Love and Law in Europe

Hanne Petersen

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429778940
• Edition: 1
• Topic: Droit
• Subtopic: Théorie et pratique du droit

First published in 1998, this volume aims to draw attention to an ongoing shift in the perception of law, which is now increasingly understood as a cultural and historical phenomenon. As other such phenomena – like music, literature, or art – it is acknowledged that it is created in a specific environment, on which it is dependent for its functioning and interpretation.

The historical aspects of love in a European and Nordic context are underlined, as well as the modern understanding of love and law as incompatible and contrasting concepts. Developments within the European Union and especially the relation of the EU to so called third country nationals and immigrants demonstrate that the problematic concerning law and love is not only one of legal philosophy but also of legal and everyday reality.

The claim that love has been specifically 'European' is discarded as Eurocentrist, and the need for more particular emotions and a more pragmatic approach to romantic feelings, for a 'reasonable love' is discussed from legal, feminist and philosophical perspectives.

On Love and other Injustices. Love and law as improbable communications

KOEN RAES

Let me not to the marriage of true minds
Admit impediments. Love is not love
Which alters when it alteration finds,
Or bends with the remover to remove;
O, no! it is an ever-fixed mark,
That looks on tempests and is never shaken;
It is the star to every wandering bark,
Whose worth's unknown, although his height be taken
Love's not Time's fool, though rosy lips and cheeks
Within his bending sickle's compass come;
Love alters not with his brief hours and weeks,
But bears it out even to the edge of doom.
If this be error and upon me proved,
I never writ, nor no man ever loved.
W. Shakespeare, Sonnet 116

1. Love's discourse

Writing about love, as something external to the game of language, as an object of inquiry that may be observed, analyzed and valued by means of words and sentences which do not themselves express love, raises some puzzling difficulties. First, love is part of a culturally embedded 'practice', in the sense MacIntyre defined it, and appears, on that behalf, to be understandable only as an 'internal good'; one cannot 'know' what love 'is' unless one understands the 'practice of loving' within western culture and perhaps one cannot know what love 'is' until one loves and is loved. Second, love presents itself as covering the domain of the unspoken, as being beyond speech, as an emotion that cannot be uttered or expressed by words. Language can only be a poor expression of what love really is.

According to Foucault, the launching and circulation of particular discourses on certain issues that were for a long period almost taboo, should not be taken as a sign of greater openness and understanding (Foucault, 1976). On the contrary, they may be tools to restrict and to 'normalize' what formerly remained unproblematic. The 'will to know' and the resulting free flow of information are not, by definition, liberating forces. Thus, 'la mise en discours du sexe' became, during the 19th century, the very tool to discipline, and to control the 'sexual appetite' and to reduce eroticism as an ars erotica to sexuality as a scientia sexualis. Could it, in a similar vein, be argued that 'la mise en discours de I'amour' is only a way to shape it within normative boundaries? Is increasing talk about love rather a sign that love becomes the object of normalizing forces than an expression of its liberation? Shouldn't love be recognized as being beyond speech and belonging to the mystical domain Wittgenstein referred to in his conclusion to the Tractatus: 'Worüber Man nicht sprechen kann, darüber muss Man schweigen'?

Apparently not. The relation between love and language is not simply comparable to the relation between sexuality and language. Talk about love did not as easily as talk about sexuality give rise to a 'scientification' of its subject, although it should be admitted that in the modern era, love is often approached from within a 'therapeutic perspective', as being a 'means' toward happiness, satisfaction and 'the good life' and thus becomes part of the cult of privatism with obvious political implications (Lasch, 1977).

But the relation between love and language is in the main not so instrumental and extrinsic. On the contrary, it could be argued that love only exists in and through language, that it was by means of speech acts-the songs of the troubadours, lyric poetry and love letters-that love was created, as a cultural artefact, so to say. 'Il y a des gens qui n'auraient jamais été amoureux s'ils n'avaient entendu parler de l'amour' wrote La Rochefoucauld in the 18th century. And indeed, it is hardly possible to overlook the influence of books such as La Nouvelle Héloise by Jean Jacques Rousseau or Die Leiden des jungen Werthers by Johann Wolfgang Goethe on the dissemination of the romantic love figure in 19th century Western culture and which made modem love so radically different from the seductive games described in Chloderlos de Laclos' Les liaisons dangereuses.

Language is not extrinsic to love. Love does not exist independent from any written or speech act. Rather than being difficult to grasp in language, it is created and recreated by it. Love longs for language for its confirmation. Language arouses love. For the language of love, it may indeed be true that 'il n'y a pas de hors texte'. The 'unspoken' mystery of love is not opposed to speech. It is permanently suggested, fostered and excited by it. In language, love longs for incessant confirmation of its existence. Language may be expressive both of the longing for a beloved one and of the longing for love itself. Language may provoke love for the sake of love.

2. Law's negation

If the culture of western love is integrally related to the culture of the written word, this could be interpreted as a point wherein love resembles law. For law too is intrinsically discursive, requires language for its foundation, validation and operation.

Yet, even if love shares its 'discursivity' with law, its language game is structured in radical opposition to legal discourse. Whilst love was, for a long time, an external challenge to the legally structured marital bond, existing independent from it and not aiming at replacing it, it became in modern times the very foundation of marriage, without thereby losing its nature of contradicting all of legality's presuppositions.

In the history of western ideas, the dominant script about love and loving relationships depicts them as the very negation of the ideas of law and legality. In love persons meet one another in their wholeness and total complexity, whilst any legal relationship is characterized by more or less traceable boundaries and identities. Love is radically personal and particularistic; there is no such thing as universal love (the humanist proclaiming his love for 'humankind' therewith proves never to have known love at all, wrote Sartre in La nausée). Law aims at generality, without making distinctions based on personal traits of character. Law facilitates social bonds between strangers or unencumbered selves'. Love is an intimate bond between significant others. The intrinsic spontaneity and emotionality of the loving affection contradicts the idea of rule governed behaviour that is fundamental for law. Love implies involvement, law requires detachment, love implies partiality (is partiality), law requires impartiality. According to authors such as Aubert (1967), Unger (1976) or Luhmann (1982)-is it a mere accident that so many sociologists of law (including Marx) took an interest in love as 'the very negation of law'?-love is all that law cannot and may not be. Love is spontaneity and uncertainty, it is unreasonable and unpredictable. Love is unconventional, unjust and challenges all of morality. Legal relations are calculative and cool, love relationships are irresponsible and hot. Love is described as a mental illness ('une folie à deux'), aroused by a poison and enslaving the subject. Love is unlawfulness.

Ever since Hume introduced the radical distinction between reason and desire, declared reason itself devoid of content and saw desire as a mere bundle of appetites without any consistency or rationality, no satisfying relation between both could be established (Unger, 1975). The struggle between 'reason' and 'desire' developed into one of the major subjects of ethical theorizing with on the one hand philosophers such as Kant, taking sides with pure, formal reason from which all moral rules should be derived if moral obligation is to be autonomous (deriving morality from desire would result in a heteronomous morality) and, on the other hand, philosophers such as Bentham, who agreed that no substantial morality could be derived from desire, but argued that the maximization of pleasure could be used as a normative, instrumental yardstick to found moral rules. Reason became thus either part of a non-natural realm or the (instrumental) slave of our passions. Reasonable desires are a contradictio in terminis; the relation between reason and desire is either a relation of domination, when reason disciplines the passions, or a relation of maximization, when reason is dedicated to developing the most efficient means to realize a non-reasonable goal. In both, reason and desire are extrinsic to one another. This great divide still dominates western moral thinking and, more generally, western culture as a whole for the struggle between reason and desire became one of the central themes in modern art production.

Law, belonging to the realm of ('public') reason, privatized desire and with it the object of masculine desire, the woman (Elshtain, 1981; Pateman, 1988). Love became obsessive possession by men, unconditional surrender by women and both sentiments were extra-legal. Love could not be considered an element of legal relations. But it became, nevertheless, the motivating force underneath one of law's and society's most important institutions: marriage. Love was recognized as the non-legal foundation of legal obligation.

3. The manifold sources of western love

The culture of western love has its roots in a variety of traditions. One of these traditions is religious and evolved from the christian faith in an outer-wordly realm of true alliance, as the very negation of the inner-wordly vale of tears. The more Christianity worshipped a contemptus mundo, vitae et homini, the more it could foster the longing for a kingdom of eternal grace, guaranteed by god, the very negation of ail earthly worries. Religious faith required absolute surrender and exclusiveness, and so does love (Ortega Y Gasset, 1969). The tremendum and fascinans emanating from the sacred is also present in love's contemplation of the beloved one, whilst the loving union in the orgasm can be compared to religious ecstacy, as a feeling which transcends finite beings. Making loving is making the supreme sacrifice. Both love and religion aim at immortality, at the confirmation of life beyond death. (Bataille, 1957) Monotheism and monogamy seem to be interrelated: 'one god, one lover'. There are strong affinities between the meaning of religious 'faith' and what is implied in the 'faithfulness' of lovers. Not accidentally, the catholic church saw in the loving relationship between mortals a strong rival, so as to prohibit the clergy to be involved in 'earthly love'. Priests and nuns should only worship one god and in order to spread the universal religion, priests are not allowed to entertain particularistic relationships. As Plato's guardians, their cause should be the civitas dei, not the communitas amori.

A second tradition is religious also, but has, according to De Rougemont (1956), its roots rather in oriental religion, in the cult of ems, rather than agape. Here, faith becomes a real passion and aims at mystic union-often with explicit erotic undertones-with the divine. The mystic culture of love is a culture of the longing for an orgastic elevation to the purest form of community with god. The 'élan suprême' of mystic love aspires to an 'uplifting' from the earth, a 'dépassement infini', the ascension of man to god, which is a point of no return. In a way, love is here the longing for the 'Aufhebung' of any wordly limitation, for dissolution into something or someone else.

Another tradition is the culture of courtship and chivalry with its games of 'dating' and 'mating', its playfulness and gallantry, yet also its pathos and sincerity. The culture of courtship was profoundly erotic and directed to bodily satisfaction. Simultaneously however, it somehow entertained already the message which Kierkegaard elaborated in his Journal of a young seducer, that desire could be more intense than satisfaction, either as the ex ante desire of a lover awaiting his beloved one or as the ex post desire of a lover remembering a passionate night.

The fourth tradition is Dyonisian and has been firmly opposed by the church who rather stood for the Appolonian tradition (Paglia, 1990). In more recent times this tradition developed into the culture of expressive individualism, as it arose from the romantic era. Romantic love stands in the sign of authenticity, the purely human ('rein menschliche') 'union' of two souls and bodies, sharing a common we-identity which is in total harmony with 'nature'. Love is here an aspect of the self-realization of a person through another person, an expression of true emotions, sincere feelings and real humanity which is opposed to 'society', with its alienating codes and roles. Love is not only a feeling, but also a desire for reciprocal bodily satisfaction; it is sensitive and sensual, erotic and sexual, natural and spontaneous.

Although these traditions have in common that they all imply lovers to take some distance from society (its rules, conventions, its public sphere and norms) and to experience love in some secret space, as an 'égoisme à deux', and although they have in common a total neglect of procreative solicitudes (although this biological consequence of 'loving' was always present as a somewhat alien danger) thereby clearly illustrating a gendered bias in favour of a male approach to love, their combination could not but result in contradictions; between the longing for eternity and the longing for sexual gratification, between playing according to particular codes and expressing one's true feelings, between expressiveness and faithfullness etc. Modern love, that is, is in itself already a bundle of tensions and contradictions. Confronted with law they result in contradictory forms of life. Western love aims at combining unreconcilable aspirations and the western culture of love is indeed nothing else but the never ending story of the confrontation of love's manifold desires.

Love's esthetical caprices cannot but irritate the seriousness of love's ethical commitments whilst love's longing for bodily-and thus finite-union stands in the way of love's religious quest for eternal salvation.

Kierkegaard tried to integrate some of love's directions, by putting them into succesive stages. He exalts passionate love as the supreme value in the esthetical stage of life, argues that this love exceeds itself in marriage as the supreme value of the ethical stage of life and finally condemns marriage as a major obstacle to the religious stage, because it binds us to innerwordly temporality whilst true love seeks eternity. (Kierkegaard, 1943) Most people, however, do not live such ordered (?) lives and are rather involved in a incessant quest for the simultaneous satisfaction of all of love's promises.

4. Marriage as love's ethics?

Whilst the legitimacy of eternal commitments was radically questioned in the legal conception of personhood and obligation as they resembled slavery, only in love such an eternal bond-or at least the longing for such a bond could persist as it reflects the very essence of the loving effect. Persons may love different persons at different moments of time so that it seems as if love is only a temporary engagement, limited in duration. But any loving relationship contains and is built upon the promise of eternity and is as such legally enacted ('till death parts us'). It would be contrary to the understanding of love to put in advance a term on the relationship and no empirical knowledge about the factual temporary nature of love relationships and the resulting 'polygamy over time' is able to change this fundamental a...

Table of contents

• Cover
• Half Title
• Title
• Copyright
• Contents
• Introduction
• The Language of Emotions in the Language of Law
• On Love and other Injustices. Love and law as improbable communications
• Law, Love and the Contestability of European Community
• Family Reunification: Who Pays for Love in Europe?
• Notes on Fassbinder's "Angst essen Seele auf"
• Hagbard and Signe. A Medieval Tale on Tragic Love. From the History of the Danes
• Saxo Grammaticus, Love and Law. The Tale of Hagbard and Signe
• Legal Cultures, Affection and Community
• Traditional Latvian Culture: Pragmatism and Love
• Masculinity, Psychoanalysis and Politics
• Love and Europe: Cultural Trends in the 1930s
• List of contributors