Legal Romanticism, Part 1 of 6
If a Wittgensteinian spectator would look at how lawyers and natural scientists use language, she or he would find at first glance that both are debating the coherence and justification of the same concept: law. For Friedrich Nietzsche in “Human All Too Human,” this connection of the natural order and its laws of nature with the experience of constructing society with legal as well as moral tools was evidence enough for the inherent human desire to create and to cling to some kind of necessity, to put down a buoy in the flux of everyday life. Yet, to be sure and to be assured that society and the distribution of justice follow the same pattern as nature stands essentially for a confusion of normativity with causality. With the dominance of the natural sciences since the 18th century and the accompanying increasing uncertainty of humanities and legal studies about their own scientific method and value, nature’s cause-effect relation has finally intermingled and somehow melted with the logical reason-effect relation. One could say that this age of scientific enlightenment, this age of rationalist dominance has replaced artificial means of moulding morally and legally the social world (politics) with natural causes of how social progress derives from preexisting facts within the borders of everlasting conditions (coherence).
Now, with Hans-Georg Gadamer’s or Thomas Kuhn’s illumination of how the initial question or the methodological paradigm in the humanities and sciences foreshadow and shape the answer and result, or with Werner Heisenberg’s “uncertainty principle,” questioning the pure mechanical nature of modern physics, that very paradigm of scientific exactness and objectivity, and with it the predictability of natural processes are in turmoil themselves. Thus, slightly modifying Hannah Arendt’s reconsideration of political science, one might ask: Which questionable traditions within contemporary legal thought and practice are still in effect after the dependence and orientation of jurisprudence on pure scientific method has lost its justification?
In a series of six pieces, starting with this Introduction (Part 1), I will begin to tackle this question by conceptualising a perspective of “Legal Romanticism” as essentially opposed to the ongoing, dominant and self-iterating tradition of a form of “Legal Rationalism”. Historically, Romanticism in literature and philosophy has been the most critical and, on a subtle level, a theoretically very influential counterpart to Rationalism as a part of the European Enlightenment. Yet Legal Romanticism, as introduced here, does not stand for an opposite doctrine and will not be presented in a doctrinal manner. It simply expresses a different perspective on judicial decision-making, the coherence of legal systems and the legal language game. In order to portray the idea and to get a feeling of what such kind of Romanticism would look like, it might be helpful to contrast Legal Romanticism ex negativo with characteristic connotations of the opposite view: Legal Rationalism usually implies, and rational judicial decisions or rational legal systems typically evoke, a sense for technique, utility, efficiency, symmetry and logical coherence. The “rational” of Rationalism, if it is possible to capture that term with its various strands, stands for calculating and being calculated. It is this implication of predictability and calculability which a romantic view definitely lacks. Precisely this neutral formality and assumed mathematical structure of law set the stage for Hans Kelsen to maintain in his “Pure Theory of Law” that being an anarchist does not pose a major obstacle to being an excellent law professor too. This statement illustrates quite impressively the non-political, non-social and non-philosophical nature of law, as seen from the rationalist perspective. Here, law incorporates a notion of “the calculated,” “the logical,” or of a mere quantifiable measure.
Of course, the radical form of Legal Rationalism represented by Positivists like Kelsen or Hart is not in effect but remains an ideal type. Nevertheless, it is certainly a guiding tendency within modern legal thought and practice, and needs to be reflected. As indicated above, it stems from the comprehensive success of the scientific revolution and is still consciously as well as unconsciously represented by legal common sense. I will develop phenomenologically the opposed perspective, i.e. Legal Romanticism, in touching upon four concepts from the problematic inheritance of this rationalist tradition which to me appear to have the most decisive effect on contemporary legal thought and practice.
Firstly, I will investigate into a certain “Either-Or-Mentality” (Part 2) of judicial decisions, which common sense ascribes to and expects from judges, and which defines the outcome of legal disputes to an extent that is highly problematic as concerns a prudent balancing of claims. This part questions neutrality in disputes and introduces an Aristotelian concept of judging as one potential alternative form of settling disputes. In the following part, “Formality of the Law” (Part 3), I will examine the common attitude of invoking and insisting on the non-material nature of the law as such. In his “Philosophy of Right,” Hegel draws the (at first) counterintuitive conclusion that the offender of the law, i.e. the lawbreaker, has a right to receive punishment. I will argue that Hegel’s claim can only be justified from a purely formalistic legal perspective. Furthermore, the analysis will contain a critique of the hidden rationale of Legal Rationalism as regards the coherence of precedents. This can be related and reduced to the assumption that, in social and legal contexts like in the sciences, identical causes have identical effects, which evokes a mechanical world view in law and leads to an exchangeability of factual contents in legal disputes. The section “Legal Enforcement” (Part 4) will contain a critique of the (mis)use of linguistic connotations in the term “legal enforcement,” benefitting from Jacques Derrida’s consideration of Walter Benjamin’s essay “On Violence”. The last aspect of Legal Romanticism, “Logic and Law” (Part 5), investigates into the relation between logical and legal reasoning. With regard to Hans Kelsen and Herbert Lionel Adolphus Hart as two influential representatives of Legal Positivism, this section seeks to illuminate how Aristotelian logic with its law of noncontradiction may limit and constrain ex ante, i.e. beforehand, the understanding of law. Finally, the concluding part “Legal Romanticism: From a nomethetic to an ideothetic perspective” (Part 6) shall try to develop and overcome the verdict of the Neo-Kantian Wilhelm Windelband, who conceptualised the natural sciences to be nomothetic disciplines, i.e. setting (thetic) laws (nomoi) for natural phenomena, and social and legal studies to be ideographical, i.e. describing (graphein) ideas (idea) of social and legal phenomena. In this section I will endeavour to summarise and establish Legal Romanticism as a legal approach, which is non-normative and non-descriptive, but endlessly generates ideas and ideals. It thus stands for an ideothetic view on law, which is the – at least for the legal rationalist’s mind ‘paradoxical’ – creation of laws for the individual and her or his moment of justice.
Stefan Mandelbaum
King’s College London 2012