Putting the other in the witness box

Justice Miscarried
July 21, 1995

This latest contribution to a series on post-modern theory is a work of the first importance for practical and theoretical lawyers alike. Costas Douzinas and the late Ronnie Warrington have made an impressive transition. Their earlier work, Postmodern Jurisprudence: The Law of Text in the Texts of the Law (1991) was a firework display of exuberance and technical accomplishment, playfully subverting the natural lawyer Finnis as much as the liberal Dworkin or Marxists such as Collins. But, some would say, their previous texts subverted themselves, being, like those of their mentors Jacques Derrida or J. F. Lyotard, somewhat opaque except to initiates; and lacking in prescription. The first chapter of this latest work, in which the authors outline their purpose, is, by contrast, lucid and accessible.

Moreover, the issues at stake are central to the contemporary crisis of the law. Starting from the most recent miscarriages of justice (those identified by the Runciman Commission, racial discrimination at the Bar, human rights violations) they argue that there is a betrayal of English law by itself; it manifests "the blatant failure to do 'justice', as the legal system is supposed to understand and operate that term . . .". They want not only to bridge the abyss between law and justice, by way of the reintroduction of the ethical; but also to facilitate a newly legitimate return to politics. The challenge is, they say, ". . . to reconstruct the practice of moral evaluation, and to reinvent the art of political judgement."

In order to return to politics, they start with the Greeks, and, specifically, with the sublime tragedy of Sophocles's Antigone. Following Martin Heidegger, they want to re-locate a lost beginning; a new point of departure for ethics. It is here also that they establish their link with aesthetics, followed through into studies of Shakespeare and of Sir Joshua Reynolds. They argue that the "greatness of the Greeks was to understand the suddenness and uniqueness of being that forcefully revealed itself as physis, logos and dike (law and justice), and to respond to its awesome overpowering in the only way that could bring forward beings out of Being, that is, violently." The authors believe in an "ethical substance" that exists outside temporality and history, and enters history explosively, "through the authentic actions of persons who answer the call of the law." This reviewer at least would ask: what is an "ethical substance"?

The authors explain that they seek an originary ethics, a law of law; and, as in their previous writing, they propose an "ethics of alterity", of the absolute primacy of the other. They do not understate their case: "The other comes first. (S)he is the condition of existence of language, of self and of the law. The other always surprises me, opens a breach in my wall, befalls the ego." As the "ethics of deconstruction", so persuasively argued by Simon Critchley in the book of that name (1992), from which the authors draw extensively, this new ethics is derived from the exchanges between Derrida and the French Jewish philosopher Emmanuel Levinas. Arguably, Critchley speaks more persuasively for his conception of enhanced democracy, than do the authors for their reconstruction of justice.

In their pursuit of justice, Douzinas and Warrington scrutinise a "largely unacknowledged" source of the English common law, to be found in casuistry, a form of moral reasoning derived from the Catholic Church, helping priests to resolve borderline conscience problems in a principled yet sensitive manner. Casuistry enabled the law to deal with peculiar natures and special cases. The authors want to develop a secular form of casuistical reasoning: one that takes account of the requirements of principle, but treats the requirements of the "other" as paramount.

They apply this precept in a chapter in which they analyse the notorious cases of the Tamil asylum-seekers (Sivakumaran,1988), Bugdayacay, 1987, Vilvarajah, 1990 and others). Each applicant was the quintessential "other", the face in pain; but, the authors argue, the Court of Appeal systematically downgraded and derided ethical considerations, while the House of Lords, "by treating the time of fear as non-instant and non-immediate", violated the time of ethics. Justice, they contend, must be a momentary and principled response to the other's concrete generality.

The moral passion and engagement with which these pages are written are beyond question. However, a further question arises: do the authors redeem their central promises, the reconstruction of moral evaluation and reinvention of political judgement?

At least three possible avenues of inquiry - Marxism, human rights discourse, and Jurgen Habermas' discourse ethics - are, they believe, closed to them. They acknowledge, as the "strong background" to their own work on justice, the Marxist emphasis on the exploitation and suffering created by economic conditions; but they want to show how "exclusive emphasis on social and formal justice has left the law empty of ethical substance, and unable to deal with the conditions of post-modernity." This begs the question whether there ever was such an exclusive emphasis. Second, they claim that "the abstractness of human rights discourse can be proved of little use against the concrete claims of power". But what about the European Convention? As for Habermas, he appears only as a neo-Marxist mock-analyst of Shakespeare's sonnet "Farewell! Thou art too dear for my possessing". He is rejected for abolishing the major problem, by assuming the question whether meanings can be achieved and agreed upon. For Douzinas and Warrington, Shakespeare's message is that all assumed meanings, justice included, must be called into question. But is that enough?

In fact, they do make suggestions for reform. They are particularly impressed by the first rule of natural justice, audi alteram partem, let the other speak; this "turns the ethical obligation to treat the other as a full and unique person into a logical prerequisite of all judgment". In a passage curiously reminiscent of the Habermas they caricature, they contend that "the demand that the other be heard as a full person, in other words the demand for ethics, introduces certain minimum communicative and moral requirements for legal procedure". The job of their own postmodern jurisprudence is, they say, continually to disrupt the law in the name of justice, and to remind the law of its inescapable violence.

In this context, their own criticism of Drucilla Cornell's "philosophy of the limit" (1992) returns to haunt them. For she too, by way of "a rejection of Hegel via a Derridean modification of Levinas" (as they put it), makes recommendations: that we should accept the fallibility of judicial discretion as a better way to respect difference, and that judges should sensitively weigh each competing perspective. These suggestions are condemned as "a very familiar set of positivistic prescriptions, with which very few orthodox lawyers ought to have any difficulty." But is the return to the audi rule so very different?

As these authors themselves say to Cornell, we need the grounds for rejecting some principles in favour of others. Perhaps, despite all its passionate energy, learning and sophistication, their own prescription remains too abstract, too far separated from the history, complexity and concrete injustice of the law.

Bill Bowring is a barrister and a senior lecturer in law, University of East London.

Justice Miscarried: Ethics, Aesthetics and the Law

Author - Costas Douzinas and Ronnie Warrington
ISBN - 0-7450-1635-9
Publisher - Harvester Wheatsheaf
Price - £13.95
Pages - 326

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