Justice Miscarried: Ethics and Aesthetics in Law

273 Pages·1997·1.66 MB·English

by  Costas Douzinas

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title: Justice Miscarried : Ethics and Aesthetics in Law
Postmodern Theory
author: Douzinas, Costas.; Warrington, Ronnie
publisher: Edinburgh University Press
isbn10 | asin: 0745016359
print isbn13: 9780745016351
ebook isbn13: 9780585087023
language: English
subject Law and ethics, Justice, Law and aesthetics.
publication date: 1994
lcc: BJ55.D66 1994eb
ddc: 340/.112
subject: Law and ethics, Justice, Law and aesthetics.
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Justice miscarried

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POSTMODERN THEORY
Series editor:
THOMAS DOCHERTY
School of English, Trinity College Dublin
A series which openly and rigorously confronts the question of the
postmodern in contemporary debates, and which boldly proposes
a refiguration of what is understood as 'the modern' in all its forms:
aesthetic and political, cultural and social, material and popular.
Other titles in the series include:
Jarring witnesses: Modern fiction and the
representation of history
ROBERT HOLTON
Modern wasteland to postmodern
wilderness
RODNEY GIBLETT

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Postmodern Theory
Justice miscarried
Ethics and aesthetics in law
Costas Douzinas and
Ronnie Warrington
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HARVESTER WHEATSHEAF
New York London Toronto Sydney Tokyo Singapore

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Disclaimer:
This book contains characters with diacritics. When the characters can be represented using the
ISO 8859-1 character set (","http://www.w3.org/TR/images/latin1.gif">http://www.w3.org
/TR/images/latin1.gif), netLibrary will represent them as they appear in the original text, and
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First published 1994 by
Harvester Wheatsheaf
Campus 400, Maylands Avenue
Hemel Hempstead
Hertfordshire, HP2 7EZ
A division of
Simon & Schuster International Group
© Costas Douzinas and Ronnie Warrington 1994
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system,
or transmitted, in any form, or by any means electronic, mechanical, photocopying, recording
or otherwise, without prior permission, in writing, from the publisher.
Typeset in 9 1/2/12 pt
Melior
by Photoprint, Torquay
Printed and bound in Great Britain by Biddles Ltd,
Guildford and King's Lynn
British Library Cataloguing in Publication Data
A catalogue record for this book is available
from the British Library
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ISBN 0-7450-1635-9 (pbk)
1 2 3 4 5 98 97 96 95 94

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For Alethea, Phaedra and Sibylla

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Contents
Acknowledgements ix
1 1
The return of ethics to law
2 25
Antigone's Dike
The mythical foundations of justice
3 93
Cases of casuistry
The common law and a lost tradition
4 132
Another justice
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5 186
Textual authority and the other
Community and beyond in jurisprudence
6 211
A well-founded fear of the other
The momentary principle of justice
7 242
'As a dream doth flatter'
Law (love, life and literature) in Sonnet no. 87
8 265
'The most perfect beauty in its most perfect state'
Sir Joshua Reynolds and an aesthetic of the spirit of the laws
Bibliography 310
Index 322

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Page ix
Acknowledgements
A large number of friends and colleagues helped in the writing of this book. We would like to
mention Alexandra Bakalaki, Viv Brown, Yifat Hachamovitch, Alan Hunt, Bernard Jackson,
Les Moran, Peter Rush, David Sugarman and Alison Young. Shaun McVeigh has been a
constant source of criticism and ideas. Peter Goodrich has provided inimitable and manic
inspiration, obscure historical evidence, great stories and esoteric Latin maxims. Thomas
Docherty was a continuous source of support at every stage of writing and an exemplary
editor. Finally we would like to thank Jackie Jones and Alison Stanford at Harvester
Wheatsheaf for their great editorial work and patience, and Justin Dyer for his meticulous and
elegant copy editing.
An earlier version of Chapter 6 was published in Law and Critique, Vol. II, no. 2 (1991).

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Page 1
1
The return of ethics to law
I
An apparent paradox characterises contemporary law. While the legal system is going through
one of its periodic crises, jurisprudence is enjoying a notable return to theory and a renewed
interest in the role of value and principle in law. The crisis of law can be described as a crisis
of legal form and a demand for an ethics. The theoretical turn is related to the crisis; its most
interesting examples adopt a hermeneutical approach and are ethically motivated. They are
attempts to 're-moralise' the operations of the legal system. Crisis in this context indicates a
krinein, a turning to new directions in both law and jurisprudence, rather than a pending and
prophesied catastrophe.
To begin with the crisis of legal form: in outline this concerns a complementary process of
increasing juridification of social and private fields and of privatisation or deregulation of
hitherto public areas of concern and provision. This double move has turned the traditional
divide and boundary between public and private areas of action and regulation, upon which
much of modern law rests, into an elastic line of passage, communication and osmosis.
Administrative law, to take an obvious case, keeps extending its scope to an increasing number
of previously domestic areas. This regulatory colonisation does not seem to represent or pursue
any inherent logic, overarching policy direction or coherent value system. Policy
considerations differ between family law and planning or between criminal justice and the
regulation of official secrecy, privacy and data protection. Even worse, contradictory policies
appear to motivate regulatory

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practices in each area. Nevertheless, each sphere is experiencing the increasing colonisation of
the social by legalised relations of power.
This development goes hand in hand with a limited amount of privatisation and deregulation.
Privatisation does not return utilities and services to the logic of the private realm; rather, it
hives off aspects of state regulation and places them in the hands of formally private interests
acting in a public capacity. Both sides of this double extension and mutation in the governance
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of society seem to underuse the deontic logic of rules. Rules as normative propositions which
prescribe criteria of right and wrong action are general and abstract, they anticipate and
describe broad types of factual situations and ascribe legal entitlements and obligations to wide
categories of (legal) subjects. Regulatory practices, on the other hand, are detailed, specific
and change in accordance with the vagaries of the situation and the contingencies of the
administrative environment; they distribute benefits, facilities and positions according to
policy rather than entitlement; they construct small-scale institutions; they assign variable and
changing roles to subjects; they plan local and micro-relations; and they discipline people and
agencies by arranging them along lines of normal behaviour. Regulatory norms normalise.
In the midst of these changes, the signs of collapse of the legal expressions of the
public/private divide are increasing. The distinction between rule and discretion, the hallowed
basis of the rule of law ideal, is gradually becoming anachronistic as rule-makers couch their
delegations of authority to administrators in wide terms, while administrators adopt policies,
guidelines and rules to structure the exercise of discretion and protect themselves from
challenge. Legislative and regulatory systems are adopted to promote transient, provisional
and local policy objectives with no immediate or obvious link with wider social policy. Policy
has become visible throughout the operation of law-making and administration; in many
instances policy- and rule-making are delegated to experts, who fill the gaps according to the
latest claims of scientific knowledge (Cotterrell 1992). Law appears at its most imperialistic at
the precise moment when it starts losing its specificity.
No area is now immune from state intervention; but as law is disseminated throughout society
its form becomes detailed and

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full of discretion, its sources multiple and diffused, its aims unclear, unknown or contradictory,
its effects unpredictable, variable and uneven. All the key themes of legal systematicity are
weakened. Sovereignty is gradually being replaced by performativity and the sovereign by
international and supranational institutions; rule and normativity are replaced by
normalisation, value by discretion and the legal subject by administratively assigned roles and
competencies. The law is expanding but at the price of assuming the characteristics of
contemporary society, thus becoming open, decentred, fragmented, nebulous and multiform.
State powers, never as separate as constitutionalism suggested, are becoming fused. Public
functionaries, who often belong institutionally to the redefined 'private' realm, become all
three, policy-initiators, rule-makers and dispute-solvers. Outside the trappings of central
power, beyond Whitehall, Westminster and the superior courts, law is increasingly law because
it calls itself law. Law's legitimacy at street level is primarily based on its ability to mobilise
the icons and symbols of legality. Additionally, acts of power acquire the character of legality
if they are backed by the force of state institutions. If, as has been argued, society no longer
exists, law has contributed to its demise by shifting the boundaries of a fragmented sociality
and by rapidly retreating from its traditional 'natural' terrain.
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It is at this crucial point that jurisprudence has turned its attention to hermeneutics, semiotics
and literary theory as an aid to the ailing enterprise of positivism. This appeal to hermeneutics
can be seen as a last desperate attempt to present the law as a closed and coherent system. But
the hermeneutic turn also expresses a deeply felt need for a return to morality. The
jurisprudence of positivism had based the legitimacy of law on the formalism of legality and
the consequent decline in the relevance of ethical considerations. Using the strict distinction
between fact and value, positivists from Kelsen to Hart had tried to exclude or minimise the
influence of moral values and principles in law. The effort was motivated by cognitive-
epistemological and political considerations. A 'science' or an analytics of law could only be
founded on observable, objective phenomena, not on subjective and relative values. Rules and
norms, despite their obvious logical variance from constative statements and their ontological
difference from the phenomenal world, were transformed into

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quasi-hard facts and became the source and object of 'legal science'. This purified science of
norms preoccupied itself with questions of validity and presented the law as a coherent, closed
and formal system guaranteed internally through the logical interconnection of norms and
externally through the rigorous rejection of all non-systemic matter such as content, value,
historical provenance or empirical context.
The political dimension of the exclusion of morality should be sought in the modern
experience of relativism and pluralism of values and the fear of nihilism (Goodrich 1986). Law
is presented as the answer to the irreconcilability of value and as the most perfect embodiment
of human reason. Private law turns social conflict into technical disputes and entrusts their
resolution to public experts and the technicians of rules and procedures. Public law imposes
constitutional limits and normative restrictions upon the organisation and exercise of state
power. The logic of rules depersonalises power and structures discretion by excluding
subjective value; it restricts choice in the application of law by administrators and judges. The
distrust of administrative discretion and of judicial creativity; the antipathy towards
administrative tribunals, legal pluralism and non-judicial methods of dispute resolution; the
insistence on the declaratory role of statutory interpretation and the 'strictness' of precedent;
the emphasis on the 'literal' rule of interpretation which allegedly allows the exclusion of
subjective preference and ideological disposition all these are key components of the rule of
law as the law of rules and at the same time the diverse facets of the attempt to rid the law of
ethical considerations. The positivist understanding and explanation of the operation and
majesty of law is logically and politically premised on the absence of morality. Indeed, the law
as a whole is presented as a moral enterprise because it excludes morality from its operation.
But the early 1990s witnessed an overwhelming call for a return to ethical values and moral
principles throughout public life. In no other area was the anxiety of morality experienced
more than in law. We outline in section II of this chapter some of the recent gross inadequacies
and failings of the common law, as described and prescribed by positivist jurisprudence, which
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contributed to the widespread public unease about the state of the legal system. Nevertheless,
the difficulties in re-imagining moral theory and

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making justice the proper and main concern of legal action, after repeated pronouncements
about the intrinsic separation of the two, are daunting. Let us map briefly the problems facing
contemporary jurisprudence.
The positivistic emphasis on formal rules and normativity appears unrealistically naïve in the
new era of legal hyper-inflation. In addition, the evidence supporting the realist and critical
legal thesis about the indeterminacy of legal interpretation and justification has become
unanswerable from within traditional legal theory. The importation of hermeneutics, semiotics
and literary theory in jurisprudence was motivated, therefore, by the urgent need to correct the
descriptively inadequate and morally impoverished theory of law as exclusively rules and to
re-inscribe morality in law. The new hermeneutical jurisprudence insists that the law is a
valuable source of meaning, and that it means values. We may disagree as to the meaning of
any particular statute or precedent, we may even accept that judicial reasoning and justification
can legitimately lead to conflicting directions, but it is agreed, as a minimum, that law is about
interpreting texts, that in some special way it is a form of literary exercise (see section IV
below). We can therefore abandon the Grundnorm and the rule of recognition for the meaning
of meaning; we can replace or supplement the technical rules of legal reasoning with the
protocols of interpretation or with the study of rhetorical tropes and hermeneutical criteria; we
can approach the texts of law through the law of text.
There is no doubt that this literary and hermeneutical turn gave legal theory a new lease and a
long-lost sense of excitement. But another effect was to make morality an integral element of
law, and in particular of judicial interpretation. The new jurisprudence of meaning responded
to the highly topical demand and ethics became part and justification of the newly discovered
interpretative character of the legal enterprise. But there is a catch. To take Dworkin's
well-respected hermeneutical theory, the operation of law is presented as necessarily
embodying and following moral values and principles. The notorious 'right answer' to legal
problems presupposes for its existence and discovery an interpretative practice that reads the
legal texts of the community as a single and coherent scheme animated by the principles of
'justice and fairness and procedural process in the right relation' (Dworkin

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1986, p. 404). A similar position can be found in Boyd White's (1990) theory of justice as
translation (see Chapter 5 below). Against the positivist lack of interest in morality, the
interpretative scholars assert that the law is all morality and that judicial interpretation
presupposes or leads to an ethics of legal reading.
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The hermeneutical and moral turn in jurisprudence is welcome; but the moral substance of law
must be argued and fought for rather than simply assumed. Furthermore, in order to understand
justice, the specifically legal facet of morality, we must link it with law's force. A postmodern
jurisprudence must abandon the key premises of amoral positivism and of all too moral but
powerless hermeneutical jurisprudence. But is such a jurisprudence possible?
The allegations against current alternative readings are well known: postmodernism and
deconstruction are at least indifferent and at worst destructive of ethics and politics; they have
shown knowledge to be so many facets of value, thus undermining the ability to found the
ethical response; they have tediously repeated that texts accept an infinite number of
interpretations, thus disqualifying any promise of a politics based on hermeneutical consensus;
they have attacked the dialectic of subject and object, original and copy, inside and outside,
thus weakening the claim of the sovereign self to stand in judgment in a community of reason.
And as all reality has been reduced to the playful ruses of an aberrant and undecidable
textuality, a night of reason in which 'all cows are black', responsibility has allegedly gone on
permanent retirement. But recently poststructuralist philosophy has addressed the question of
justice. We should examine more closely the moral turn in postmodern theory and its
implications for jurisprudence. In order to do so, we need to understand something of the
causes of postmodernism's turn to morality, ethics and justice.
II
One way of characterising the first phase of postmodernism, if the periodisation that this
implies can be accepted, is that part of its main initial intellectual claim was oppositional.
Postmodernism opposed the certainties of modernity and the 'truths' of Enlightenment
thinking. Above all, postmodernism questioned the possibility of a pure expression of a human
'essence'. This notion was supposedly guaranteed by thought's unmediated access to an inner
authentic and whole self, and passed through self's immediate manifestations, speech and its
accompanying gesture. But the belief that 'man' 'progressed' by the mechanism of a

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doubting subject applying scientific method to produce knowledge no longer carried
conviction. This 'new' insight gave postmodernism part of its initial impetus.
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