Norrie - Law and the beautiful soul

The essays collected in this book concern the relationship between law as a social and historical institution and the moral judgments it is required to make. Such judgments are necessarily, though limitedly and contradictorily, reflected in legal forms. It is this limited and complex relationship that is at the practical and theoretical core of these essays. While they draw upon my previous work on punishment, crime and responsibility, they also emphasise the search for a broader theory of law and legal method. My hope is that bringing them together will cast that work in a slightly different light and make it accessible to a wider audience. Taken together, they also reveal a theoretical development which renders their collection more than the sum of its parts. That development 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 arguments of the individual pieces.

There are four key ideas in these essays. The first is that Western liberal law is essentially contradictory or antinomial, so that legal concepts, troubled and oppositional, generally hunt in pairs. Secondly, this essential characteristic is shaped by the particular socio-historical context of Western liberal societies in which structural conflicts and contradictions are key elements. Thirdly, this shaping of liberal law crucially affects and limits its ethical character and implications. Fourthly, law plays a central role in structuring, shaping and limiting 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 seems to me to give rise to an important development of the overall theme of these essays and it introduces us to their titular figurehead, the Beautiful Soul.

To grasp the significance of the Beautiful Soul, it is helpful to identify two 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 dead 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 human being or modern politics. I seek a middle course of acknowledging liberal laws ethical validity while noting its significant structural limits and complexities. This may, however, seem to say little more than what would be claimed by many modern liberal theorists. Typically, it might 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 ceiling. It is for individuals to make what they will of their lives within a framework of rights, in pursuit of their own particular versions of the good. Law prioritises the right, and thereby limits itself, in order to allow this to occur. Alternatively, in a more sociological vein, it might be argued that legal legitimacy rests not just on the forms of law, but on the complementary existence of a vibrant civil society. To be itself, liberal law must look beyond itself; what law can achieve without favourable social conditions is, it is accepted, highly limited and questionable. To talk, therefore, of the limits of law may not seem novel to the liberal mind.

These essays argue for a stronger sense of the limits of liberal legality by stressing the role of antinomy, the role of historical conflict and contradiction and, perhaps most importantly, the essentially restricted and suppressed character of ethical life within liberal society. To do this, I draw upon the dialectical traditions more critical elements the young Hegel, Adorno, Bhaskar and Derrida (whom I press, legitimately in my view (see Chapter 8), into dialectical service). My aim is to show how liberal law channels, contains and represses a radical Enlightenment sense of the good in order to produce a modern liberal sense of the right. Shaped by modern institutions of private property and contract, liberal law contains the most 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 within and to embody (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 promise of Enlightenment 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 promise through the forms of freedom it provides. This work of expression on the one hand and repression on the other is signposted by the pathologies of antinomialism that bedevil liberal thought and which reach into the finest points of its law. The chain of antinomies begins at the edge of law, in oppositions between the ideal and the actual, and between social and individual justice. It reaches into laws foundations, through lines drawn between the internal and the external, the formal and the substantive, and the universal and the particular. It proceeds into substantive areas like criminal law in such forms as the subjective and the objective, the honest and the reasonable, offence and defence, justification and excuse. What these antinomies bespeak, I argue, is confusion and dis-ease in thought, in practice, in law.

The radical promise of the Enlightenment of which 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 many of them discuss. It is expressed in Adorno's critique of Kant, in Bhaskars pulse of freedom, in Derridas attention to the claims of the Other and, in one of its finest forms, in the young Hegels admiration for the Beautiful Soul. Sadly, Hegel was to abandon this figure to a far off exile in order to construct the systematic dialectics for which he is known today. Yet it remained, and remains, a force to be reckoned with: an end state glimpsed through a glass darkly, the unfulfilled promise of modernity, the ghost in the corridors of liberal law, the absent presence lurking in its antinomies, the harbinger of what free humankind could be.