Thirroul of Law
The essence of liberalism is negotiation, a cautious half measure in the hope that the definitive dispute, the decisive bloody battle, can be transformed into a parliamentary debate and permit the decision to be suspended forever in an everlasting discussion.1
– Carl Schmitt, Political Theology
We want all this without resistance. We want it continually. And this is the root of all evil in us. There must be resistance. We ought to pray to be resisted and resisted to the bitter end.2
– DH Lawrence, ‘Edgar Allan Poe’
The Great War stood as the shadowy graveyard of romantic fantasies of unity and progress, as of positivist fantasies of logic and system. The World War to come would still more decisively mark their sickening collision. War certainly has a tendency to focus the mind. Many of the writers who responded to it – from Mikhail Bakhtin, Martin Buber and Martin Heidegger in the 1920s to Jean-Paul Sartre and Emmanuel Levinas in the 1940s – seem to have in common a shattering of established canons and the destruction of our naïve illusions of eternal harmony. But in the ‘twilight of the double vision’ they also seem to seize on the idea of inter-subjectivity as a way of channeling the irreducibility of difference towards new theories of relational thinking.3 The great modernist novels of the 1920s are admired not only for their heightened inner realism and formal invention, but for their ultimate affirmation of the possibilities of this new, uncharted shore. Both James Joyce’s Ulysses and Virginia Woolf’s To the Lighthouse end with the same thought, ‘yes’. Neither ignore or resolve the crisis of modernity but instead embrace its challenges.4 So an effort is made to genuinely come to terms with the violence of the past and the uncertainty of perspective without thereby slipping into nihilism or despair; to transform conflict and otherness from the curse of human identity to its gift.
Responding to the crisis of modernity, D.H. Lawrence’s commitment to the novel in form, content and language, together with the notion of polarity, led him likewise away from the fantasy of a hidden order with which the novel begins and towards the recognition of the productive power born of the unremitting clash of discourses. The central feature of this modernism lies in its belief that we should not try to eliminate social contradictions and tensions but draw our strength from them. The appeals to ‘call and answer’, to ‘listening’ and ‘answering’ and challenging5 – polarized energies all – invoke an unceasing friction not just between people but within them. Lawrence relishes this friction not as an unwelcome side effect of human relations, but as its jouissance – its ‘yes’.
In order to demonstrate the inter-connection between disparate fields, this book has traced an expansive arc. I want now to draw some of those threads together. In this chapter I want to show how the experience of literature elaborated in Chapters 6 and 7 and the ideas of polarity elaborated in Chapter 8 are relevant to the rule of law. In the next section, I argue that the key to understanding what literary modernism might contribute to this question is to see literature’s power as performative rather than didactic. Its formal and stylistic characteristics, its multiple discursive layers and so on, do not describe or talk about justice but perform it. In particular, the novel’s commitment to narrative takes us away from rules and towards a much deeper engagement with specifics and contexts.
In the second section, I argue that Bakhtinian ‘polyphony’ and Lawrentian ‘polarity’ both have another side, a crucial public dimension through which the pressure of communicating and justifying our judgments to others transforms us. Polyphony and polarity strongly suggest that a determinate answer to the crisis of legal judgment cannot be found. The porosity of language and the tension between general and particular will always be with us. In law we must decide, but those answers will always be partial, provisional and incomplete. There can be no final resolution, no synthesis, and no balance. Instead, judgment is an endless cycle which is capable of turning the ineluctable tensions, oppositions and disagreements that make up the law into a productive and indeed constitutive dialogue. The rule of law can be understood then as a set of ideas that institutionally protect the social and dialogic process of exposing and critiquing reasons for decision, rather than as a set of ideas that institutionally entrench the hierarchical or hieratical process of announcing them.
In the last section, I invoke a metaphor of triangulation hinted at in Kangaroo to argue that this constellation of features sharply distinguishes the ‘literary’ rule of law from the two starkly sketched alternatives that have been my foils throughout the book, the positivist rule of law and romantic justice. My argument here is intentionally schematic because I am trying to contrast as strongly as possible what I take to be a real difference between these three ways of imagining the rule of law. No doubt most writers (though not all) hold elements of all three positions. But the conceptual terrain is worth mapping. Modernism’s distinctive responses to the crisis of modernity offer us a fragile but nonetheless meaningful re-conception of the rule of law. Neither the positivist dogmatism of the law of rules – with all its implausible rigidity – nor the romantic idealism of the law of love – with all its implausible divinity – can be accepted. Polarity and literature, as Bakhtin argues and as Lawrence shows, work unfailingly against both. What I like to call ‘Thirroul of law’6 takes the crisis of modernity seriously, exposing and embracing the tensions and resistances built into the law, and seeing the antiphonic call and answer of contingent decision-making as a way of responding to it. Thirroul of law rejects both the unattainable machine-judges that positivism dreams of and the unattainable god-judges that the romantics and New Romantics dream of. Both rely on a kind of deus ex machina; maybe even a kind of machina ex deo. Literary modernism offers up to us instead perfectly attainable human-judges, always failing and yet socially vital.
Narrativity and performativity
In conjunction with his remarkable work on literature and on the unconscious, Lawrence’s Kangaroo is at once characteristic of the modernist response to the crisis of modernity and unusual in its interdisciplinary vision. Its polyphony and fragmentation, its realism, and its focus on individual psychology form a kind of anti-politics. This turn from politics provides not just the narrow content or story-line of the novel. Taking seriously the attitude to verisimilitude and to meaning which modernism foregrounded challenges many of the assumptions surrounding the novel – whether as a straightforward representation of reality or as a redemptive supplement to it – which remain the norm in parts of the legal academy. A novel is not an ‘extra-artistic rhetorical genre’7 or a moral treatise in disguise, pace Nussbaum. Instead, the modernist approach to law and literature builds an ironic resistance to all authority, including its own. It develops our sensitivity to the tension between different voices and perspectives long, long after we have forgotten what the particular story was ‘about’. Kangaroo’s heteroglossia, doubleness, humour and contingency, its layering of voices, stylistic tropes, metaphorical development and structural fragmentation echo on a formal level the same themes. In all these ways we begin to see – not just to see but truly to experience – how the elements that Bakhtin sees as the hallmark of the novel forge a particular voice of justice in law.
The force of literature can be understood not as a series of propositions that ‘talk about’ justice, but as engendering a feeling for certain practices ‘of’ justice. As we have seen, Kangaroo is essentially performative – ‘a gramophone of a novel’ in which we witness the power of literature as it operates on the author himself. Such an approach does not rely on some mental library of canonical subjects. It addresses, rather, how the narrative method in and of itself transforms our interpretative approach and leads to the rejection of rule-fetishism. Lawrence’s novel does not tell us what he thought about politics and justice: it shows us what he learnt about them and records how he changed through the very discipline of writing about them. It thus provides evidence for the meaning and force of literature by recording the transformations it wrought on the thinking and beliefs of the author himself. In Fantasia of the Unconscious, which you will recall was published the same year as Kangaroo, Lawrence says as much.
This pseudo-philosophy of mine is deduced from the novels and poems, not the reverse. The novels and poems come unwatched out of one’s pen. And the absolute need which one has for some sort of satisfactory mental attitudes towards oneself and things in general makes one try to abstract some definite conclusions from one’s experiences.8
This causal relationship is very important for our understanding of how the narrative form modifies our attitude to rules. In keeping with his determination to rescue the tale from the clutches of the moral, Lawrence thinks of literature not as a didactic lesson intended to display a priori principles, but as an experience that forces us by its very particularity to challenge those principles. That it comes ‘unwatched’ is precisely the beauty of literature, both for the writer, and for the reader – it comes at one all unwary, from a side that is not subject to conscious editorial censorship.
Recent scholarly interest in Richard Wagner has drawn our attention to a similar creative process in which art transforms the artist as much as the other way around.9 Wagner is in some ways analogous to Lawrence, for both were attracted to a species of highly romantic philosophising about their art and their world. Yet Wagner’s intellectual romanticism is steadily pulled at and unpicked by the intimate and emotional details of his characters’ lives. The famous rupture with Nietzsche seems to hinge on this point. When Nietzsche, with astute and telling sarcasm, termed Wagner, of all people, ‘our greatest miniaturist’, he hit upon the aesthetic commitment to the detailed and intimate study of relationships which Wagner’s art demanded of him. This study forced his grand ideas against themselves and against one another, in just the same way as we have seen in relation to Lawrence. Finally, even so monumental a canvas as the Ring cycle can be understood as a work surprisingly opposed to mythology in the intimate depths of its compassion for its characters; committed not to the consolidation but to the ‘deconstruction of power’.10
Through its subversive performativity, the novel shatters abstraction in favour of a richer understanding born of the diversity and singularity of all experience and of the multiple discourses that contribute to it. In Kangaroo, Richard Somers’ conclusion might almost be taken as an anti-catechism, as his manifesto against the rote application of rules and a declaration of the unique judgments which the ‘call and answer’ of individual lives demand.
Life makes no absolute statement. It is all Call and Answer. As soon as the Call ceases, the Answer is invalid. And till the Answer comes, a Call is but a crying in the wilderness. And every Answer must wait until it hears the Call. Till the Call comes, the Answer is but an unborn foetus …
Blessed are the pure in heart. That is absolute truth, a statement of living relativity, because the pure in heart are those who quiver to the dark God, to the call of woman, and to the call of men. The pure in heart are the listeners and the answerers.11
On the other hand (or leg) Melville’s Captain Ahab was, for Lawrence, an exemplary Western mythological figure – a ‘monomaniac of the idea’, while poor Moby Dick, our creaturely spirit, was ‘hunted, hunted, hunted by the maniacal fanaticism of our white mental consciousness’.12 These and other monomaniacal ideas of mastery literature takes as its subject and resists with every fibre of its being.
Philosophy, religion, science, they are all of them busy nailing things down, to get a stable equilibrium. Religion, with its nailed-down One God, who says Thou shalt, Thou shan’t, and hammers home every time; philosophy with its fixed ideas; and science with its ‘laws’: they, all of them, want to nail us on to some tree or other. But the novel, no … If you try to nail anything down, in the novel, either it kills the novel, or the novel gets up and walks away with the nail.13
No doubt Lawrence overstates the case and his target was a fairly narrow one, the English tradition of analytic philosophy which was advancing around him at the time. But I do think that the history of philosophy is full of authors whose goal, as Lawrence says, is to ‘nail things down’. What made deconstruction, for example, the subject of such ugly and ill-tempered abuse,14 and by no means amongst English philosophers alone, was precisely its attack on the enduring materials out of which the discipline had been crafted – abstraction, wholeness, solution, resolution, absolution. The novel, on the other hand, if it is successful, must have change at its core – both narrative change and, as Lawrence says, the fluidities of interrelatedness that drive it. Growth and second thoughts are at the heart of the experience of the novel, including not just the readers’ experience or the characters’, but the author’s too.
Literature thus gives to law more than simply a laboratory in which to test the truth and impact of abstract ideas.15 It manifests, through narrative, the singularity of beings and circumstances, and it is these constantly challenging differences which undermine interpretative closure. To pay attention to narrative in law is to acknowledge that the rule, by itself, cannot tell you how it is to be applied in a distinct time and a distinct circumstance. This uniqueness might not, but nonetheless may at any moment, prove to be entirely unsettling to all our previous interpretations of the rule.
Many legal examples might be provided. One will do. In Harrison v Carswell the Supreme Court of Canada was asked to decide whether a union picketer in a shopping mall was entitled to be excluded by the proprietor as a trespasser on private property.16 For the majority of the court, the case was an easy one. Private property equals the power to exclude. A shopping mall is private property. Therefore, the rule against trespass applies. QED. To decide otherwise would be to make an ‘arbitrary’ decision ‘deliberately to abandon the [long accepted legal] principle in the name of justice or of social necessity’.17 Thus, as ever within positivism, justice and the rule of law are pitted against each other. But for the minority, the story was not so simple. Times were changing. Shopping malls were increasingly (and particularly in icy Canada) replacing streets and squares as necessary spaces of public discourse – a transformation even more evident now than in 1975. In this new world, was it right simply to apply the prior rule without thinking about whether that was what the rule, ancient as it was, ought to achieve? Was a shopping mall really ‘private property’ in the same way that a family house or an office block was? Is that how members of the community saw it? What assumptions did our a priori definitions import about the world? How might those assumptions be called into question by the particular narrative in the case before us and the changing times and experiences it brought to our attention?
Wittgenstein most famously said the following:
Someone says to me: ‘Show the children a game.’ I teach them gambling with dice, and the other says ‘I didn’t mean that sort of game.’ Must the exclusion of the game with dice have come before his mind when he gave me the order?18
In short, what kind of a ‘game’ is trespass and is a trespass on this new phenomenon, a shopping mall, the kind of game ‘I had in mind’? We cannot answer that question without thinking in a new and unpredictable way about all the assumptions (about property, ownership, space and the public realm) which our previous interpretations of the rule had left unexamined. This is the power of narrative in law. It throws new light on just these aspects of interpreting a ‘long standing legal principle’, and thereby allows the ‘economic and social facts under the circumstances of the present case’19 to transform their meaning for us. It forces us, as Lawrence said, to revisit and revise our definite conclusions. The majority in this case refused to pay attention to the light new stories throw on old ideas, instead relying heavily on a precedent case itself a ‘strictly legal’ argument made before the Supreme Court ‘without any context of fact’.20
We can see here how the contextual specificity demanded by the exposition of a narrative and a context differs in perspective, ideology and outcome from the blanket a priori application of a rule. Narrative, in law, discourse or fiction, is about novelty – the novel – and so about the challenge of passing judgment under always-new and ever-changing circumstances. At the same time, Lawrence, though critical of the liberal-humanist social-realist tradition, nonetheless recognises in the novel, through its attention to relativity, context and poly-vocality, crucial values of self-questioning, transformation, humour, irony, compassion, specificity ambiguity and doubt. Literature brings philosophy to life but, just as importantly, is an antidote to it.21
Polarity, publicity, and the rule of law
Now such an argument threatens to steer the field of ‘law and literature’ towards the romantic rejection of any rote application of abstract rules and logical reason. We seem to be thrown back upon a universe of instances in which justice is singular, uncodifiable, unrepeatable and spontaneous. There is a second and countervailing element, however, to the connection between literature and justice. The force of literature – the Lawrentian polarities that pull it (and us) in opposite directions, its (and our) Bakhtinian warp and woof of multiple discourses – requires a constant listening and correction of received ideas and a constant adjustment to changing circumstances. This is a public process and not a private insight.
Polarity and the moment of legal judgment
Polarity or undecidability are not simply code-words for unanchored relativism or indeed for orthodox liberalism. Lawrence did not believe in the compromised middle ground. Works like St Mawr or The Man Who Died22 show how passionately he believed in experiencing extremes. That is exactly what is captured by the concept of polarity: Lawrence insists on fully plumbing the depths of quite contrary claims upon us. But at the same time he refused to succumb wholly to one side or the other. In different ways, as we saw in the previous chapter, polarity and polyphony both pull us against ourselves and provide the space that allows for the possibility of a new reading. Clearly that does not permit a final resolution of the issues at stake. On the contrary, however, it permits reflection and renewal to continually take place in law. A decision to refuse to take that opportunity, itself a choice amongst other choices, does not prevent decision-makers from exercising their power to frame and limit a certain result, but it does prevent them from acknowledging or even seeing it. It is that blindness – that dogmatic, insouciant, disavowal of responsibility – that characterises the majority in Harrison v Carswell. Instead, the insistence on the movement from rule to context and back again – feeling the weight of both poles – allows us to see more clearly those social and political forces in our world which impose a single, stable meaning.23
What then does polarity mean in terms of the rule of law and the question of legal judgment? The ‘determinate oscillation’ which swings us between two irreconcilable poles – general and particular, prior rules and new circumstances – is not resolved in any way, only experienced.24 The tension between these two ways of looking at things is ineluctable as the tides. It forces us to rethink our rules, the meaning we give our words, the imagined ‘essences’ of those words, and the purposes that are served by them. But in the end, the decision cannot wait. It is made under conditions of and while experiencing polarity and opposition. The pull of singularity forces us to reflect on what the rule means and accomplishes in this particular circumstance. We are forced to reconsider, to question, to doubt. Our understanding of the rule is thus not static. The pull of generality forces us to take into account the implications of our decisions for other circumstances. Our understanding of those circumstances is thus not unconstrained. There is no one single response to these tensions, only a genuine experience of them and the effort to pay attention to both. The decision that we make, therefore, does not either surrender to the rules or ignore them; instead, it attempts to address them.
Every decision emerges as an unstable and imperfect response to these dynamics. Unlike the romantics, however, we can never expect our decision to transcend or heal those tensions. The judgment we make is an effort to reassess meaning and to question assumptions as circumstances always make us, but the result, whatever it may be, is provisional and open to reconsideration at every moment. Our understanding of the rules may have been either shifted or confirmed by our situation: present circumstances may lead us to reflect on the meaning of the rules we thought we knew, but on the other hand, the pressure of the future may lead us to hold, despite everything, to our prior judgment. Indeed, this is to say no more than Aristotle, ‘for the rule of something indeterminate is indeterminate too’.25 Either way, the new decision we make attempts to impose a new stability and generality on the erring forces that surround us.26