The relaunch of No Found­a­tions: An Inter­dis­cip­lin­ary Journal of Law and Justice is devoted to rethink­ing the pos­sib­il­ity of law’s justice. We have chosen to approach this ques­tion from a law and human­it­ies per­spect­ive, mainly for two reas­ons. The first is that this inter­dis­cip­lin­ary move­ment, presently gain­ing momentum in Europe, recon­cep­tu­al­izes law in a way that opens it up inher­ently to dia­logues across dis­cip­lines, shar­ing our view that law can­not be fully under­stood as an autonom­ous field. The second is that this approach does not shy away from the dis­cus­sion on law’s (in)justice, and brings it to the fore of every legal debate, far too long releg­ated with the argu­ment that justice does not belong prop­erly to law, but to other branches or fields of know­ledge. For our relaunch issue we are very proud to present con­tri­bu­tions from eight out­stand­ing inter­na­tional schol­ars work­ing on this tra­di­tion, which com­bines the study of law with other lit­er­ary and human­istic texts and approaches.

James Boyd White, a pion­eer in this inter­dis­cip­lin­ary endeav­our, begins in auto­bi­o­graph­ical fash­ion to explain what led him to explore the con­nec­tion between law and lit­er­at­ure in a way that has often seemed to an out­sider as a bit puzz­ling, even idio­syn­cratic. Arguing that such a ques­tioner often mis­un­der­stands not only lit­er­at­ure, but law too, White elab­or­ates on the idea that the law is not a static or time­less sys­tem, work­ing out the implic­a­tions of its premises in abstract or purely logical ways, but a way of func­tion­ing in a world dom­in­ated by time, seiz­ing the ever-​passing moment of the present as the place to link past and future. Thus, if one is to think about the rela­tion between law and justice it is import­ant to recog­nize that the law is not an abstract sys­tem or scheme of rules, or a set of insti­tu­tional arrange­ments, but an inher­ently unstable struc­ture of thought and expres­sion, built upon a dis­tinct set of dynamic and dia­lo­gic ten­sions. These include, to name but a few: ten­sions between ordin­ary lan­guage and legal lan­guage; between legal lan­guage and the spe­cial­ized dis­courses of other fields; between lan­guage itself and the mute world that lies beneath it; between con­flict­ing but jus­ti­fi­able ways of giv­ing mean­ing to the rules and prin­ciples of law; between sub­stant­ive and pro­ced­ural lines of thought; between the past, the present, and the future. None of these ten­sions can be resolved by resort to a rule or other dir­ect­ive, but must be addressed anew in each case, by the exer­cise of an art that is defined by these ten­sions them­selves. As a res­ult, doing justice in the law con­sists not merely in the elab­or­a­tion of gen­eral prin­ciples, but the art by which the ten­sions char­ac­ter­istic of law are intel­li­gently and sens­it­ively addressed.

White’s argu­ment has wide implic­a­tions for legal edu­ca­tion, because the teach­ing of law as mech­an­ical, imper­sonal, essen­tially bur­eau­cratic in nature works by nar­row­ing rather than broad­en­ing the human capa­city for under­stand­ing and crit­ical judg­ment. In White’s view, legal edu­ca­tion ought to shift the focus from the study of law as a sys­tem to the under­stand­ing of what hap­pens when that sys­tem meets the world, for it is at the moment of this encounter that law becomes most fully alive. In the hands of the law­yer, judge, or teacher, the law is not a closed or total sys­tem of sig­ni­fic­ances, but is sys­tem­at­ic­ally opened up to new pos­sib­il­it­ies, not only enabling cre­ativ­ity, but requir­ing it. Most fun­da­ment­ally, this encounter con­tains within it the seeds of res­ist­ance to the forces of empire and mind­less sub­mis­sion, for every case is an oppor­tun­ity for the intro­duc­tion into the world of power of an unre­cog­nized voice, lan­guage, or claim.

White’s open­ing essay draws with decept­ive sim­pli­city a pic­ture of law that could not be fur­ther apart from the mod­els of law that have dom­in­ated aca­demic circles over the last two cen­tur­ies. One might say that White writes from an internal per­spect­ive, though not from that of the Hartian offi­cial who assures the con­tinu­ity of the legal order, but as someone who aims at the heart of legal prac­tice as it is lived and exper­i­enced by indi­vidu­als and prac­ti­tion­ers. What White describes is an ideal of what law can be when it reaches its poten­tial; an image, as it were, by which we can shape our efforts as do our respect­ive tasks as law­yers, judges, or teach­ers. Seem­ingly miss­ing in White is the pos­i­tion of the jur­ist, per­haps a dis­tinctly European fig­ure, of the aca­demic law pro­fessor who stud­ies law as a ‘detached observer’. In ‘Con­fig­ur­ing Justice’ Jeanne Gaa­keer, both a pro­fessor of jur­is­pru­dence in Rot­ter­dam and a sit­ting Justice of the Appel­late Court in The Hague, denies the pos­sib­il­ity of such a ‘view from nowhere’. Oppos­ing her view to the legal-​scientific model, she defends the model of jur­is­pru­den­tia, which denies the pos­sib­il­ity of gen­eral the­or­et­ical accounts of law (as sci­en­tia), because there is no such thing as a neut­ral or object­ive sci­entific pos­i­tion from which to observe or to take the­or­et­ical stand­points, and because prac­tising law and the reflec­tion of it (the internal and external per­spect­ives) are both to be under­stood in, and from, par­tic­u­lar his­tor­ical, moral, and cul­tural contexts.

Fur­ther, Gaa­keer argues that law as an aca­demic dis­cip­line belongs to the human­it­ies, given its his­tor­ical devel­op­ment since the eleventh-​century dis­cov­ery of the Justinian Code, and its language-​oriented prac­tice. In order to build her argu­ment, and wish­ing also to dis­pel the mis­con­cep­tion about civil-​law reas­on­ing as mere syl­lo­gistic rule-​application that is deduct­ive in nature (mov­ing from abstract codi­fied legal norms to a decision in a spe­cific case), she turns to Paul Ricoeur’s work in search of what the stu­dia human­i­tatis can con­trib­ute to legal prac­tice. In par­tic­u­lar, Gaa­keer focuses on the devel­op­ment of pro­fes­sional qual­it­ies of phronesis or prac­tical wis­dom; the elab­or­a­tion of meta­phor or the abil­ity to see resemb­lances in spite of dif­fer­ences; nar­rat­ive intel­li­gence or the abil­ity to plot and recog­nize plots and com­pose jus­ti­fic­a­tions (as well as to detect cog­nit­ive biases); and dis­cern­ment of the equit­able, all of which are fun­da­mental attrib­utes of decid­ing cases with justice. Gaakeer’s essay is thus an example of how humanities-​oriented inter­dis­cip­lin­ary research can move bey­ond the mere aca­demic into the realm of praxis, for she con­siders that only through law in prac­tice can we learn to speak of justice, and decide that justice is done not in the abstract, but in the con­crete way an actual case might be resolved.

If Gaa­keer exem­pli­fies the hermeneutic-​philosophical tra­di­tion in this volume, François Ost exem­pli­fies the law-​in-​literature approach. Ost makes a brief jour­ney through dif­fer­ent works of world-​literature to inquire how it reveals the rela­tion­ship with justice and its admin­is­tra­tion. For this pur­pose, he designs a double-​entry table accord­ing to two dif­fer­ent axes: the first, ver­tical, axis fol­lows the known dis­tinc­tion between private and pub­lic justice; the second, hori­zontal, axis dis­tin­guishes between two ends of the act of judging, short-​term and long-​term ends, which fol­low­ing Paul Ric­oeur he calls ‘dis­tri­bu­tion’ (répar­ti­tion) and ‘par­ti­cip­a­tion’ (par­ti­cip­a­tion). In this way, while the short-​term end of justice is meant merely to dis­trib­ute the share belong­ing to each, the long-​term func­tion of justice aims at the res­tor­a­tion of social peace, and makes us take part in the good-​in-​common.

This double-​entry table serves as grid for ana­lys­ing lit­er­ary works in which one or both ends of judging are present or absent in ways that enable one to illus­trate, modify, or sub­vert the the­or­et­ical model. In this light, Ost cat­egor­izes works by Aes­chylus, Shakespeare, Racine, Melville, Tol­stoy, Dostoyevsky, La Fon­taine, Von Kleist, Wiech­ert, Hawthorne, Kafka, Mauriac, Dür­ren­matt, Kun­dera, Nothomb, or Sade, focus­ing par­tic­u­larly on uncon­ven­tional typo­lo­gies of judging such as for­give­ness, obli­vion, the justice one pro­cures for one­self, and the flawed model in which none of the func­tions is present. In his ana­lysis, lit­er­at­ure provides archetyp­ical stor­ies that form the ideals, fears, warn­ings, and uto­pias at the core of the human ima­gin­a­tion, sig­ni­fic­antly com­plic­at­ing the always-​too-​reductionist the­or­et­ical mod­els of justice.

But why is that people appeal to law when they seek justice, even after legal pos­it­iv­ism has asser­ted that there is no neces­sary con­nec­tion between the two? Mari­anne Con­stable won­ders about the con­tin­ued appeal to law’s justice in a world that, after Niet­z­sche, has lost its old faith in any kind of ‘found­a­tions’. For Con­stable, the ques­tion in the con­tem­por­ary scene is no longer whether we must reject justice as a false ideal, or whether we can think about law without repro­du­cing old meta­phys­ical truths. Rather, it is how to speak of both law and justice without fall­ing under the sway of a socio-​legal world­view that would treat all law and its justice in the terms of empir­ical, cal­cu­lat­ing, instru­mental strategies and tech­niques. Accord­ing to Con­stable, under­stand­ing claims of justice, as well as the real­ity of law itself, solely in terms of social power and empir­ical impact neg­lects import­ant insights that the human­it­ies bring to bear on law and lan­guage, for, if the will of soci­ety recog­nizes no lim­its to the power to com­mand or to determ­ine the world, then any pos­sible dis­tinct­ive­ness of both law and justice is lost.

Con­stable argues that law and justice are a mat­ter of lan­guage, but not in any logic­ally neces­sary or uni­ver­sal sense, but in what she calls a ‘gram­mat­ic­ally imper­fect’ sense — the man­ner in which the sub­ject of a sen­tence acts con­tinu­ously, incom­pletely, and in an ongo­ing man­ner that can be inter­rup­ted. Just as words are unable to cap­ture a world that is per­petu­ally in flux, claims Con­stable, so too with law: we share an imper­fect and incom­pletely artic­ul­able under­stand­ing of law as our way of liv­ing. In this way, ‘law’ refers not only to par­tic­u­lar acts and events — mar­riages, con­tracts, wills, sen­tences, reg­u­la­tions — but also to the imper­fect and incom­pletely artic­u­lated and artic­ul­able know­ledge of how to speak and act with one another required for these legal/​social acts and events to occur and be per­fec­ted. Con­stable con­cludes that identi­fy­ing law with lan­guage this way leads to think­ing about mem­ber­ship and belong­ing less in terms of state cit­izen­ship, national iden­tity, and moral or reli­gious com­munity, than as mat­ters of the com­mon though imper­fect and pos­sibly over­lap­ping tongues through which per­sons under­stand one another.

Rebecca Johnson’s art­icle picks up on this thread. Through an explor­a­tion of Canada’s colo­nial past in regard to the Ihal­miut com­munity, John­son addresses the chal­lenges (and pos­sib­il­it­ies) of justice in the con­text of the inter­cul­tural encounter between set­tler and indi­gen­ous legal orders. John­son takes up the fam­ous case of R v. Kikkik of 1958 — a case that involved Kikkik’s stabbing to death of her brother-​in-​law who had killed her hus­band and threatened her life; her 45 KM march through the freez­ing cold with her three chil­dren to reach the nearest trad­ing post; her des­per­ate aban­don­ment of two of them in the snow; and the trial and sub­sequent acquit­tal of Kikkik on double charges of murder and crim­inal neg­li­gence of the death of one of the chil­dren — in order to ask what might be learned about law and justice by explor­ing the dif­fer­ent ways this story has been told. Draw­ing inspir­a­tion from James Clifford’s work on jux­ta­pos­i­tion and Mikhail Bakhtin’s insight that mean­ing emerges most richly through encoun­ters and inter­sec­tions, John­son approaches the case through dif­fer­ent genres — the trial tran­scripts, a novel, a group of sculp­tures, and a film — and asks what each brings into focus or else leaves out. John­son shows that each genre provides a dif­fer­ent lens to observe the ‘same real­ity’, and these affect the kind of judg­ments being made and the justice being administered.

Johnson’s art­icle raises addi­tional ques­tions con­cern­ing inter­dis­cip­lin­ary research itself and the respons­ib­il­ity of the critic to respect the par­tic­u­lar idiom of the genre under study. Thus, whereas the trial focuses exclus­ively on issues of guilt and inno­cence on an indi­vidual level, the book enlarges the scope to include the gov­ern­mental action of relo­ca­tion of the Ihalmuit. In turn, the ‘pens­ive­ness’ or arres­ted move­ment of the sculp­tures pushes John­son to reflect on their con­di­tions of pro­duc­tion as an instance of North/​South encounter, and the film ver­sion brings about vari­ous forms of acknow­ledging the past (per­form­ances of apo­lo­gies, signs of grat­it­ude, acts of wit­ness­ing) and claim­ing respons­ib­il­ity for it. As John­son argues, all these dimen­sions of justice are mat­ters not eas­ily cap­tured within the bound­ar­ies of the law, but are no less press­ing in the con­text of the lar­ger pro­ject of the­or­iz­ing the mean­ing and the demands of justice.

But what does this the­or­iz­a­tion entail? Our next two essays con­nect justice with the idea of lim­its — bound­ary set­ting, lim­it­a­tion of excess, and meas­ure. M. Paola Mit­tica argues in ‘The Heart of Law’ that meas­ure, a space of bound­ar­ies that can­not be pre­de­ter­mined but without which human coex­ist­ence would be impossible, is an essen­tial com­pon­ent of the social and polit­ical bond, as meas­ure defines the bound­ar­ies of beha­viour that reg­u­lates the irre­du­cible dif­fer­ence among humans. Accord­ing to Mit­tica, the con­tinu­ity between law and justice — and their com­mon rooted­ness in the com­plex space of the bound­ar­ies imposed by oth­er­ness — can­not be cap­tured by mod­ern West­ern legal sci­ence, nor by the reflec­tion that has accom­pan­ied the evol­u­tion of pos­it­ive law. Instead, Mit­tica invites us to look else­where in our cul­ture in the hope of identi­fy­ing ele­ments to think about meas­ure, and to bring the debate on law’s justice from the abstract plane of the­ory to that of human and social exper­i­ence. She approaches this ques­tion with the help of the Odys­sey, not as an attempt to pur­sue the chi­mera of an ori­ginal jus, but in the belief that human com­munit­ies are con­stitutively nar­rat­ive and these nar­rat­ives are norm­at­ive in that they help to struc­ture daily life on a sym­bolic and emo­tional level. In this light, the pur­pose of the Homeric poems is not so much to pre­serve and trans­mit the con­tents of an oral tra­di­tion, but to con­sti­tute an ‘anthro­po­lo­gical gram­mar’ that is inher­ently jur­idical in its capa­city con­stantly to offer for­mu­las on the basis of which to achieve a bal­ance in social coexistence.

In his con­tri­bu­tion, Gary Watt also takes on the issue of excess in the con­text of prop­erty rights. In an attempt to mit­ig­ate two com­mon forms of excess — excess­ive obed­i­ence to law and excess­ive obed­i­ence to extra-​legal moral abso­lutes — Watt argues for less abso­lute vir­tues of ‘internal integ­rity’ and ‘equity’. As defined by Watt, integ­rity is the mor­ally neut­ral qual­ity of integ­rat­ing a thing to itself, whereas equity demands open­ing it up to its con­text and sur­round­ings. Although legal schol­ars and judges often seek integ­rity as the sole vir­tue worth pur­su­ing by the legal sys­tem, Watt argues that integ­rity can be harm­ful if pur­sued to extremes, and this is what makes it neces­sary to tem­per it with equity. Nev­er­the­less, the prac­tice of equity does not con­sti­tute an unmit­ig­ated vir­tue and, con­trary to the Aris­totelian concept of epi­e­ikeia, ought not to be con­cep­tu­al­ized as striv­ing towards a new ideal (i.e., ‘the golden mean’).

In Watt’s view internal integ­rity has no free-​standing merit and does not deserve its name unless it is pur­sued with regard for equity and, vice versa, equity has no merit unless pur­sued with regard for internal integ­rity. There­fore, the rela­tion­ship between internal integ­rity and equity is one of agon­ist ten­sion. Watt argues that it is pre­cisely this dra­matic struggle that is at stake in hard or dif­fi­cult cases, and that theatre and other cre­at­ive arts have as much poten­tial to show us about how we might bet­ter exer­cise our judge­ment in these legal situ­ations, which he illus­trates with vari­ous examples of Eng­lish law. Accord­ing to Watt, the main prob­lem is to decide to what extent equity can oper­ate to chal­lenge the internal integ­rity of a rule, without sup­plant­ing law with mor­al­ity. Watt finds a prom­ising avenue in the concept of ‘uncon­scion­ab­il­ity’, which inter­venes when a party abuses a right or a rule in a way that is inap­pro­pri­ate in the par­tic­u­lar con­text of a prac­tice. Unlike the cat­egor­ical role of mor­al­ity, uncon­scion­ab­il­ity helps us to avoid the worst errors without ever claim­ing to con­sti­tute an ideal, which helps law and law­yers to improve and ‘get bet­ter’ in practice.

Ari Hirvonen gives a fit­ting clos­ure to the journal’s invit­a­tion to rethink the pos­sib­il­ity of law’s justice from a law and human­it­ies per­spect­ive. In ‘The Eth­ics of Testi­mony’, Hirvonen reads the fas­cin­at­ing life-​story of French philo­sopher Sarah Kof­man, author of numer­ous books on philo­sophy, psy­cho­ana­lysis, decon­struc­tion, art, and lit­er­at­ure and whose father, a rabbi, was killed at Aus­chwitz. Hirvonen argues that even though Kof­man, unlike her friend Jacques Der­rida, never wrote expli­citly about the rela­tion­ship between law and justice, the lat­ter is always present in her writ­ing. Hirvonen con­nects this ‘justice that speaks without speak­ing’ to Kofman’s laughter and tears and to what these testify, and traces both in Kofman’s auto­bi­o­graph­ical writ­ings. Hirvonen’s task is doubly com­plic­ated by the fact that Kof­man decried the genre of auto­bi­o­graphy in gen­eral as ‘men­songère’, writ­ten as ‘ret­ro­act­ive illu­sions for the aim of ideal­iz­a­tion’. How­ever, fol­low­ing in the foot­steps of Nietzsche’s Ecce Homo and E.T.A. Hoffman’s The Life and Opin­ions of Tom­cat Murr, Hirvonen argues that Kofman’s texts no longer rep­res­ent the author­it­at­ive voice of the nar­rator recount­ing a uni­fied story, but rather comes closer to the exper­i­ence of her father’s absence itself that speaks through her body. In this read­ing, the body is the embod­i­ment of a trauma that can­not be expressed in words, but that must be test­i­fied to and repeated, not as mel­an­cho­lia, but as an eth­ical demand not to forget.

Finally, Hirvonen con­siders the pos­sib­il­ity of a new human­ism after Aus­chwitz. Depart­ing from the earlier European tra­di­tion, Kof­man announces the pos­sib­il­ity of a new kind of human­ism, in light of Robert Antelme and Maurice Blan­chot, where human­ism is not to be under­stood as a coher­ent sys­tem of uni­ver­sal moral norms, but as the respons­ib­il­ity of being human in the face of irre­du­cible oth­er­ness. This human­ism seeks not to cre­ate the human ‘we’ that reduces dif­fer­ences in the name of uni­ver­sal­ity, though it does not pre­clude ima­gin­ing and cre­at­ing com­munit­ies on the basis of, and respect­ful of, dif­fer­ence. Indeed, Hirvonen reclaims the urgency of the European Union to think of itself dif­fer­ently as a non-​essentialist com­munity in order to cre­ate rela­tion­ships that would be more inclus­ive and just at this par­tic­u­lar his­tor­ical juncture.

Hel­sinki, June 2012