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A Postmodern Defence of Universal Liberal Legal Norms

Published online by Cambridge University Press:  20 July 2015

Lisa M. Austin
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The idea of universal liberal legal norms has long been under attack from a variety of sources. One of the most sustained and sophisticated philosophical versions of such an attack is found in the work of Martin Heidegger. His argument from the social embeddedness of the self to the ultimate contingency and groundlessness of any claims of normativity has been highly influential across a number of fields. This paper argues that legal theorists who wish to contest such a view should look to the work of philosopher Emmanuel Levinas. In his critique of Heidegger, Levinas affirms the significance of the human beyond the particular context in which we find ourselves embedded. Levinas wrote very little about law; his main focus was on ethical responsibility and the claim that an “other” makes on me. I argue that legal responsibility is fundamentally different, concerned instead with the claims that a self can make on others. Drawing upon Levinas’ understanding of the self as constituted through ethical responsibility, I argue that a Levinasian account of justice can support liberal-democratic norms such as freedom, equality and dignity. Indeed, Levinas himself endorsed universal human rights and even indicated a strong affinity with Kant’s idea of justice. What he denied, however, was that justice is a fully rational and coherent concept. I argue that this does not render justice incoherent or call into question the basic status of the norms of justice. Rather, a Levinasian account of justice shifts the emphasis to the community practice of reasoning about universal norms, a practice that is never complete. I further suggest that such a practice of reasoning should be familiar to lawyers as it bears a strong resemblance to common law reasoning.

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Research Article
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Canadian Journal of Law & Jurisprudence , Volume 23 , Issue 1 , January 2010 , pp. 5 - 31
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Copyright © Canadian Journal of Law and Jurisprudence 2010

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References

I would like to thank Robert Gibbs, David Dyzenhaus, Arthur Ripstein and Joe Murray for their many thoughtful comments on earlier versions of this work. Some of the arguments regarding Levinas were presented at the Centennial Conference on Levinas and Law (McGill University Faculty of Law, 2006) and benefited from discussion with the conference participants. Above all, I would like to thank the anonymous reviewer who provided such helpful, thorough, and thoughtful critical comments.

1. See, e.g., realists such as Cohen, Felix, “Transcendental Nonsense and the Functional Approach” (1935) Colum. L. Rev. 809.CrossRefGoogle Scholar

2. For, e.g., this is one of the motivations for Dworkin’s account of the law as integrity in Law’s Empire (Cambridge, MA: Harvard University Press, 1986).Google Scholar

3. See, e.g., Critical Legal Studies proponents such as Kennedy, Duncan, A Critique of Adjudication (fin de siècle) (Cambridge, MA: Harvard University Press, 1997).Google Scholar

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8. Gary Minda argues that this describes jurisprudential movements as diverse as Law and Economics, Critical Legal Studies, Feminist Legal Theory, Law and Literature and Critical Race Theory. See Minda, Gary, Postmodern Legal Movements (New York: New York University Press, 1995) at 2.Google Scholar

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12. In fact, Heidegger’s central goal in this work is to uncover the underlying structure of the pre-understanding of Dasein in order to lay the proper groundwork for an inquiry into Being itself. For Heidegger, Dasein “always understands itself in terms of its existence, in terms of its possibility to be itself or not to be itself” (ibid. at 10). In asking the question of Being, therefore, Dasein already stands within an understanding of Being and also understands itself in relation to Being, at least in terms of this implicit understanding. The entry point into the question of Being is therefore Dasein and Dasein’s average everyday understanding of the world. This is the difference between the “ontic” and the “ontological” as it operates throughout Being and Time. The “ontic” is the realm of average everydayness and the “ontological” is the underlying structure of this realm. Because this language is so specialized often obscure, and lies far outside most legal debates, I have avoided using it in the main body of this article.

13. Ibid. at 64ff

14. Ibid. at 111-12.

15. Ibid. at 119.

16. Ibid. at 121.

17. Ibid. at 15.

18. Ibid. at 250-51.

19. For example Heidegger argues that inauthenticity is not to be understood as “a bad and deplorable ontic quality which could perhaps be removed in the advanced stages of human culture” but rather as a fundamental ontological-existential structure of Dasein. Ibid. at 165.

20. See, e.g., Heidegger, Martin, “The Question Concerning Technology” in Martin Heidegger: The Question Concerning Technology and Other Essays, trans. by Lovitt, William (New York: Harper & Row, 1977) at 25.Google Scholar Although a full discussion of this shift between Heidegger’s early and later works is beyond the scope of this paper, one aspect is focus: from a focus on Dasein as the being for whom Being is a question to the question of Being itself. This shift in focus also includes a shift in the manner in which he discusses Dasein. Much of the highly individualized and active vocabulary characterizing Dasein’s authenticity—and which greatly influenced the development of French existentialist philosophy—is dropped in favour of descriptions of Dasein that treat Dasein in much more generic and passive terms as the “shepherd of Being,” “open” to an advent of Being that is “granted” to it. See Heidegger, Martin, “Letter on Humanism” in Martin Heidegger: Basic Writings, 2nd rev. and expanded edition by Krell, David Farrell, ed. (New York: HarperCollins, 1993).Google Scholar

21. In his later writings, Heidegger points to the different historical characters of what he calls the “revealing” of Being, which has to be understood as separate from the nature of Being itself. See Heidegger, Martin, “The Onto-theo-logical Constitution of Metaphysics” in Identity and Difference, trans. by Stambaugh, Joan (New York: Harper & Row, 1969).Google Scholar

22. Heidegger, “Letter on Humanism,” supra note 20 at 221.

23. Heidegger, “The Question Concerning Technology,” supra note 20.

24. This is not to suggest that this is all that is required. The question of what we are to “do” in order to have a free relation is quite complex and much of his later writings on this point are quite difficult and obscure. For example, Heidegger argues that freedom is “letting beings be” which means “to engage oneself with the open region and its openness into which every being comes to stand, bringing that openness, as it were, along with itself.” See “On the Essence of Truth” in Martin Heidegger: Basic Writings, supra note 20 at 125. In other works, he links this with his retrieval of technï. See “The Question Concerning Technology,” supra note 20.

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26. Leiter, Brian, “Heidegger and the Theory of Adjudication” (1996) Yale L.J. 253 at 260.CrossRefGoogle Scholar For a critique of his account of practical reasoning, but still within a Heideggerian framework, see Meyer, Linda Ross, “Is Practical Reason Mindless?” (1998) 86 Geo. L.J. 647.Google Scholar

27. Ibid. at 272ff.

28. Ibid. at 276ff

29. Ibid. at 282.

30. Byrne, Gavin, “The Self and Strong Legal Theory: A Heideggerian Alternative to Fish’s Scepticism” (2006) 19 Can. J. L. & Juris. 3.CrossRefGoogle Scholar Byrne roots this in an interpretation of Heidegger’s metaphysical commitments to “natural kinds.” Even if this permits him to assert that some interpretations are better than others, this does not affect the arguments of this paper regarding the justifications for legal norms.

31. Balkin, J.M., “Transcendental Deconstruction, Transcendent Justice” (1994) 92 Mich. L. Rev. 1131 at 1175.CrossRefGoogle Scholar Balkin argues for a version of deconstruction that recognizes that human values transcend culture. As such, his views bear an affinity to the interpretation of Levinas that I offer in this paper. However, Balkin’s own project would benefit from an engagement with Levinas, for Levinas is the intellectual source of the “transcendental” moments in Derrida’s work that he is interested in and could be used to provide more clarity to the relationship between deconstruction, justice and responsibility.

32. See, e.g., Fish, Stanley, The Trouble with Principle (Cambridge, MA: Harvard University Press, 1999).Google Scholar

33. Heidegger, Martin, Introduction to Metaphysics, trans. by Fried, Gregory & Polt, Richard (New Haven, CN: Yale University Press, 2000) at 204.Google Scholar See also p. 50 where Heidegger makes reference to “poetry and fine arts, statescraft and religion” and again at p.163 where he places together poets, thinkers, priests and rulers.

34. Ibid. at 65.

35. The poets, thinkers, priests and rulers are “without structure and fittingness … because they as creators must first ground all this in each case” (ibid. at 163).

36. Ibid. at 67.

37. Ibid. at 141.

38. There is a large literature on Heidegger’s relationship with Nazism. See Farías, Victor, Heidegger and Nazism (Philadelphia, PA: Temple University Press, 1989).Google Scholar

39. Heidegger, Martin, “The Anaximander Fragment” in Early Greek Thinking, trans. by Krell, David Farrell & Capuzzi, Frank A. (San Francisco, CA: Harper & Row, 1975).Google Scholar

40. Ibid. at 42.

41. Heidegger, Introduction to Metaphysics, supra note 33 at 212-13.

42. Rorty, Richard, Contingency, Irony, and Solidarity (Cambridge: Cambridge University Press, 1989).CrossRefGoogle Scholar For Rorty, only the intellectuals would be true ironists, and the nonintellectuals would be “commonsensically nominalist and historicist. So they would see themselves as contingent through and through, without feeling any particular doubts about the contingencies they happened to be” (ibid. at 87).

43. See Heidegger, “The Question Concerning Technology” and “Letter on Humanism,” supra note 20.

44. Heidegger, Introduction to Metaphysics, supra note 33 at 40.

45. Heidegger, , “Memorial Address” in Discourse on Thinking, trans. by Anderson, John M. & Freund, E. Hans (New York: Harper & Row, 1966) at 56.Google Scholar

46. See, e.g., Rorty, supra note 42.

47. See, e.g., Weinrib, supra note 6 for an account of the private law that is heavily indebted to an understanding of Kantian agency.

48. Supra note 3.

49. Peperzak, Adriaan, To the Other: An Introduction to the Philosophy of Emmanuel Levinas (West Lafayette, IN: Purdue University Press, 1993).Google Scholar

50. Levinas, Emmanuel, Totality and Infinity, trans. by Lingis, Alphonso (Pittsburgh, PA: Duquesne University Press, 1969).Google Scholar

51. This paper primarily focuses on Totality and Infinity and not its relationship with Levinas’ later major work, Otherwise than Being or Beyond Essence, trans. by Lingis, Alphonso (Pittsburgh, PA: Duquesne University Press, 1981).Google Scholar Otherwise than Being deals with many of the same themes as Totality and Infinity and is widely held to be Levinas’ response to Derrida, ’s criticisms in “Violence and Metaphysics” in Writing and Difference, trans. by Bass, A. (Chicago, IL: University of Chicago Press, 1978).Google Scholar This relationship is beyond the scope of the present work. However, Bernasconi helpfully describes one element of this shift in the following terms. For the later Levinas, he argues “I am radically responsible for the other prior to any contact, prior to having chosen or acted, indeed prior to my taking up a subject position in relation to an other. In Otherwise that Being the responsibility inherent in subjectivity is prior to my encounter with an other, whereas Totality and Infinity had located the possibility of ethics in the concrete encounter that realized the formal structure of transcendence.” Bernasconi, Robert, “What is the Question to Which ‘Substitution’ is the Answer?” in Critchley, Simon & Bernasconi, Robert, eds., The Cambridge Companion to Levinas (Cambridge: Cambridge University Press, 2002) at 242.Google Scholar

52. Levinas, Emmanuel, “Is Ontology Fundamental?” in Basic Philosophical Writings, Peperzak, Adriaan T., Critchley, Simon & Bernasconi, Robert, eds. (Bloomington: Indiana University Press, 1996) at 10.Google Scholar

53. Levinas, Emmanuel, “Humanism and An-Archy” in Humanism of the Other, trans. by Poller, Nidra (Urbana and Chicago: University of Illinois Press, 2003) at 57.Google Scholar

54. Levinas, “Is Ontology Fundamental?,” supra note 52 at 7 [emphasis in the last paragraph added].

55. Levinas, Totality and Infinity, supra note 50 at 195.

56. If it were, then this relation could be fully explicated through concepts which would then “undo” the absolute alterity that Levinas insists is at the heart of the relation.

57. Ibid.

58. Gibbs, Robert, “Philosophy and Law: Questioning Justice” in Wyschogrod, Edith & McKenny, Gerald P., eds., The Ethical (Malden, MA: Blackwell, 2003) at 109.Google Scholar

59. Ibid.

60. Levinas, Totality and Infinity, supra note 50 at 203-04.

61. In addition to this language of founding freedom, ibid. at 170-71, Levinas stresses the role of the Other in constituting the Same in terms of freeing it of its possession, and thereby its engagement in the non-I, in order to give what is possessed to the Other. See also p. 305: “to produce oneself as I—is to apprehend oneself with the same gesture that already turns toward the exterior … to respond for what it apprehends … it is to affirm that the becoming-conscious is already language, that the essence of language is goodness, or again, that the essence of language is friendship and hospitality.” Nonetheless, as Diane Perpich points out, this theme is much clearer in Levinas’ later work, Otherwise Than Being, but is present in Totality and Infinity as well. See Perpich, Diane, “A Singular Justice: Ethics and Politics Between Levinas and Derrida” (1998) 42 Phil. Today 59 at 64-65.CrossRefGoogle Scholar

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66. Levinas, “The Other, Utopia, and Justice” in Entre Nous, ibid. at 229.

67. Ibid at 229-30.

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69. Derrida, Jaques, Adieu to Emmanuel Levinas, trans. by Brault, Pascale-Anne and Naas, Michael (Stanford, CA: Stanford University Press, 1999) at 115–16.Google Scholar

70. Levinas, Otherwise Than Being, supra note 51 at 159.

71. Ciaramelli, Fabio, “Levinas’s Ethical Discourse Between Individuaton and Universality” in Bernasconi, Robert & Critchley, Simon, eds., Re-Reading Levinas (Bloomington and Indianapolis: Indiana University Press, 1991) at 92.Google Scholar

72. There is actually another difficulty. Levinas always stressed the “infinite” nature of ethical responsibility—its nature is that is cannot ever be fulfilled there is always a surplus of duty. Transformed into legal obligation, this would mean that the defendant is always open to liability no matter what her actions, and this makes action per se wrong. This would be an absurd conclusion.

73. Levinas, Emmanuel, De Dieu qui vient à l’idée (Paris: Vrin, 1982) at 135.Google Scholar As cited in Ciaramelli, supra note 71 at 92.

74. Levinas, Ethics and Infinity, supra note 62 at 98.

75. Levinas, Emmanuel, “Transcendence and Height” in Peperzak, Adriaan T., Critchley, Simon & Bernasconi, Robert, eds., Basic Philosophical Writings (Bloomington and Indianapolis: Indiana University Press, 1996) at 24.Google Scholar

76. In Otherwise Than Being, Levinas is clearer regarding the way in which ethical responsibility constitutes the subject as subject and so is prior to any idea such as action and choice. As Diane Perpich writes, “Being for-the-other is the pre-condition for all other subject experiences.” See The Ethics of Emmanuel Levinas, supra note 63 at 130.

77. Levinas, Totality and Infinity, supra note 50 at 198.

78. Levinas is not as clear with respect to why ethics requires justice as he is with respect to why justice requires ethics and there are a number of different interpretations. See Simmons, William Paul, “The Third: Levinas’ theoretical move from an-archical ethics to the realm of justice and politics” (1999) 25 Phil. & Social Criticism 83 at 95-96 and 98CrossRefGoogle Scholar for an interpretation that is similar to mine. See also Perpich, “A Singular Justice,” supra note 61 at 62 for a discussion of Derrida’s reading of the risk of ethics being a kind of “vertigo” in which the relation with the Other collapses “into a solipsism which is no longer capable of distinguishing I from Other, justice from injustice.”

79. Levinas, “The I and the Totality” in Entre Nous, supra note 65 at 27.

80. Levinas, Ethics and Infinity, supra note 62 at 90.

81. Levinas, Emmanuel, “The Rights of Man and the Rights of the Other” in Outside the Subject, trans. by Smith, Michael B. (Stanford CA: Stanford University Press, 1994) at 125.Google Scholar See also “The Rights of Man and Good Will” in Entre Nous, supra note 65 and “The Rights of the Other Man” in Alterity & Transcendence, trans. by Smith, Michael B. (New York: Columbia University Press, 1999).Google Scholar

82. Ibid. at 125.

83. Ibid. at 116 [emphasis added].

84. Ibid. at 123. Despite the many ways in which Levinas both implicitly and explicitly distances himself from Kant, he admits that the sphere of relations following from his analysis of the ethical relation, although only “glimpsed” at in his work, seems close to the practical philosophy of Kant. Levinas, “Is Ontology Fundamental?,” supra note 52 at 10.

85. Supra note 51 at 160-61.

86. Ibid. at 159.

87. Supra note 79.

88. Levinas, “Dialogue on Thinking-of-the-Other” in Entre Nous, supra note 65 at 204.

89. Levinas, “The Other, Utopia, and Justice” in Entre Nous, supra note 65 at 231.

90. See, e.g., Cover, Robert, “Violence and the Word” (1986) 95 Yale L.J. 1601.CrossRefGoogle Scholar

91. Levinas’ account of the relationship between verdict and after-verdict is more plausible in the context of pardons granted by the Crown.

92. Levinas, Emmanuel, “Transcendence and Height” in Peperzak, Adriaan T., Critchley, Simon & Bernasconi, Robert, eds., Basic Philosophical Writings (Bloomington and Indianapolis: Indiana University Press, 1996) at 23.Google Scholar

93. Weinrib, Ernest J., “Correlativity, Personality, and the Emerging Consensus on Corrective Justice” (2001) 2 Theor. Inq. L. 107.Google Scholar

94. Ibid. at 114.

95. Ronald Dworkin, Law’s Empire, supra note 2.