Alan Norrie

Law, Ideology and Punishment

Many years ago, Maine wrote that ‘All theories on the subject of Punishment have more or less broken down; and we are at sea as to first principles.’1 What causes a theory to break down? Why should a society be all at sea as to the basic principles of a central and morally crucial institution? How did this situation come about? Is it symptomatic at the level of ideas of some deeper ailment in the social body? The impetus to these questions came out of the development in philosophical thinking about punishment in the late 1970s and early 1980s when it had become clear that the existing theoretical and practical consensus around punishment was no longer sustainable. In penological thinking, the belief in rehabilitation and the benign potential in punishment had given way to cynicism and disillusion, while, paralleling this in philosophical discussion, there was an increasing rejection of both the philosophy of treatment and what came to be seen as the empty nostrums of utilitarian theory. When utilitarianism was not being amoral in vindicating individual punishment for the greater good, it was being positively immoral in sacrificing individual justice to social well-being. The debate about punishing the innocent had rumbled on for decades without setting anvwhere.2

From Critical to Socio-Legal Studies: Three Dialectics in Search of a Subject

This article addresses the ‘gap’ between socio-legal studies and critical legal theory. Examining Derrida’s ‘Force of Law’, it argues that the fault lies as much with the latter’s marginalisation of the social and political character of the law as with the former’s narrow, policy-oriented character. Despite such marginalisation, deconstructive concepts such as supplementarity and différance are important and ought to be preserved for a critical sociology of law. This becomes possible once Derrida’s position is located within the modern dialectical tradition initiated by Hegel and developed by Bhaskar. Both Hegel and Derrida offer important dialectical concepts for the critique of social phenomena like law, but both in different ways surrender them through recourse to ethical standpoints which marginalise the significance of analysing law as a social and political phenomenon. Bhaskar’s dialectical critical realism is presented as a way through the resulting impasses, specifically by virtue of his dialectical and sociological concept of ‘entity relationism’. This is contrasted with the analytical concept of ‘identity thinking’ which lies at the heart of law and the idea of the legal subject. The article concludes by outlining how a dialectical approach can elucidate problems of subjectivity and responsibility in the criminal law. It contrasts formal legal conceptions of the subject, which seek to exclude relational issues, with moral conceptions in and beyond the law, which open out to the subject’s relationality. Legal reasoning is located on this contradictory dialectical ‘edge’ and suffers accordingly.

Bhaskar, Adorno and the Dialectics of Modern Freedom

Abstract Through dialectical critical realism, Roy Bhaskar has made an important contribution to two different theoretical traditions. One is the philosophy of critical realism, where he aims for a more supple and reflexive approach. The other is dialectical theory, which he seeks to undergird and recast by locating on a realist terrain. Here an important question is how recasting affects existing dialectical thought. Bhaskars own writings focus in this regard on dialectical critical realisms relation to Hegel. This paper addresses it by comparing and contrasting dialectical critical realism with Theodor Adornos negative dialectics, the approach which probably comes closest to dialectical critical realism. The first two main sections are accordingly directed to developing an account of Bhaskars dialectical critical realism and comparing it to Adornos negative dialectics. My argument is that what Bhaskar and Adorno have in common is a commitment to a realist ontology, but that Adornos account is limited by a competing tendency towards irrealism. This gives his negative dialectics an unstable foundation, and this is brought out by the comparison with dialectical critical realism. The third and fourth sections bring out the implications of this tension for Adornos account of modern freedom in his Negative Dialectics. Three competing views are identified, and it is argued that these coher on the basis of a realist reading of his analysis. An irrealist reading reduces them to incoherence.

A fateful inversion

ACCORDING TO Jurgen Habermas (1987a), Nietzsche opened two paths into postmodernity: one sociopolitical and historical, the other metaphysical and directly ethical. The first was that of the sceptical scholar ‘who wants to unmask the perversion of the will to power, the revolt of reactionary forces, and the emergence of a subject-centered reason by using anthropological, psychological, and historical methods’. The second path was that of the search for independent foundations for ethics and knowing, that of the ‘initiate-critic of metaphysics who pretends to a unique kind of knowledge and pursues the rise of the philosophy of the subject back to its pre-Socratic beginnings’ (1987c: 97). That these two paths need not be followed exclusively is suggested by Habermas’s association of the first with Bataille, Lacan and Foucault, who surely take their own positions with regard to the second, in metaphysics. There is, however, a question as to whether, or on what terms, both paths can be followed consistently, and that will be the underlying question of this comment on Peter Fitzpatrick’s Modernism and the Grounds of Law (hereinafter Modernism). Modernism is primarily influenced by none of these writers but by Jacques Derrida, whom Habermas associates with the second path into postmodernity, that of the ‘initiate-critic of metaphysics’. Derrida’s work on law confirms the two distinct paths just outlined, and that his explicit adoption of the second path is to the exclusion of the first. The sociopolitical and historical path is, in Derrida’s terms, a ‘critique of juridical ideology, a desedimentation of the superstructures of law that both hide and reflect the economic and political interests of the dominant forms of society’ (Derrida, 1990: 941). Politely described as a critique that is ‘possible and always useful’, Derrida quickly puts it aside in favour of a second critique of a ‘more intrinsic

Love and justice: can we flourish without addressing the past?

ABSTRACT The focus of this essay is on how we overcome the past by dealing with it. In this setting, the analysis is of the relationship between ‘moral transactions’ concerning blame, guilt, responsibility, apology and forgiveness and the possibility of transition away from states of trauma. The first section draws on previous work to set out a position on human love as the basis for an understanding of guilt and the ‘moral grammar’ of justice. The second section considers Martha Nussbaum’s claim in Anger and Forgiveness (2016) that the idea of transition should be prioritized at the cost of a moral transactional analysis that would engage the moral grammar of blame, guilt, responsibility, apology and forgiveness. The latter is seen as potentially obstructing the transition to a better world. I suggest to the contrary there are grounds for thinking that a successful transition requires relevant moral transactions.

To Flourish or Destruct: A Personalist Theory of Human Goods, Motivations, Failure, and Evil

grandiloquent title of ‘World Scholar’ at an institution that was only prepared to offer him a part-time contract of employment. The last 13 years of Bhaskar’s life were conducted under the discomfiting auspices of ill health and relative penury. Of course, his sheer ebullience of spirit and loving kindness towards others were repaid by the love and friendship of those privileged to be close to him. This book, conceptually challenging and densely rich with ideas as it is, will remain the most authentic conspectus of the vast and powerfully transformative architecture of ideas bequeathed to us by this great thinker. I would also like to pay compliment to the editor of this book, Mervyn Hartwig, whose dedication to critical realism, to the life and work of Bhaskar, and to the dissemination of critical realist theory continues to inspire and to instruct.

The Scene and the Crime: Can Critical Realists Talk About Good and Evil?

Abstract This essay argues that critical realism provides a philosophical perspective from which to talk about good and evil. It draws on dialectical critical realisms meta-ethics of freedom and solidarity, and the different grades of freedom identified there: from the basic spontaneity in agency to the possibility of a fully flourishing, eudaimonic social condition. It argues that evil acts can be understood as those which fundamentally deny basic human freedom (spontaneity) and solidarity, and that good acts are those which affirm human flourishing and solidarity. It draws upon Hannah Arendts depiction of what was morally evil in the Holocaust, and recent English criminal trials involving mercy killing to depict the good. It suggests that moral framing in terms of good and evil lies beyond the terms in which modern law thinks of human actions.

Love in Law’s Shadow: Political Theory, Moral Psychology and Young Hegel’s Critique of Punishment

Modern theory of punishment conflates two types of question. The first concerns the justification of state punishment, the second the moral damage that occurs when a person is violated, and how the resulting damage can be repaired. The first question leads to political theory and a particular legally based moral grammar of wrongdoing and punishment. The second goes in the direction of a different moral psychology involving a grammar of violation, grieving and reconciliation. Retrieving the young Hegel’s analysis takes us in the second direction. It provides a critical vantage point from which to view the dominant liberal political theory, including Hegel’s own mature position as a founder of retributive theory. The modern theory of state punishment is legitimated by its public association with a moral psychology of violation, which it at the same time suppresses in favour of its own very different moral grammar.

Critical realism and the metaphysics of justice

This article concerns the problems of guilt that emerge in connection with genocide discussed after the Second World War by Hannah Arendt, Karl Jaspers, Jean Améry and Primo Levi. It looks at the different forms of guilt: of perpetrators, bystanders, victims who became perpetrators, and of collective guilt. It argues that a way to understand the structure of guilt is to consider the idea of survivor guilt, and its link to an underlying metaphysics of guilt. It considers primarily Levis account of survivor and accomplice guilt, and the ‘grey zone’ where judgements become problematic. The aim is to consider the ethical structure that supports our understanding of specific guilt categories, and this is linked to Roy Bhaskars account of metaReality and the sense of a unity or identity that operates at a deeper level than the difference, conflict and change that the other levels of his thought seek to understand.

Who is ‘The Prince’? : Hegel and Marx in Jameson and Bhaskar

Abstract This article compares the dialectics of Fredric Jameson and Roy Bhaskar. From a dialectical critical-realist standpoint, it argues that Jameson’s approach in his recent collection Valences of the Dialectic sits uncomfortably between Hegelian and Marxist presuppositions. This is seen in the way he configures the relation between thinking and being, and it leads to an alliance with poststructuralist thinking in which real negativity is denied. In consequence, his thought is caught between a critique of the present and the impossibility of thinking real change within it.