I first realised that there is something strange about the term ‘Humanities’ when as the Director of my University’s Humanities Institute I participated at a meeting to set up a European Consortium of Humanities Centres. Except for the host centre in Utrecht and mine no other participating European University had a Humanities Institute. The other aspiring founding mothers and fathers came from single disciplines: Archaeology, English, Dutch, Media, Philosophy. And then it struck me: no proper or widely used word translates the term ‘Humanities’ in Greek or Italian, their supposed mother tongues. The ‘Humanities’ despite their desperate look eastwards and backwards are a consummately modern and decidedly American invention. No Faculties, courses or centres for the ‘Humanities’ existed in European Universities until recently. The few British exceptions — of which my own institution is a shining example — do not follow a long tradition of ‘Humanities’ education. They are rather the result of our ‘special relationship’ with our transantlantic cousins and of the managerial culture that has replaced the older genteel governance of Universities and is perennially trying — and on the whole failing — to create ‘economies of scale’, grant producing interdisciplinary initiatives and a teaching, scholarship and evaluation culture which rather pathetically imitates the ‘market place’.
But what are the Humanities? According to the flourishing American debate, the Humanities have been defined in two related ways. They are either a set of academic subjects which typically consists of Classics, Philosophy, History and Literature (the disciplinary approach) or, an attitude towards teaching and learning which could be extended to all types of subjects (the humanistic approach). Humanities subjects are linked through a common origin, through their shared object of concern or, through the use of common strategies.
The Classics had initially pride of place in the enumeration of Humanities disciplines. ‘As late as 1918… the word humanities and the phrase Greek and Latin [were used] as synonyms.’ B L Ullman reports in 1946 that in Scotland ‘a professor of Latin is called a professor of humanity’,1B L Ullman, ‘What are the Humanities’ 17/6 Journal of Higher Education 301, at 302 (1946). a rather apt designation as humanitas is a Latin word with no obvious Greek equivalent. The 1934 edition of Webster’s dictionary defines the Humanities as ‘the branches of polite learning regarded as primarily conducive to culture; esp., the ancient classics and belles-lettres’. But as the sciences gradually became dominant in the University and the wider society and the emphasis on the Classics started waning, the definition became negative and parasitical on the Humanities’ competitors. A number of reviews conclude that the ‘Humanities’ ‘are whatever science is not.’2James Schroeder, ‘The Enemy Within’ in 25/8 College English 561(1964); cf ‘If “the humanities” indicates a set of nonrelated subjects, then it would include those areas that could not be classified under the sciences’, Walter Feinberg, ‘To Defend the Humanities’ 93. The ‘once mighty’ humanities have now a reduced kingdom, ‘a musty place filled with tombs, monuments, libraries, and talkative old guides who stroll around with their hands in their pockets, wearing glasses and out of touch with reality, conducting you for a small fee to the graves of Beethoven, Shakespeare and Sophocles.’3Shroeder, ibid.
At the other end, the attempt to defend the ‘Humanities’ against the onslaught of the ‘soulless’ scientific mentality emphasises the humanistic tradition and extends it ‘to embrace whatever influences conduce to freedom’,4Ralph Barton Perry, ‘A Definition of the Humanities’ in The Meaning of the Humanities (Princeton University Press, 1938), 4. or, even more grandiosely, to the study of ‘the sum total of man’s activities’. The Humanities chart ‘greatness, monumental scale, fineness of artistic sensibility, and deep insight’ as they examine ‘the nature of human experience as an object of awareness, and the nature of human acts as both content of awareness and events observed.’5Richard Kuhns, 1/2 The Journal of Aesthetic Education 7 (1966), 12, 15. In this second sense, every scientific endeavour and object of study can be approached ‘humanistically’. These are grand claims; yet the Humanities seem to have entered a perennial crisis on their birth. A huge literature has developed over the last sixty years, defining the contours and principles of the Humanities, defending their standing vis-a-vis other fields, in particular the sciences, even discussing their role in wartime.
The repetitive and occasionally embarrassed tone of the debate indicates however that the stakes are low. They are a last stance defence of the modest kingdom of certain University disciplines under attack and a defence aimed at protecting their ‘small fee’ in the form of fast diminishing research funds. It looks therefore that as an academic institution, the Humanities are closely associated with American higher education. The long debate about the scope and value of Humanities, indeed about the meaning of the term itself, is linked with the ‘survey course’ in Literature and History degrees. Such courses were first introduced at Stripps College and Stephens College in 1928 and at Chicago in 1931. The Chicago Humanities course was widely publicised and ‘probably has done most to associate the term humanities with a survey course.’6Ullman, op.cit., 304. The pedagogical value and epistemic effects of putting small parts of different disciplines into a single subject in which ‘everything is dumped in’ is a mainstay of the debate.7Ibid., 303. The ‘Great Books’ or the ‘dead white men’ tradition in Humanities survey courses has been criticised from many directions. The relationship between these ‘bucket’ courses and their constituent disciplines is uneasy; the compilation course dumps down the disciplinary expertise and undermines the independence and integrity of the disciplines. Still the term ‘Humanities’ seems to refer either to federal administrative and financial arrangements (Humanities Faculties or Schools) or to ‘from Plato to NATO’ survey courses which form the backbone of liberal arts education.
In genealogical terms therefore the Humanities are as much the product of pedagogical, managerial and disciplinary concerns of American educationalists as of the Renaissance humanistic tradition. Institutional priorities seem to have a major influence on the cultural agenda. Against this background, the recent interest in ‘law and literature’ and currently in ‘law and the humanities’ takes additional importance. What is the link between these two disciplines which, on first look, are miles apart?
1. Law with Humanities
In 1943, while the war was still raging, Roscoe Pound, perhaps the greatest American legal theorist, penned a remarkable article entitled ‘The Humanities in an Absolutist World’.8Roscoe Pound, ‘The Humanities in an Absolutist World’ in XXXIX/1 The Classical Journal (October 1943), 1. Page numbers in the next part of the text refer to this article. Writing at a point when the rift between the Western powers and the Soviet Union had become evident, Pound finds many shared pitfalls between what he calls ‘autocracies’ and western ‘autocratic democracies’. Pound is scathing about the emerging ‘new era’ of materialism and consumerism, of ‘umanageable bigness’ in government, of obsession with power, security and ‘grandiose schemes of world organisation’. One would be hard-pressed to improve on this list of evils for the contemporary world.
Pound draws a sharp line between the Sciences and the Humanities. But unlike the standard humanist position, he argues that the reasons why the Humanities are found dispensable and are dismissed are political and ideological. ‘Men are to be trained in the physical and natural sciences so as to promote material production. They are to be trained in the natural sciences so as to promote passive obedience.’(12-13) For that to happen, Pound avers sarcastically ‘the past is to be cancelled. We are to begin with a clean slate. Our accumulated control over external nature has gone so far that there remains only the task of making it available for universal human contentment… The causes of envy and strife are to go with want and fear. Mankind will settle down to a passive enjoyment of the material goods and will neither require nor desire anything more.’ (2-3)
Humanities is a last stand defence against the imposed ignorance and philistinism which must ‘cancel’ the past in order to usher in the new era of consumerism, absolutism and apathy. A generation cut off from its past cannot fully understand and criticise the present. The Humanities by helping develop a historical and critical approach can be used to resist the all out attack of utilitarian materialism. This is precisely why they must be downgraded, why a ‘clean slate’ is necessary. Choosing to base his defence on the importance of learning the classical languages rather than literature, Pound castigates those who find the study of the Classics a waste because ‘time is needed for the natural and physical sciences which teach us how to harness more of external nature to producing the material goods of human existence and to the social sciences which are to teach us how to these goods are to be made to satisfy desires.’ (9)
Pound dispels any suspicion of prejudice against the social sciences or of a facile recapitulation of the ‘two cultures’ argument. He proudly declares that he taught jurisprudence from a sociological perspective for forty years but adds curtly that the social sciences ‘do not impart wisdom; they need to be approached with acquired wisdom’ which only the study of the humanities offers. Throughout the essay, the argument remains deeply political. ‘If we are content to seek nothing more than a general condition of undisturbed passivity under the benevolent care of an omnicompetent government, we can well leave education to the sciences which have to do with providing the material goods of existence and those [social sciences] which teach us how the government secures or will secure them for us.’ (14)
The defence of the Humanities is about resisting a certain type of autocratic government which bases its power on the biopolitical manipulation of desire (his preferred pejorative term is ‘contentment’) through the production and consumption of material goods, in the hope that this would bring social strife to an end. Pound correctly anticipates the move towards a disciplined hyper-capitalism in which material success becomes the sole aim in life. Citizen ‘contentment’ can be achieved only after the blind satisfaction of material wants has been raised into the goal of individual and state and is accompanied by a governmentally promoted political apathy. The role of science is central: the natural sciences develop new ways of using material resources for the production of goods while the social sciences manipulate the psyche and install political and cultural passivity.
This is a scathing attack not so much on science but on the politics and ideologies that Pound rightly feared would dominate the post-war period. Coming from a patrician culture steeped in the Greats, Pound finds in the Humanities and the Classics strategies of resistance against this catastrophic turn. Law is not discussed explicitly but the essay is full of reference to legal learning and scholarship. Without a good understanding of the Greek and Latin languages and culture, law could fall into the same predicament as the wider culture. Pound castigates the uneducated, almost illiterate students who cannot read the Bible or the Magna Carta in the original, do not understand the meaning of proceedings in rem or mistake son assault demense for Anglo-Saxon and non compos mentis for French. (10-11) We are all used to tales of student ignorance and examination script ‘gems’. But if I were to argue today that Law students should have a passable knowledge of Latin (I am often tempted to do so) I would be laughed out of court and my radical credentials would suffer irretrievably. Pound must have been the last American to do so.
Palpable elitism and an anti-democratic whiff colours these examples. The Humanities make the human but their work must be done before tertiary education in families, schools and the Main Street. One either has humanity or not; it is a matter of privileged birth, early education and social class. Pound’s defence of classical education sounds occasionally anachronistic and even reactionary. But there is also a melancholy finis Austriae tone throughout the essay. Pound’s beloved classical education will not survive. The barbarians are at the gates; resistance is both necessary and ineffectual. Yet its tenor differs from later defences of the Humanities. The Classics are a bastion of resistance, a last ditch defence, against rising political apathy and oppressive state omnipotence. Their gradual displacement accompanied by the idiotic assertion that only the sciences are necessary for democracy will make intelligent Americans ‘bow the knee to Baal’ and ‘sink into materialistic apathy.’ (14) This is a lament and obituary for a dying patrician culture but also a battle-cry against the looming bio-political turn of post-war culture.
Some sixty-five years after Roscoe Pound’s wartime cry of despair and pessimism, the question of the role of the Humanities has returned to the cultural and educational agenda as the present volume attests. Have his Cassandra-like predictions come true? Can the Humanities play the role he assigned to them in 1943? What can a humanistic education offer the young student and aspiring lawyer at a time when humanism and the values of liberalism and democracy have allegedly triumphed? Is it possible today to remain true to Pound’s injunction and develop a Humanities of resistance?
Two recent essays address these issues giving almost opposing answers to the question of the relationship between the Humanities and law. Martha Nussbaum’s ‘Cultivating Humanity in Legal Education’ and Jack Balkin and Sanford Levinson’s, ‘Law and the Humanities: An Uneasy Relationship’9Jack Balkin and Sanford Levinson’s, ‘Law and the Humanities: An Uneasy Relationship’, 18 Yale Journal of Law and the Humanities 155 (2006). share much in their diagnosis of the state of legal education. But while Nussbaum gives a rather timid defence of the Humanities, Balkin and Levinson dismiss the possibility of a substantial link.
Nussbaum, a classicist and historian of ideas turned law professor, has consistently promoted the role of the Humanities in education and legal education in particular.10Martha Nussbaum, ‘Cultivating Humanity in Legal Education’ , 70/1 University of Chicago Law Review 265 (2003). Page numbers in the next part of the text refer to this article. See also ‘Humanities and Human Development’ 36/3 Journal of Aesthetic Education 39 (2002). Both essays are applications of Nussbaum’s wider thesis in Cultivating Humanity: A Classical Defense of Reform in Liberal Education (Harvard University Press, 1997). For Nussbaum, the Humanities mission is extremely broad. They address the problems of ‘how to live with dignity as a rational animal, in a world of events that we do not fully control. Issues… of vulnerability and need, of terror and cruelty, also of pleasure and vision’. 11Nussabum, ‘Humanities and Human Development’, 39. Such a huge agenda is delivered through three core values: ‘Socratic’ self-examination, world citizenship and the narrative imagination. The first refers to a reflective approach to self and tradition closer to Habermasian liberal orthodoxy than classical Greece. Students should be taught to defend ‘sound’ values and criticise those that ‘do not stand the test of deliberation’. They should learn to ‘reason logically, and to test what one reads or says for consistency of reading, correctness of fact, and accuracy of judgment.’ Secondly, the humanities should prepare for world citizenship, a rather fashionable oxymoron in the post-1989 world. A key promoter of neo-Kantian cosmopolitanism, Nussbaum wants to cultivate the ‘humanity’ of citizens and their ability ‘to see themselves as not simply citizens of some local region or group but also, and above all, as human beings bound to all other human beings by ties of recognition and concern. Bonds of recognition and concern should be built not just with our immediate group but also with minority cultures and humanity at large. Finally, literature and the arts help develop something called ‘narrative imagination’. This is the ‘ability to think what it might be like to be to be in the shoes of a person different from oneself, to be an intelligent reader of that person’s story, and to understand the emotions, desires and wishes that someone so placed might have.’ (269, 270)
Turning to legal education, Nussbaum concedes that this is a form of specialised professional training and not the best preparation for citizenship and civilised life. In a rather amazing admission for a staunch defender of the Humanities, she claims that ‘values and goals of [humanity] are not germane to legal education.’ (272) In a further twist of old style positivism, she claims that students ‘need to learn the law as is’. Lawyers are out to win not to fight for truth and in this sense they are closer to the Sophists rather than to Socrates.
And yet historically the relationship between law and the humanities has been intense and intimate. All great philosophers from Plato to Hobbes, Kant, Hegel, Marx and Weber had either studied the law or had a deep understanding of legal operations. Legal issues have been central to philosophical and political concerns throughout history. Well before the creation of the various disciplines, when thinkers wanted to contemplate the organisation of their society or the relationship between authority and the citizen they turned to law. Plato’s Republic and Aristotle’s Ethics as much as Hegel’s Philosophy of Right are attempts to examine the legal aspects of the social bond, to discover and promote a type of legality that attaches the body to the soul, keeps them together and links them to the demands of living on.
Seen from the perspective of the longue durée, the law represents the principle of social reproduction. Whenever classical philosophy occupied itself with the persistence of the social bond, it turned to law and became legal philosophy, the great source from which political philosophy and then the disciplines, sociology, psychology, anthropology, emerged in the seventeenth and nineteenth centuries respectively. All major early modern philosophers were jurists. Thomas Hobbes was preoccupied with the common law, Leviathan a clear exercise in jurisprudence. Immanuel Kant, the philosopher of modernity par excellence, wrote extensively on legal issues and at the end of his life came up with a blueprint for a future world state based on international law and respect for freedom and rights. Hegel and Marx wrote superb jurisprudential texts but were also well versed in the positive law of their time. Emile Durkheim and Max Weber, the founders of sociology, wrote extensively on law and used types of legality as markers for the classification of social systems. But the birth of the disciplines out of the womb of legal study led to a cognitive and moral impoverishment of legal scholarship and education: abandoning their earlier immersion in the thinking and organization of the social bond, they have become an entomology of rules, a guidebook to technocratic legalism and an apology for current policies. No wonder that law has become a peripheral academic discipline, which does not concern many people outside the Law School.
Nussbaum has accepted largely the poverty of legal education and, against Pound’s injunction, sees the Humanities as just a palliative. Marx classically described the bourgeois as a split person who goes about his business using and exploiting people during the working week, but on the Sabbath, reverse Cinderella-like, turns into a citizen concerned with the common good. A similar inner split of the lawyer allows a small role for the Humanities: lawyers besides being aggressive litigators unconcerned with truth and justice are also influential citizens. They should be trained therefore into ‘normative ethical reasoning by examining alternative accounts of decisionmaking, social justice, and related topics [!].’ (274)
Nussbaum admits that these matters are diversions, adornments and peripheral only topics in legal education. As a result, the solutions proposed are similarly anodyne. The need to teach ‘ethical reasoning’ is partly met by the standard course in legal ethics. Additionally essay-writing should replace the obsession with written examinations; courses in international and comparative law would encourage a more global and a la mode understanding of the world, while innovative courses such as the ‘decisionmaking’ one Nussbaum has been running at Chicago would expose students to good normative reasoning and an empathetic education sentimentale juridique. Nussbaum admits, on the other hand, that her ‘law and literature’ course failed. Students expected a ‘lighter more entertaining’ kind of course about the literary representations of legal situations. ‘Law and the humanities’ courses end up entertaining and lightening the heavy load of law students as well as giving them a useful cultural gloss. A few references to Sophocles, Shakespeare, Melville and Kafka can impress the professional cocktail party circuit.
This is liberalism of the lightest kind. It has been repeatedly and incisively criticised and there is no need to add much here.12Homi Bhabha, ‘Unpacking my Library…Again’ in Iain Chamber and Lidia Curti (eds) The Post-colonial Question (New York, Routledge, 1996); Rosi Braidotti, Transpositions (Cambridge, Polity, 2006) The cosmopolitan self and the ethical community Nussbaum envisages is too closely modelled on the values and norms of liberal elites suitably finessed to extend humanitarian empathy to the unfortunates of the world. Rational deliberation, ethical reasoning and a fictive changing of places do not go far in addressing social inequality, oppression and domination. As Rosi Braidotti put it, Nussbaum has claimed ‘monopoly over basic values of human decency by allocating them exclusively to…American liberal individualism.’13Braidotti, 15. And as we know, this kind of liberalism is often accompanied by high altitude bombers and ethically aware torturers.
There is no much point however in criticising Nussbaum for her ideological preferences. Much more important is the loss of nerve, the near surrender of such a paragon of humanistic education when she comes to defend her craft. Lawyers are sophists, rhetoricians and litigators, people driven, like society, by profit. They try to persuade audiences at any cost rather than search for the truth. There is no much that can be done to improve their ethical sense. Nussbaum’s defence of the (limited) role of the Humanities in legal education takes therefore a methodological and hermeneutical form. It is not so much the traditional Humanities that can improve the moral compass of lawyers but the values they promote. Law should be taught humanistically helping to develop a reflective approach, moral values and critical reasoning to young lawyers. But one’s expectations should not be raised too much.
Roscoe Pound’s prediction has come true: even the Professor of Humanities concedes that she has little to offer to the cultivation of culture in law. Nussbaum openly admits it at the end of the essay. Legal education makes ‘ambitious idealistic young people become narrower, more fixed on narrowly instrumental goals… “Soon [the law students] will be out working for firms. Meanwhile, while they are here, while they have time to deliberate and imagine, let us cultivate their humanity.”’ (279) The role of humanistic legal education is to install a sense of liberal morality and openness to the students who come to the Law School without the elite cultivation that Pound could still rely upon in 1943. The Humanities have retreated from Roscoe Pound’s agenda: they can offer no resistance to the ‘firm’. Could it be however, as Roscoe Pound insinuates, that it is precisely the kind of ‘humanism light’ Nussbaum advocates which leads to the neglect of deliberation and imagination and facilitates rather than resists the efficient integration of the young lawyer in the mentality of the ‘firm’? Could it be that liberal legal pedagogy has contributed to the predicament Nussbaum both acknowledges and regrets? In Roscoe Pound’s terms, the barbarians are not just amassing at the gates. They have entered the citadel and the guards have abandoned the fight.
2. Law without Humanities
If Nussbaum offers a tepid and unconvincing defence of the Humanities, Balkin and Levinson’s article marks the abandonment of the ideas and values Pound stood for.14Balkin and Levinson op.cit., fn. 10. Page numbers in the next part of the text refer to this article. Our authors proclaim the realist, pragmatist and brutal nature of American legal education and welcome its ‘dehumanising tendency.’ Their attack on Pound’s and Nussbaum’s bien pensant humanism is twofold. The belief that great works of art ‘convey moral notions’ is wrong. In any case, law’s business is to promote tough minded rather than moral values. ‘Tender-heartedness [is] a mental disease that only the discipline of law can cure.’ (184)
Our authors disagree with Pound in all particulars. The establishment of the advanced administrative and administered state (Pound’s great fear) has been a great success. It released the courts from being ‘insulated oracles of eternal legal verities’ (169). Judges, like legislatures and administrators, are now involved in complicated issues of governance, in the definition of the ‘public interest’ for all aspects of social life and in the implementation of public policy. As a result, economic efficiency has become the aim of the legal system, economics the most relevant discipline for legal scholars, law and economics the dominant jurisprudential tradition, the ‘rational actor’ approach its methodology, and technical ‘internalist’ legal argument, enriched by interdisciplinary social scientific expertise, the form of legal education. If they are right, Pound’s prediction has come true but it is not as bleak as he thought. Against his fears these developments are the greatest achievement of American law, scholarship and pedagogy.
The dismissal of the role of the Humanities in legal education is programmatic, reasoned and almost total. Lawyers and legal academics are fighters (‘rhetors’) out to win battles (arguments) with different audiences. They are motivated by a strong ‘prescriptive’ urge. In this sense, other disciplines are only useful to lawyers as aids to victory. This premise determines their cognitive and ideolgical function: (legal) philosophy’s role is to ‘help legitimate the legal system and helps clarify its main concepts’; legal history ‘provides useful data for making normative legal and political argument’. (175-6) Interdisciplinary studies are admitted to the extent required by the ‘prescriptive’ nature of legal scholarship and the professional, results-oriented legal education. Knowledge of economics helps the lawyer’s quest for scientific authority and rhetorical persuasion. The Humanities on the other hand are ancillary because ‘reading literature or engaging in the humanities [does] not have edificatory effect’. (186) The only real useful knowledge the Humanities can offer is the study of rhetoric because it improves the forensic skills of litigators.
I have neither the expertise nor the brief to defend American legal education against this portrayal. I would be surprised if American legal theorists would recognise (or approve) the image of law and education presented here as an aggressive, gladiatorial results-driven enterprise, amoral and colonialist towards other disciplines. The authors could claim that this is a realistic depiction and not their own preference. After all they aver in passing that they carry out research in ‘law and poststructuralism’, that they promote ‘law and the humanities’ and that they have launched a new field called ‘law and the performing arts.’ And yet their own claim is that legal academics are ‘prescriptive’, that they see themselves as legislators or judges. Lawyers describe in order to prescribe; our authors are law-makers because they are legal academics; because they are interdisciplinary (one has a PhD and the other is a ‘poststructuralist’, reads Derrida – a ‘literary theorist’ – and Deleuze and Guattari) and because, finally, they teach in prestigious Universities.
Balkin and Levinson’s law against humanistic tendencies is brutally clear: ‘A “good lawyer” is a rigorous thinker who does not waste time denouncing injustice at the expense of legal analysis.’ The job of the lawyer is, following the bon mots of O W Holmes, to become a ‘supple tool of power’ and to help his fellow citizens to go to Hell if that is what they want. (185) This is the strange fruit of realism and pragmatism: an almost total identification with the dominant and dominating social forces and a moral grundnorm that reads ‘succeed at all costs’ – let us call it the ‘xeroxing’ principle.
One of the authors describes an exchange with Austin Sarat, who invited him to set up together a PhD programme in law and the humanities. Professor Balkin’s refusal was trisyllabic: ‘Xeroxing’. He worked in a richly endowed law school and all his xeroxing was free, while our editor had to buy copy cards. ‘A law department that cut itself off from the goal of professional education would soon find itself as well supported financially as the average art history or music dept, which is to say, it would not be very well supported at all.’ (177) This simple morality tale, confirms the prescience of Roscoe Pound. In the sixty-five years since he wrote his article, material ‘contentment’ has become the motivation for scholarship, ‘free xeroxing’ the drive of intellectual life. To be sure, if ‘free xeroxing’ is the aim of academic life, it would have been much better for many of us to go to the legal profession and own the Xerox machine itself.
‘A favourite phrase of the realist is “the brute facts”; a phrase used not in sadness that there should be such facts, but with a certain relish, as if brutality were the test of reality…the significant things in the world are force and the satisfaction of material wants’15Pound, op. cit., 3 wrote Pound in 1943. Balkin and Levinson offer an interesting twenty-first century example of such brutal facts. Commenting on the infamous torture memoranda drafted by Justice Department lawyers from the ‘highest reaches of the elite legal academy’ in order to legitimise the practices of the American military and give President Bush absolute power to conduct war, they find little surprising or worrying in the ‘elite lawyers’ capitulation to the demands of power. Against Roscoe Pound’s protests, Balkin and Levinson believe that a Humanities education would have made no difference. ‘Acquaintance with Homer and Shakespeare would not have changed what ambitious young lawyers in the Office of Legal Counsel wrote to please those in power. Even a torturer can love a sonnet…’ (186) To support their claim they mobilise the humanist judge Learned Hand and the realist O W Holmes who, the authors speculate, would have agreed with the interpretations of the young elite lawyers. Whether the legendary judges would have concurred with these counterintuitive interpretations is a moot point. No evidence is given in support, something that stands at odds with the essay’s proclamations of cool reason and brute realism. This is the lesser problem nevertheless.
The post-WWII western consensus was that certain acts – torture is prime amongst them – are not tolerable in liberal-democratic societies. In the West, torture was declared unacceptable and was discussed as part of a barbaric and long gone history. Torture, we were told, takes place ‘elsewhere’ only, in exotic and evil places, in dictatorships and totalitarian regimes. But this consensus has now broken down. Torture has become a respectable topic for conferences on practical ethics and the ‘ticking bomb’ hypothetical offers entertainment at dinner parties. What is particularly disturbing is the way in which lawyers are prepared to enter into debate about the morality and legitimacy of torture and to develop detailed plans about ways of legalising it through ‘torture warrants’, ‘sunset clauses’ and judicial supervisory regimes.16Michael Ignatieff, The Lesser Evil (Edinburgh, Edinburgh University Press, 2004); Alan Dershowitz, Why Terrorism Works (New Haven, Yale University Press, 2002); see a hilarious rejoinder in John Gray, ‘Torture – A modest Proposal in Heresies (Granta, London, 2004), 132. As Lord Hoffman put it in the case examining the legality of detention without trial in the United Kingdom, ‘the real threat to the life of the nation comes not from terrorism but from laws such as these.’17A & Ors v Secretary of State for the Home Department (2004) UKHL 56, Para 97. The problem is not the torturers who love sonnets,18As we know a number of people who tortured prisoners in Guatanamo Bay and Abu Ghraib, an interesting social scientific research project would examine their artistic and cultural preferences and determine whether certain cultural ‘memes’ lead to torture practices. but the lawyers who are prepared to dress in legal and moral verbiage the dictats of brutalizing power and the legal academics who are happy to offer them ‘scholarly’ support.
In this world of brutal facts, law is technical reason assisted by appropriate scientific expertise at the service of power. References to justice, on the other hand, are a waste of time indulged by the feeble-minded and the emotional. ‘It is only the insufficiently rigorous and well trained, whom legal training has inadequately “disciplined” who think that the solutions to a legal problem is resolved by asking which result is more just.’ (185) Similar sentiments are easy to find in the pantheon of ‘brutal’ positivism. To assert that a legal system is unjust, says Alf Ross, is an ’emotional expression…To invoke justice is the same thing as banging on the table: an emotional expression that turns one’s demand into an absolute postulate.’19Alf Ross, On Law and Justice, (Stevens & Sons: London, 1958) 274. Non-formal conceptions of justice are ‘illusions which excite the emotions by stimulating the suprarenal glands.’20ibid, p.275 When ‘someone says “that thing is unjust” what he means is that the thing is offensive to his sentiments.’21Friedrich von Hayek, Law, Legislation and Liberty (London, Routledge and Kegan Paul, 1972) 168, fn 30 But this radical separation of law from justice and morality is both cognitively wrong (interpreting the law is impossible without an evaluation about the just, moral or desirable) and morally impoverished (it reduces morality either to private ‘subjective’ choices and/or to a predication of legality). It became the legitimation and rationalization of the atrocities of the twentieth century whether carried out by German Beethoven lovers or Abu Ghraib torturers steeped in rock music.
Allow me here a little detour that sketches briefly a different approach to the nexus of law and justice. The eternal return of (new versions of) naturalism despite its repeatedly proclaimed ‘fallacy’ indicates that law and morality are intimately linked. They are linked in inner and paradoxical ways. For the Greeks and Romans, justice was the prime, albeit missing, virtue of the polity and the spirit and reason of law. A just constitution is a legitimate constitution and a just legal system has a valid claim to the obedience of its citizens. We find similar ideas in the writings of the common lawyers. Justice is cumulatively the foundation, the spirit and the end of the law. As law’s immemorial and unwritten foundation, justice links the common law with divine will and its expressions in nature and reason. After the Reformation, justice as equity is explicitly associated with the divine order and becomes law’s spirit. When law and justice, in the form of equity, are in conflict, the law must give way to higher reason. In all these formulations, justice is seen as the ‘primitive reason’22Sir H Finch, Law, or, A Discourse Thereof in Four Books (London: Society of Stationers, 1627) at fol. 57. of law, its virtue and ethical substance, an ideal or principle that gives rules their aim and limit and remedies their defects.
The positivism of ‘brute facts’ repressed the inner link between law and justice. But the repressed justice always returns. In our disenchanted world, the transcendent must be found in the immanent. When law violates its established procedures, does not recognize or uphold existing rights or breaches basic principles of equality and dignity, it acts unjustly according to its own internal criteria. Legal justice judges when the law does not match its own standards and principles. But this is only one facet of justice. A different conception has inspired the jurisprudence of deconstruction from Jacques Derrida to Jean-Luc Nancy and critical legal theory.23Costas Douzinas and Adam Gearey, Critical Jurisprudence (Oxford, Hart, 2005) Chapters 1-4. It starts from the statement of Emmanuel Levinas that justice operates against the backdrop of the moral relationship to the other. The other is a singular, unique finite being. But to me, this finite person puts me in touch with infinite otherness. The subject emerges in a traumatic encounter with the other and is constitutively split by the ethical call, ‘a subject defined by the experience of an internalised demand that it can never meet, a demand that exceeds it.’24Simon Critchley, Infinitely Demanding (London, Verso, 2007) 11. The principle of justice is respect the singularity of the other –a radically different axiom from our authors’ injunction ‘be a winner’, ‘get free photocopying’. The law can never deliver it fully and this is what always brings it to the court of justice in a kind of jurisdicy the secular successor of theodicy.
The infinite dwells in the finite, justice dwells in the law but also challenges the law since the law forgets the infinity of the other. Both inside and outside, justice is the horizon against which the law is judged both for its daily routine failings and for its forgetting of justice. The immanence of transcendent justice to the law means that law is unequal to itself, it contains within itself what opens to a new law, a new politics, a new place or non-place (utopia). This split, this non-adequation between law and justice is the main characteristic of the legal system. Whether we see the law as a historical institution or as a system of rules and decisions, the deconstruction of its operations discovers the violence of origins in its daily operations or unravels the ordered bi-polarities (fact-value, public-private, objective-subjective, lawful-unlawful) and shows that they cannot stabilize the legal system. The axiom of justice emerges in theological, philosophical and literary texts as well as in the legal archive. It indicates what a ‘humanities of resistance’ might look today against both the liberal beautification and the realist brutalization of both law and the humanities.
3. Fragments for a (Legal) History of Humanity
i) Three ways of linking law and the Humanities have emerged from the discussion so far. The Humanities can help resist the onslaught of materialism, consumerism and an all-powerful state (Pound); they have a limited role in cultivating the moral and rational abilities of law students (Nussbaum); finally, they have no major role to play since they can neither help lawyers win arguments nor can they prepare law students for the battles ahead (Balkin and Levinson).
Now all three seem rather restricted in pursuing the link. They are associated more with the perceived needs of American higher education rather than with the history and operation of the two fields. Indeed even if we were to restrict our search to the academic aspects of the relationship, the itinerary should have been different. It would first explore philosophy, poetry and law as the oldest forms of Western ‘education’. The Greeks lacking a clerical caste and holy books, learned about their past, their world and their Gods from a poet. Homer became the tradition, textbook and source of learning for young Greeks, from the sixth century BC, a matter that greatly annoyed Plato and set up the ongoing ‘ancient quarrel’ between philosophy and literature. In Judaism, on the other hand, the pupil learnt the law and the commentaries on it. Literature – a central case of the Humanities – and the law were from the beginning the main ways of learning and ruling.
After the Christianisation of Europe, the role of philosophy was assumed by theology. Theology and law were taught to students versed in the artes liberales mainly the trivium (grammar, dialectic, rhetoric) which formed the backbone of the medieval university. This expertise brought together patristic and secular study and cross-fertilized them. Bologna, the first European university, was established in the twelfth century as a law school but developed out of the liberal arts which flourished there early in the eleventh century. By the thirteenth century, up to ten thousand students from all over Europe studied in Bologna. After graduating, they went to work both for Church and the nascent state using their legal expertise to protect secular leaders from ecclesiastical incursions. The task of these jurists was to extrapolate from principles of canon law the axioms of a secular legal science, helping develop on the way the theory of royal sovereignty and legitimacy against papal claims. The various types of knowledge placed today in the basket called Humanities had an intrinsic link with law and were the mainstay of education from classical Greece to the late pre-modern period.
Once this longue durée approach to the law-humanities nexus is adopted, the focus changes. The link remains strong but its principal terrain of operation is no longer the law classroom or literary representations of law. What unites legal operations and humanistic edification is their ontological action. They bring together the symbolic and imaginary to work on their target of intervention which unites their respective projects: ‘humanity’, the ‘human’, ‘human nature’. These are a family of concepts, institutions and material practices which bring together the exploration of civilization, tradition and value with the age old attempt to regulate and pacify the social bond.
‘In the large sense the humanities mean the sum total of man’s activities – nothing that touches man is alien to the humanities’ wrote John Dodds in 1943 alluding to Terence’s dictum that ‘Homo sum; humani nil a me alienum puto.’25John Dodds, ‘Place of the Humanities in a World of War’ Vital Speeches of the Day (March 1943) 311 The vocation of the Humanities is to ‘humanize’. Strictly speaking law’s job is more limited. Spatial and jurisdictional localisation and epochal fluctuations have made legal regulation a more parochial and mundane project. And yet, over the last thirty years the universalizing tendencies of law have become increasingly pronounced. Post-1989 western opinion has turned human rights into the telos of law, making it the only ideology after the ‘end’ of history and ideology. ‘Humanity’s law’ has been proclaimed as the new norm of international relations while military and economic humanitarianism offers a moral gloss to imperial adventures.26Ruti Teitel, ‘“Humanity”’ law: Rule of Law and Global Politics’, 35 Cornell International Law Journal (2002) 357. See Costas Douzinas, Human Rights and Empire (London, Routledge-Cavendish) Chapter 8. International law is mutating towards a cosmopolitan global transnational phase which pushes the legal vocation towards a new universalism. It is precisely at this point that (American) legal education and scholarship turned for inspiration to the Humanities. Global law has developed new civilizing aspirations, a vocation shared in the past with the Humanities but abandoned to their fragile care in modernity. As a result, law’s ontological operation (a permanent but neglected characteristic) comes fully into the open. Human rights, postmodern law’s noblest claim, join the Humanities in the project of addressing, raising and regulating almost every aspect of ‘humanity’.
But what is the meaning of humanity? Liberal legal and political philosophy adopts a normative definition according to which ‘our species is one, and each of the individuals who compose it is entitles to equal moral consideration.’27Michael Ignatieff, Human Rights as Politics and Ideology (Princeton, Princeton University Press, 2000). And yet throughout western history, the meaning, extension and scope of humanity has varied wildly. Slaves have been excluded from humanity and are typically defined as things (res). Pigs, rats, leeches and insects, on the other hand, were regularly and formally indicted and tried in the Middle Ages. A strong movement argues today that animals as well as trees, parks and other natural objects should be given the protection of rights. The question of human nature has continued to ‘haunt modern thought and has become more complicated as a result of the contradictions engendered by positive science and historicism.’28Claude Lefort, The Political Forms of Modern Society (John Thompson ed.), Cambridge: Polity, 1986, 240. My argument is that ‘humanity’ has not been an empirical attribute or normative horizon shared by all humans, as liberal jurisprudence asserts, or a universal standard of civilization and distinction, as argued by the Humanities. While introducing a universalistic claim, humanity has been used in the main as a strategy for ontological separation, distribution and classification. Let us start with a brief history of ‘humanity’.
Premodern societies did not develop a comprehensive idea of the human species. Free men were Athenians or Spartans, Romans or Carthaginians but not members of humanity; they were Greeks or barbarians but not humans. According to classical philosophy, a teleologically determined human nature distributes people across social hierarchies and roles and endows them with differentiated characteristics. The word humanitas appeared for the first time in the Roman Republic as a translation of the Greek word paideia. It was defined as eruditio et institutio in bonas artes. The Romans inherited the concept from Stoicism and used it to distinguish between the homo humanus, the educated Roman who was conversant with Greek culture and philosophy and was subjected to the jus civile, and the homines barbari, who included the majority of the uneducated non-Roman inhabitants of the Empire. Humanity enters the western lexicon as an attribute and predicate of some homines only. For Cicero as well as the younger Scipio, humanitas implies generosity, politeness, civilisation, culture and is opposed to barbarism and animality.29Ullman, op.cit., 302. ‘Only those who conform to certain standards are really men in the full sense, and fully merit the adjective “human” or the attribute “humanity”‘.30Baldry H. C., The Unity of Mankind in Greek Thought (Cambridge University Press, 1965) 201.
Humanity is not something shared but an acquired taste, a construct, the outcome of education, edification and discipline. It marks the distinction between the civilized, cultivated man of letters, the exemplar of real humanity, and the uneducated, uncivilized beings who, because they lack the subtlety of aesthetic discrimination and judgment, are lesser humans if not fully fledged barbarians. The ever-changing nature of humanity and its distinguishing use have been a mainstay of western history. Quarrels between the sciences and the ‘Humanities’, exemplified in the ‘two cultures’ debate between C P Snow and Leavis,31See Shroeder op.cit. attacks on the ‘culture industry’ and the ‘society of the spectacle’, the juxtaposition between ‘high’ and ‘low’ culture exemplify the constructed and cutting edge of humanity. It is the job of philosophy, literature and learning, today the Humanities, to instill humanitas in the deserving. In the delightfully entitled Journal of Aesthetic Education, Richard Kuhns argues that to be well-educated is to be conversant with a set of great books. Kuhns goes on to argue unconvincingly that ‘executive cadres trained for our great industries, workers on assembly lines, businessmen who want to become “humanized”…right now as I write’ are given training in the ‘humanities’ which raises in the student ‘beliefs about greatness, about goodness, about the quality of his contemporary cultural environment.’32Kuhns op.cit., 12. Similarly, Nussbaum reports that some scholars defend Classics against criticisms of irrelevancy, by claiming that they prepare good managers. If managers and factory workers are busy being humanized no wonder that lawyers had to follow. Capitalism and law, the truly universal vocations, join the Humanities in preparing the ‘fully human’ of the future.
ii) If we turn to the political and legal uses of humanitas a similar history emerges. The concept ‘humanity’ has been consistently used to separate, distribute and classify people into rulers, ruled and excluded. ‘Humanity’ acts as a normative source against a background of variable inhumanity. This strategy of socio-political separation curiously entered the historical stage at the precise point when the first proper universalist conception emerged in Christian theology, captured in St Paul’s statement, that there is no Greek or Jew, man or woman, free man or slave (Epistle to the Galatians 3:28). All people are equally part of humanity; they can be saved in God’s plan of salvation. For classical humanism, reason determines humanity: man is a zoon logon echon or animale rationale. For Christian metaphysics, on the other hand, the immortal soul, both carried and imprisoned by the body, is the mark of humanity. The new idea of universal equality, unknown to the Greeks, entered the western world as a combination of classical and Christian metaphysics.
The divisive action of ‘humanity’ survived the invention of its spiritual equality. Pope, Emperor, Prince, King, all these representatives and disciples of God on earth, were absolute rulers. Their subjects, the sub-jecti or sub-diti, take the law and their commands from their political superiors. More importantly, people will be saved in Christ only if they accept the faith since non-Christians have no place in the providential plan. This radical divide and exclusion founded the ecumenical mission and proselytizing drive of Church and Empire. Christ’s spiritual law of love turned into a battle cry: let us bring the pagans to the grace of God, let us make the singular event of Christ universal, let us impose the message of truth and love upon the whole world. The classical separation between Greek (or human) and barbarian was based on clearly demarcated territorial frontiers. In the Christian empire, the frontier was internalised and split the known globe diagonally between the faithful and the heathen. No part of the world remained outside Empire’s catholic mission. The barbarians were no longer beyond the city as the city expanded to include the known world. They became ‘enemies within’ to be appropriately corrected or eliminated if they stubbornly refused spiritual or secular salvation.
The meaning of humanity after the conquest of the ‘New World’ was vigorously contested in one of the most important public arguments in history. In April 1550, Charles V of Spain called a council of state in Valladolid to discuss the Spanish attitude towards the vanquished Indians of Mexico. The philosopher Ginés de Sepulveda and the Bishop Bartholomé de las Casas, two major figures of the Spanish Enlightenment, argued on opposite sides. Sepulveda, who had just translated into Spanish Aristotle’s Politics, argued that ‘the Spaniards rule with perfect right over the barbarians who, in prudence, talent, virtue, humanity are as inferior to the Spaniards as children to adults, women to men, the savage and cruel to the mild and gentle, I might say as monkey to men.’33Gines de Sepulveda, Democrates Segundo of De las Justas Causa de la Guerra contra los Indios (Madrid, Institute Fransisco de Vitoria, 1951) 33 quoted in Tzvetan Todorov, The Conquest of America (Richard Howard transl) (University of Oklahoma Press, 1999) 153 Against Indian evil stands the Spanish crown, which should have no qualms. The Spanish could enslave the Indians and treat them as barbarian savages and slaves in order to civilise and proselytise them.
Las Casas disagreed strongly. The Indians have well-established customs and settled ways of life, he argued, they value prudence and have the ability to govern and organise families and cities. They have the Christian virtues of gentleness, peacefulness, simplicity, humility, generosity and patience and are waiting to be converted. They look like Adam before the Fall, las Casas wrote in his Apologia, they are ‘unwitting’ Christians. In an early definition of humanism, las Casas argued that ‘all the people of the world are humans and the only one definition of all humans and of each one, that is that they are rational…Thus all races of humankind are one’.34Bartholomé de las Casas, Obras Completas, Vol. 7 (Madrid, Alianza Editorial, 1922) 536-7. His arguments combined Christian theology and political utility, in an early example of multiculturalism. Respecting local customs is good morality but also good politics: the Indians would convert to Christianity (las Casas’ main concern) but also accept the authority of the Crown and replenish its coffers, if they were made to feel that their traditions, laws and cultures are respected. But Las Casas’ Christian universalism is, like all universalisms, exclusive. He repeatedly condemned ‘Turks and Moors, the veritable barbarian outcasts of the nations’ since they cannot be seen as ‘unwitting’ Christians. An ‘empirical’ universalism of superiority and hierarchy (Sepulveda) and a normative one of truth and love (las Casas) end up being not very different. As Tzvetan Todorov pithily remarked there is ‘violence in the conviction that one possesses the truth oneself, whereas this is not the case for others, and that one must furthermore impose that truth on those others.’ 35Todorov op cit., 166, 168.
The conflicting interpretations of Sepulveda and las Casas capture the dominant ideology of Western empires, imperialisms and colonialisms. At one end, the (racial) other is inhuman or subhuman. This justifies enslavement, atrocities and even annihilation as strategies of the civilizing mission. At the other end, conquest, occupation and forceful conversion are strategies of spiritual or material development, of progress and of integration of the innocent, naïve, undeveloped others into the main body of humanity. These two definitions of (in)humanity are still active. The ‘civilising mission’ used to differentiate between full and lesser humans; it has now become the ‘human rights movement’ spreading neo-liberal economics, good governance and modernization. The ‘axis of evil’, the ‘rogue states’, the ‘indecent regimes’, the ‘butcher of Baghdad’, the ‘beast of Belgrade’, the ‘bogus refugee’ are contemporary heirs to Sepulveda’s ‘monkeys’, epochal representatives of inhumanity. At the other end, the helplessness, passivity, under-development of the victims of natural and man-made disasters turns them into the infants of humanity, ourselves in a state of nascency. They are victimized and sacrificed by their own radical evil; they are rescued by us who help them grow, develop and become our likeness.36Douzinas, op. cit. fn 25, Chapter 3.
iii) The religious grounding of humanity was undermined by the liberal political philosophies of early modernity. The foundation of humanity was transferred from God to (human) nature. Human nature as the common denominator has been interpreted as empirical fact, as normative value or both (Habermas). Science has driven the first approach. But it was legal and political innovations, which turned humanity into humanism, the common and absolute value around which the whole world revolves. The great eighteenth century Revolutions and their Declarations paradigmatically expressed the modern universalistic conception of humanity. And yet at the heart of this new universalism, humanity remained a strategy of division and classification.
We can follow briefly this contradictory process, which both proclaims the universal and excludes the local, in the text of the French Declaration of the Rights of Man and Citizen, the manifesto of modernity. Article 1, the progenitor of contemporary universalism, states that ‘men are born and remain free and equal of right’ a claim repeated in the inaugural article of the 1948 Universal Declaration of Human Rights. Equality and liberty are declared natural entitlements, independent of governments, epochal and local factors. And yet the Declaration is categorically clear about the real source of universal rights. Article 2 states that ‘the aim of any political association is to preserve the natural and inalienable rights of man’ and Article 3 proceeds to define this association: ‘The principle of all Sovereignty lies essentially with the nation.’
‘Natural’ and eternal rights are declared on behalf of the universal ‘man’. These rights however were created by the revolutions and declarations, which brought into existence a new type of political association, the sovereign nation and its state, and a new type of ‘man’, the national citizen, who became the beneficiary of rights. In a paradoxical fashion, the declaration of universal principle legitimized and supported local sovereignty. From that point, statehood and territory follow a national principle. If the Declaration inaugurated modernity, it also started nationalism and all its consequences: genocides, ethnic and civil wars, ethnic cleansing, minorities, refugees, the stateless. The spatial principle is clear: every state should have one nation and every nation should have its own state – a catastrophic development for peace as its extreme application since 1989 has shown.
The universal humanity of the liberal constitutions acted as the normative foundation for two types of division and exclusion. The first was created in the gap between universal ‘man’, the ontological principle of modernity, and national citizen, its political instantiation and real beneficiary of rights. National sovereignty came into existence through the demarcation of an inside and the exclusion of the outside. The modern subject reaches her humanity by acquiring political rights of citizenship, which guarantee her admission to the universal human nature by excluding others from that status. The alien as a non-citizen is the modern barbarian. He does not have rights because he is not part of the state and he is a lesser human being because he is not a citizen. One is a man to greater or lesser degree because one is a citizen to a greater or lesser degree.
The second set of divisions and exclusions takes place in the gap separating ‘man’ from the empirical person who actually enjoy their protection. Indeed, the epochal move to the subject as the metaphysical principle of modernity is driven and exemplified by legal personality. As species existence, the ‘man’ of the rights of man appears without gender, colour, history or tradition. He is an empty vessel sharing with others abstract traits – free will, reason and soul – the universal elements of human essence. This minimum of humanity allows ‘man’ to claim autonomy, moral responsibility and legal subjectivity. At the same time, the empirical man who actually enjoys the ‘rights of man’ is a man all too man: a well-off, heterosexual, white, urban male who condenses in his person the abstract dignity of humanity and the real prerogatives of belonging to the community of the powerful.
Class, race, colour, gender are strategies for assigning people to the position of rulers or ruled. Kant speaks of the transcendental conditions of existence; we will call these forces and markers of division the inhuman preconditions of universal humanity.37For a similar analysis, see Pheng Cheah, Inhuman Conditions (Harvard University Press, 2007). The promise to liberate the human through normative ideals has always fallen short, compromised by the subjection of the empirical person to the dictates and disciplines of economic and political power. Indeed, one could write the history of human rights as the ongoing and always failing struggle to close the gap between the abstract man and the concrete citizen; to add flesh, blood and sex to the pale outline of the ‘human’ and extend the dignities and privileges of the powerful (the characteristics of normative humanity) to empirical humanity. This has not happened and is unlikely to do so through the extension and expansion rights. All universalisms whether of the imperial, Christian or human rights variety end up excluding those who do not meet their version of the essential characteristics of humanity.
4. Prolegomena for a Law and Humanities of Resistance
i) Here finally, in the common frame of reference between humanism and legal humanism, we find the deep link between the Humanities and law. Humanism argues that the universal ‘essence’ of man is or should become the attribute of every empirical individual. And yet this universal humanity repeats the classical gesture of separating although no longer along frontiers and boundaries but internally and diagonally across the totality of the globe. ‘The humanitas of homo humanus is determined with regard to an already established interpretation of nature, history, world, and the ground of the world, that is, of beings as a whole.’38Martin Heidegger, ‘Letter on Humanism’, in Basic Writings (D F Krell ed.), (Harper SanFrancisco, 1977) 201-2. The function of the Humanities is to spread the ‘established interpretation’; that of law to turn this interpretation into the fact of the matter. Full ‘humanity’ is the telos of humanistic edification and humanitarian-legal intervention. But by dealing with ‘beings as a whole’ and accepting a dominant interpretation as absolute and eternal truth, humanism mistakes the transient and historically determined turn to a particular conception of the subject as eternal and assigns to it absolute mastery over the natural, social and psychic world. This metaphysical closure is accompanied by the exclusion of those who do not meet fully the requirements of humanity. While classical humanism juxtaposed the humanum to the barbarum, contemporary versions are followed by a ‘double marking, of a return to half-understood Greek ideals and a gesture of setting oneself apart from some perceived barbarism.’39Joanna Hodge, Heidegger and Ethics, Routledge, 1995, 90.
Legal humanism follows closely and shapes early humanism. It is the ‘tendency to posit man as the principle and end of everything…for nearly all modern thinkers about law man in the author…of law’.40Michel Villey, ‘L’Humanisme et le droit’, in Seize essais de philosophie du droit, Dalloz, 60. For legal humanism, the subject, an isolated monad with solitary consciousness, faced with a disenchanted, threatening but also malleable world, turns to himself as basis for self-legislation and posits ‘man’ as the author and end of law. ‘The starting point of the science of law is Man, as soon as man is constituted into a legal subject. The point of arrival of modern legal science is man. This science does not move, it starts with man and ends up rediscovering the subject.’41Bernard Edelman, Le Droit saisi par la photographie, Maspero, 1973, 102. For the legal mentality, the essence of humanity is the free, willing and solitary legal subject. Rights, the building blocks of modern law, are the tools through which human beings, re-defined as creatures of will and desire, pursue their life plans. The legal person is the humanist subject armed with rights. These subjective characteristics become the basis for positing the ‘objective’ legal universe. The Sovereign too is presented as a super-individual entity with desires and powers. Sovereign and subject, positive rule and right come together and presuppose one another. The constitution of modernity started with the humanist premise of supporting the natural freedom of the individual but has now been covered by a hyper-inflation of norms. Humanism, personified by the subject of human rights and exemplified by the Humanities, veers tantalizingly and dizzyingly between an empirical universality and a normative universalisation perennially excluding and subjugating those who do not meet its rigorous standards. The proliferation of rules and the obsession with governance is the logical end of the humanist paradox, according to which increasing external constraints are the necessary supports of freedom. In an extreme form, all human relations will turn into legal rights as legal personality becomes the telos of a perfectly free and perfectly regulated humanity.
ii) The history of twentieth century has taught us that there is nothing sacred about any definition of humanity and nothing eternal about its scope. As a result, it cannot act as the a priori normative principle. Humanity is not a property shared but a standard of distinction, which has been used to distribute people on a spectrum between the fully and the lesser human. If we reject this political usage, humanity appears as the definition of groundlessness with no stable foundations or certain ends. Its metaphysical function lies not in a philosophical essence but in its non-essence in the incessant surprising of the human condition and its exposure to an undecided open future. Humanity exists as an endless process of re-definition and the necessary but impossible attempt to escape external determination. But this speculative humanity can only come forth in conflict with a subjugating legal humanism and a civilizing Humanities which divide and discipline.
The global biopolitical turn and the new humanitarianism have turned the moralising claims of law, typically human rights, into an integral part of power relations. Rights precede, accompany and legitimise the penetration of the globe by neo-liberal capitalism. Legal ontology retained a gap between normative principle and its realization, underlying structure and surface appearance, exemplified by the distance between the universality of humanity and the exclusions of citizenship. This distance between is and ought that characterised modernity is fast disappearing. To put it another way, while the law in modernity expressed both the will of a community to live together from which it drew its normative strength and energies as well as the structure of domination and subjection, in globalised capitalism has destroyed the difference (which was always too little almost nothing – but that ‘almost nothing’ had immense value). Law is in the process of becoming co-extensive with the natural life of society, mapping the social landscape by replicating within itself the ‘brute facts’ of social life and helping reproduce the existing order. When the empirical and normative conceptions of humanity start coinciding, justice becomes synonymous with the law (and therefore redundant) and the civilising mission of the Humanities a palliative for inhumanity.
The pressing moral and political task is to develop a Humanities of resistance. The stakes are no longer or exclusively the development of delicacy of discernment, the sharpening of hermeneutical aptitude or even moral edification. Adopting from the Classics and Roscoe Pound the idea of education as critique of the dominant practices which divide, dominate and oppress, the new Humanities must commit themselves to the re-assertion of the principle of infinite justice as unconditional resistance to the bio-political turn of post-political politics and culture. The duty to resist is ontological: it rises from the subject’s constitutions through the ethical call of the singular other and from (the formally similar) inadequacy of law to justice. It places the University (Law and the Humanities) in opposition to many and great powers which include the nation, the state and its sovereignty, and those mediatic, ideological, religious and cultural forces that stop and prevent the humanities to come.42Costas Douzinas, Human Rights and Empire (Routledge, 2007) Chapter 12.
This turn of law to justice will revive and strengthen its intimate relationship with philosophy, literature, art. Law does not ‘need’ an injection of Humanities for their ‘civilising’ influence. Law and the Humanities are central contributors to the project of constructing the human. The currently dominant combination however separates the human from the inhuman and classifies into rigid categories of rulers and ruled. The task of a Humanities of resistance is different: the cultivation of multiple humanities which achieve themselves not as a project of future unification of normative value (culture, liberalism, the human) and empirical life but in the overcoming of finitude and a facing of the infinite within historical immanence, in the here and now. In this project philosophy, aesthetics and law will become again inextricable.
Costas Douzinas is Professor of Law and Director of the Birkbeck Institute for the Humanities, University of London