Law's Task

The Tragic Circle of Law, Justice and Human Suffering

Louis E. Wolcher

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317107255
• Edition: 1
• Topic: Law
• Subtopic: Jurisprudence
• Index: Law

What is the ultimate task of law? This deceptively simple question guides this volume towards a radically original philosophical interpretation of law and justice. Weaving together the philosophical, jurisprudential and ethical problems suggested by five general terms - thinking, human suffering, legal meaning, time and tragedy - the book places the idea of law's ultimate task in the context of what actually happens when people seek to do justice and enforce legal rights in a world that is inflected by the desperation and suffering of the many. It traces the rule of law all the way down to its most fundamental level: the existence of universal human suffering and how it is that law-doers inflict or tolerate that suffering.

Chapter 1

A Summary of Themes

A writer is like a rat who builds the maze from which he sets out to escape.

Raymond Queneau (Polizotti 2007, 48)

If this book were called ‘The Task of Plumbing’, it would probably contain helpful advice on how to make objects such as sinks and toilets perform properly. And indeed, there are many important volumes on law and justice that treat legal institutions as objects or entities in this sense: their premise is that law’s task is to make something called ‘the law’ or ‘the practice of law’ work better. Reprising the ancient antithesis between Plato and Aristotle, the idealist insists on the primacy of the idea of law over its implementation, while the realist insists on the primacy of the social practice of law over its idea. But at the end of the day, both approaches essentially conceive of legal institutions as useful appliances, like sinks and toilets. The present work does not conceive of law and justice in this way. Nor does it seek a definitive solution to the problem set forth in its title (‘Law’s Task’) that could be rightly characterised as pragmatic or useful to some predetermined end. No theory (or recipe) for how to do law or achieve justice will be found in these pages.

In a world that tends to judge a project by its immediately verifiable practical utility, a philosophical journey such as this one always faces a peculiar difficulty: it is incapable of letting its readers know ‘right away’, so to speak, both the end to which it leads and the path of thinking that leads there. Hegel’s denunciation of prefaces (1977, 1–3) famously illustrates this difficulty, as does Wittgenstein’s warning to the audience at the outset of his 1929 ‘Lecture on Ethics’ (1993, 37):

[T]he hearer is incapable of seeing both the road he is led and the goal which it leads to. That is to say: he either thinks: ‘I understand all he says, but what on earth is he driving at’ or else he thinks ‘I see what he’s driving at, but how on earth is he going to get there’. All I can do is again ask you to be patient and hope that in the end you may see both the way and where it leads to.

If it is true that books which aspire to be genuine works of thinking can unfold their insights only if one is patient with them, then authors of such books would be wise to give their readers at least some perspicuous indication of the whole before asking them to be patient. I will therefore briefly summarise the basic structure of the book in this chapter, while asking the reader to keep in mind that the ideas mentioned below can be properly understood (and justified) only by their subsequent, unabbreviated development.

Broadly speaking, the present work attempts to think five distinct yet dialectically interconnected points, or themes: (1) the problem of philosophical method, or how best to think about law’s task (Chapter 2); (2) the relationship between legalised human suffering and the responsibilities of those who perform law’s task (Chapter 3); (3) legal violence and legal meaning (Chapter 4) in relation to the outer limits of reason in legal interpretation (Chapter 5); (4) the connections between the ubiquitous practice of attempting to ground human behaviour in the ‘contents’ of legal and moral norms and certain widely accepted beliefs about the nature of time and temporality (Chapter 6); and (5) the irremissibly tragic nature of law and justice (Chapter 7). The foregoing list of general themes can be further shortened to five words: thinking, suffering, meaning, time and tragedy. Inasmuch as the book’s meditations on law and justice attempt to think these five themes both individually and as a whole, the remainder of this chapter will provide a preliminary map of the territory (or maze) through which we will be travelling.

Thinking

Chapter 2 seeks to determine the most appropriate philosophical method for thinking about the book’s guiding question – ‘What is the ultimate task of law?’ – and to elucidate the special meaning the question will have in the context of these investigations. Traditional legal theory tends to focus exclusively (if not obsessively) on two questions: ‘What is law?’ and ‘Why is law?’ Chapter 2 exposes the metaphysical limitations which surround these questions, as well as the related question, ‘What should law be?’ There is an important sense in which questions of the form ‘What is X?’, ‘Why is X?’ and ‘What should X be?’ are pre-philosophical, or at least pre-critical, whereas the distinctly phenomenological question ‘How is X?’ is the most fundamental philosophical inquiry of them all. ‘How’ comes first because we always have to be experiencing the world somehow or other before it ever occurs to us to ask about something’s what, why, or should. Properly understood, what, why and should are how’s children, not its siblings. Thus, I will claim that to acquire a genuinely critical understanding of human law-doing one must first ask not what or why law is, but how law’s task is performed.

The question ‘How?’ brackets or transcends the formal distinction between a state of normalcy and a state of exception in the law. Agamben (2005, 4), following Carl Schmitt (1985, 5), defines a state of exception as a special kind of law that suspends the legal order itself in response to a so-called ‘national emergency’. Hitler’s 1932 ‘Decree for the Protection of the People and the State’, which suspended the articles of the Weimar Constitution concerning personal liberties, was one such state of exception, as was the ‘military order’ issued by President George W. Bush on 13 November 2001, which authorised indefinite detention and trial by military commission of certain non-citizens suspected of involvement in terrorist activities (see Agamben 2005, 2–3). These examples illustrate a legal phenomenon that has become increasingly common in today’s world, even (or especially) in so-called democratic societies: the attempt to create a law that would negate the very rule of law itself – to use the law to define the law’s own threshold or limit. Like the ancient Paradox of the Liar,1 the words which express the state of exception attempt to say, paradoxically: ‘I am the law, and I say there is no law.’

This book’s investigations into law’s task are not confined to the sphere of decisions which claim that they are based on pre-established law, for there is something ineluctably law-like about any human attempt to inscribe limits to the law, whether the one who draws the line stands within the legal order or outside of it. This is most obvious, of course, when a judge rejects a legal claim on the ground that the person against whom it is asserted enjoys a legally guaranteed ‘liberty’ interest. Here it is none other than the judge’s decision on the legal norm qua ‘law’ (e.g. the Bill of Rights) which establishes that private power is allowed to exert itself in ways that are unmediated by public power. From the point of view of the judiciary, there can never be what Hans Kelsen (1992, 84) calls a ‘genuine gap’ in the law, since judges must always legally dispose of the cases before them somehow, no matter how frivolous or difficult the underlying claims may be.2 In all judicial cases where a legal norm is held ‘not to apply’ to a particular situation, it is the judge’s decision on the law itself which gives rise to the ‘negative norm’ (Kelsen 1992, 85) that the defendant is free to do or forbear from doing.

What is true in the case of the ordinary juridical decision between right and no-right on the basis of the law is also true in the case of the extraordinary sovereign decision to suspend the law on the basis of necessity. The sentiment expressed in the venerable saying necissitas non habet legem (‘necessity has no law’) may distally trigger a sovereign decision on the exception, but the decision itself is quintessentially legal: it establishes the law that there is no law. ‘What opposes unites’, says Heraclitus (1985, 15), and in this case he is right: although the decision that necessity requires a suspension of the law may have no law in its origin, it gives law in its result (cf. Agamben 2005, 27). Law-preserving power, law-making power and law-suspending power all pertain to law’s task because those who wield these three forms of power all crave and seek the kind of popular legitimacy that only the words ‘the law of the land’ can bring, and because there is an essential nexus between human suffering and any sort of attempt to legally legitimate it. In short, the labour of announcing and applying a law against laws is no less a manifestation of law’s task, as the concept is used here, than the labour of announcing a new law, or applying an existing one. A decision ‘based on’ the law uses law’s authority the way an advancing warrior wears a shield on his back – to guard against the risk of friendly fire. A decision ‘to make’ or ‘to suspend’ the law uses law’s authority the way an advancing warrior pushes his shield ahead of him – to overcome enemies. Either way, a shield is a shield.

Thus, the judge who announces a decision is performing law’s task, but so too is the dictator (or the president) who suspends the law by a decree intended to have the force of law. Pascal (1941, 103) gives an ironic clue as to why this is so: although it is right to obey what is just, he says, it is also necessary to obey what is strongest; but since human beings cannot seem to make what is just strong, they usually settle for making what is strong just. Unfortunately, history teaches us that all too often merely calling what is strongest ‘just’ is what counts as making it so. There seems to be a widespread human tendency to kneel and genuflect to existing legal arrangements, boundaries and limitations, whatever they may be and however much suffering they produce, so long as they provide the masses with a minimally acceptable level of stability, or ‘law and order’. Given that most people tend to behave like sheep when it comes to confronting legalised power, no genuine critique of the law’s relationship to universal human suffering can afford to ignore any of the many ways in which that relationship is manifested.

It follows that the thinking attempted in this book cannot dwell overmuch on ‘what’ law’s limit is. Pursuing that problematic is no different in principle than what people do when they christen what is strong – or what they would like to become strong – with the word ‘just’. Although it may be very useful politically, such a procedure leads to the construction of a theory of division – law versus non-law, justice versus injustice, or sovereign power versus non-sovereign power – that overlooks the tragedy of dividing human suffering as such. In contrast to the foregoing problematic, this book attempts to bring to language what is going on (i.e. what shows itself in appearing) whenever real human beings (I call them law-doers) purport to act in law’s name or with its support – whether they think they are following the law or creatively interpreting it, applying it or making exceptions to it, affirming it or suspending it.

Chapter 2 also introduces the familiar idea that all legal performances ultimately consist in a kind of inter-human violence that is legitimated by little more than the vagaries of history. Only history’s winners get to make law, and whether it is good law or bad law is completely irrelevant to its painful origins in concrete historical struggles. As I indicated in the preface, the book also interprets legal performances as singular deeds concentrated in the time of the present – that is, they are actions that always take place, if at all, right now. This implies that law-doing is the inescapably present use of force (including the explicit or implicit threat of force) by certain individuals who invoke the authority of law against other individuals. Moreover, any reasons that law-doers may offer to justify their activities – whether they say they are seeking to enforce their legitimate rights, secure justice, practice domination for its own sake, or achieve any other goal – do not diminish, by even one iota, the painful nature of their methods.

Suffering

Chapter 3 brings out a simple but disquieting feature of all known institutions of law and justice: namely, the fact that they are intimately connected to the phenomenon of human suffering. On the one hand, law and justice, taken at their most fundamental level, divide primordial human suffering, and moreover, they create still more suffering as the intended or unintended consequence of their very act of dividing it. On the other hand, it is also true that without the persistent suffering of human dissatisfaction with the given, there would be nothing for law and justice to divide. It follows that these institutions exist (and continue to exist) only because people long for a world that differs from the one in which they presently find themselves. For example: the typical plutocrat craves less taxes and more security for his wealth; while the typical torture victim craves less physical pain and more liberty for his body. To paraphrase the British historian Sir Lewis Namier, in both cases the suffering of people’s craving desire for what they take to be a better world is the music to which legal and political ideas are a mere libretto.3

Since human suffering is both an origin and a consequence of the coercion that law perpetrates in the name of justice, it is imperative to think through the relationships that subsist between legal institutions and what I call ‘universal human suffering’. The latter concept is quite literally universal: it includes each and every instance of human dissatisfaction with the given. Here one can find all of the misery that humans are heir to, in whatever form it takes and whoever experiences it. The thought of universal human suffering can be scandalous, because it appears to draw no distinction between the sufferings of the oppressed and the sufferings of their oppressors. To borrow one of Wittgenstein’s metaphors (1993, 40), if there really were a ‘Big Book’ that recorded all of mankind’s countless sufferings, then murders and other horrible outrages would stand on exactly the same level as any other event mentioned in the pages of this massive tome. Even though law and politics might later attempt to establish an essential difference between those who oppress and those who are oppressed, the class of universal suffering to which they both belong logically precedes its division into conventionally reassuring subcategories such as right and wrong, lawful and unlawful, and just and unjust.

To think otherwise is not to think at all, but rather to accept conventional legal and moral categories without being willing to trace them to their roots. While it may seem unpardonable to mention the sufferings of plutocrats and the sufferings of torture victims in the same sentence, merely noticing that both are instances of universal human suffering is not the same as arguing that they are morally equivalent. Please understand that this book does not advance an agenda that is meant to be ‘anti-law’, ‘anti-justice’ or ‘anti-human rights’. It does not seek to prove that the various modes of suffering which are created and sustained by law and justice are somehow ‘bad’ or ‘wrong’, or that the rule of law produces no other effects that might be counted as ‘good’ from the standpoint of this or that credible value orientation. The point is not that the burdens inflicted by law are (or are not) outweighed by the benefits it creates. Strictly speaking, the questioning attempted in this book is prior to any pragmatic calculus of costs and benefits. I simply want to investigate – and bear witness to – the much-neglected fact that, whatever else may be said about law and justice, they just are intimately connected to the ceaseless historical production and reproduction of human suffering.

And why, pray tell, might one bear (or want to bear) witness to this connection? After all, reason in most of its traditional Western forms not only condemns ‘immoral’ acts that hurt other people – it also frowns upon any manifestation of ‘excessive’ concern and compassion for the suffering of others. Conventional reason acts on the basis of what Gary Younge (2007a, 12) has called the ‘corrosive notion of the worthy victim’. This means that reason loves only the right amount of love for the right people – a tendency that is hardly conducive to approving of this book’s apparently promiscuous ethical framework.

In A Matter of Principle, for example, the liberal legal philosopher Ronald Dworkin (1985, 83–7) draws a sharp distinction between ‘bare harm’ and ‘moral harm’, and suggests that only the latter need concern us as ethical beings. Bare harm, he says, is merely ‘subjective’, and occurs whenever a given deprivation causes a person pain or frustrates plans he deems important in life; but moral harm is ‘an objective matter’, whether or not bare harm occurs, since its status is vouchsafed by the existence of objectively valid moral norms and principles. To anyone who thinks about human suffering in this way, this book’s concern for all of mankind’s many woes must seem quixotic, at best, if not downright incomprehensible.

Nevertheless, there is an eerie (and troubling) resemblance between Dworkin’s notion of ‘bare harm’ and Agamben’s previously mentioned concept of ‘bare life’. As I noted in the preface, those who fall under the latter concept are logical products of a state of exception: the law, which refuses to treat such beings as juridical persons, at most is willing to tolerate their merely biological existence. Thus, one might say that ‘bare harm’ is the most that could ever happen to someone who is possessed only of bare life. Like the ancient Roman figure of homo sacer on which its concept is based, bare life lies beyond the pale of what the powers-that-be are prepared to call the ‘objective’ law. In the form of the concentration camp inmate or terrorist detainee, for instance, the possessor of merely bare life experiences suffering that the legal order interprets as wholly ‘subjective’ and beyond its reach.

Moreover, even if conventional morality were to condemn the law for permitting or tolerating such a state of affairs, this would only hap...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• List of Figures
• Series Editor’s Preface
• Preface
• Acknowledgements
• 1 A Summary of Themes
• 2 The Guiding Question
• 3 Suffering and Ethical Distress
• 4 The Problem of Legal Meaning
• 5 The Limits of Reason in Legal Interpretation
• 6 The Times of Law and Religion
• 7 The Tragedy of Law and Justice
• Bibliography
• Index of Names
• Subject Index