Law & the Beautiful Soul

Alan Norrie

• Publisher: Routledge-Cavendish
• Year: 2013
• Print ISBN: 9781138161436
• eBook ISBN: 9781135310257
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Starting from concrete legal issues, Alan Norrie develops a critical vision of law in its relation to morality and socio-historical context. Traced historically, the conflicts he describes can be read today in law's treatment of legality and justice, judgment and responsibility.

Joint winner of the Hart / Socio-Legal Studies Association Book Prize 2006.

Chapter 1
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 591–99)

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 criminal justice and responsibility. They discuss matters as diverse as the criminal responsibility of the two boys who killed James Bulger, the guilt of Albert Speer, the nature of popular justice, problems in the law of intention, recklessness and provocation, the historical development of modern legal theory, and the nature of its critique. They were not written to a general plan, but they were written in relation to each other. The result is a set of essays that reveal a dominant theme and an emerging line of argument. Put together, I hope that the impact 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 something of their content, and the next section begins by locating each one briefly within the overall argument 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 themes 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. The second theme concerns the nature of legal critique, and in particular the relationship between its socio-historical and ethical dimensions. In much critical legal theory, these two dimensions 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. While he privileges an ethical critique, the essays in this collection privilege a socio-historical point of view. Neither finds much place for the other. The last three chapters here, however, work towards a way in which the ethical and the socio-historical dimensions of critique can be brought together as one enterprise.

This introduction has the following structure. In the next section, I say a little about each individual chapter while linking them to the collection’s two dominant themes: antinomy and the nature of critique. In the following, third, section, I develop the theoretical discussion of antinomy in law while considering the roots of my own socio-historical approach to critique. At the beginning of the fourth section, I suggest that it was focusing on antinomy 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 of law, and how they might be brought together. These are the two philosophies most important to this work: critical realism and deconstruction. In the final section, I argue that the common 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 convergence would draw together something like the historical approach identified by Roy Bhaskar and the ethical vision of fallen divinity – of a form terribly changed yet reflecting an original ethical grace – depicted in John Milton’s description of Satan. The routes into this critical interpretation are provided by an account of Adorno’s view of law in his philosophy of negative dialectics and by considering the key figure of the Beautiful Soul in Hegel’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 Beautiful Soul to the reader as it appeared in Hegel’s thought. In the 18th century, the Beautiful Soul had been a widely deployed, pan-European figure in ethical and aesthetic philosophy, as well as in literature. As Robert Norton’s excellent monograph makes clear, the precise meaning of the term changed over its 100 year history and according to the national context in which it was deployed (Norton, 1995). The core idea was the possibility of combining moral virtue and aesthetic value in the perfection of lived human being. The Beautiful Soul represented the possibility in the here and now of attaining the morally good life as ‘the most profound expression of human moral existence’ (Norton, 1995, p 211). To anticipate a sceptical response, Norton does go on to say that ‘identifying exactly what moral beauty was had never been an easy task’, even in the period of the figure’s popularity. Just how we today should treat this image of human moral potential is a question for debate, and the subject matter of the final chapter. We can, however, be helped by considering two dramatically different views of the Beautiful Soul in Hegel’s philosophy. His treatment of it comes at the end of the period of its currency, and its crucial and intriguing feature is how Hegel shifts in a very few years from admiration to outright rejection. In his early theological writings, he identified beauty of soul with the figure of Jesus and the need for a modern morality based upon the loving heart. In an essay of about 1799, beauty of soul involved ‘Boldness and confidence of decision about fullness of life, about abundance of love, aris[ing] from the feeling of the man who bears in himself the whole of human nature’. He went on:

Such a heart has no need of the much vaunted profound ‘knowledge of men’ which for distracted beings … is indeed a [useful] science; but the spirit, which is what they seek, always eludes them ... An integrated nature penetrates the feelings of another in a moment and senses the other’s harmony or disharmony ... (Hegel, 1948, p 240)

The morally full life of the Beautiful Soul is, however, not an easy one. To maintain a loving heart in the face of the conventional existence of one’s people is to invite isolation and run the risk of worse. The crucifixion of Jesus, the quintessential Beautiful Soul, illustrates what may happen, yet his was a noble fate consistent with the best that human being can be. Contrast this view of the Beautiful Soul with Hegel’s depiction only eight years later, in his Phenomenology:

It lives in dread of besmirching the splendour 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 world, and persists in its self-willed impotence to renounce its self which is reduced to the extreme of ultimate abstraction ... In this transparent purity of its moments, an unhappy, so-called ‘beautiful soul’, its light dies away 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, Hegel describes the Beautiful Soul as ‘empty’, ‘hollow’, ‘evaporated’, ‘mad’, ‘impotent’ and ‘consumptive’. With all the charm modern life can muster, this figure would now be described as a ‘loser’ who needs to ‘get a life’. The moral purity of the earlier vision 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. At one level, this is simply intriguing: why should Hegel in so short a period of time have changed his view so radically? Why ‘kill’ the Beautiful Soul? The answer to that question must await the final section of 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 impulse which modernity and its historical experience of revolution had set before humankind. The early view of the Beautiful Soul reflects that impulse, the later shows its containment. Ethically too, this process of containment 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 limited 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 argue that the rise and fall of the Beautiful Soul can be seen as a key to understanding the relationship between 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 forms of justice with moral forms of judgment that lie beyond the law. This raises a theoretical question about how a critical approach handles these different dimensions. In this section, I sketch the essays and outline the emergence of this theoretical question.

These essays seek to develop a critical understanding of law. They seek to explain the structural limits involved in legal conceptions of justice. They do so by developing an understanding of what such conceptions represent and what they exclude. Legal justice takes place on a particular terrain, it develops its own ‘architectonic’, but what this represses is as important 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 antinomies is not a matter of simple intellectual invention. It is social and historical in its origin and it can be traced to the beginnings of modern law in the Enlightenment and the early 19th century.

The chapters are assembled in three sections, reflecting a developing perspective in which law’s antinomies are first located in Part 1 as part of a historical structure. Part 2 applies this historical-structural perspective to questions of justice 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 coming before the law. They therefore raise an ethical dimension. The chapters in Part 3 begin to address some of the broader theoretical issues raised by a critical approach, which must find room for both ethical evaluation and historical perspective. While 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 Enlightenment to the present, considering the relationship between natural law, legal positivism and a sociological approach to law. It charts a contradictory development in which approaches affirming one-sided views of law compete with each other. To this permanently contradictory, one-sided oppositionalism in legal theory, it gives the name ‘antinomialism’. Chapter 3 then examines a particular antinomy central to law, that between the ‘formal’ and the ‘informal’ in the context of thinking about the opposition between ‘popular’ and ‘legal’ justice. Together, these chapters develop a sense of antinomy as central to law, and they relate this to the historical development of Western societies, and the underlying social relations which 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 autonomy 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 judgment

The four essays in Part 2 examine a set of issues relating to legal conceptions of justice, responsibility and judgment in light of the historical antinomialism of western liberal legal thought. Whilst their aim is to consider the theoretical structure of law in this area, each discussion is informed by the use of examples taken from legal doctrine or practice. Chapter 4 considers the 1993 trial and conviction of two boys in England for the murder of James Bulger, and relates this to the particular ‘architectonic’ of justice developed through legal categories. An antinomy between legal justice and moral judgment emerges as a result of the law’s abstract individualism and is used as a way of understanding the limits and conflicts of liberal law. Chapter 5 considers more broadly the idea of liberal law delivering justice through what I call the ‘penal equation’, that ‘crime plus responsibility equals punishment’. It considers the historical prioritising of the legal form of justice, before moving on to examine how law, despite its failings, provides a limited and ambivalent experience of justice. Chapter 6 pursues this latter theme of the experience of justice by examining the idea of guilt in modern 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 Albert Speer which, relying on such a model, fails to catch the sense of moral judgment Speer’s actions invoke. Underlying the discussion here is an antinomy between ‘the individual’ and ‘the community’ and guilt is argued to occupy an ambiguous space between these options. Chapter 7 considers the ‘logic of legal reasoning’, where the categories of liberal legality are based upon antinomial forms. Here, two further antinomies of law are examined; those of ‘form’ and ‘substance’, and the ‘universal’ and the ‘particular’. Underlying both is the antinomy between individual and social justice, an antinomy which also bears upon the discussions of Chapters 3 and 4. The attempt to deal with this antinomial conceptual terrain in Chapter 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 theme of antinomy 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 antinomies. At the same time, these essays indicate an ethical purpose. Chapter 3 looks to the role of movements of national and social liberation in reshaping legal form. Chapter 4 contrasts legal and moral judgment, and considers the limits of law’s own particular ‘morality 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 war criminal like Speer. Chapter 7 shows law reaching beyond its own terms in a necessary, but necessarily failing, attempt to do a better justice. In looking to history, these essays also draw upon 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 move to historical issues, or does it rest upon ethical foundations? Can it be both?

Law, history and ethics: the nature of critique

The essays in Part 3 consider this issue. They examine how philosophers who have recognised the importance of antinomy (not necessarily by that name) have treated it. They think about how law in its Western liberal form fits within a broader philosophical context. The philosophers discussed in this part are predominantly in the modern dialectical tradition inaugurated by Hegel (see Chapters 8 and 10), but Hegel’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 dialogue with the deconstructionist Derrida, who, I argue, is himself to be located within the dialectical tradition (Chapter 8). The overall aim is to think about the conflict in critical legal theory between historical and ethical approaches. More specifically, how can questions of ethics, often treated as metaphysical, suprahistorical questions, be brought together with a socio-historical analysis, which often denies the significance of a metaphysical approach? The nature of the conflict between these two approaches is addressed in discussion of dialectical and deconstructive theory. Before moving on, let us identify this conflict between a metaphysical-ethical and a socio-historical critique more directly.

History versus ethics in critical legal theory

The conflict between a socio-historical and a metaphysical-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 ‘possible and always useful’. This is ‘a critique of juridical ideology, a desedimentation of the superstructures of law that both hide and reflect the economic and political interests of the dominant forms of society’ (Derrida, 1990, p 941). With these comments, Derrida is discussing what 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’ way of proceeding, but it is not actually what he himself does. For him, there is a deeper critique to be developed, of what he calls a ‘more intrinsic structure’. This involves the ‘very emergence of justice and law’ in a ‘performative and therefore interpretive violence’ (1990, p 941).

This second critique is metaphysical and ethical rather than socio-historical in its form. It links up with what Derrida has to say about deconstruction as a form of justice that is ‘mad’ and ‘mystical’, which points beyond ‘what is’ to a ‘messianic’ ethics of ‘the other’. It participates in this way in an abstract metaphysics of justice, despite Derrida’s own disclaimer to the contrary.¹ So doing, this deeper critique of law and legal justice, drawing on an ethical-metaphysical argument, is developed without reference to the idea of socio-historical critique. Although Derrida says that deconstruction operates in part by looking historically at the genealogies 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 marginalised by the deconstructive (metaphysical-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 metaphysical 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 enunciated in Chapter 5 below, although it is one that the later chapters will confront and modify. In that chapter, I suggest that ethical standpoints emerge historically in society, and these give a critical purchase on legal concepts. There is no need, I argue, for:

an abstract, ethical ‘beyond’. There is no metaphysical ‘other’, rather there is real emergent history and developing social structure, and these generate actual difference, conflict, change, sometimes crisis … New perspectives and critical standpoints, new ways of looking at old phenomena, including the phenomena of law and justice, are produced in this process of emerging change and difference. (Below, p 80)

This conflict between two approaches to critique underlies these chapters, as I think it underlies much 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 moving beyond this opposition. The emergence, the recognition, and the attempt to deal with it represents a theme running through the collection. In Chapter 2, metaphysicalethical and socio-historical approaches are counterposed. In Chapter 5, their opposition is made explicit, and supported by arguing for the irrelevance of a metaphysical-ethical standpoint. Chapter 8 is a first effort at rapprochement, but it ends up leaving the opposition in place. Chapters 9 and 10 in different ways then look for a way of bringing the terms of the opposition into a satisfactory relationship with each other. Thus, as the chapters move on, a more reconciliatory approach is adopted in which the socio-historical and the metaphysical-ethical are seen as part of a single critical project. Before we address this development further, however, it will be helpful to examine how the argument of these essays came together in the first place.

Social history and legal antinomy

Written from the early 1990s, the perspective in these essays was formed in the previous decade out of the different critical currents of that time. These included the sociologic...

Table of contents

• Cover Page
• Title Page
• Copyright Page
• Preface
• Chapter 1: From Law to the Beautiful Soul
• Part 1: Legal Antinomies in History
• Part 2: Justice and Judgment
• Part 3: Law, History and Ethics: The Nature of Critique
• Bibliography