Empty Justice

One Hundred Years of Law Literature and Philosophy

Melanie Williams

• Publisher: Routledge-Cavendish
• Year: 2013
• Print ISBN: 9781859416143
• eBook ISBN: 9781135340216
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Utilising literature as a serious source of challenges to questions in philosophy and law, this book provides a fresh perspective not only upon the inculcation of the legal subject, but also upon the relationship between modernism, postmodernism and how such concepts might evolve in the construction of community ethics. The creation and role of the legal subject is just one aspect of jurisprudential enquiry now attracting much attention.

How do moral values act upon the subject? How do moral 'systems' impinge upon the subject - jurist and judged - throughout the 20th century, when religious values are called into question, when 'existential' doubt prevails? To what extent do issues of gender and identity inform these questions?

Many sources can provide insights into these issues: this book intends to concentrate upon fiction as just such a resource. However it is not just another law and literature compilation. Spanning the last century, each chapter will attempt to fulfil four objectives: to identify key texts in relation to a given period; to look for linked legal and philosophical developments from that period; to establish fresh links from these sources regarding concrete doctrinal, or practical legal questions, and finally draw a more general inference about the legal subject and the frequently less evident feminine citizen-subject.

Central to this approach will be the consideration of contemporary case law and legal materials as social documents of the relationship between law and the wider community.

CHAPTER 1
THE YEAR 2000 – THE EMPTY CITY: JG BALLARD’S SUPER-CANNES* AND JM COETZEE’S DISGRACE

The twentieth century ended with its dreams in ruins. The notion of the community as a voluntary association of enlightened citizens has died for ever … Homo sapiens is a reformed hunter-killer of depraved appetites, which once helped him to survive. He was partly rehabilitated in an open prison called the first agricultural societies and now finds himself on parole in the polite suburbs of the city state… with a taste for cruelty and an intense curiosity about pain and death … (Super-Cannes, p 263).

This quotation reflects a view of civilised man that departs radically from that adopted by classical political, and legal, theory and doctrine. Certainly it is difficult to deny many of the suggestions made: of a dream in ruins, of civic apathy, of asocial patterns. The development in the quotation of a need to return to ‘the killing eye and the dreams of death’ places the character speaking it – a corporate psychiatrist with a skewed and grand vision of applications for his art – a man for whom the moral life is dead and the opportunity to mastermind a large scale social experiment is all. Yet the rationale of mankind he offers – with utilisation of the biological nomenclature ‘homo sapiens’ diverging from that normally adopted in philosophy – of the ‘reformed hunter-killer of depraved appetites’, partly rehabilitated but with ‘a taste for cruelty and an intense curiosity about pain and death’ is a sharp yet feasible departure from the vision nurtured in law. The reliable, stable ‘reasonable man’ for whom depraved appetites are harboured only in the thoughts and actions of deviant minority ‘others’ squares poorly with the generic ‘reformed hunter-killer’. Instead, this text suggests, the boundary between ‘natural curiosity’ regarding deviance and adoption of deviant behaviour is blurred, for society is engaged in a complex web of activities and interests which implicate us all, passive and active. Whatever potential for the pursuit of goodness might have obtained has become subsumed by consumerism and transient gratifications.

In this chapter, the texts selected for reflection upon the moral life in the year 2000 present the reader with stark and sometimes shocking conceptions of modernity, so much so that there may be a natural recoil, a desire to turn away from the texts as themselves gratuitous or prurient. The reader is urged, however, to give proper consideration to their message, for both present concerted explorations of the modern psyche, explorations which challenge the inadequacies of traditional models.

The stimulus for this chapter arose largely from the clear mismatch between the conception of our society as civilised, and the brutal realities which underpin it, realities which appear to be ‘circled’ while remaining unmet by political theory and ‘rights’ discourse. Feminist scholarship has often concentrated upon particular aspects of this brutality – of sexual oppression and exploitation. The ‘Year 2000’ texts engage a broader exploration of the issues, extending the critique and invoking a conjunction of disparate vocabularies and disciplines – in all suggesting that the issues are not simply ‘feminist’ but communal matters of universal well-being. Two aspects of Super-Cannes areparticularly striking – the use of a radical critique of modern man beginning not with the ‘man of reason’, but with ‘homo sapiens’ – both conjoining humanity and wisdom, yet with radically different cultural antecedents and implications. Secondly, the text provides a frank anatomisation of unacknowledged regions of the human psyche, and the coordination of the psyche with physiological drives and responses. Disgrace also explores the lack of ‘fit’ between our inner and outer selves – specifically the text traces how the credible master narrative of the enlightenment scholar can co-exist with an equally credible – but ethically untenable – interior narrative of self-legitimation, of mitigation. Together, the texts provide a provocative and accessible adjunct and challenge to traditional political, legal and philosophical scholarship.

The regulation of the individual and the community through law is an extremely tenuous exercise. The law must be seen to uphold some elementary moral vision which relates realistically to human nature. Yet human nature is a mystery, and social, political, penal policy all perennially battle with conflicting views of its content. It is a largely unacknowledged fact that within any given society, each generation is caught up and participates in the ongoing ‘experiment’ in social engineering that is community life. ‘Social engineering’ indicates large-scale co-ordination, but of course the model is qualified to varying degrees, by the collision of conflicting forces and interests and the impact of the contingent world. The legal world attempts to mediate these conflicts and contingencies whilst maintaining that elusive moral vision. Human ‘nature’ presents the law with the most troublesome component of all: forging a path between an overly idealised view of man and an overly debased view, whilst properly upholding some basic moral aspirations for the survival of society, is a formidable task. Traditionally, law has adopted a view of human nature derived from theology and political theory; latterly this view has been supplemented, albeit inadequately, by medical science. Yet the mysterious core remains: of the relationship between this elusive ‘nature’ and the effects of environment – of ‘nurture’, of the existence and extent of ‘free-will’, of the boundary between ‘normal’ and ‘ab’normal, of how gender, power, identity intersects with these. Meanwhile, law must conduct its business, must oversee and cultivate forms of individual and community regulation and, given the insoluble mysterious core of nature and the need to place regulation above understanding, the law will tend to perpetuate the old.

The law continues to hold with a dualist, polarised view of mankind drawn from classical theory, of a majority of right-minded, free-willing individuals, a minority of deviant others. Feminist and other forms of critical theory have already questioned these assumptions in some depth; in addition as law struggles to adapt itself in the light of its own sometimes outmoded and incomplete picture, tensions can be observed in the formulation of doctrinal models. This was exemplified recently in discussion of homicide, provocation and ‘the reasonable man’ in the case of R v Smith¹ where, to quote Archbold (in Richardson (2000), pp 19–60) the House of Lords recognised:

... the notion of the reasonable man was becoming increasingly unreal, as, for example the reasonable man with abnormal immaturity and attention-seeking personality ...

adding that:

... the ratio of the majority decision is by no means easy. Their Lordships were, however, adamant that there remained an objective element to the defence. They appeared to be of the view that not all characteristics were potentially relevant, but it is impossible to say with any confidence which are and which are not. Further, at least two of the majority (Lords Hoffman and Clyde) seemed to be suggesting that in directing a jury a judge need no longer use the expression ‘the reasonable man’, notwithstanding that is the test enacted by Parliament …

In Chapter 2, a comprehensive history of the notion of the reasonable man is undertaken, especially in relation to the doctrine of provocation. For the moment, it may perhaps suffice to say that the concept of the reasonable man has occupied a central role in legal doctrine, reflecting and entrenching the vision of ourselves created in classical political theory. Such wholesale encryption has however sat uneasily with the widely idiosyncratic responses displayed by individual miscreants to contingent events. The notion of reasonableness, and especially of a knowable embodiment – the reasonable man or woman – has far reaching implications not simply with regard to how the reasonable action and reaction is construed, but concomitantly, what such constructions reveal about underlying belief systems. Ultimately therefore, the construction of reasonableness and the reasonable man ramifies into notions of responsibility, agency, credibility, normativity.²

To supplement or readdress the inadequacies of the reasonable man with the model offered in Super-Cannes, utilising a convergence of anthropology and psychiatry (instead of classical philosophy with piecemeal adoptions from medicine) may be far too radical a step to contemplate. Yet if the mystery at the heart of human nature is more effectively breached by such an approach, it should at least be given some attention. Initially however, close consideration will be given to these literary texts which disturbingly, yet seriously, throw down the gauntlet to classical man.

The extensive quotation at the beginning of this chapter identifies the key philosophical challenge held at the heart of the remarkable Super-Cannes. Where, as we shall see, Disgrace deposes the delusive superiority created by culture and rationality and posits a violent reordering – where the formerly oppressed gain power and exact payment, Super-Cannes explores a model of society in which abuse of the oppressed is integral to the functioning of the dominant culture. The difference may be ascribed to demography – that Disgrace deals with post-colonial turbulence, whereas Super-Cannes is set in a supranational corporate cantonment. Here, sexual and racial oppression is enacted upon a contained human flotsam at the edge of the enclosure. Yet do these differing visions simply reflect logistics – that black South Africa holds not only the power of enfranchisement, but that of numbers, whereas the oppressed of Super-Cannes are a containable disenfranchised minority? Or do the different viewpoints reveal divergent positions regarding the instrumentality of oppression – on the one hand that it is an almost unavoidable facet of human nature or, that it is the product of a transient and unsustainable hegemony. Another reading of the books can, however, evince the conclusion that each harbours aspects of both visions; that Disgrace describes a transitionwhich may result in egalitarian or oppressive practice, whilst Super-Cannes’ depiction of integral oppression can be a dystopic caution rather than inevitable universe; to some extent the models simply recast the nature/nurture debate. Whichever view is adopted, both books clearly reflect upon important social and ethical questions and both anatomise the confluence between – in social terms – civic contract and chaos and atomistically, citizen and sociopath.

At the end of the 20th century, the ability of fictional texts to confront and critique the dark underside of Western liberal values is truly potent. Nevertheless, literature throughout the century displays some disability (albeit diminishing) when infiltrating the adroit rationality underpinning predominant culture. Such early assays are necessarily piecemeal; the critiques subject to the strictures of their time in terms of understanding the myriad aspects of the cultural behemoth, absorbing the full implications of the existential horizon and, most of all, expressing that understanding and absorption in linguistic forms hitherto unsayable. This is not to say that cultural congratulation is in order, or that a reassuring ‘teleological’ outcome is at hand. For the message is in some ways bleak, and any shadowy teleology an object of suspicion, the belief that our time is better, or worse, often a matter of subjective stance. Yet some greater degree of self-knowledge appears to be in sight and with it the possibility of more balance in an understanding of what it is to be human, of what we are dealing with and why, when we consider the person, the community and the law. Both books chosen from the end of the 20th century reflect a deep concern with corrupt practices and with the ‘normalisation’ of such practices. Both question the moral standing of present social trends and make suggestions as to where such trends may lead. In Disgrace, although the immediate context is that of post-apartheid South Africa, there are clear implications for ‘divisive’ politics in general, especially where the politics derive from the ‘selective enlightenment’ of Western liberalism. In Super-Cannes this viewpoint is explored through a model of a present/near-future dystopia in which international corporations have the power of mini-states and as such dispense with the refinements of community politics. Together the books throw prismatic images upon contemporary values. We cannot know whether the warnings they implicitly contain are fully justified – certainly the power of fin de siècle apprehensions is strong – but in an age seduced by a less than critical view of itself, an age of consumerism, of undreamt freedoms and instant gratifications, a note of warning seems timely. We may see liberal politics emerge as a tool of adaptive transformation, its action matched by the integrity of aspiration, or we may not: envisioning the broader ethical implications of current piecemeal values at least sustains an aspiration of integrity.

SUPER-CANNES

The quotation at the beginning of this chapter is taken from a central character in Super-Cannes – Penrose, a psychiatrist whose observations regarding human nature have clear implications for social and political theory. Although he may be characterised as an irrational zealot, his rationale the product of his own history (analogous to Freud), his hypothesis concerning the nature of human nature derives from plausible observation. Asserting that ‘the notion of the community as a voluntary association of enlightened citizens has died for ever’ and linking this to a ‘suffocating humanity’ is disturbing in a time proclaiming itself as the age of human rights. As the passage indicates, the notions of ‘community’ and of ‘citizenship’ are not reflected in practice; his anthropological assessment of human nature – of the ‘taste for cruelty’ and ‘intense curiosity about pain and death’ derive in the book from plausible ‘empirical’ as well as theoretical observation. The mini-state that is Super-Cannes becomes a metaphor for society, a petri-dish in which aspects of humanity, conveniently disregarded in the actual world of lubricious politics, demand inspection: to consider human nature is to consider a capacity for depravity as well as enlightenment, for evil as well as for good.

In discomfiting play with contemporary values, the book suggests that the pursuit of profit is the determining factor in understanding human motivation. In the multi-corporate State that is Super-Cannes, Penrose is charged with responsibility for the welfare of its executives. He realises that poor productivity, poor immune responses, ‘sick building’ syndrome, depressed libido – the multitude of ailments besetting the highly educated and elite workforce – all disappear when the executives take part in deviant and violent forays into the poorer quarter:

… some depressed CEO … then a senior manager with Hoechst … saw a woman tourist in Cannes being mugged by an Arab youth and went to her rescue … he g...

Table of contents

• COVER PAGE
• TITLE PAGE
• COPYRIGHT PAGE
• ACKNOWLEDGMENTS
• TABLE OF CASES
• TABLE OF STATUTES
• INTRODUCTION
• CHAPTER 1 THE YEAR 2000 – THE EMPTY CITY: JG BALLARD’S SUPER-CANNES* AND JM COETZEE’S DISGRACE
• CHAPTER 2 THE 1890s – THE EMPTY WOOD: TESS OF THE D’URBERVILLES, RAPE, SEDUCTION AND PROVOCATION: EFFACEMENT OF IDENTITY AT THE FIN DE SIÈCLE
• CHAPTER 3 THE EARLY 20TH CENTURY—THE EMPTY ROOM ‘THE SUBJECT’ – WOOLF, JOYCE AND THE VISCOUNTESS RHONDDA’S CLAIM
• CHAPTER 4 THE 1940s – THE EMPTY WAR: GRAHAM GREEN’S THE MINISTRY OF FEAR AND ELIZABETH BOWEN’S THE HEAT OF THE DAY
• CHAPTER 5 THE 1960s – THE EMPTY SHELL: JOHN FOWLES’S THE FRENCH LIEUTENANT’S WOMAN AND IRIS MURDOCH’S BRUNO’S DREAM
• CHAPTER 6 THE 1980s – THE EMPTY ISLAND: JM COETZEE’S FOE
• CHAPTER 7 INCONCLUSION
• CHAPTER 8 CONCLUSION
• BIBLIOGRAPHY