Stephen Connelly

There is an implicit assumption in jurisprudential reasoning that this reason, as form, is without inconsistency. Error is procedural: it results either from misrecognition of the ‘true’ law, from ignorance of the true facts, or from misapplication of the law to the facts. The practical syllogism is itself unassailable; what is wrong in the law is a failure to reason in accordance with its form. If an inconsistency (or antinomy) appears in a particular judg(e)ment as a result of ‘difficult’ facts or intuitively unjust laws, the inconsistency is a defect of the judge, not of practical legal reason itself. The judge is referred back to the law (literally in civilian systems), until the ‘apparent’ inconsistency is ironed out and the facts are made to cohere once more.

The wrong of law, Kerruish argues [WL255], is this exclusion ab initio from legal reasoning of the very methods of contradiction which could faithfully express the contingencies of legal categories and the richness of the real. Where dialectic could have unfurled the contradictions of the most basic units of legal reasoning, our classical jurisprudence erects axiomatic ‘foundations’ such as basic norms, constitutional settlements, juristic minima like persons and things—forms of law privileged for their abstract logical consistency. The price jurisprudence is prepared to pay for its apparent coherence is a certain crudity: a lack of expressiveness which can only result from grinding up reality and forcing it to fit into these preformed molds. 

In order to illustrate the intellectual restrictiveness of legal thought has imposed on itself, Kerruish draws on developments in non classical mathematical logics. Let us take a fairly intuitive example from geometry. What could be more simple, more foundational, than the geometric point? Euclid, for example, defines the point (semeion, stigma) as an indivisible, foundational moment of his scheme. Everything else is built up from this such that, even today, the continuum is said to be sets of infinitely many such points, but atomic points nonetheless. The point simply is because the rules of the system command as much. The point is a sign (semeion), but, it seems, a sign only of itself, present to itself and without history.^[1]

In The Wrong of Law (hereafter ‘WL’), Kerruish helps us understand that it need not be this way in the foundations either of mathematics or law. She takes, for example [WL144-153], the Dutch mathematician LEJ Brouwer’s intuitionism. We might explain the rebellious power of intuitionism as follows: Brouwer’s proposal is to construct points in a new way whereby we are invited to choose a number, then another, and so on without end, the choice not being determined by any law and so ‘free’. Brouwer calls this a ‘choice sequence’ [keuzerij/Wahlfolge]. He now limits this operation to an arbitrary interval λ₁ between any two of the chosen numbers. Our next choice must be a number within this interval (say 0.5 in the interval [0,1]). Having made our choice, this marks a new, smaller interval λ₂ (say [0,0.5]), from which we choose any number in the interval. We keep making choices, constructing a series of nested intervals λ₁, λ₂, λ₃,… indefinitely. Brouwer continues:

We call such an indefinitely proceedable sequence of nested λ-intervals a point P or a real number P. We must stress that for us the point P is the sequence

λ₁, λ₂, λ₃,…                                (1)

itself; not something like the limiting point to which according to classical conception the λ-intervals converge and which could according to this conception be defined as the unique accumulation point of midpoints of these intervals. …Every one of these λ-intervals (1) is therefore part of the point P.^[2]

What Brouwer is proposing here is best intuited by considering again the nature of the choice sequences. They are free, indefinite, and in the process of constantly being extended. Every time we think we have the limit of the sequence wrapping up the multiple of constituent choices, the sequence increases by one. The point (and by extension the real number) is not a static primitive; rather, it is growing arbitrarily right there in front of us as a function of our own constructive activity. Brouwer reintroduces fulgurating reality into points and real numbers.^[3]

Kerruish demonstrates how much is at stake in a battle over mathematical foundations [Grundlagenstreit] which is informed by and spills out into the legal sphere. David Hilbert, defending the static point-set ‘treasures’ [WL6] won from Paradise by Cantor, sought to marshal the classical logics of Frege and Russell against Brouwer and all intuitionists:

Hilbert’s strategy [contra Brouwer] was aimed at establishing not the reality of but the necessity and right to employ the actual infinite in mathematical reasoning. [WL87, emphasis in the original]

That a point, as much as a state or constitution, be universal and basic, is according to the tradition a function of necessity and right. The thinkers of intuition challenge that claim by demonstrating the continuing emergence into the present of a historically conditioned and so contingent self-incomplete ‘ground’. 

Kerruish offers us a detailed analysis of Hegel on the hidden depths of this ground, and Spinoza and Schelling present us with a similar move.^[4] In each case, as the idea comes to its fulfilment in the absolute, something remarkable happens: on the one hand we now intuit what we did not before, namely the precise determinations which have led us to this conception; on the other, the fully articulated idea withdraws into itself leaving behind its appearing as the brute fact of its being. In Spinoza,^[5] this simple fact is the infinite point of the conatus, whose experience of persevering in a world of natural right is nothing other than our consciousness.^[6] In Hegel, the absolute idea is universalised and abstracted as other than self, tying together Nature as well-ordered time and space [WL43]. The task for each philosopher can be understood as a gathering up of how the given came to be, and through this a critique of any (practical) philosophy which takes the law as existing necessarily, universally and by unexamined right.

In key pages ([WL215-22] reconstructed from drafts), Kerruish locates the moment in Kant when reason and right part ways, and right ‘forgets’ the processes by which it came to be. In The Metaphysics of Morals, Kerruish argues, Kant marks a subtle distinction between the Wille (pure Will) and the Willkür (free choice). Free choice is always in some sense an applied practical reason, directing known rules towards an object and end as maxims. Free choice has content, at least potentially. The plan for Kant is also to elaborate a doctrine of the pure Will which has as its ‘content’ only the rational Law in itself. Kant even speaks of this pure Will as requiring a ‘metaphysics’ of ‘pure moral philosophy’ [WL216] putting to use the transcendental dialectic. Yet the Königsberg philosopher ultimately decides that such a metaphysics must be ‘left aside’ [WL221]. Kerruish continues:

In my view there is a here a loss, a regrettable loss, not of some burdensome thing of which any human being…would be glad to be free [Kant CPR A463-464; B491-492], but of a promised revolution in human knowledge and knowledge which was hedged from its inception in the ‘interest of reason’. I disagree. I do not think that restricting the incidence of antinomies of pure reason to just four ‘cosmological antinomies’ is in the interest of reason at all. [WL222]

In short, we arrive at the modern form of law in which the dialectical activity by which it comes to be for us is forgotten, replaced by the Law both necessary and right. The wrong of law, Kerruish argues, can be understood in just this sense: that a legal system which presents itself ‘point-like’ by actively forgetting its contingency as an ongoing logico-historical activity, commits a foundational wrong in denying that activity (the very possibility of a dialectic) and relegating ‘wrongfulness’ to instances of the moralising application of this unassailable Law to given facts.^[7] There is no little hint of Thomism in the prevailing view that the law is rational and complete, and in finding apparent deficiencies it is we who have failed in our practical reasoning to grasp the truth of law (synderesis). Yet, Kerruish argues, such a position is undercut from within logic itself. Any ‘complete and consistent’ constitution that declares that its authority is self-sufficient i.e. depends on nothing outside itself, runs into Gödelian contradiction. Faced with this, constitutional courts often unwittingly breach their own closure and supplement their law by appeals to myth. 

Kerruish’s detailed reading of Kartinyeri^[8] [WL187ff] illustrates just such recourse to a ‘mystical, magical’ past of the ‘Imperial’ and ‘common law’ which operates from without to shore up the Australian constitution. Inspired as I read Kerruish’s discussion, I thought immediately of Slade v Morley (1602). Here is a case in which we see the court, urged on by Coke [cf WL189-91], becoming conscious of the role precedents play in common law reasoning. What is fascinating is just how the precedent for this first conscious use of precedent is discovered. Seized with the question of whether a claim for performance bars a corresponding claim for debt (and is thus linked by consideration in what we now call a contract) the court declares:

In respect of infinite precedents…by which it appears the plaintiffs declared that the defendants in consideration of sale to them of certain goods, promised to pay so much money etc… To which precedents and judgments, being so great in number, in so many successions of ages, and in the several times of so many reverend judges, the justices in this case gave great regard. And so did the justices in olden times… [there follows a lengthy discourse on the value of precedents.] (Slade v Morely (1602) 4 Co. Rep. 92, my emphasis^[9])

This is not the indefiniteness of continuous, present construction, but the trompe l’oeil infinity of a transcendent power in which the supporting columns of judicial decisions appear to be held up by the divine order painted on the ceiling. One can see the echoes of this baroque^[10] ‘infinity of precedents’ in the power ‘so transcendent and absolute it cannot be confined’ used by Brennan and McHugh JJ in Kartinyeri to legitimate their reasoning [WL189]. The power of Kerruish’s work is to lay bare how the tools of the logico-mathematical foundations battle [Grundlagenstreit]—intuitionistic, relevance, and other non-classical logics—can be deployed to critique modern juridical claims to completeness, consistency, necessity and universality. 

This is a difficult but remarkable book. Mathematical logic has long since surpassed the cod ‘classical’ version of it regarded as unassailable in certain jurisprudential circles [WL248 n 86], and Kerruish is unafraid to articulate and deploy, with success, these modern tools to critique the law. I will keep coming back to this work, not only as a work to be read, but in the full sense Kerruish intends it, I think, in her final chapter: as a work to be done; as the indefinite endeavour of the question [WL257].

Stephen Connelly is Chair of the Philosophy and History of Legal Systems, School of Law, Warwick University.

^[1] See J. Derrida, La voix et le phénomène: introduction au problème du signe dans la phénoménologie de Husserl. Paris: Presses Universitaires de France, 1967. 4-5.

^[2] Brouwer, Intuitionismus. Bibliographisches Institut, Wissenschaftsverlag, Mannheim, 1992, 69, quoted in M. van Atten, On Brouwer. Wadsworth, 2004, 31.

^[3] We see a not dissimilar thought in Deleuze’s use of Cauchy sequences in Difference and Repetition. Athlone, 1990. 

^[4] We discover this in Spinoza’s claim, in Ethics V P24 Sch. that ‘nevertheless, we feel and experience that we are internal’, and this is nothing other than the scientia intuitiva.

^[5] Nb how Spinoza’s ‘geometric method’ also begins with a point, but like fellow intuitionist in spirit, that point is a self-caused and generative activity (Ethics I Def 1, and P34-36).

^[6] On Hegel’s critique of Spinoza [WL46-7].

^[7] Kerruish gives the example of Gentzen’s cut and the relevance theorists’ counter of the cut-elimination which restores what had been excised from proofs.

^[8] [1998] HCA 22.

^[9] As transcribed in JH Baker & SFC Milsom, Sources of English Legal History. Butterworths, 1986. 439.

^[10] See for example Walter Benjamin’s critique of baroque power in the final chapter of Der Ursprung des deutschen Trauerspiels (1925).