The Anxiety of the Jurist

Legality, Exchange and Judgement

Claudio Michelon, Maksymilian Del Mar

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317044918
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

The contributions in this volume pay homage to Zenon BaÅ"kowski, with a focus on problems concerning law's normalization and the revitalizing force of anxiety. Ranging from political critique to methodological issues and from the role of human rights in development to the role of parables and analogy in legal reasoning, the contributions themselves are testament to the richness of BaÅ"kowski's scholarship, as well as to the applicability of his core ideas to a wide range of issues. Divided into five parts, the book focuses on the role and methods of the jurist; conceptions of legality and the experience of living under rules; jurisprudential issues affecting exchange and the market; and the burden and methods of legal judgement. It also includes BaÅ"kowski's 2011 valedictory lecture and a bibliography of his work. Comprising all original contributions, the contributors represent a balance of established, leading figures and younger, emerging scholars in the field of legal and social theory.

Chapter 1
Introduction

Maksymilian Del Mar and Claudio Michelon

Jurists

To Anglo-Saxon ears, the term ‘jurist’ sounds antiquated. Certainly, it is recognized as an important historical category. It is acknowledged, for example, that in Ancient Rome, jurists had a vital advisory role, providing magistrates, and thus also the parties involved, with a legal language and form for resolving their disputes (see, for example, Schiavone 2012). It is also known that later, in medieval Europe, jurists – or juristae – were said to share ‘the same legal culture, based on the same texts’, that is, the Corpus Iuris Civilis, ‘expounded in the universal language of the educated people, Latin’, and were said to engage in the same task: namely to interpret local law based on their knowledge of, and with the techniques of, Roman law (Stein 1985: 244). Later still, it is said, in the sixteenth century, and influenced by humanism, jurists came to pay more attention to law’s unity and arguably rationality, especially by reference to its coherence, thereby taking on a more recognizably academic function, though also laying the groundwork for the codification movement in the eighteenth and subsequent centuries (see Stein 1985: 248–9 and 252). There is, then, widespread recognition that we have had jurists, and that they have performed vital roles in the life of the law. In contemporary times, however, the term ‘jurist’ does not seem to identify anyone – we have scholars, legal practitioners (barristers, solicitors, in-house counsel and so on), and judges – but not jurists. Furthermore, if anyone did claim to be a jurist, they might well be accused of unnecessary pomposity – something akin to claiming to be a ‘Renaissance man’.

And yet, perhaps precisely because it seems so strange to contemporary ears, reviving the notion of a ‘jurist’, especially in our days of fragmented scholarship, might be a timely excavation. Were this to occur, we would need an initial definition. Here is one attempt, looking back and identifying commonalities across the ages: jurists are persons learned in law, with the abilities and desire to contribute to – to care for – the good of law; for example, its overall coherence and delivery of justice. Theirs is a relatively independent station, one that is not subservient to a particular ideology and thus somewhat removed from the political spotlight, and yet by no means one that is disengaged politically. While interested in particulars, jurists are not involved directly in dispute resolution – they do not serve adjudicatory or representative functions. Their canvas is broad – the whole of law as a public good, a resource for the common weal – but their paintbrushes are at times minute and the work is detailed, with no nook or cranny being overlooked. Their methods and resources, too, are catholic: they are willing and able to combine conceptual, historical and empirical methods, and are open to insights from every stream of scholarship and popular culture. They have one ear to the needs of the institution and its officials, and one to the public. And they work together, in communities, building on past achievements, but not shy to make improvements. In contemporary language, jurists fall into a position somewhere between lawyers, scholars and public intellectuals: arguably, a forgotten somewhere, and regrettably so.

Historically, such a portrait is no doubt idealized. As an exemplar, it may well be too demanding – but no less refreshing for modern times. For it to be helpful, we shall need to put more flesh on the bones: what other characteristics, for example – indeed, what virtues – might a jurist be said to possess? In particular, does a jurist have a temperament, and if so, how might this temperament be of special service to the good of law?

Anxiety

A few years ago, when the editors of this book were taking part in one of the Centre for Law and Society seminars at the School of Law in Edinburgh, one of the participants produced an objection to a particular claim by showing how the acceptance of that claim would generate social anxiety. Zenon Bańkowski immediately interjected, asking: ‘What is wrong with anxiety?’ The ensuing discussion on the subject of anxiety’s pros and cons ended inconclusively.

It is possible to point to a number of cultural leaps that have been produced (at least in part) by a drive to reduce or eliminate anxiety. A common story about the pre-Socratic beginning of Western philosophy sees it as a reaction to the anxiety of a world of contingency and stability, as an attempt to find something stable lurking underneath ever-changing appearances (Guthrie 1950: 23). As the story goes, this is the drive behind Anaxagoras, Anaximander, Thales and that particular philosophical trope.1 In that narrative, the anxiety caused by the world’s contingency and stability, would be the first motor of philosophy.2

Limiting, or even eradicating, anxiety is often placed at the core of the justification of law. In fact, attempts at providing such justification are frequently predicated on the dangers of uncertainty, unpredictability, instability and, in the extreme, anarchy. Lawyers regularly see the minimization of uncertainty as part of the legitimation of their institutionalized practice. Many grudgingly admit that uncertainty might be unavoidable and even sometimes useful, as when a vague concept might be placed strategically in legal sources to leave some scope for legal discretion (however weakly or strongly discretion might be conceived). But by and large law is seen to be there to respond to this great anxiety about instability and uncertainty.

The views of these lawyers and those of pre-Socratic philosophers are not too far from each other. Moreover, in responding to anxiety negatively, by trying to eliminate it, their attitude mirrors most people’s attitudes when oppressed by anxiety. Anxiety implores resolution. So, on first blush, it would seem that one is in good company in surmising that anxiety is something negative – something that needs to be tackled and overcome.

Yet the very fact that the development of both philosophy and law might have been partly caused by anxiety should give us pause for thought. Perhaps anxiety has had a bad press, after all. The fact that anxiety and the drive to eliminate it are co-original might explain the tendency to focus on its negative aspect. Closer inspection, then, might assist us in seeing anxiety in a more positive light: as a driving force for change, and as a powerful energy against stagnation. It is true that sometimes anxiety might be numbing, but the absence of it is always so.

The Anxious Jurist

Zenon Bańkowski, to whose work the contributions in this volume pay homage, has spent most of his career trying to come to terms with the stability of law, with its tendency to normalize what is contingent, to simplify what is complex, and to make invisible what would otherwise be manifest. In performing those roles, law is not necessarily doing a bad thing, as normalization, simplification, and even concealment, might be productive, at least in certain contexts (or so the Bańkowski of Living Lawfully (2001) seems to believe). From that, however, one cannot (and should not) conclude that the performance of those roles is either always advantageous or intrinsically connected to law. From the claim that law performs its many functions by facilitating this normalization, simplification and concealment it does not follow that law would be better realized the more it normalizes, simplifies and conceals. Those coping strategies often connected to law need to allow for the irruption of contingency and complexity. The complete elimination of the anxiety caused by those destabilizing events would also eliminate law’s capacity to evolve, learn and adapt. That is not to say, of course, that legal systems would not be able to change. Changes in the formal sense would still be possible through the application of the relevant rules of change, but those modifications would always come from outside law.

Bańkowski’s intellectual project is one of denouncing the excesses of law’s attempt to eliminate anxiety, and keeping in check the tendency to expand its normalizing role beyond an appropriate limit. But anxiety plays a double role in Bańkowski’s work. It is, as we have just seen, what he investigates, but it is also present as a driving energy of his thinking. Everyone who knows Bańkowski also knows his anxiety about his own work. His attempt to understand normalization has moved from a more radical rejection of law’s role in concealing the truth (in Images of Law – 1976) to the more nuanced approach that tries to understand law’s normalization as in some way productive, which we find in his later work (in Living Lawfully and in the ‘Beyond Text in Legal Education’ project, for example). This is a shift arguably marked by an anxiety that his previous work had not recognized the values of law’s normalization, and at the same time it is a shift that constitutes the taming of anxiety (that non-normalizing force within law). Anxiety, then, is both the spirit and substance of Bańkowski’s work.

The depth and complexity of the ways in which Bańkowski approaches these problems, as well as the continuities and discontinuities between these Bańkowskis, cannot be done justice in this short introduction, but all are explored in the contributions to this volume. In their own distinctive ways, then, all the contributors included here paint a portrait of Bańkowski as an anxious jurist in that double sense: of the jurist who is anxious, and of the jurist concerned with anxiety as a value.

Contributions to This Volume

The contributions to this volume discuss many related aspects of Bańkowski’s engagement with the problems around law’s normalization (and thus also the revitalizing force of anxiety). They range from political critique to methodological issues, and from the role of human rights in development to the role of parables and analogy in legal reasoning. The breadth of contributions is in itself a testament to the richness of Bańkowski’s scholarship, as well as to the applicability of his core ideas to a wide range of issues.

Earlier versions of the chapters in this volume were presented at the workshop organized by the editors in Edinburgh, in August 2011, under the auspices of the Edinburgh School of Law. The workshop was intended to commemorate Bańkowski’s career as he approached retirement, and brought together many (but certainly not all) of the scholars who were deeply influenced by his ideas and by his generous attitude in his teaching. Some are former colleagues, some are former students, and some are both, all sharing the sense of having been affected intellectually and personally by their contact with Bańkowski.

The contributions in this book relate in complex ways to one another, and are grouped together in four parts sandwiched between this introduction and, in the fifth and final part, Bańkowski’s valedictory lecture (delivered in Edinburgh in June 2011), Neil Walker’s afterword and a bibliography of Bańkowski’s work.

Part I: The Jurist at Work

The focus of the first part of the book is on the role and methods of the jurist. The first contribution, Chapter 2 by Roger Cotterrell, engages directly with the role of jurists. That role, he argues, is of safeguarding and promoting law’s general well-being. Under a role so conceived, jurists are not wedded to any particular discipline (philosophy, sociology, theology and so on), nor to any particular aspect of legal practice. Instead, they are committed to the worth of law, including its clarity, coherence, fairness, consistency, reputation, accessibility, enforcement and effectiveness. Cotterrell recognizes that any further understanding of the juristic role requires attention to historical context, and he thus examines the work of two jurists: Gustav Radbruch (1878–1949) and Ronald Dworkin (1931–2013). Both Radbruch and Dworkin were committed to understanding law as a value-laden cultural phenomenon (where those values are seen to be subject to ongoing evolution), and to engaging with specific legal issues in both time and place. They differed radically, however, in their styles: where Radbruch was hesitant and uncertain, Dworkin was confident and ambitious. In his mix of general and particular analysis of jurists, Cotterrell’s piece provides the ideal opening salvo for a collection focused on the anxiety of the jurist.

As noted above, to live the life of a jurist is to be engaged, to be morally concerned and politically astute. Arguably, this kind of life must be difficult – it must be, precisely, anxious. Some of the difficulties of living that life are identified and discussed in Chapter 3 by John Holmwood, who, drawing on the history of sociology (his own discipline), calls for a renewed engagement with social inequalities. Holmwood observes that whereas sociology was born in passionate dissatisfaction with ‘liberal public reason and its embrace of the market and associated theory of the possessive individual’, it has more recently lost that sense of anxiety and urgency, acquiescing to the normalization of social inequality. Bringing to bear the work of John Dewey on the idea of the public, and George Herbert Mead’s idea of the social self, Holmwood reinvigorates not only the sociological project, but also the transdisciplinary, or even non-disciplinary, responsibility for social justice. In doing so, he articulates a vital dimension of the task, and the ceaseless burden, of an anxious jurist.

Chapter 4, by Maksymilian Del Mar, investigates another dimension of the juristic role: its mode of expression and means of thought. More specifically, the chapter explores the role of images in (legal) philosophical thought. Del Mar argues that philosophers frequently neglect how often they use, and how much they rely on, images – one need think only of Plato’s cave, Hegel’s owl, Locke’s tabula rasa, Wittgenstein’s language games and Quine’s web of belief, to remind oneself how pervasive are such images. They immediately bring to mind certain ideas and arguments, but also philosophical temperaments. After considering the role of images in philosophical methodology, Del Mar then develops an account of Bańkowski’s imaginary – that is, the stock of images that appear in his work – and the roles that those various images play. Bańkowski’s imaginary is full of anxiety: for example, it consists of unresponsive ATM machines, hungry tigers, and messages broadcast in a language that nobody understands. Even at its most abstract, Bańkowski’s work is replete with such images, all of which play a vital role in his portrayal of the moral fragility of law and the legal life.

The final chapter in this part – Chapter 5 by Adam Czarnota – continues the theme of moral responsibility, posing the question: what approach ought we to take to the past, particularly when that past involves such atrocities as the Holocaust, genocide, war crimes, colonization and the slave trade, to mention just a few? How, in other words, can we have a history that manages a ‘delicate balance between remembering and forgetting’ – a history in the service of life? The issue is of profound importance for jurists, who need to examine and evaluate the role of law and legal institutions in dealing with the past. Czarnota argues that there is a moral obligation to face the problems of the past with as much openness as possible. As he puts it, ‘a difficult past can be suppressed for a while, but then will return and create more problems’. Such open dealing of the past is done for the sake of both the present and the future. Crucially, such open dealing needs to have a public character as well as some authority. Law has these characteristics – it has, in other words, ‘peculiar institutional authority’ – and this is what renders it the most appropriate forum for dealing with the difficult past. However, the kind of legal mechanism that ought to be adopted is not a retributive one, but rather a constitutional one – that is, a process of ‘reshaping ourselves and our societies’.

Part II: Legality

The second part is dedicated to exploring different aspects of Bańkowski’s conception of legality. Claudio Michelon’s contribution in Chapter 6 attempts to explain the ethical framework that would make it possible for lawyers develop an ability to respect legality by sometimes deciding the reverse of what law seems to require. This ability to ‘fulfil the law by breaking it’ is at the centre of Living Lawfully’s conception of legality as being able to occupy the ‘middle area’ between the many oppositions it should hold in tension (universal/particular, aspiration/duty and so on). This framework, according to Michelon,...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• List of Contributors
• 1 Introduction
• PART 1: THE JURIST AT WORK
• PART 2: LEGALITY
• PART 3: EXCHANGE
• PART 4: JUDGEMENT
• PART 5: LOOKING BACK/LOOKING FORWARD
• Index