Justice, Humanity and the New World Order

Ian Ward

• Publisher: Routledge
• Year: 2017
• ISBN:
  9781351776288
• Edition: 1
• Topic: Diritto
• Subtopic: Teoria e pratica del diritto

This title was first published in 2003.Justice, Humanity and the New World Order offers a refreshing analysis of current jurisprudential concerns regarding the new world order, by examining them in the intellectual context of the late eighteenth-century Enlightenment. After setting the historical context, the author investigates aspects of Enlightenment political culture as well as aspects of the new world order, including international relations, the European Union and human rights. In conclusion, the author introduces the concept of a new humanism, which he suggests, drawing on certain aspects of Enlightenment political philosophy, can complement the new world order.

Part I

1
Sense and Sensibility

The Religion of Humanity

In 1838, John Stuart Mill published an essay on Jeremy Bentham in the London and Westminster Review. Two years later he published a complementary essay on Samuel Taylor Coleridge. According to Mill, they were ‘the two great seminal minds of England in their age’. There was, he further hazarded, ‘hardly to be found in England an individual of any importance in the world of mind’, who ‘did not first learn to think from one of these two’ (Mill and Bentham, 1987, p. 132.). The shape of the nineteenth-century English culture was framed by these two thinkers and what they sought to represent, sense and sensibility. But the holistic implication of Mill’s tribute masked a deeper anxiety. For whilst there was ‘hardly’ a mind that had not learnt from one or the other, there were very few minds that had been nurtured by both. Mid-nineteenth-century England was schizophrenic, some of its citizens devoted to the pursuit of science and utility, others to sentiment and sensibility.

Mill admired the iconoclast in Bentham, the ‘great subversive’, the first to ‘speak disrespectfully of the constitution’. It was Bentham who ‘expelled mysticism from the philosophy of law’. With a certain admiration, Mill even likened Bentham’s vitriolic critique of lawyers and the practice of law to Jonathan Swift’s more famous observations in Gulliver’s Travels. But, despite all this, Bentham’s utilitarianism was problematic: the obsession with ‘interminable classification’, the determination to reduce everything to a ‘science’, the apparent absence of a moral dimension, the inability to account for ‘moral approbation or disapprobation’ (Mill and Bentham, 1987, pp.139, 152–3, 160–62). Above all there was the ‘incompleteness of his own mind as a representative of universal human nature’. Mill’s castigation of this sorry deficiency was uncompromising:

In many of the most natural and strongest feelings of human nature he had no sympathy; from many of its graver experiences he was altogether cut off; and the faculty by which one mind understands a mind different from itself, and throws itself into feelings of that other mind, was denied him by his deficiency of Imagination. (Mill, Ibid., p.148)

Bentham, in other words, was emotionally retarded. He lacked the essential and defining capacity of the emotionally literate, the ‘power by which one human being enters into the mind and circumstances of another’ (ibid., pp.149, 173).

The extent of Mill’s venom can perhaps be understood when placed in the context of his own particular self-doubts. In his Autobiography, Mill recalled the torments caused by his early introduction to Bentham, and the growing sense that analytical jurisprudence alone should not be permitted to chart the ‘destiny of mankind in general’. One of the things which most served to condemn Bentham was his dislike of poetry. Mill, in contrast, read vast quantities of poetry, particularly Wordsworth and Coleridge, as if in doing so he might be able to imbibe the spirit of humanism, and thereby somehow recreate an intellectual bridge between the dynamics of utility and the sentiments of the Lyrical Ballads. It was Wordsworth, Mill acknowledged in his Autobiography, who ‘saved’ him (Mill, 1989, pp.l 11–13, 119–23).

As the Autobiography further revealed, Mill never really escaped his father’s shadow. James Mill had been a prominent member of the intellectual circle that surrounded Bentham in London. Another member of that circle was Bentham’s jurisprudential protege, John Austin. If the younger Mill needed any further evidence of the depths to which an emotionally illiterate jurisprudence might descend, he needed only to finger through a copy of Austin’s recently published Province of Jurisprudence Determined. For Austin, the study of jurisprudence was little more than a study of ‘sovereign’ bodies, ‘commands’ and ‘relative duties’. It was certainly not something that should allow itself to become entrapped in the ‘muddy speculation’ and ‘senseless fictions’ of such things as rights, liberties or sensibilities. Law might be of assistance in the pursuit of justice, even in the improvement of human society, but there again it might not (Austin, 1995, pp. 19–20, 38–57, 64–6, 80–99).

In many ways, Austin’s Province represented something of a caricature of legal positivism. Bentham’s Introduction to the Principles of Morals and Legislation evidenced a far greater awareness of the countervailing tensions of sense and sensibility. At the same time, however, it did prescribe the distinction between positive law, law as it ‘is’, and legal morality, law as it ‘ought’ to be (Bentham, 1982, pp.l 1–16). Mill readily appreciated the distinction, but was enormously troubled by the implication that only the former is part of the ‘province’ of jurisprudence. Enlightenment had promised more. The cause of future progress depended upon the instrumental role of law in promoting justice and morality. There had to be more to jurisprudence than Austin’s simplistic, and ultimately emaciated, account of legal rules.

At the same time, Mill’s support for the poetic mind was not unalloyed. In his complementary essay on Coleridge, he readily admitted that the great poet was an ‘arrant driveller’ when it came to dealing with metaphysics and science. But in comparison with Bentham, Coleridge ‘saw so much farther into the complexities of the human intellect and feelings’, and it was for this reason that he recognized that political communities were cultural and emotional artefacts, expressions of a ‘strong and active principle of cohesion’ (Mill and Bentham, 1987, pp.178, 193–5). In his earlier essay, an Attack on Literature, Mill had already affirmed that, in the final analysis, the ‘progress’ of civilization is at least as dependent on the ‘genius’ of men such as Coleridge as it is upon anything that science could divine (Alexander, 1967, pp.24–5).

Mill was particularly interested in Coleridge’s journey to Germany during the first years of the nineteenth century, and his subsequent conversion to the writings of Immanuel Kant and the ‘German school’. Though he had doubts regarding Kant’s attempt to present a ‘science’ of the mind, Mill readily approved their shared determination to reinvest a sense of ‘moral obligation’ against the rather more ethically emaciated scepticism of Hobbes or Locke. The idea that the political imagination might, as Coleridge alleged, be an intrinsic expression or ‘positive command of the moral law’ fascinated Mill (Mill and Bentham, 1987, pp.184–9; Coleridge, 1997, pp.279, 284).

*

Indeed, it fascinated a generation, not least one of Mill’s closest intellectual associates, the novelist George Eliot. In a series of essays and translations of the major works of German ‘Higher Criticism’, including Friedrich Strauss’s The Life of Jesus and Ludwig Feuerbach’s The Essence of Christianity, published in the Westminster Review, Eliot advocated a ‘religion of humanity’, one that recognized in the ‘idea of God’ an ‘extension and multiplication of the effects produced by human sympathy’ and which championed the ‘love of the good and the beautiful’. Drawing on the earlier traditions of Kantian humanism that had inspired Coleridge a generation earlier, the Higher Critics argued that man alone, as Feuerbach put it, ‘is the God of man’ (Eliot, 1990, p.462; Jay, 1979, pp.207–43). If the inspiration looked back to Kant, the prognosis looked forward to Nietzsche.

But, for Feuerbach, the ‘religion of humanity’ was certainly not intended to be the precursor to a melancholic existentialism. Quite the reverse. The reassertion of humanity was the unfulfilled promise of Enlightenment. It reeked of a pragmatic hope; of the kind, perhaps, that is today recommended by the likes of Richard Rorty or, to a certain degree, Francis Fukuyama. As Feuerbach asserted in his Essence of Christianity:

My fellow-man is the bond between me and the world. I am, and I feel myself dependent on the world, because I feel myself dependent upon other men. If I did not need man, I should not need the world. I reconcile myself with the world, only through my fellow-man. Without other men, the world would be for me not only dead and empty, but meaningless. (Eliot, 1990, p.461)

This attitude, almost post-modern in tone, was continued i$ Feuerbach’s description of the human faculties:

Wit, acumen, imagination, feeling as distinguished from sensation, reason as a subjective faculty, – all these so-called powers of the soul, are powers of humanity, not as an individual; they are products of culture, products of human society…Love, which requires mutuality, is the spring of poetry; and only where man communicates with man, only in speech, a social act, awakes reason. (Ibid., p.462)

For Feuerbach, a humanist politics was, by definition, a relation of sense and sensibility, and Eliot was wholly taken by this idea too. There had, she observed, ‘perhaps been no perversion more obstructive of true moral development than this substitution of a reference to the glory of God for the direct promptings of the sympathetic feelings’ (ibid., pp.65–7).

Positive religion had conspired with positive law to annihilate the natural sentiments of humanity, and it had done so, primarily, by erasing the roots of human association and compassion, what Eliot termed, in a commentary on the poet Cowper, ‘that genuine love which cherishes things in proportion to their nearness, and feels its reverence grow in proportion to the intimacy of its knowledge’ (ibid., p.213). It is this emotional delinquency in matters of social justice which needed to be redressed. In a review of Carlyle’s Life of Sterling, she praised the author for his ability to paint a picture of compassion, the ‘love of good and beautiful in character’ which is, she added, ‘after all, the essence of piety’. In another essay in the Review, Eliot affirmed her view that it was ‘not as a theorist, but as a great and beautiful human nature, that Carlyle influences us’ (ibid., pp.301, 344).

A revived humanist ‘religion’ could only be conveyed through an ‘extension of our sympathies’, through the ‘picture of human life such as a great artist can give’, and it is this which Eliot endeavoured to do (ibid., p.110). Amongst the best examples of this aspiration are some of the earlier works, written in the immediate wake of translating Strauss and Feuerbach, such as the Scenes of Clerical Life and Adam Bede. It is in the latter novel that Eliot’s heroine Dinah is able to reinvest a sense of humanity and compassion by preaching a ‘religion of the heart’ to a community that is otherwise riven by the discords of evangelical dissent and radical democratic politics (Jay, 1979, pp.220–34; Pyle, 1995, pp. 155–7).

Mill’s affinity with Eliot’s ‘religion of humanity’, which according to Maurice Cowling describes the essence of his entire moral philosophy, finds an explicit statement in his Essays on Religion. It is here that Mill famously aligns the ‘golden rule of Jesus of Nazareth’, the rule which St Paul described in his famous injunction to ‘love thy neighbour’, to the ‘spirit of an ethics of utility’. Both, according to Mill, were philosophies of disinterest, philosophies which could, therefore, devote themselves exclusively to the interests of humanity, untrammelled by any deeper metaphysics or ideology (Cowling, 1990, pp.77–93).

The younger Mill had already written a series of essays, during the early 1830s, about the relation of politics, philosophy and poetry. It was in these essays that he made his influential distinction between the kind of ‘emotional’ poetry of the ‘poet’, such as Shelley and the more ‘thoughtful’ poetry of the ‘cultivated’ mind, such as that of Wordsworth and Coleridge. It was the latter which really attracted Mill; ‘thoughts, coloured by, and impressing themselves by means of, emotions’. Certainly, it was the ‘cultivated mind’ which, he thought, must be deployed anew in the cause of social and political progress (Alexander, 1967, pp.49–78).

As his Autobiography later confirmed, Mill had constantly sought to somehow effect a balance between Benthamism and the kind of philosophy found in the verses of Wordsworth and Coleridge. The ‘progress of civilization’, as he had affirmed in his Attack on Literature, depended upon it. Progressive politics is founded upon the ability to educate humanity ‘to love truth and virtue for themselves’, and this is what a poet can do so much better than anyone else. Poets, as he again affirmed in another essay written during the early 1830s, On Genius, deal in the ‘whole’. In other words they think in terms of the ‘whole’ individual, the sensitive and the ‘sympathetic’ as well as the sensible (ibid., pp.22–3, 27, 36–7).

Despite his own ultimate adherence to the basic principles of utilitarianism shared by his father and by Bentham, Mill retained a fundamental commitment to the balance of sense and sensibility. Indeed, as he argued insistently in his essay Utilitarianism, published in 1861, the philosophy of utility is a humanist philosophy, one that is therefore founded on this balance. His later campaigns, for the poor or for female suffrage, were expressions of this basic commitment. In an eloquent passage in Utilitarianism, he described the process by which the human condition might be alleviated by the reinvestment of principles of humanity:

The social state is at once so natural, so necessary, and so habitual to man, that, except in some unusual circumstances or by an effort of voluntary abstraction, he never conceives himself otherwise than as a member of a body; and this association is riveted more and more, as mankind are further removed from the state of savage independence.

The interests of the individual and the society within which they live become ‘inseparable’. The ‘collective interest’ becomes paramount:

Not only does all strengthening of social ties, and all healthy growth of society, give to each individual a stronger personal interest in practically consulting the welfare of others; it also leads him to identify his feelings more and more with their good, or at least with an ever greater degree of practical consideration for it. He comes, as though instictively, to be conscious of himself as a being who of course pays regard to others. The good of others becomes to him a thing naturally and necessarily to be attended to, like any of the physical conditions of our existence. (Mill and Bentham, 1987, p.304)

Moreover, as a consequence, ‘the smallest germs of the feeling are laid hold of and nourished by the contagion of sympathy’, around which can then be ‘woven’ a ‘complete web of corroborative associations’. As we shall see shortly, these particular passages are striking in their resonance with both Kant’s categorical imperative and Adam Smith’s idea of the ‘impartial spectator’. The ‘motives’ of ‘interest’ and ‘sympathy’, sense and sensibility, find a common expression in the congruent concern of the individual and the community, and the duties which flow from it. Justice, indeed, becomes a function of this balancing of interests and duties, something dedicated ultimately, to the promotion of individual and social ‘good’ (Mill and Bentham, 1987, pp.305, 334–8; Cowling, 1990, pp.40–41, 82–3).

Although it is often suggested that Mill’s Principles of Political Economy should be read as a kind of footnote to Adam Smith’s Wealth of Nations, there is a commitment to social distribution which gives the lie to the idea that his economic theory somehow consolidated a neoliberal abandonment of humanist principles. Indeed, as we shall see shortly, the misconception is equally relevant to readings of Smith. The extent of Mill’s commitment to forms of ‘social cooperation’ is reinforced by the Chapters on Socialism which he published after Political Economy. ‘Suffice it to say,’ Mill affirmed, ‘that the condition of numbers in civilized Europe, and even in England and France, is more wretched than that of most tribes of savages who are known to us.’ Such a state of affairs is neither just nor even necessary. It confounds the ‘irresistible claim upon every human being for protection against suffering’. It confounds, indeed, the very ‘idea’ of humanity (Mill, 1994, pp.382–3, 425–6). There can, Mill concluded, be no genuine liberty without a basic equality of resources. And neither can there be any credible claim to progress. The responsibility of the enlightened liberal is to remember that progress is something that must be enjoyed by all. Otherwise, it is not progress at all, and neither is it liberty.

A Jurisprudence of Sentiment

A century before Mill voiced his concerns, it was apparent to many that the countervailing demands of sense and sensibility represented the greatest intellectual challenge of the Enlightenment. And no one worked harder to address this challenge than Adam Smith, whose treatise The Theory of Moral Sentiments was intended to provide the foundations for precisely such a balanced and comprehensive public philosophy. In the end, such a comprehensive statement would prove elusive, and instead Smith bequeathed his renowned treatise on economics, The Wealth of Nations, together with an altogether less coherent, scattered set of Lectures on Jurisprudence. It is one of the great tragedies, not only that The Wealth of Nations should be so often misunderstood as...