Speaking Volumes: The Unity of Law and Morality

August 30, 1996

Zenon Bankowski on Michael Detmold's The Unity of Law and Morality .

It was a long journey. I couldn't concentrate. The train was hot and the book was weighing me down with its complexities. Why had I agreed to review it? At last we arrived. I shot out, leaving the complexities behind. Suddenly I realised that I had left the book behind as well. I went to the left luggage office. They had the book. It was The Unity of Law and Morality by Michael Detmold. I was not happy. Now I had to do the review.

I felt that this chance was significant. I became more interested in the book and more determined to study it deeply. It was a strange work, written in a cryptic, allusive, even arrogant, style but, in spite of myself I was forced to accept that it had something important to say. I was attracted to its mixture of analysis and speculative metaphysics.

Its basic argument was that only particulars give reason for action and that rules (as universals) can never capture the particular since there is always a level of description underneath them. Particulars are a mystery, they are what makes the world mysterious. Rules try to appropriate the mystery of the world by forcing each particular under their aegis and thus denying its particularity. They are a cowardly way out of decision-making. They mean that I no longer have to make up my mind in the encounter with the awesome mystery of the particular before me. The answer is given by a rule which in describing that particular necessarily misses something and thus tames and domesticates it. But particularity keeps breaking in because rules are not self-applying. We have to decide whether to apply them and we can do that only by looking at the situation in all its uniqueness. So I always have to decide whether the rule applies and, in doing so, morality and law are inevitably and necessarily conjoined. In refusing to accept that, I would act as a computer, programmed to apply the rule without thinking about what is actually happening; I would just follow the rule blindly; I would no longer show respect and love for the unique mystery of that particular's existence.

Detmold seemed to fill a gap in studies of legal reasoning. I had long resisted teaching legal reasoning because I thought of it as a clever way of getting nowhere. In Detmold I saw the beginning of why legal reasoning was morally important; the ethical and religious questions it raised, even in issues which I had thought of as merely analytical.

Over the years, I carried on teaching legal reasoning, always with a sense that here lay the deepest questions. In that area, and in those courses, I started exploring the profoundest theological and legal problems; those of how to live in and out of the law. One applies the rule because it is right but the rule cannot itself make this the right thing to do. Yet the application, as a mysterious explosion of love, carries within it the bonds of rules and rationality. The Good Samaritan applies the rule "love thy neighbour" to someone who becomes a neighbour only in that application, and thus by that loving act within the purview of rules and rationality.

What can we make of this story? We can make nothing general of it. It is the story of a particular event. The left luggage office at King's Cross might not be the necessary first step in the understanding of the mysteries of law and love. But for me it was.

Zenon Bankowski is professor of legal theory, Edinburgh University.

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