell us about Hegel, and what about the nature of modern law? These questions are asked as we move from a discussion of the idea of moral expressivity to H egel, and thence to law'. This is the direction of the chapter as a whole, and is developed as an outline argum ent in the rest of this section. Let us take things one step at a time: moral expressivism , H egel, law.

1

For a discussion of the general im portance of the Beautiful Soul in 18th century aesthetic morality, see Norton, 1995, which describes Hegel's changing treatment of the figure and how he came to put an end to its hundred year history. My original interest was triggered by the discussion in Bhaskar's Plato Etc (1994, pp 1-7, 116-19). The essay shares some themes with Gillian Rose's H egel Contra S ociology (1981), probably the m ost prom inent recent critical discussion of the topic. In particular, I share the sense of an 'unfinished' Hegel (ibid, p 203) linked to the property form in modern liberal society. In the penultimate section, I argue like Rose (ibid, p 184) for a legacy of conflicted theory wfiich Hegel bequeathed to modernity. I do not, however, discuss Rose's work here. On the early Hegel, see Lukacs, 1975; Tavlor, 1975; Pinkard, 2000; Plant, 1983.

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M o ra l expressivism Charles Taylor, whose account I initially follow, has written that it 'is evident that the expressivist conception of m an is of more than merely historical interest' (Taylor, 1975, p 29). The expressivist approach to m orality involved a strong belief in the perfectibility of hum an being. It stressed a sense of the self-unfolding of individual hum an life, at ease with itself, with nature and w ith a moral com munity. Taylor describes it as entailing an anthropology of free expression and discovery by each individual of their uniqueness: 'm an com es to know him self by expressing and hence clarifying w hat he is and recognising him self in this expression' (ibid, p 17). This flowering from within of the qualities of individual life is at the sam e time a 'passionate demand for unity and w holeness' (ibid, p 23) through overcom ing the modern dichotom ies of mind and body, reason and feeling, desire and calculation. It insists on freedom not in term s of autonom y from interference, b u t in term s of authentic self-expression, an awareness of self in com m union with both nature and other hum an beings. M oral expressivism 'responds w ith dismay and horror to the E n lig h ten m en t v isio n o f society m ad e up o f ato m istic, m o rally se lf-su fficie n t subjects w ho enter into external relations with each o th er' (ibid, p 28). It seeks a 'd eep er bond o f felt unity w hich w ill unite sym p athy betw een m en w ith their highest self-feeling'. Such self-feeling is 'w oven into com m unity life rather than rem aining the preserve of individuals' (ibid). This view was popular in Germ any in the last decades of the 18th century. Its leading thinkers included Herder, Goethe, Schiller and the poet Holderlin. H olderlin was an old college friend of H egel's, and he was to be a strong influence on the young H egel, com ing to philosophical life in the 1790s. However, alongside this personal link, moral expressivism was part of the spirit of the times. It reflected the optim ism that was unleashed by the French Revolution as well as a reaction against the narrow m aterialist ideology that had preceded it. There w as a sense of the possibility of changing the world radically, of overcom ing the negativity and deathly quality of the present in favour of a future of self-actualisation, harmony and community.

M oral realism and ethical naturalism W hat is the nature of such a m oral argum ent? I w ant to take it in two different ways: as (i) a direct ethical dem and for a state of moral com pleteness; and (ii) as an em ergent social and historical expression of the prom ise of the m odem world and the form s of moral developm ent of which it was believed to be capable. Both the intrinsically moral and the socio-historical points are important. The first involves a form of moral realism: a claim about the real moral possibilities available for hum an b e in g . It is a d e o n to lo g ic a l c la im in the sa m e w ay as K a n t's p h ilo so p h y is deontological. There is a sense of w hat morally ought to be the case, but the claim is the m ore ra d ica l fo r su rp a s s in g K an tian n o tio n s o f reaso n and duty. M oral expressivism was essentially critical of Kant for his abstract and m onadic moralism and his failure to think w idely enough about the nature of ethical being. Kantianism w as a barrier to m oral com pletion from the expressiv ist stand p oint, but m oral expressivism maintained a strong ethical sense of what the world ought to become. The second involves a form of ethical naturalism : a d escriptive-explanatory claim about the w ay in w hich m oral feelings com e into being. A gainst deontologists, ethical naturalists see morality in terms of how it expresses the way hum an beings

Law and the Beautiful Soul

are. Thus, Adam Smith could write of the moral instincts in his 'Theory of the moral s e n tim e n ts ' in te rm s o f a n a tu ra l sy m p a th y a m o n g st h u m a n b e in g s to put them selves in the place of each other. M oral realism is concerned with the intrinsic ethical status of m oral concepts, ethical naturalism is concerned with explaining how such concepts com e about.2 The idea of ethical naturalism is im portant in order to relate the emergence o f a m oral standpoint to a particular historical m om ent, as em ergent from a specific social context. W hile ethical naturalism has lent itself to individual psychologistic accounts of m oral feelings (as in the case of Sm ith), it can also be given a strong social and historical reading. For exam ple, Kathryn Dean argues that in w hat she terms the early bourgeois period, roughly when Hegel becam e a philosopher, a new form of public-spirited 'w orldliness' becam e possible. This took the form of a belief in the possibility of a new moral world with a genuinely unifying public sphere and an ethical sense of com m unity (sensus com m unis). It involved 'a w orldly form of strongly individuated subjectivity' (Dean, 2003, p 57). Such a world would be one envisaged without the splits and oppositions that would later pervade the actually e x istin g w o rld o f m o d ern c a p ita lism . D ean d is tin g u is h e s b e tw e e n an e a rly bourgeois mentality in the late 18th century and a com pleted capitalist mentality in the 19th. The latter period pursues the processes of econom ic developm ent already present in the former, but inaugurates a more confined moral viewpoint in w hich the idea o f sen su s com m u n is and a strong com m itm en t to d isin terested public spiritedness is under threat and may be lost. H er argum ent can only be sketched here,3 but it is im portant because it develops a sociological and historical dim ension to ethical naturalism. I w ant to start w ith the idea of an historically and socially grounded, em ergent, expressive ethical w ay of seeing the world, a prom ise of the way the world could be as real historical event and as im a g in e d p o ssib ility . A m oral ch arg e w as set lo ose in m o d e rn ity by Enlightenm ent and revolution, even if it wfas one that w'as not redeem ed in the ensuing historical development. Inherent in this is a view o f the w ay in which the real moral categories of the western world are developed out of and shaped by the underlying social relations of which they are a part. It is in the tension betw een an histo rically em ergent dem and for hum an p erfectib ility and freedom (the ideal moral pulse or charge of the Enlightenment) and the actual historical relations as they developed from the period of revolutionary change into the modern capitalist world that the m odern m oral, and ultim ately legal, cloth is cut. We can see this

2

3

The distinction between moral realism and ethical naturalism is drawn from Bhaskar (1993). Although I draw the two terms here as contrasting, ultimately, like Bhaskar, I see them as complementary. Louis Irwin explains the pair of concepts as follows: 'Ethical naturalism is at the level of moral rules designed to guide actions, and these change over time with changes in our ethical concepts (for exam ple, "slav e", "person"). Underlying these is a moral realism which grounds our cthics and which can be rationally discovered via analysis of the changing nature of ourselves, our needs, and our society ... It is moral realism that prevents ethical n a tu ra lis m from b ein g an a r b itra r y m a tte r in te rn a l to a c u ltu r e .' See h ttp ://ph ilosophy.con su m ercide.com /irw in -bh ask ar.htm l; my thanks to Bill Bowring for drawing this to my attention. On the moral realist claim of a critical realist ethics, see above, Chapter 8, and Hostettler and Norrie, 2003. Dean's book synthesises writings exploring the social and historical underpinnings of modern subjectivity as well as its psychoanalytical explanation. She draws imaginatively on the early Habermas, Norbert Elias, and Hannafi Arendt as well as Freud and Lacan.

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te n sio n , I sh all arg u e, a rticu la te d in H e g e l's p h iloso p h y, in p a rtic u la r in his changing account of the Beautiful Soul, and then in his account o f law and the legal subject. Hegel I have already mentioned H egel's links to moral expressivism , his friendship with H olderlin, his youthful enthusiasm for the French Revolution. This enthusiasm (and its w aning ) can be read and charted in his p h ilo so p h y via the con cep t o f the 'Beautiful Soul' and its counterpart, the 'U nhappy C onsciousness'. The beautiful soul w as an idea with general currency in Germ any in H egel's time. It is introduced into H egel's thinking in one of his early theological writings, an essay called 'The Spirit of Christianity and its Fate', w ritten about 1799. This is a pivotal w ork for d ev elo p in g an exp ressiv e m oral theory for m od ern society, and its use o f the Beautiful Soul is linked in particular with the exam ple of Jesus. As a Beautiful Soul, Jesus can find no m oral hom e with his people. He m ust deal with this either by giving up beauty of soul and surrendering, like them, to the baseness of the actual world, or by withdrawing from them, and in so doing challenging their way of life. This leads to a state of isolation and w ithdraw al, w hich is the state of unhappy con sciou sn ess that acco m p an ies b eau ty o f sou l. A s a resu lt, Jesu s end s up an outsider, and his fate as a Beautiful Soul is to be crucified. Taylor d escribes H egel's use o f the Beautiful Soul in this and his other early th e o lo g ica l w ritin g s as 'b a s ic a lly th e s a m e ' as in his la ter tre a tm e n t in the Phenomenology, a w ork which w as published in 1807, only eight years or so later (Taylor, 1975, p 62). H ow ever, there is quite a m arked d ifferen ce in ap proach between the two treatments. W hile there is a critical edge to Hegel's treatment of Jesus in the early essay, there is also a strong sense of his moral rectitude and tragic fate, a fate that was to have an epochal effect upon the Christian church thereafter.4 In the P h en o m en o lo g y , b y c o n tra s t, the B e a u tifu l S o u l is treated m u ch m ore negatively, as a form of failed moral being in the world. There is a difference here, and one that I shall argue is im portant for thinking about the nature o f modern moral experience. In particular, I will suggest that the tension betw een a radical dem and for m oral perfectibility and a reconciliation with actually existing moral relations based upon private property and capitalism inform s the change in H egel's account of the Beautiful Soul. The m ove from am bivalence to thorough negativity reflects H egel's shifting view. W hat happened to H egel's thinking betw een the early theological w ritings and the P henom enology reflects som ething o f the historical change Dean charts in the developm ent of m odern bourgeois society. The change in H egel's approach to the Beautiful Soul is reflected in his developing account of law for it transpires that the turn against the Beautiful Soul is a turn towards the forms em bodied in modern law such as private property, exchange relations and legal subjectivity. This move, I then argue, has an im portance that goes beyond Hegel himself, and this relates to the nature of modern law. 4

Taylor notes Hegel's ambivalence to Jesus in the early essay, which foreshadows the treatment in the Phenomenology. This is true, though my argument is that the later treatment reveals a much more decisively negative attitude. Cf Norton (1995, pp 264-82). One could say that in the early writings, the Beautiful Soul becomes through force of circumstances an Unhappy Consciousness, w hereas in the Phenom enology, to be a Beautiful Soul is in itself to be an Unhappy Consciousness.

Law and the Beautiful Soul

The nature o f law The main aim of this chapter is to chart the life and death of the Beautiful Soul in H egel's philosophy and its significance for his account of m odern institutions such as law. A secondary aim is to indicate, albeit b riefly w hat the broader significance of H egel's shifting accounts might be for law and critical legal method. M y starting point, drawing on my previous w ork, is the claim that law is persistently antinomial in its fo rm s. L egal c o n ce p ts g e n era lly hu n t in p airs, in the sen se th a t law is e sse n tially d ichoto m o u s. It con sists o f a series o f antin om ies. T here are, first, antinom ies w hich establish law itself: the 'ideal' and the 'actual', the 'internal' and the 'e x te rn a l', the 'p o s itiv e ' and the 'm o ra l', the 'fo rm a l' and the 'in fo rm a l', 'a u t o n o m y ' an d 'h e te r o n o m y ', th e 'l e g a l ' an d th e 'p o p u l a r ' (s e e a b o v e , Chapters 2 -4 ; Norrie, 1998b). Secondly, there are antinomies which seek to establish the w orkings o f a particular area o f law. In crim inal ju stice, for exam ple, these would include the 'individual' and the 'com m unity' (or the 'social'), the 'crim inal' and the 'v ic tim ', 'fo rm ' and 'c o n te n t' (or 'su b sta n c e '), the 'u n iv e rs a l' and the 'particular' (see above, Chapters 4 -7 ; Norrie, 2000). Thirdly, there are specifically legal antinomies, as it were transmitted inwards from those already mentioned. In c rim in a l law , th e se w o u ld in c lu d e 'c h a r a c t e r ' and 'c a p a c ity ', 'm o tiv e ' and 'intention', the 'subjective' and the 'objective', the 'honest' and the 'reasonable', the 'orthodox subjectivist' and the 'm orally contextualist', the 'direct' and the 'indirect', 'foresight' and 'foreseeability'.5 I will suggest that w hat underlies the difference in treatment of the Beautiful Soul in H egel's theological w ritings and his Phenom enology is connected with the nature o f law as an a n tin o m ia l d is c o u rs e . Law as a m o d e rn s o c ia l an d h is to r ic a l p henom enon has certain central characteristics. Hegel is an archetypal m odern social, political and legal philosopher, and as such, w hat he has to say in theory has som ething im portant to tell us about legal forms and practice. His handling of the problem of the Beautiful Soul involves wrestling with a grounding antinomy: the relationship between the ideal (the moral charge of Enlightenm ent and revolution) and the actual (actually existing social relations). In the early theological writings, this an tin o m y lies raw, open and u n reso lv ed , its existen ce linked to the clash betw een an ideal moral standpoint and em ergent modern social institutions such as p riv ate property. T h e ch an g e in H e g e l's attitu d e to the B ea u tifu l S o u l in the P henom enology stem s from the attem pt to reconcile this antinomy. H ow ever, the reconciliation is only achieved superficially, so that the antinom y rem ains in place, and returns to haunt H egel in his later work, in particular, the Philosophy o f Right. A focal point for the attempted resolution of antinom y is the idea of the individual m oral-legal subject whose recognition leads to the m arginalisation of the Beautiful Soul. This subject's universality is supposed to reconcile the ideal and the actual, and it is this focus that provides the con nectio n w ith law. T he subject in legal discourse is m odernity's attem pt to reconcile the ideal and the actual, and its failure to achieve this leaves us - in the law, as in Hegel's philosophy of law - with a world r ip p lin g w ith an tin o m y . I w ill re tu rn to th is a rg u m e n t b rie fly a fte r a c lo se exam ination of Hegel's changing treatment of the Beautiful Soul and what it signals for his philosophy of law. 5

For detailed discussion of antinomies in particular areas of law, see above, Chapters 4 ,5 and 7; Norrie, 1999, 2001a and 1993a, 2001b.

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Travels and travails of a Beautiful Soul In this section, I contrast H egel's early w ritings w ith his first m ature w ork, the Phenomenology, on the Beautiful Soul. My argum ent will be that the later negative and m arginalising treatm ent reflects H egel's attem pt to reconcile (and thereby to control) the inchoate, radical im pulse of Enlightenm ent thinking (which becom es 'the ideal') with the actually existing/develop ing social relations and institutions of Western society (which becom es 'the actual'). The early theological

writings

In his early theological writings, H egel developed the kind of expressive morality described by Taylor in the previous section. He gave an account of the morally good as entailing non-alienated hum an being and relations within nature. This involved a sense of a m orally expressive unity. The idea was for a w hole, integrated life in which human beings were at one with them selves and each other. The age was one of hum an d ivision and repression, and H eg el's v ision w as that hum an beings should not be ruled by dead form ulae, but by the immediate spontaneity of agape, brotherly and reasonable love, as seen in the original teachings of Jesus. Thus what w as need ed in con tem p o rary G erm an y w as a m oral reg en eration that w ould com bine autonom ous Enlightenm ent reason, a recreation of w hat w as best in the Greek spirit, and a recovery of the pure teachings of Jesus. H e g e l's p o s itio n h ad s tro n g im p lic a tio n s fo r th e m o r a l ju d g m e n t o f co n tem p o rary re lig io n , law, and in stitu tio n s su ch as p riv ate property. H egel regarded Christianity as a 'p ositiv e' religion, m eaning one that had fallen away from the original teachings of Jesus. It had ceased to be a religion that expressed spontaneous love and morally expressive unity, taking refuge in a set of 'posited' norm s that w ere sim ply received by the com m unity. Its m oral com m ands w ere regarded as com ing from outside the individual, its conception of religion as private vocation was seen as alienating. It reflected a situation in which there was no moral unity between people but rather dom ination of man by man and by man of nature. This gave rise to a situation of 'unhappy consciousness', and the m essage of Jesus w as 'to restore the lost unity, to replace the law which com m ands from outside and divides men from nature and each other with the voice of the heart' (Taylor, 1975, p 59). Similarly, the positive law of society represented the process of separation of man from man. To live under the law w as not to live in freedom because the law w as p ro fo u n d ly alien atin g . To be pu nished un der posited law w as not to be reconciled w ith a broader m oral standpoint but to subm it oneself to that w hich denied such a standpoint. 'Law cannot overcom e transgression because to be under law is already to be guilty of the essential trespass, that against the unity of life' (ibid, p 61). Sim ilarly, private property, w hose presence w as strongly reflected in m o d ern law, w as esse n tially alien atin g b ecau se its in sisten ce on the ab solu te dom inion of the ow ner set each against the other, and ran counter to the deeper unifying needs of love. In th is s itu a tio n , th e re s u ltin g m o ra l p o s itio n w as th a t o f th e U n h a p p y Consciousness. The moral person could only feel a sense o f not belonging, but it was hard to break down the alienations that existed, and to try to do so was to set on eself at odds w ith society. To stand up for m oral com pleteness w as to stand

Law and the Beautiful Soul

o u tsid e the norm s and to risk rid icu le , ch a stisem e n t and w o rse. T h e perso n prepared to give everything up for the morally good life was the Beautiful Soul, of w hich the classic exam ple w as Jesus. Jesu s could only react to the w ays o f his people by w ithd raw ing from them into him self. The result w as inevitable and tragic, that he would find him self in violent conflict w ith his people, leading of course to his death on the cross. In discussing the fate of Jesus, Hegel is talking of an historical figure, but he sees Jesus's exam ple as of central relevance to modernity. The modern conflict between the ideal and actuality is in effect Jesus's and his disciples' problem. H egel's early vision is of a Jesus-like, totalising, moral love that transcends division, be it of law, of property, or of a Kantian style philosophy of duty, but the vision m ust com pete with the divisiveness of the modern world. Faced with this, H egel's attitude is one of am bivalence about the value of the Beautiful Soul. On the one hand, his retrieval of a m orality of the Beautiful Soul indicates a moral force, a moral possibility and direction for modernity with which Hegel strongly identifies. He feels this force and it drives his thinking. On the other, he admits that the conditions of modern society cannot perm it its adoption. In places, H egel seeks to use the idea of universal love as a m eans o f reconciling the effects of m odern institutions. For exam ple, in his discussion of punishm ent, he plays with the idea that love and fate can reconcile the wrong in punishm ent with the wrong in crim e (Hegel, 1948, pp 238-39). In other places, he renounces the standpoint of reconciliation. The problem is that modern social institutions do not perm it a universal love to rule. Private property stands in opposition to unconditional togetherness, since it is against the rule of love. From the standpoint of such a love, it is necessary to condem n private property. However, Hegel does not do so. O f the biblical difficulty concerning the rich man entering the Kingdom of Heaven, Hegel is frankly dismissive: 'there is nothing to be said [of it]; it is a litany p ard o n ab le only in serm ons and rhym es, for such a com m and is without truth for us. The fate of property has becom e too pow erful for us to tolerate reflections on it, to find its abolitio n th in k ab le' (ibid, p 221). H ow ever, he also acknowledges that the possession of riches allows 'o f no whole, of no com plete life' so that 'Wealth at once betrays its opposition to love, to the w hole'. At best, all that it provides is som e particular 'duties and virtues' that are 'o f necessity linked with exclusion' (ibid). W hile such duties and virtues are not to be rejected out of hand, they nonetheless run counter to the dem ands of a universal love, to the morality of the Beautiful Soul. Similarly, considering what happened to Jesu s's disciples after his death, Hegel writes that they shared the sam e fate of m arginalisation as their master. Either they m aintained their beauty of soul at the cost of isolation in sm all groups, or they b e ca m e ab sorb ed in to s o c ie ty 's m ain stream . H egel n o tes th at som e o f those following the first route 'w holly abolished property rights against one another', yet this kind of life w as necessarily in conflict with m odern tim es, w herein a 'large group' of people m ust live and share together (ibid, p 279). An irredeem able conflict was thereby established between the com m unity of love and that 'prodigious field of objectivity w hich claim s activity of many kinds and sets up a fate w hose scope extends in all directions' (ibid, p 280). The abstract language hardly obscures its object, the contem porary growth of a civil or m arket society in w hich relations are distant and cool, based upon m ultiple dealings between self-interested individuals

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(ibid, p 279). The fate of a religion of love in the m odern world was therefore to fail to em brace that world so that 'church and state, worship and life, piety and virtue, sp iritu a l and w o rld ly a c tio n , can n e v e r d isso lv e in to o n e ' (ibid , p 301). T h e com m unity of love, which drove the young Hegel m orally and emotionally, could not exist under m odern conditions. In terms o f the contrast drawn in the introduction to this chapter between moral realism and ethical naturalism , one could say that the radical deontological (moral re a lis t) cla im o f the e x p re ss iv e m o ra lity b e g in s to run in to th e san d as the revolutionary historical (ethical naturalist) context in w hich it em erges begins to fade, both in itself and for Hegel. T h e Spirit of Christianity and its Fate' sets up a radical moral claim as to how hum anity ought to be which stem s from the em ergent historical impact of Enlightenm ent and revolution. Opposed to it is an irreconcilable actual w orld , in w hich, H egel com es to realise, it cannot find itself. The essay rep resen ts an h isto rica l im p asse b etw een the rad ical ex p re ssiv e m oral u n ity u n leash ed by E n lig h te n m e n t and the w ay the a c tu a lly d e v e lo p in g w o rld is associated with modern private property and its attendant social relations. In this period, Hegel is still strongly drawn to the radical vision, but he has also begun to accept its other, the actually existing world. This explains his em pathy with Jesus's tragic fate, but also his turning away from it. This shift away from the Beautiful Soul increases, I will now argue, as H egel develops his mature position. The Phenomenology The P hen om en ology o f 1807 is w id ely regarded as H eg el's first m ajor w ork. It establishes the them es that were to preoccupy him for the rest of his life. It is the story, in the frame of dialectical reason, of the process of logical and moral evolution th a t th e in d iv id u a l u n d e rta k e s as he m o v e s from s e lf-c o n s c io u s n e s s to an understanding of his place in the 'universal m ind' ('Spirit', Geist), a place that he always occupied, though he did not understand that this was so. In two places, the ideas of the Unhappy Consciousness and the Beautiful Soul are deployed to explain the nature of this process: in relation to the developm ent of, first, self- and then moral consciousness. The latter is the more significant, but the form er will be dealt w ith briefly first.

Unhappy Consciousness and the emergence o f self-consciousness Self-consciousness represents an im portant early stage in the developm ent of the P hen om en ology. It arises o u t o f an attitu d e o f U nhapp y C o n scio u sn ess as the individual moves towards consciousness of self and awareness of the universal he rep resen ts. T h e U n h ap p y C o n sc io u sn e ss is on the v erg e o f the sta te o f selfconsciousness. It 'holds together pure thinking and particular individuality', but it h as not yet reconciled the tw o. It in v olv es a 'm o v em en t tow ards th in k in g ', ie, towards the rational, but it has not gone far enough. It is groping for aw areness through thought that is 'no more than the chaotic jingling of bells, or a mist of warm incense, a m usical thinking that does not get as far as the N otion' (H egel, 1977, pp 1 3 0 - 3 1 ) . C o m p a r in g th is w ith th e th e o lo g ic a l w r itin g s , th e U n h a p p y Consciousness is a staging post in the developm ent of self-consciousness towards reason. The intrinsic linkage in the Phenom enology is with reason rather than with

Law and the Beautiful Soul

love so that the concept o f a 'religion of lo ve' is no longer foregrounded. H egel does not give up on love, bu t it plays a background role. The U nhappy C onsciou sness is linked to the idea of the 'pu re heart', but it is the aim o f the pure heart to know its object so that it becom es synonym ou s w ith 'a pure thinking w hich thinks of itself as a particular ind iv id u ality' (ibid, p 131, em phasis added). In this d evelopm ent, the Beautiful S o u l/U n h a p p y C onsciousness pair is being subsum ed in the dialectic of rational self-consciou sness that is the philosophical core o f the P henom enology. The significance o f this m ove from love to reason becom es clearer w hen H egel returns to the Beautiful Soul in connection w ith m oral consciousness.

The Beautiful Soul and m oral consciousness The 'pure heart' em erges again tow ards the end o f the Phenom enology, w hen H egel ag ain d iscu sse s s e lf-c o n sc io u sn e ss , th is tim e o f th e m o ral kind . T h e U n h ap p y C onsciou sness at this point is the individual m oral consciou sness that declines to take up the intrinsic link betw een itself and the w hole, the link w ith universal Spirit. This takes the form o f a vain and im m ature purity w herein the individual refuses to take his place in the w orld. Such a consciou sness is one that 'exists in its poorest form , and the pov erty w hich con stitu tes its sole po ssessio n is itself a v an ish in g' (ibid, p 399). T h e certain ty o f se lf as m oral con sciou sn e ss in actio n is lo st in an inw ardness in w hich the self 'find s it s e l f ... changed im m ediately into a sound that dies aw ay ... and only the echo ... returns to it' (ibid). The U nhappy C onsciousness: lives in dread of besm irching the splendour of its inner being by action and an existence; an d , in ord er to p o ssess the pu rity of its h eart, it flees from co n tact w ith the actual w orld , and persists in its self-willed im potence to renounce its self w hich is reduced to the extrem e of ultim ate abstraction ... The hollow' object w hich it has prod uced for itself now' fills it, therefore, with a sense of em ptiness. (Ibid, p 400)

Its activity 'is a yearning w hich m erely loses itself', it becom es 'd evoid o f substance' and 'find s itself only as a lost sou l'. As an 'unhappy, so-called "Beau tifu l S o u l", its light dies aw ay ... and it vanishes like a shapeless v apour that dissolves into thin air'. It becom es a form o f 'the evaporated life' (ibid). Slightly later, things get even w orse: The 'beautiful soul', lacking an actual existence, entangled in the contradiction between its pure self and the necessity of that self to externalise itself and change itself into an actual existence ... is disordered to the point of m adness, w astes itself in yearning and pines aw ay in consum ption. (Ibid, p 407)

C om paring this w ith 'T h e Spirit of C h ristianity', m uch m ore than am bivalence to the Beautiful Soul is reflected here. Jesu s, the Beautiful Soul in the earlier account, is a tragic figure caught in a fate he cannot escape, and it is the im possibility of escape that is his tragedy as w orld-historical figure. W hile a critical undertone is deployed by H egel, th ere is also a strong sen se o f an essen tially ad m irab le figure, w h ose p light is epoch al for the early C h ristian com m u nities, the C h ristian C hurch, and m odern society as a w hole. The Beautiful So u l's tragedy becom es the historical fate of the m o d em w orld in w hich reason and faith, religion and state, ethical w hole and social p ractice are in h e re n tly ap art. S p littin g is m o d e rn ity 's trag ic fate b ecau se virtue becom es 'o f necessity linked w ith exclusion, and every act o f virtue is in itself one o f a pair of opposites' (ibid, p 221). M orality is not abandoned under m odern

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conditions, but it is limited, and this is expressed in its antinom ialism (a point I will d ev elo p b elo w ). In the P hen om en ology in co n trast, the B eau tifu l Soul and the U nhappy C on sciou sn ess are only negative staging posts on the way to a m ore com plete synthesis that can be achieved. With regard to m oral consciousness, they reveal wrongheaded attitudes that deserve only our contempt. In dialectical terms, is there not som ething positive in the negative for Hegel? The attitude struck by the Beautiful Soul with regard to moral consciousness stems from the recognition of the moral nature of our acts in the world. It em erges at a point of developm ent that is necessary to a more com plete moral consciousness. It could therefore be said that its attitude is carried forward into the moral wisdom that com es from recognising the unity betw een universal and individual m oral consciousness that is the conclusion of the argum ent. We can only recognise the richness of moral activity by alw ays holding in mind the alternative negativity to w hich m aintaining beauty of soul would lead. In that sense, the Beautiful Soul is not ju st taken negatively w ithin H egel's account. N onetheless, the m ove beyond the Beautiful Soul is in a real sense forced by its intrinsic negativity, by the dread co n seq u en ce o f d o in g o th erw ise. To be this figu re is to be 'e m p ty ', 'h o llo w ', 'evaporated', 'm ad ', 'im potent' and 'consum ptive'. From such negativity, nothing positive is to be m aintained, except the need to move beyond it. Transcending the B eau tifu l Soul in the P henom enology is thus prem ised on a w arning of its aw fulness, w hich is both to be pitied and despised. It involves a pathology of m oral being, a failure to see things as they are, and this establishes a contrast with the earlier theological writings. Previously, the moral failing had been in the world the Beautiful Soul confronted: it was the w orld's failure to m easure up to the ideal moral consciousness that led to the tragic fate of Jesus. Now the failing is in the Beautiful Soul itself, w hich has lost its earlier tragic character and become, in today's language, a 'lo se r' w ho needs to 'get a life'. The problem is in it; the world itself is vindicated.6 There is a crucial transition here, and one, I shall now' argue, that is em blem atic of a broader change in H egel's thought as he cam e to w rite his m ature philosophy. Disparaging the Beautiful Soul wfas H egel's w ay of com ing to terms w'ith the institutions of modernity, and of turning the revolutionary dem ands of an expressive morality into an ethical means of reconciling him self to the present. In so doing, it was also a way of recognising the antinom ialism at the core of modern life and seeking to overcom e it.

Legitimating modernity: the ideal in the actual In this section, I will argue that the broader significance of this change in view of the B eau tifu l Soul represented a sh ift tow ard s a leg itim atio n o f m od ern form s of individual moral subjectivity, private property and law. At the core of this move w as the identification of a gap betw een (what becam e) 'the ideal' and 'the actual', a foundational antinom y for m odernity and law' w hich Hegel would seek (without success) to overcom e dialectically. I begin by discussing the antinom y of the ideal and the actual and then trace its significance through H egel's discussion of moral

6

Cf Hegel's later comments (1952, pp 103,230). At p 230, he writes 'However "beautiful" such a disposition may be, it is nevertheless dead'.

Law and the Beautiful Soul

consciousness, private property and the 'legal standpoint' in the Phenom enology, ending with discussion of the relation betw een the ideal and the actual in the later Philosophy o f Right. The ideal and the actual Generally, the shift from the early to the mature works involves a channelling and controlling of the revolutionary spirit of the times through dialectical philosophy.7 In the 1790s, H egel w as an enthusiast of the French Revolution, albeit he was a political m oderate. His youthful enthusiasm at the philosophical level found its p lace in the m oral expressivism of the early theological w aitings. In backw ard Germany, he imagined the possibility of a world made new through radical social and moral change. The result would be the kind of ideal com m unity presaged by Jesus and the early Christian community. This w as the (ambivalent) message of 'The Spirit of C h ristianity', but also of an earlier essay entitled 'The Positivity of the C hristian R eligion', w ritten around 1796 (H egel, 1948). In that work, H egel was m o re o p tim is tic a b o u t the p o s s ib ility o f real m o ra l c h a n g e u n d e r m o d e rn conditions. By the turn of the century, in 'The Spirit of Christianity', his position had becom e more conflicted. As we have seen, while he still held to m oral expressivism , he w as now m ore aw are of the problem s of bring in g an ideal com m u nity into existence in the modern world. M odern society's relations were too widespread and cool, too m uch infected with private property, for this to be possible. Thus 'The S p irit o f C h ris tia n ity ' is p o ise d b e tw e e n a ra d ica l d em an d and a h isto ric a l im possibility. W hen faced w ith the social relation s o f m od ern life, the rad ical m orality becom es increasingly seen as an ideal confronting a wide gulf with what actually exists. There em erges a fundam ental opposition between how things ought to be and how they are, which becom es an antinom y of the ideal and the actual. This w as an uncom fortable, unresolved, position, but H egel's remarks in favour of private property - implicitly against love - indicate the direction in which he was m oving, that is towards em bracing the actual. Add to this that, for Hegel, the ideal seem ed at this point to pose a threat, for an ideal con cep tio n o f freed om , left w ithout a place to be in the w orld, led in his view to danger and destruction. It would becom e a purely negative freedom , which Hegel associated with the terror that followed the French Revolution.8 If this, now dangerous, gap between the ideal and the actual could not be overcom e in practice, it could perhaps in theory, and H egel's response to the impasse of his early writings was to im merse him self more fully in the philosophy o f G erm an Idealism , in the thought of Kant, Fichte and Schelling (Pinkard, 2000, pp 153-69).

7

8

Cf the early, more radical Habermas (1974, p 121): 'in order not to sacrifice philosophy to the challenge posed by the revolution, Hegel elevated revolution to the primary principle of his philosophy. Only after he had fastened the revolution firmly to the beating heart of the world spirit did he feel secure from it.' Hegel's well known comments on the potential destructiveness of m odern freedom in the Phenom enology and the Philosophy o f Right are anticipated in the early theological writings (Hegel, 1948, pp 281,288).

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The details of this im m ersion are beyond the scope of this chapter, as are the biographical reasons which also directed him (Pinkard, 2000, pp 81-88). M y interest is in how the moral and political im passe in which he found him self expressed itself as an antinom y of the ideal and the actual which could be overcom e in thought, where it could not be directly overcom e in the world itself. The Phenom enology is only ab o u t eig h t years after T h e S p irit o f C h ristia n ity ', b u t it h as a d ifferen t political, m oral and philosophical agenda. H egel was shifting politically towards acceptance of m odern bourgeois society from the more radical, if inchoate, ethical standpoint of his youth. The way that this was achieved was by seeking to resolve the gap b etw een the id eal and the actu al so th at the la tte r itse lf becam e the e x p r e s s io n o f th e id e a l, n o t its a n tin o m ia l 'o t h e r '. M o ra lly , th is in v o lv e d underpinning modern social relations with an ethical purpose. Philosophically, this was achieved through the tracing of dialectical reason as it brought together what w as 'rational' (ideal) with w hat was 'real' (actual). However, this idealisation of the actu al w as n e ce ssa rily in co m p lete and co n flicted , and th erefore in d an g er of breakdown. M o dern m oral consciousness In m aking the Beautiful Soul into a m ere nothing, the 'evaporated life', H egel is clearing the ground for a new m oral subject to take its place, a strong individual confident in its own moral outlook. Aware of itself as a moral subject, it accepts its place in a com m unity of like-m inded individuals. However, these moral subjects share only the form of subjectivity, for the conten t o f m oral con scien ce rem ains particular to the individual: In calling itself co n scien ce, it calls itself ... a universal know ing and w illing w hich recognises and acknowledges others, is the same as them ... In the will of the self that is certain of itself ... lies the essence of what is right ... [This universal self] is not universal in the content of the act, for this ... is intrinsically an indifferent affair: it is in the form of the act that the universality lies. (Hegel, 1977, p 397)

Conscience 'puts w hatever content it pleases into its knowing and w illing', and is therefore a 'solitary divine worship [which] is at the sam e time essentially the divine worship of a com m unity' (ibid). No attem pt is made to reconcile further one thisw orldly conscience w ith another, though, despite this, all appears well w ith the world: the declaration of [moral] conscience affirms the certainty of [the self] to be ... a universal self. On account of this utterance ... the validity of the act is acknowledged by others. The spirit and substance of their association are thus the m utual assurance of their con scien tiou sn ess, good in tention s, the rejoicing o v e r this m utu al purity, and the refreshing of th em selv es in the g lory of know ing and u tterin g , of ch erish in g and fostering, such an excellent state of affairs. (Ibid, p 398)

The subject recognises itself as m oral being and recognises this in others too, but no deeper moral togetherness is posited. This is a self-confident, happy, m oral subject, but one that, in terms of H egel's previous m oral expressivism , is shallow, form al and isolated in its ow n specific projects. The position is surprisingly Kantian in its assertion of the sufficiency of individual moral consciousness. Further reconciliation of form and content at the level of m oral self-consciousness is not offered. True, it

Law and the Beautiful Soul

eventually arrives through the further m ediations of religion and philosophy at higher and different levels. However, while these involve a further em bedding of moral subjectivity, they do not change its actual form. The divine, into which selfconsciousness passes, remains, as Terry Pinkard puts it, 'only the way in which the w'orld em bod ies w ithin itself the p otential for Geist, for our "m in d ed n ess" and "like-m inded ness"' (Pinkard, 2000, p 219), ie, for our recognition of self and other as rational and m oral self-consciousness in the way this has previously been laid out. The further m oves do not actively address the split between form and content with w hich H egel leaves us at the end o f his analysis of m oral con sciou sn ess. They p ro v id e ra th e r an 'o th e r-w o r ld ly ' re c o n c ilia tio n o f w h a t re m a in s o th e rw ise unreconciled at the level of moral practice and awareness. The role o f private property In the passages on moral consciousness, private property plays an intriguing role. It is defended as an actual content of moral consciousness even though, on H egel's account, any particular content of moral consciousness should be irrelevant. Being a m oral subject entails no particular project, as we have seen, bu t increasing one's property, we now also learn, is a real m oral duty! That 'an individual increases his property in a certain w ay' and 'is aware that this is a duty ... directly contained in his certainty of him self' is a desirable state of affairs. O thers m ay attack w hat he does as 'violence and wrongdoing' or as 'cow ardice', but increasing property both p re s e rv e s o n e 's life and a s s is ts o th e rs , so th o se w h o c ritic is e the p ro p e rty accum ulator them selves ignore their own duty, and are 'guilty of ineptitude, of being immoral'. Knowing 'w hat he does to be a duty, and ... moral obligation, [the p roperty ow ner] is thus recognised and acknow ledged bv o thers' (H egel, 1977, P 392). W ith these com m ents, H egel has it both w ays in the P henom enology. H e has m aintained that the mere fact of a sense of moral duty is sufficient for one to be acknow ledged as a m oral person, but now he introduces an argum ent about the content of such duty, one in favour of private property. Recalling the tension in 'The Spirit of C hristianity' betw een an ideal morality and the m odern actuality of private property, it is strik in g that this should be the p articu lar con tent H egel is now prepared to defend. Note also that he does so while advancing a seem ingly contentless theory o f m oral con sciou sn ess. There is no d ou bt som eth in g illicit in this argum ent; nonetheless the m essage is clear. The m odem 'actual' has been endorsed as p art o f the philosop h ical 'id e a l'. In the process, the property ow ning m oral individual, in effect the legal subject, is given a central place in the philosophy. Legal status T his position seem s pu zzlin g in its ow n term s, bu t also in term s o f an earlier discussion in the Phenom enology on the nature of 'legal status', w hich seem s to run cou nter to the form alism that em erges at this point (ibid, pp 29 0 -9 4 ). It will be h elpful to con sid er H eg el's argum ent at the earlier stage before m oving on to discuss the Philosophy o f Right. In considering legal status, H egel criticises the (in effect) legal notion of personality we have just exam ined precisely for its form alism , for the 'empty unit of the person' it endorses, for its inherent contingency 'that com es

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to no lastin g re su lt' (ibid, p 291). In co n seq u en ce, H egel says, 'to d escrib e an individual as a "p e rso n " is an expression of con tem p t' (ibid, p 292). The crucial problem for legal subjectivity, he says in this earlier passage, is precisely that it lacks content, so that its concepts of 'possession' and 'property' are ethically inadequate: The form alism of legal righ t ... finds before it a m anifold existen ce in the form of 'p o sse ssio n ' and ... stam p s it w ith [an] a b stract un iversality, w h ereb y it is called 'property'. (Ibid)

These com m ents on the nature of legal status indicate that H egel w as explicitly against the form alism and abstraction that crop up later in the discussion of moral self-consciousness. In this earlier section, H egel refuses to see property and legal subjectivity as valid in them selves precisely becau se they are developed out of form al law, and represent a content that lacks full universality. W hy should he then have returned to form alism at the higher level of m orality after rejecting it at the lower level of legal personality? The contradiction betw een the earlier and later passages in the P henom enology can be understood if w e return to the problem bequeathed by the early theological w ritings, and recall how H egel sought to address it in the Phenom enology. In the early writings, a moral ideal ran up against the limits imposed on ethics by modern private property, a dom ain of 'particular' ethical duties. The Phenom enology is an attem p t to reco n cile su ch an id eal eth ics w ith the a ctu ality o f m od ern social institutions, so it locates private property within a universalising ethics. The earlier passage on legal status show s H egel em bedding the individual legal subject and property owner within an ethical form of life that will 'sublate' (transcend but also preserve) it. This will lead ultim ately to further dialectical m oves including the recognition of moral consciousness (and then religion and philosophy). Legal status is not condem ned as such, but is seen as involving only an abstract universality which requires englobing in a wider ethical perspective. From that point of view, legal status is a necessary, although inadequate, form of ethical life, and property m ust be dialectically rationalised in a w ider ethical whole. The later passage on moral consciousness then shows Hegel configuring the nature of such an englobing moral subjectivity, but this has to be in a way com patible with m odern individual relations. From that point of view, individualism is preserved as a matter of formal moral w illing, and the defence of private property becom es its obvious, though 's u p p le m e n ta ry ', co n ten t. W hat H egel ren o u n ces at the lo w er lev el, a b stra ct subjectivity as legal status, he affirm s at the higher, abstract subjectivity as moral consciousness. Looking at this through the analysis presented here, the juxtaposition of the two passages on legal status and moral consciousness reveals w hat the young H egel had him self understood. A ny attem pt at the sort of expressive ideal m orality based upon love as originally envisaged would necessarily find itself com prom ised by the most basic form of modern morality: individual private property relations. In the tension betw een the passage on legal status, where H egel dem ands that the actual be idealised, and the account of m oral self-consciousness, w here he (im plicitly) acknowledges the lim its of the actual as ideal, this underlying conflict is affirmed but not resolved.

Law and the Beautiful Soul

Law in the Philosophy o f Right In H egel's later work, the Philosophy o f Right (1821), the process of em bedding liberal legal form s in the ethical continued, but in a developed, significantly different way. The work, which is in three parts, begins with self-consciousness ('A bstract Right') and proceeds to moral consciousness ('M orality') before ending with the idea of an 'Ethical Life' in w hich self- and moral consciousness are englobed in modern forms and institutions that are at once ideal and actual. Throughout, the process of ideal rational developm ent is concretely linked to legal and social forms associated with m odern civil society. The forms of Abstract Right are developed as a dialectic of selfc o n s c io u s n e s s in its lin k s w ith p ro p e r ty , c o n tr a c t and c iv il and c r im in a l wrongdoing. These then find a universal ethical setting in the categories of modern civil society, as Hegel sees them: a 'system of needs', the adm inistration of justice, institutions of police and corporations, the state itself. Ethical Life is then further assured by system s of international law and 'world history'. This rich contextualisation of liberal legality m akes H egel a difficult philosopher to place in terms of modern labels (Taylor, 1975, pp 449-61). To see him as a liberal m eets the objection that his idea of a supervening Ethical Life w ith institutions lim iting individual freedom runs counter to liberal tenets. On the other hand, his articulation of the developm ent of self-consciousness through the form s of liberal law and into a regulated form of civil society reveals how m uch an em ergent liberal, bourgeois form of society lies at the heart of his philosophy. From that point of view, the Philosophy o f Right confirm s the political progression we identified from the early theological w ritings to the Phenomenology. H egel increasingly endorses the actuality of individualist private property as the basis for his social philosophy. The moral expressivism of the early writings, which stood against law and property, becom es the ethical philosophy of Spirit which englobes and endorses institutions which he had initially seen as giving rise to separation and alienation. As for the Beautiful Soul, it is relegated to an addition to a passage on Morality (Hegel, 1952, p 103), in w h ich H egel refers the read er b ack to the rou gh treatm en t it receiv es in the Phenomenology. In a philosophy w hich synthesises a concrete-rational (ideal-actual) order out of subjective conviction and objective condition (as Knox describes it, ibid, p 345), the idea of the Beautiful Soul can only be of the most limited and negative significance. K nox's description of it as a regional curiosity, a M oravian speciality, amply reflects this. The concretisation o f the form s of ethical life in the P hilosophy o f R ight adds, however, a final tw ist to the conflict between m oral expressivism and the form s of modernity, betw een the ethical ideal and m odern actuality. The ideal has now been c h a n n e lled th ro u g h a ctu a l social fo rm s, so th at th ese b eco m e its e xp ressio n . However, those social form s have not lost their original problematic character just because they have been endowed w ith a sense of the ideal. Such forms are now part of an ethical progression, but they also have to be viewed as they are, according to their practical implications and effects. The conflict between the ideal and the actual accordingly re-emerges as a conflict between the ways in which existing legal forms ideally should participate in a sense of an ethical whole and the troubling qualities of modern life with which the ideal is supposedly synthesised, but in fact finds itself out of phase. Thus, H egel's account of the ideal of self-consciousness moving into property and then progressing into the wider ethical life of civil society runs into

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problems of poverty and injustice occasioned by the existence of private property. Hegel observes how the division of labour leads to 'the dependence and distress of the class tied to [unskilled] w ork' and to an 'inability to feel and enjoy the broader freedom s and especially the intellectual benefits of civil society' (ibid, pp 149-50). There develops 'a large m ass of people [which] falls below a certain subsistence le v e l', and it beco m es ap p aren t that civ il society is u n ab le 'to check excessiv e poverty and the creation of a penurious rabble'. In this situation, the very terms of justice are called into question. Right and wrong are no longer perceived as logical stages in the ideal dialectic of individual right, for poverty leads to a Toss of the sense of right and w rong', shaking the term s of the ideal to its roots: A g ain st n a tu re m an can claim no rig h t, bu t on ce so cie ty is e stab lish ed , p o v erty im m ediately takes the form of a w rong done to one class by another. The im portant question of how poverty is to be abolished is one of the m ost disturbing problems which agitate m odern society. (Ibid, pp 2 7 7-78)

To this question, Hegel had no real answer. The conflict between the ideal and the actual, which had wound its way from the early theological writings through the Phenomenology into the Philosophy o f Right remained unresolved. W here Hegel had originally portrayed the gap betw een the ideal and the actual as a gap betw een m orality and modernity, his later ethical idealisation of m odernity did not make that gap go away. Confronted with modern social conditions, the Philosophy o f Right reproduces it as a gap between the ideal way in which the modern world should work, and the w ay things happen in it.9 In resolving the gap between the ideal and the actu al, H egel only rein states it as a gap b etw een the id ealised actu al and actuality. The antinom y of the ideal and the actual remains in place.

The Beautiful Soul and the law H egel's aim in his mature w ork w as to inscribe social forms such as the individual moral and legal subject and private property within an ideal ethical fram ework. In order to do this, he had to confront what he had originally thought as a young man grow in g up in a period o f rad ical ferm en t, un der the in flu en ce o f a stro n g ly perfectionist moral doctrine. U nder that doctrine, the social institutions he wanted in his m atu rity to end orse w ere inherently problem atic. The young H egel had claimed: this at least is to be noticed, that the possession of riches, with all the rights as well as all th e c a r e s c o n n e c te d w ith it, b rin g s in to h u m a n life d e f in itiv e d e ta ils w h o s e restrictedness prescribes limits to the virtues, im poses conditions on them, and makes them dependent on circum stances. Within these limitations, there is room for duties and virtues, but they allow of no whole, of no com plete life ... (H egel, 1948, p 221)

Individual wealth, he wrote as a young man, 'betrays its opposition to love, to the whole, because it is a right caught in a context of m ultiple rights' (ibid). W hile it possessed its own virtue of honesty as well as 'the other virtues possible within its sphere', these w ere fatefully lim ited. They w ere 'linked w ith exclu sion', so that

9

For analysis of the gap between ideal and actuality in Hegel's theory of punishment, see Norrie, 1991b. For analysis of Hegel's Philosophy o f Right that sees Hegel as a critic of modern society on the basis of the gap between the ideal and the actual, see Fine, 2001, Chapters 2-4.

Law and the Beautiful Soul

'every act of virtue is in itself one of a pair of opposites' (ibid). Individual wealth thus engendered an antinomial morality, one w hich would refuse a sense o f ethical wholeness. In contrast, the aim of the Phenom enology and then the Philosophy o f Right w as to p lace these lim ited an tin o m ial fo rm s at the core o f an o v erall eth ical progression towards totality. W hat had stood in the way of the expressive ideal was now to be a significant part of its expression. The antinom y betw een ideal and actual was to be sublated in a dialectical philosophy that would idealise the actual and thus actualise the ideal. In the Phenomenology, however, the antinom ial fate of m odernity is preserved in the form alism of m oral consciousness, despite H egel's critiqu e o f legal statu s, w hile the illicitly introd uced con ten t is that of p rivate property. In the Philosophy o f Right, the dynam ics of a social system based on private property yield a fatal antinom y betw een individual and social ju stice from the idealisation of the actual. These antinom ies of form and content and of individual and social justice look fam iliar in light of the previous chapters in this book. Chapter 7 identifies the split betw een form and substance at the core of crim inal law theory, where 'orthodox subjectivists' and 'm oral substantivists' battle over the moral character of the law. U nderlying this antinomy, it was argued, is the deeper antinom y of individual and social justice. The antinomial patterning of the law described in the Introduction to this chapter begins to take its place in a larger philosophical setting. Let us see how this works. Every 'virtue' associated with legal form , as the young H egel put it, is 'lin ked w ith e x clu sio n ' (H egel, 1948, p 221). A s regards la w 's an tin o m ies, the positing of a discourse 'internal' to law establishes an 'outside' excluded from it; the identification of a positivised sphere of law points to a moral realm that som ehow exists beyond it; the existence of formal legal argum ent indicates a sphere of being that is in a sense 'inform al'; formal legality proposes a distinction between w hat is w ith in legal form and a c o n te n t or su b sta n ce th a t is e x tra n e o u s to it; w h ile universality of laws invites reflection on the particular not caught within it. The problem with the partiality and one-sidedness in each of the 'law term s' in these pairs (internality, positivism, form alism , form, universality) is seen in that they are never enough in them selves to do the law 's w ork. The external, the m oral, the informal, context or substance, the particular are also invoked within and by legal argum ent. T he exclu d ed returns so that la w 's d iscou rse b eco m es in trin sically antinomial, just as the young Hegel had said it was. In so saying, he spoke not only against law but against his ow n mature philosophy, and that is w hy we see a close parallel betw een the antinom ies of the Phenom enology and the P hilosophy o f Right and those of m odem legal theory and practice. W here the mature H egel sought to overcom e antinom y by com bining the ideal and the actual, m odem legal theory and p ractice seek to ground system s o f legal reasoning in a set of legal term s that constitute a legal totality: a kind of positivised ideal that makes law 'law '. However, the antinom ies keep forcing this idealised actual that is the law beyond itself. T racin g the trajecto ry o f the B eau tifu l S ou l in H e g e l's w ork h as a b road er im p o rtan ce than the 'm e re ly ' p h ilo so p h ical. It n o t only takes us into H e g e l's philosophy of law, but also beyond it, into the theory and practice of the modern law. H egel w ould have approved o f this general trajectory from philosophy to practice, though not perhaps its particular conclusions. Reading the young against th e m a tu re H e g e l g iv e s us a n e g a tiv e , s c e p tic a l c r itiq u e o f the fo rm s (th e antinomies) of m odern law and their limits, one that ties the historical structuring of

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antinom y to the ethical perversions wrought by the dom inance of private property. There is, how ever, another side to the critique, one w hich is represented by the e x p r e s s iv e m o r a lity o f th e y o u n g H e g e l, a n d w h ic h w as b o rn o u t o f th e revolutionary enthusiasm with which m odem society began. This stands as both an historical m om ent in our experience of the m odern (its 'ethical naturalist' side) and an intrinsic m oral claim as to how the world ought to be (its 'm oral realist' side). In the face of individual, social and natural alienation, expressive m oral dem ands for self-actualisation and oneness of humankind with itself and nature remain on the horizon of modern life. Forced to play the role of the 'ideal' in the face o f modern 'actuality' in H egel's mature work, this radical ethics still perm eates his system even if it is required to perform menial work, to get its hands more than a little dirty. Is the same not also true of modern law-based justice? We are aware of the social injustices that law p erpetu ates, w hich necessarily w ork their w ay into its ow n system s and practices, and m any of the chapters in this collection have reflected on how this happens. However, when the law seeks in its own terms to do justice, even on a terrain of injustice, w hen it m oves back and forth betw een the antinom ies w hich constitute it, does it not also reach towards a justice that lies beyond it, and that echoes inchoately within it? M ight this not be the rem nant of that expressive m orality on w hich m od ernity w as founded, but w hich w as repressed by being channelled into the social form s through which hum ankind lives today? Perhaps there is then a sense in which the ghost in the corridors of the law is that o f the Beautiful Soul, the harbinger o f an expressive m orality that once seem ed a real hum an possibility. Alm ost 200 years ago, Hegel took decisive steps to banish it, to force it into oblivion. If w e now recall it from its M o rav ian 10 exile, we m ay be reminded of w hat is morally, socially and politically at stake in the m odem law.

10 See my second prefatory quote.

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Index

Absent presence....................................................... 129 Abstraction Beautiful S o u l....................................................... 193 forced abstraction, justice and ............................. 4 Hegel, GWF .......................................... 128-29,193 individualism............................................ 5,128-29 legal antinomies.......................................................5 legal subject.....................................................42,129 m o ra l........................................................................63 universalisation ............................................ 128-29 Actual and id e a l................. 14,16,183,188-94,195 A ctus reus ............................................................. 30, 62 Adorno, Theodor constellations and theory building.........................................169-70 dialectics ..........................................2 ,4 ,1 5 ,1 5 7 -7 7 freedom .............................................. 15-16,158-77 first negative view of freed om .........158-60,173 idealism........................................................... 166-77 identity...........................................135,158-60,173 Kant, Immanuel ....................................158,161-63 Marx versus Weber ...................................... 170-71 negative dialectics ............................. 2,15,157-77 predominance of the co n cep t.....................168-72 preponderance of the o b je ct.......................166-68 primal squeeze.....................................................167 realism ............................................................. 166-77 reification, critique o f .......................................... 168 second positive view, liberal reaction a n d ...........................160-61,173 third underlying view of freedom.....................................161-63,173-74 three views of freedom ................ 158-63,172-77 Weber, M a x ........................................ 34-35,170-71 A g a p e ...........................................................................184 Age of criminal responsibility .......................55-56 Agency ambiguity ................................................................99 duality o f .........................................................99-100 identity thinking...................................................149 intention ...........................................................64-67 judgm ent..................................................................72 legal subjectivity...................................................152 normative foundation o f ............................... 64-67 onlookers................................................................100 personalised or individualised.................. 99-100 responsibility ......................................................... 99 selfhood....................................................................90 structure/agency problem ................................149 Ambiguity and am bivalence............................ 88-90, 99-106 Antinomialism See Legal antinomies Aporias ....................................................... 13,141,145 Appearance, essence and ............................... 167-68 Architectonic of ju d g m en t...........44, 55, 62, 69, 73 actus reus ..................................................................62

Bulger, killers of James ......................................... 5 dialectics .................................................................44 excuse ...............................................................63-65 formalism ...............................................................44 general p a r t............................................................ 62 intention .......................................................... 63-68 justification...................................................... 63-65 Arendt, H an n ah ............................................... 107-08 Ashworth, Andrew .............................. 53, 54, 76, 80 Austin, J o h n ........................................................ 22, 24 Autonomy

.............................................4, 26, 81,183

Barnett, Stu art........................................... 144,154-55 Battered w om en ........................................................ 87 Beautiful Soul See Hegel, GWF, Beautiful Soul and Belief, subjectivity of ..............................................53 Bentham, Je re m y ................................................21,22 Berlin, Isaiah .......................................................... 109 Beyleveld, D ...............................................................28 Bhaskar, R o y .............................................................2, 5 Berlin, Isaiah ........................................................ 109 critical realism ...................................35,39-41, 79, 134,167 depth ontology............................................168,171 dialectics.............................. 12 ,3 5 ,3 9 -4 1 ,8 0 ,1 3 4 , 136,138,147-52 entity relationism........................................... 93-94 Hegel, GWF .......................................................... 39 idealism.................................................................166 identity thinking............................................147-52 Kant-like rift, reappearance o f ..................139^10 negative dialectics ...............................157-58, 166 praxiology........................................................ 25,30 primal sq ueeze........................................... 165,167 realism ...................................................................166 referential detachment....................................... 166 relationality of s e l f ......................................... 93-94 socio-historic critique...................................147-52 Blake, W illiam ..........................................................3 7 Blom Cooper, L o u is..................................... 75, 76,91 Bosanquet, Bernard................................................107 Bourgeois society, emergence o f .......................... 19 Bowling, Bill .......................................................... 157 Brotherly and reasonable love (a g a p e )............. 184 Brownsword, R ........................................................ 28 Bulger, killers of James ................... 1, 5, 54-59, 62, 69, 70-72, 96 Capitalism ...........................................................181-82 Cases Abbott v R ........................................................ 116-17 DPP v M ajeivski........................................... 112,116

2 10

Law and the Beautiful Soul DPP v M org an .......................................................116 DPP fo r Northern Ireland v L y n ch ................ 116-17 Elliott v C (A M in o r ).............................................. 82 Gillick v West Norfolk and Wisbech Area Health A u thority.......................127 Hyam v D P P ............................................60,112,116 London Borough o f Southwark v W illiams................................. 117-18 R v A (Children).............................................127 R v A hlers................................................................. 66 R v Ahluwalia................................................. 125 R v Bedder .................................................. 121-22 R v C am p lin ................................................121-22 R v Caldwell .................................... 82-86,112,116 R v Chandler................................................... 154 R v Cunningham .................................... 82-86,112 R v D ry d en .....................................................I ll, 123 R v E n glish............................................................. 112 R v G ................................................................. 82,112 R v Hancock and Shankland...........................60,112 R v Humphries .............................................. I ll, 123 R v M olo n ey .....................................................60,112 R v M orhall............................................. I l l, 121-22 R v N edrick..................................................... 112 R v Pozvell and Daniels..................................112 R v Reid ................................................................... 83 R v Satnam and K ew a l...............................85,126 R v Shimmen ........................................................... 83 R v S m ith ......................................................... 122-24 R v Steane................................................................. 66 R v Stephenson.........................................................82 R v Stone and D obinson..........................................85 R v Thornton ................................................. 125 R v Thornton (No 2 ) ...................................... 125 R v W oollin.................................................112,126 Stingel v R .....................................................111,123

Context decontextualisation .............................................. 60 judgment.......................................................101,106 legal antinomies.................................................. 129 legal individual a n d ............................................ 129 moral perspective.........................Ill, 125-28,183 provocation.....................................................125-28 social ......................................................................129 Contract k illers......................................................... I ll Contractarianism.......................................................28 Contradictions in l a w ........................................... 7, 9 Corruption in local governm ent.................. 99-100 Counterlegal order .................................................. 34 Criminal damage, recklessness a n d .................... 82 Criminal justice See Justice

Causation, responsible legal subject and ___ 3 1

Criminal law character and capacity........................................183 competing right, discourse o f .............................60 direct and indirect intention............................. 183 fault in, finding................................................ 75-92 foresight and foreseeability............................... 183 honest and reasonable........................................183 justice, limits o f ................................................ 75-92 legal antimonies .................................. 112-14,183 legal theory, t o ................................................ 111-30 morally contextual perspective.................................Ill, 125-28,183 motive and intention ............. 31,59-62,113,183 need, discourse of ................................................ 60 orthodox subjectivism ................ Ill, 125-28,183 penal equation, challenging the ................ 75-78 positive fault requirement....................................81 responsibility ......................................................... 81 subjective and objective........................81-84,183 subjective approach t o ................................. 53, 111

Categorical imperative ....................................107-08 Character and capacity .......................................... 183

Criminal Law Commissioners.........................84-85

Civil society .......................................... 19, 87,185-86

Critical legal s tu d ie s ................................... 8,133-55

Classical natural l a w ....................................20-21, 27

Critical legal th eo ry ................................................ 2-7

Cohen, Stan ............................................................... 77

Consequentialism .............................................. 67-69

Critical realism ........................................................2 , 7 Bhaskar, Roy ..................................... 35,39-41, 79, 134,167 compromise formations..................... 163,165-66 depth ontology, need for ........................... 148-49, 163-65,167 dialectics................................ 11,12,39-41, 79-81, 134,147,148,157 empirical realism ................................................ 163 epistemological relativism ............................... 164 essence and appearance ............................. 167-68 Hegel, GWF ...........................................................39 idealism ........................................................... 163-65 identity thinking.................................................. 148 irrealist compromise formations .............. 165-66 irrealist strains .....................................................163 justice................................................................. 79-81 ontological realism .............................................. 164 primal squeeze.................................................... 167 reification ............................................................. 168 transcendental idealism..................................... 163

Constellations and theory b u ild in g ............ 169-70

Crucifixion ........................................................... 3,185

Community Beautiful S o u l.......................................................186 comm Unitarian is m ...........................34, 82,107-09 diminution o f .................................................. 96-97 guilt ...........................................................94-98,105 individual .........................................5,93-109,183 judgment................................................................. 72 justice............................................................... 82,183 Kant, Immanuel ............................................ 107-09 late modernity, i n ............................70,94-98,105 legal antinomies........................................5,93-109 love, o f ....................................................................186 m orality................................................................... 70 Papua New G u in ea.............................................. 34 punishment.....................................................107-09 self ............................................................. 94-98,105 Compromise formations.........................163,165-66 Conjoined twins .....................................................127

Index

Davies, Margaret .............................................. 114-15 Dean, Kathym ......................................................... 181 Deconstruction...................................................2 ,7 , 79 critiques of law, tw o ......................................143-44 Derrida, Jacques............. 6,1 2 -14,27-28,136-37, 141-46,151,154 dialectical thinking........................................141-46 ethics ............................................................. 6,12-14 Hegel, GWF ...................................................1 4 ^ 4 6 identity thinking............................................ 141-46 Kant, Im m anuel............................................ 145-46 law, justice that goes beyond ........................... 143 legal justice, regular or calculable .................. 143 logico-formal p arad o x........................................136 negative dialectical critique of law, a s .......................................142-43 singular and incalculable justice .....................143 two ways or styles o f ....................................142-44 Decontextualisation......................................30-31, 60 D eontology............................................................... 180 Depth ontology of l a w ................. 7,11-14,148-49, 163-71 Derrida, Jacques........................................................... 1 ap orias........................................................... 141,145 deconstruction.............................. 6,12-14,27-28, 136-37,141-46,151,154 dialectics .......................................................134,136 differan ce ..................................................................142 Hegel, G W F .............................. 13-14,134,141-45 identity thinking............................................ 141-42 interpretive violence ....................................14,133 juridical ideology.....................................................6 justice.......................................................................... 6 Kant-life rifts...................................................145-46 postmodernism .................................................... 27 socio-legal studies ......................................133,146 supplementary, differance a n d ......................... 142 unreason ...................................................... 141

negative dialectical critique, dialectical thinking a n d .................................137 non-dialectical dialectics..............................137-41 popular justice .................................................39-49 positive speculative reason, dialectical thinking a n d .................................137 recklessness.......................................................85-86 socio-historic critique.......................................... 147 totality o f ................................................................150 tradition..................................................................5-6 understanding, dialectical thinking a n d ..................................................... 137 universal and particular.................5, 22,112,115 Dictatorship .....................................................159,160 D ifferan ce....................................................................142 Difference, exclusion o f ..................................78-79 Diminished responsibility......................................77 D iscip les....................................................................185 Distillations and filtrations....................................28 Doppelgdnger ............................................. 62, 85,152 Duality of law historically constituted sociality......................... 41 judgment .................................................. 54-55,68, 99-101,112 moral v a lu e s......................................................... 112 perspectival shift .................................................152 Duel, soldier who kills in a ..................................119 Duff, A n to n y ........................................54-55, 62-69, 82-86,107 Duress .....................................................64-65,116-18 Durkheim, E m ile .......................................................23 Dworkin, R onald...............................................25, 28 Dyer, G eo ff..................................................................58 Edmund-Davies, L o rd ............................. 115-17,128 Empirical realism .....................................................163

D e te rre n ce ........................................................................ 76

Enemy, assisting the .................................. 67, 68-69

D ialectics

Enlightenment.......................................... 4, 20-21, 87, 114-15,184

See also Negative dialectics Adorno, T h e o d o r ........................................................ 4 architectonic m o d e ................................................... 44 Bhaskar, R o y ....................................12, 35, 3 9 ^ 1 ,8 0 , 134,136,138,147-52 co n n e ctio n ............................................................. 40,41 con trad ictio n ....................................... 39-42,80 critical realism ........................ 11,12, 39-41,79-81, 133-55,148,157 d e c e n trin g .................................................................... 41 deconstruction ..................................................141-46 Derrida, J a c q u e s ............................................. 134,136 ethics and p r a c t ic e ................................................. 147 Hegel, G W F ..........................4 -6 ,1 0 ,3 9 ,1 3 4 ,1 3 6 , 137-41,155 identity th in k in g ............................................... 137-54 ju s t ic e .................................................... 79-81,113 law, a n d ................................................................. 41-43 legal a n tin o m ie s.............................................5,39-48 legal s u b je c t........................................................ 134-35 n e g a tio n .........................................................................39

Entity relationism ............................... 93-94,150-54 Epistemological relativism....................................164 E rotom ania............................................................... 122 Essence and appearance..................................167-68 E th ic s ................................................................ 1-2, 5-7 See also Morality deconstruction ............................................ 6,12-14 dialectical thinking.............................................. 147 discourse..................................................................28 Hegel, GWF ...................................................22,155 history v ersu s.......................................................6-7 legal antinomies.................................................. 3-7 metaphysics ........................................................... 16 naturalism .............................................. 180-82,186 positivism ............................................................... 28 socio-historical .....................................................1-2 Exclusion

.......................................... 42-43, 71, 78-79

Excuse....................................................63-65,113,116

2 12

Law and the Beautiful Soul Expropriation of property ..................................... 61

Giddens, A n th on y.............................. 93-99,104-07

External and internal, connection between ............................................12

Goodrich, P .................................................................27

Fascism ..................................................................... 160

Guilt ambiguity o f .................................................. 99-101 Bulger, murderers of Jam es....................55-59,62 children, of ...................................................... 55-59 community and self in late modernity................................ 94—98,105 diminution of community in late modernity............................................ 96-97 diminution of guilt in late modernity............................................ 95-96 idea o f ....................................................................... 5 late modern society, i n ...................................93-98 reflexivity of self ..................................... 97-98,104 reinvention of self ..............................................105 self in late modernity, community a n d .......................................... 94-98 sins of fathers ..................................................55-59 space between................................................93-109 Speer, A lb e rt............................................. 5,93-109 w ickedness...................................................... 55-56

Green, T H ................................................................. 107 Grundnortn .................................................................26

Fault in criminal law, finding ........................ 75-92 Feudalism, breakdown of ..................................... 19 Filiations, distillations a n d ................................... 28 Fish, S tan ley ...............................................................42 Fitzpatrick, P .........................................................37-38 Foresight .......................................53, 82-84, 111, 183 Form and formalism ..............................................29 abstract legal subject ........................................... 42 architectonic m o d e................................................44 Beautiful S o u l...................................188-92 content .........................................5 ,3 3,26,126-28, 183,188-92,195 duality of l a w .......................................................112 eq uality................................................................. 159 formal-rational law ..............................................44 informal....................................... 12,34,42,183 ju stice............................................ 4,43-44,112 Kelsen, H a n s.......................................................... 26 legal antinomies..................... 4 -5 ,3 3 ,8 4 -8 5 ,1 1 2 , 183,195 law, of ...............................................................26,43 Maoist China ........................................................ 37 mental form and moral substance..............84-85 m orality...........................................................54,112 popular justice ...................................................... 36 provocation....................................... 121-28 rationality ....................................... 40,43,54 repression and exclusion..................................... 42 socio-historic..................................7-8,11-14 substance and ..........................5 ,3 3 ,3 7 ,8 3 -8 5 , 121-28,183,195 understanding ...................................................... 34 Weber, M a x ...................................................... 40,54 Formal-logical ways of thinking...........................12 Foucault, M ichel........................26-27,35-38, 75-76 Freedom Adorno, T h eo d o r......................15-16,158-77 eq uality................................................................. 158 historical .................................... 162-63,173-74 identity....................................... 135,158-60,173 impulse t o ..................................... 158,161-63 juridical and .........................................................158 just punishm ent.................................................. 158 Kant, Immanuel ...............................158-63 liberal reaction to freedom ...............................173 modern society, law i n ....................158-77 negative dialectics .......................... 157-77 pre-temporal account of ........ 162-63,173-74 responsibility ...................................................... 158 three views of freedom .......... 158-63,172-77 understanding m o d e rn ..................172-77 French Revolution..............................180,189 Fuller, L o n ................................................................... 26

Gundersen, A ................................................45,4 7 ,4 9 Habermas, J ............................................................... 28 H am let................................................................. 15,162 Harre, Rom ..............................................79, 88, 90, 93 Hart, HLA ......................................... 28,32, 64, 76, 93 Hegel, GWF ........................................................ 21-23 See also Hegel, GWF, Beautiful Soul and abstract individualism................................. 128-29 Bhaskar, R o y .......................................................... 39 critical realism ...................................................... 39 deconstruction ..............................................144-46 Derrida, Jacq u es..................... 13-14,134,141-45 dialectics................................ 4 -6 ,1 0 ,3 9 ,1 3 4 ,1 3 6 , 138-40,155 ethics ...............................................................22,155 French Revolution ..............................................189 'just deserts in an unjust so cie ty '.................... 120 justice..................................................................... 115 Kant, Immanuel ............................139-40,190-91 Kant-life rift...........................................................140 legal antinomies............................................... 9,1 0 liberalism...............................................................193 Moravian exile, as ..................................... 179,196 non-dialectical dialectic............................... 137-41 philosophy of law ....................................... 138-40 Philosophy o f R ig h t................. 139-40,183,191-94 postmodernism ............................................154-55 private property, forms o f ................................... 16 punishment............................................118-20,139 rightful punishment............................................119 Rose, G illian .......................................................... 28 sublation................................................................. 10 theological writings, o f ......................................... 2 Unhappy Consciousness................................... 182 universal and particular ..................................... 22

Index Hegel, GWF, Beautiful Soul and .........2-4,14-16, 179-96 abstract righ t.........................................................193 beauty of s o u l...................................................... 182 brotherly and reasonable love {agttpe)............184 civil or market so ciety ..................... 185-86 community of lo v e ..............................................186 crucifixion........................................................ 3,185 disciples................................................................. 185 Enlightenment .................................................... 184 form and co n te n t................................................ 195 ideal in the a ctu al.............................. 188-92 individual and social justice.............................195 Je s u s ............................................... 2-3,182,184-88 law and the Beautiful Soul .............194-96 legal antim onies............................... 183,195 legal status .........................................191-92 modernity, legitimating................... 188-92 moral beauty.............................................................2 moral consciousness...........187-88,190-92 moral existence........................................................ 2 moral expressivism ..........184,189,193-94 moral self-consciousness............... 190-94 moral subject..................................... 190-91 nature of la w .........................................................183 Phenomenology......................3 ,16,182-83,186-95 Philosophy o f Right, law in t h e .... 120,193-95 'The Positivity of the Christian Religion'...........................................189 poverty ................................................................. 194 private property............................16,184-85,189, 191-95 punishment, discussion of ............................... 185 reason................................................... 186-87 self-consciousness ............................186-87 'The Spirit of Christianity'...........182,186-90 theological writings, e a rly ............... 184-85 travels and travails of a Beautiful Soul................................. 184-86 Unhappy Consciousness.............182,184-87 universal m in d .................................................... 186

logical principles, self-evident .........................135 socio-historic critique....................................146-54 structure/agency problem ............................... 149 Illegitimate child, mother who kills h e r .........119 Individual abstract.................................................. 5,54,128-29 agency ............................................................. 99-100 Beautiful S o u l.............................. 2-3, 182,184-88 community and ............................... 5,93-109,183 depth ontology....................................................... 11 exclusion and repression............................... 43,71 justice.................................................. 90-92,94,183 legal antinom ies............................... 5,93-109,129 legal subject..............................................................11 legal universalisation....................................128-29 punishment.....................................................107-09 relational .................................................... 90-92,94 social conflict ......................................................... 71 social context .......................................................129 social ju stice....................................2-3,5,114,182, 184-88,195 Individual responsibility See Responsibility Informalism disciplines.............................................................. 37 formalism ......................................... 1 2,34,42,183 legal antinom ies............................................. 4,183 rationality ...............................................................37 Intention ........................................................1/12, 111 agency, normative foundation o f ............... 64-67 architectonic of ju d gm en t............................ 63-68 direct and indirect ..............................................113 duress and necessity .....................................64-65 legal antim onies........................................... 31,113 motives............................................. 59-62,113,183 responsible legal subject ........................ 30,64-65 subjectivity ............................................................ 53 Internal and external, connection between .......................... 12,113,183

Heteronomy ............................................... 21, 26,183

Interpretivism....................................... 14, 67-69,133

Hindley, M yra.............................. 89, 96,100-01,106

Inwood, Michael ..............................................137-38

Hobbes, Thomas .......................................................21

Irrational and rational..............................................33

Holderlin, Friedrich ..............................................180

Irrealism ................... ................................163,165-66

Homelessness as defence to tresp ass................117 Hom o n ou m en on .......................................................119

J e s u s ....................................................2-3,182,184-88

Humanitarian judge ..............................................115

Judgment aesthetic.................................................................108 ag e n cy ..................................................................... 72 alternative processes o f .................................71-73 ambivalence a b o u t....................................... 99-101 architectonic o f ................................................62-68 Bulger, killers of James ....................54-59,70-72 com m unity............................................................ 72 consequentialism..................................................68 contextualisation ................................................ 101 duality o f ..................................... 54-55, 68,99-101 harm and b lam e....................................................68 justice.....................................................................4-5 Kant, Immanuel .....................................53-54,108 legal and m o ra l..............................53-73,112,114 legal antinom ies........................................... 55,114

Hume, David .......................................21-22,61 Idealism ................................................. 14, 33,163-77 Identity thinking Adorno, T heod or...................................... 135,158 analytical paradigm .............................................135 Bhaskar, R o y ...................................................147-52 critical realism ..................................................... 148 critique of ....................................................... 135-36 deconstruction as dialectic ......................... 141-46 Derrida, Jacq u es............................................ 141-42 dialectics .........................................137-41,146-54 entity relationism.......................................... 150-51 freedom ..................................................................158

213

214

Law and the Beautiful Soul m ed ia....................................................................... 67 moral judgment ..................... 3 ,5 ,6 3 -7 3 ,9 9 ,1 1 2 morality-in and morality-beyond-law.................................... 154 motive and intention, separation o f ........... 59-62 personalisation.................................................... 101 place of ................................................................. 108 provocation.......................................................... 112 punishment............................................... 53-54, 57 sclerosis o f ..................................................54,59-62 Juridical ideology ...................................................... 6 Just deserts ................................................. 78, 90,120 Justice.................................................................3, 75-92 See also Popular justice architectonics o f ......................................... 5,4 4 ,5 5 Beautiful Soul .............................. 2-3,182,184-88 communitarianism................................................82 criminal, system of rights a s ...............................92 critical realism.................................................. 79-81 deconstruction .................................................... 143 Derrida, Jacques......................................................6 dialectics o f ............................................. 79-81,113 disciplines...............................................................37 forced abstraction....................................................4 form and content or substance.............................112,121-28,183 formal .....................................................................36 freedom .................................................................158 Hegel, GWF ........................................................ 115 humanitarian ju d g e ............................................115 individual and community...............................183 informal...................................................................37 internal to la w ...................................................... 112 judgment...............................................................4-5 just deserts ............................................. 78,90, 120 Kant, Immanuel ..................................................115 law that goes beyond......................................... 143 legal antimonies ................................ 112,114,183 liberalism.................................................................78 model of .................................................................76 penal equation ....................... 5, 75-78, 81,86, 90 postmodernism ....................................................86 poststructuralism........................................... 78-79 property crimes ....................................................90 punishment.......................................................... 158 rational ...................................................................36 recklessness...................................................... 81-86 reform .............................................................. 91-92 regular or calculable ......................................... 143 relational ........................................................ 92,94 responsibility.................................... 89-90,100-01 rights, system o f ....................................................92 self ..................................................................... 89-90 sense of .............................................................86-90 singular and incalculable .................................143 social and historical totality ...............................87 social ju stice .............................. 2 -3 ,5 ,1 2 ,9 0 ,1 1 2 , 114,182,184-88,195 space between legal and moral ..................77-78 theorising ........................................................ 78-81 universal and particular.............114,116-20,183 victim and criminal ........................................... 183 Justification..................................................63-65,113

Kant, Im m an uel.....................................21-23, 28, 87 abstract individualism................................. 128-29 Adorno, T h eo d o r................................ 158,161-63 Bhaskar, R o y .................................................. 139-40 categorical im perative........................................108 criminal ju stice .....................................................115 deconstruction .............................................. 145-46 deontology ........................................................... 180 depth ontology.................................................... 167 Derrida, Jacques............................................145-46 fascism ................................................................... 160 freedom, impulse t o ..................................... 158-63 H am let................................................................... 162 Hegel, G W F .....................................139-10,190-91 individualist-communitarianism.............. 107-09 judgm ent................................................. 53-54,108 juridical complex .................................................161 legal antinomies..............................................9,137 moral abstraction.................................................. 63 moral expressivism ............................................ 180 moral law (noumenal)..........................................26 nature (phenomenal)............................................26 neo-Kantian ...........................................................23 noumenal ............................................................... 26 punishment.................................................... 118-20 repression ............................................................. 160 responsible subject.............................................. 107 Kelman, Mark ............................................................. 8 Kelsen, H an s.......................................................... 8, 26 Kenny, C S ....................................................................84 Knowledge denial o f ...........................................................103-04 subjectivity ............................................................. 53 Knox, TM ..................................................................179 Lacey, N ............................................................... 59,155 Lechte, J ......................................................................136 Legal antinom ies................................ 1, 2, 9, 33,112, 183,195 abstract individualism of la w ...............................5 actual and ideal .....................................................14 antinomialism...........................................................4 aporias......................................................................13 autonomy and heteronomy ............................. 183 Beautiful S o u l............................................. 183,195 community and individual, space betw een.....................................5,93-109 contradictions in l a w ....................................... 8-10 criminal law ...................................112-14,183 critical legal studies m o v em en t...........................8 critical legal theory.......................................2-7 critique, conflicting grounds of .........................10 dialectics ......................................................5,39-48 ethics ..................................................................... 3-7 factual and normative accounts of legal categories.............................................113 false ..........................................................36-38,113 forced abstraction.................................................... 4 form and substance or content........................... 4-5,3 3 ,1 8 3 ,1 9 5 Hegel, GW F .............................. 9 ,1 0 ,1 8 3 ,1 9 5 heteronomy and autonomy ............................. 183 history, i n ................................................................... 4

Index ideal and actual ............................................ 14,183 indigenous and statal ..........................................33 individuals community a n d ............................................... 183 community and, space between-----5,93-109 social and.......................................5,33,114,195 informal............................................................. 4,183 intention, direct and indirect............................. 113 internal and external ................................. 113,183 ju stice.........................................................5,114,183 justification and e x c u s e ......................................113 Kant, Im m anuel.............................................. 9,137 legal and moral judgm ent...........................55,114 legal forms and moral v a lu e s...........................112 living w ith .......................................................128-30 local and national.................................................. 33 mental form and moral substance..............84-85 metaphysics ........................................................... 16 modem legal theory ......................................19-32 morally contextual perspective......................... Ill motive and intention................................... 31,113 nature of ............................................................. 8-10 Nietzsche, Friedrich ............................................ 10 offence and defence, issues o f ...........................113 oppositions............................................................... 4 orthodox subjectivist tradition of textbooks....................................................... Ill popular justice, false antinomies o f .......................................35-38,183 positive and m oral.............................................. 183 rational and irrational..........................................33 recklessness, subjective and objective forms of.............................................113 social context and legal individual ................ 129 social history...................................................... 7-10 social justice.................................................. 112,114 space between individual and community.....................................5,93-109 split and separation......................................113-14 subjectivity ........................................................... Ill totality, nature of ...................................................10 universal and particular ............... 5,114-16,183 victim and crim in al............................................ 183 Weber, M a x ............................................................. 33 Legal formalism See Form and formalism Legal positivism .................................... 21-26, 30, 32 Legal realism ...................................................... 24-25 Legal reasoning, entity relationism and ............................... 153-54 Legal specificity, sociologically locating ................................. 28-31 Legal subject abstract ...........................................................42,129 depth ontology....................................................... 11 dialectics .........................................134-35,150-54 individual ................................................................11 intention ................................................................. 30 rationality ..............................................................Ill responsible.......................................................30, 111 voluntariness...................................................30, 111 Liberalism critique of law, legality and ............................... 33 difference, exclusion of ................................. 78-79

freedom ................................................................. 173 Hegel, GWF ........................................................ 193 individual autonom y............................................81 just deserts .............................................................78 justice................................................................. 33, 78 liberal subject, penal equation and .................. 81 Local and n ation al.................................................... 33 Locke, J o h n ...........................................................21,28 Logico-analytical modes of th ou gh t..................135 Logico-formal paradoxes ....................................... 13 Lukacs, G ............................................................... 9, 26 MacCormick, D N ................................................ 25,28 MacIntyre, Alasdair.....................................55, 69-72 Malice ..........................................................................84 M anslaughter.............................................................77 Maoist China ............................................................ 37 Marx, K a r l............................................. 23, 29,170-71 M ediation................................................................... 75 Mens r e a ............................................ 30, 55, 59, 62-63 Mercy killing ..................................... 59-60, 111, 126 Merry, S ally .................................................... 33-34,48 Metaphysics ............................................ 6,16, 21,24 Meure, D ..................................................................... 59 Milner, Neil ................................................. 33-34,48 Milton, J o h n ................................................................. 2 Mob r u l e ..................................................................... 36 Modernity Beautiful S o u l................................................ 188-92 community .......................................70,94-98,105 freedom ...........................................................158-77 guilt ...........................................................94-98,105 legitimating.................................................... 188-92 reflexivity of se lf.................................................. 104 self ...................................................... 94-98,104-05 social conflict .........................................................71 Moral expressivism ................. 180-83,189,193-94 Morality See also Ethics; Moral expressivism abstraction............................................................... 63 ambiguity ...............................................................99 categorical im perative....................................... 107 com m unity.............................................................70 consciousness................................ 187-88,190-92 context ..........................................Ill, 125-28,183 decontextualisation ..............................................60 duality of law ...................................................... 112 formalism ............................................................... 54 judgment, moral forms of ............... 3, 5,53-73, 112,114 justice, legal forms o f ..............................................3 Kant, Im m anuel.................................................... 26 legal antinomies .............................84-85, 111, 114 legal forms and moral v alu es...........................112 mental form and moral substance..............84-85 moral subject...................................................190-91 morality-in and morality-beyond-law............................ 101,154

215

2 16

Law and the Beautiful Soul positive and m o r a l................................ 12,183 p rov ocation .............................................112,125-28 re alism ..................................................... 109,186 self-consciousness ................................ 190-94 sim ulacra.................................................................... 53 Speer, A lb e r t.......................................................5,103 M e d ia ............................................................................... 67 Motives ...........................................31, 50-62,113,183 Mozambique .................................................. 3 5 ,45-49 Murder contract killers......................................................... I l l decontextualisation ................................................60 mercy killers .............................................59-60, 111 motive and intention, separation of......................................5 9 -60,62 Natural l a w ................................................20-21, 23-28

counterlegal o r d e r ..................................................34 dialectics ..................................................... 39—48 false antinomies o f ....................................36-38 formal justice ...........................................................36 formal law, to ....................................................43-44 Foucault, M ichel............................................... 36-38 legal justice and, opposition b e tw e e n ................ 4 liberal legality...........................................................33 mob rule ................................................................... 36 rational justice ........................................................ 36 Santos, Boaventura de Sousa ................3 3,49 substantive justice ..................................................36 v io len ce........................................................33-34 Weber, M a x ................................................. 36-38 Positive and m o ra l.................................................... 183 Positive speculative reason, dialectical thinking a n d .................................... 137

N e ce ssity ................................................... 64-65,116

Positivism See Legal positivism

Need, acute personalor fam ilial............................. 60

Postm odernism ............................... 20,2 7, 8 6 ,154-55

Negative dialectics Adorno, T h e o d o r.................................. 157-77 Bhaskar, R o y .......................................... 157-58,166 deconstruction ....................................... 142-43 dialectics ..................................................................137 freed o m .................................................... 157-77 idealism .................................................... 166-72 impasses, i n ..............................................171-72 law, a n d .................................................... 157-77 realism .......................................................166-72

Poststructuralism .......................................... 78-79

Neumann, Franz ........................................................... 8 Nietzsche, Friedrich

.............................................. 10

Norris, C h ristop h er.................................................. 144 Norton, R o b e r t.......................................................2,179 Nozick, Robert

........................................................... 28

Nuremberg t r i a l s ...................................... 102,105-06 Offence and defence,issues o f ............................. 113 Ontology ambiguity ..................................................................99 Bhaskar, R o y .......................................... 168,171 critical realism .......................................................164 d e p th ...............................................7 ,1 1 -1 4 ,1 4 8 -4 9 , 163-68,171 Orthodox ju risprud en ce..............................................7 Orthodox subjectivism ............................12, 111, 183 Papua New Guinea, communitarian form in ....................................... 34 Pashukanis, Evgeny ......................................... 7-8, 29 Penal equation ............................. 5, 75-78, 81,8 6 , 90 Personalisation, judgment a n d ............................ 101 Philosophy of law, Hegel a n d ...............138-40 Pinkard, T erry............................................................. 191 Pinochet, General .....................................................154 Popular justice concept of ........................................................... 33-36

P o v erty ...........................................................................194 P ra x io lo g y .................................................... 2 5,30-31 Preponderance of the object ................... 166-68 Primal sq u e e z e .............................................1 65,167 Private property Beautiful S o u l .................. 1 6 ,1 8 4 -8 5 ,1 8 9 ,1 9 1 -9 5 expropriation o f .......................................................61 ju stice.......................................................................... 90 rule of l a w ..................................................................61 Property See Private property P rovocation ............................................................... 1 ,1 2 erotomania ............................................................. 122 form and su b sta n ce .......................................121-28 justice criminal, form and substance a n d -----121-28 external social justice........................................ 112 internal to law .....................................................112 manslaughter, v o lu n tary .......................................77 moral judgment and legal form, tension betw een................................................ 112 orthodox subjectivism versus moral contextualism................................125-28 provocative and persons who are provocable, difference between matters that a r e ................................123 reasonable glue sn iffer.................................. 111-30 universal and particular, dialectics of ............ 112 Psychological wilfulness .................................. 84-85 Punishment Beautiful S o u l.........................................................185 freed o m ....................................................................158 Hegel, G W F ....................................118-20,139,185 individual and community, space b etw een .......................................... 107-09 ju d g m en t......................................................5 3 -5 4 ,5 7 ju stice........................................................................ 158 Kant, Immanuel ............................................. 118-20 rightful...................................................................... 119 universal and particular ..............................118-20

Index Quine, W V O ...........................................................9, 33

R e la tiv is m ................................................................ 164

Reparation....................................................................75 Rationality Beyleveld, D .......................................................... 28 Brownsword, R ......................................................28 form ............................................... 37,40,43-44, 54 irrational and ration al......................................... 33 justice....................................................................... 36 legal antinomies....................................................33 responsible legal subject ............................30, 111 substantive ............................................................ 54

Repression.............................................. 42-43, 71,160

Realism See also Critical realism Adorno, T heodor......................................... 166-77 Bhaskar, R o y ........................................................ 166 depth ontology....................................................167 em pirical...............................................................163 irrealism................................................. 163,165-66 legal realism ....................................................24-25 moral realism .......................................180-82,186 negative dialectics ....................................... 166-72 ontological................................................... 164,167 preponderance of the o b je ct......................166-68 referential detachment....................................... 166

Responsibility ........................................................... 81 age of criminal responsibility.......................55-56 agent, ambiguity in nature o f .............................99 ambivalence and ambiguity o f ...........99,100-06 answerability, a s .....................................................64 blameworthiness a s .............................................. 64 causation..................................................................31 'dangerous supplem ent'......................................65 freedom ..................................................................158 intention .....................................................30,64-65 justice................................................. 89-90,100-01 Kant, Im m anuel.................................................. 107 legal subject o f .......................................... 30, 31, 111 meaning of responsibility................................... 64 mens rea .......................................................55,59,63 moral realism .......................................................109 morality-in and morality-beyond-law............ 154 rationality .................................................... 30, 111 relational theory o f .............................................. 109 Speer, A lb ert.................................................. 93-109 subjectivity ............................................................. 81 voluntariness................................................30, 111

Reasonable glue sniffer .................................111-30

Retribution..................................................................75

Recklessness............................................. 1 ,1 2 ,3 1 , 77 Caldwell .............................................................82,85 criminal damage ..................................................82 Criminal Law Commissioners....................84-85 criminal law, justice and .............................. 81-86 Cunningham............................................................ 82 dialectic understanding.................................85-86 doppelgdngers.......................................................... 85 foreseeability....................................................82-84 foresight............................................................ 82-84 historical roots ............................................... 84-86 justice.................................................................81-86 legal antinom ies..................................................113 malice ..................................................................... 84 mental form and moral substance............. 84-85 morally substantive accounts of criminal responsibility.................................... 84 objective................................................... 82-85,113 practical indifference..............................82, 83-84 psychological wilfulness...............................84-85 ris k ..................................................................... 53, 83 social and historical roots ............................ 84-86 subjective................................................. 82-86,113 wickedness............................................................ 84

Rose, G illian.......................................................28,179

Rawls, Jo h n .......................................................... 28, 32

Reconciliation .......................................................... 75 Referential detachment ....................................... 166 Reflexivity of s e lf.......................................97-98,104 Reification, critique of ......................................... 168 Reintegrative approach........................................... 75 Reinvention of s e l f ................................................105 Relationalism ........................................................ 4, 39 entity relationism............................93-94,150-54 individualism........................................................ 94 justice.......................................................... 90-92, 94 responsibility ...................................................... 109 self, o f .................................................................93-94

Russell, B ertran d ................................ ..

.135,138

Sachs, Albie ......................................................... 45-49 Santos, Boaventura de S o u sa...........................33,49 Satan .............................................................................. 2 Science, three standpoints in the philosophy of ........................................163-65 Sclerosis of ju d gm en t................................ 54, 59-62 Self-consciousness............................ 186-87,190-94 Selfhood a g e n c y ......................................................................90 being-in relation, person as a ............................. 89 community ....................................94-98,105 fragility of the self ......................................97, 104 guilt ....................................................94-98,104-05 justice................................................................. 89-90 modemitv, community and self in la t e .................................. 94-98,105 new psychology, Rom Harrd and .................... 88 ontological am biguity..........................................99 primary structure.................................................. 88 psychological experience of personhood.....................................................88 reflexivity of s e lf........................... 97-98,104 reinvention of self .............................................. 105 robustness of the s e lf ....................................97,104 secondary structure.............................................. 88 society ............................................................... 88-89 Settsus c o m m u n is .....................................................181 Sereny, G i tta .........................................93-94,102-09 Simulacra ............................................................ 53, 62 Sins of fathers, guilt and ................................. 55-59 Smith, Adam ........................................................... 181

217

218

Law and the Beautiful Soul Smith, JC and Hogan, B rian .....................76,83,124 Social conflict, individualism and ....................... 71 Social contract ........................................................... 21 Social justice, connection between legal a n d ............................... 12,116,194 Social psychology ..................................................... 79 Socio-historical critique Bhaskar, R o y ...................................................147-52 critique........................................................................ 6 depth ontology of l a w ....................................11-14 dialectic thinking................................................ 147 ethics ...................................................................... 1-2 grounding the socio-historical .....................11-14 identity thinking............................................ 146-54 law, a s ......................................................... 7-8,11-14 legal critique......................................................... 1-2 neo-Kantian legal scholarship .............................8 orthodox jurisprudence..........................................8 sociological jurisprudence, attacks o n ................ 8 Socio-legal stu d ies..........................................133,146 Sociological movement in law ............................... 7 Sociology of law .....................................................155 Speer, A lb ert................................................ 1, 93-109 guilt ............................................................. 5,93-109 Hitler, Adolf ......................................................... 102 knowledge, denial o f ....................................103-04 moral seriousness, discard o f ........................... 103 individual responsibility.............................93-109 Nuremberg trials ................................. 102,105-06 Sereny, Gitta, two Speers of .......................102-04 Split and separation ........................................113-14 Spitzer, Steven .......................................36-37, 39,49 Statal form ................................................................. 34 Supplementarity, difference and .......................142 Taylor, C h a rle s.........................................................180 Teubner, G ................................................................. 26 Textbooks, orthodox subjectivist tradition of ....................................I l l Theft occasioned by hunger ...........................60-61 Theory and practice, relationship between ..........................................92 Thompson, EP ............................................ 61, 72-73 Totality................................................................... 10,39

Universal See also Universal and particular absent presence ................................................... 129 abstract individualism and legal universalisation............................ 128-29 abstract universalisation and re-particularisation.................................129-30 greatest happiness of the greatest number..................................................23 individualism...............................................128-29 mind .......................................................................186 Universal and particular criminal justice and ............................ 116-20 dialectics of universal and particular...............................5,22,112,115 duel, soldier who kills in a ................................ 119 Enlightenment ..................................................... 114 Hegel, GWF ............................................................22 humanitarian judge ....................... 115,116-18 illegitimate child, mother who kills h e r......................................................119 justice, criteria o f ................................................... 114 legal antinomies .............................. 5,114-16,183 provocation............................................................112 punishment ...................................................118-20 reparticularisation ............................5,129-30 Unorganised innocence .......................................... 37 Utilitarianism ....................................................... 21, 69 Victims, criminal a n d .............................................183 Violence................................................. 14,33-34,133 Voluntariness, responsible legal subject and ........................................30, 111 Wrar crim in als...........................................89,106 Set* also Speer, Albert Weber, M a x ................................................. 2 3 , 28, 39 Adorno, T heod or.......................................... 168-69 concept of la w ...................................................34,44 formal rationality............................................ 40, 54 Foucault, M ichel................................35,37-38 legal antinomies.....................................................33 Marx, K a rl....................................................... 170-71 popular justice ................................................ 36-38 sociology of law, formal/informal opposition in....................................................... 33 substantive rationality.......................................... 54

Transcendental idealism ........................................163

Well-ordered bourgeois state, securing of t h e ....................................................... 21

Transformative Model of Social Action............152

Wells, C ........................................................................ 59

Trashing....................................................................... 27

West, R o sem ary .................................................89,100

Trespass, homelessness as defence t o ............................................ 21-22, 61

Western legal th in k in g.............................................. 4

Understanding, world safe for t h e .............. 140-01

Wilde, O s c a r....................................................... 129-30

Western polity, animating values o f .....................28 W ickedness..................................................... 55-56, 84

Unger, R oberto...........................................................29

Williams, G lanville.......................................... 76,125

Unhappy Consciousness ...................... 182,184-87

Wootton, B arb ara.......................................................76 Wordsworth, W illiam ............................................ 179