Responsibility and the metaphysics of justice

In this chapter, I consider the problems of guilt in connection with genocide discussed after the Second World War by Hannah Arendt, Karl Jaspers, Primo Levi and Jean Améry. I look at the different forms of guilt: of perpetrators, bystanders, victims who became perpetrators, and of collective guilt. The way in to understand the structure of guilt is to consider the idea of survivor guilt, and the chapter link this to an underlying metaphysics of guilt. It considers primarily Levi’s account of survivor and accomplice guilt, and the ‘grey zone’ where judgment becomes problematic. The aim is to consider the ethical structure that supports our understanding of specific guilt categories, and this links Jaspers and Levi to Roy Bhaskar’s philosophy of metaReality. There he argues for a sense of metaphysical unity or identity that operates at a deeper level than the difference, conflict and change that occupy his dialectical critical realist philosophy. The philosophy of metaReality rounds out and deepens his thought, and I explore it for the first time in this chapter, arguing that it represents a key to understanding the philosophical thoughts and thoughtful experiences of Jaspers and Levi. The chapter considers the shape and structure of ethical enquiry, and what it is that makes ethical enquiry possible. From that point of view, it becomes possible to understand better our concepts of guilt and justice

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

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

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

Love actually : law and the moral psychology of forgiveness

Love is the basis for a moral psychology of forgiveness. I argue for an account of love based on Roy Bhaskar's conception of its five circles, and of the ethical nature of human beings as concrete universals/singulars. Linking this to work of ‘The Forgiveness Project’, I argue that forgiveness can be understood metaphysically in terms of its relation to love of self, of the other, of the relation of self and other, of self, other and the wider community, and of self and other in their ontological depth as unique individuals. Forgiveness involves both a ‘giving to’ and a ‘giving up’, and this can lead to a profound sense of identity between a victim and a perpetrator. Forgiveness is different for each person; it may draw upon a public/legal setting as a proxy for universal judgement; and it confronts social-structural and political elements which may block its development

Animals who think and love : law, identification and the moral psychology of guilt

How does the human animal who thinks and loves relate to criminal justice? This essay takes up the idea of a moral psychology of guilt promoted by Bernard Williams and Herbert Morris. Against modern liberal society’s ‘peculiar’ legal morality of voluntary responsibility (Williams), it pursues Morris’s ethical account of guilt as involving atonement and identification with others. Thinking of guilt in line with Morris, and linking it with the idea of moral psychology, takes the essay to Freud’s metapsychology in Civilization and Its Discontents. Two conflicting routes to guilt are noted in Freud, one involving internalisation of external anger to suppress destructive instincts, the other loving identification with others in the process of self-formation. This second route is developed through the psychoanalytic thought of Hans Loewald and Jonathan Lear. Following Loewald, the moral psychology of self-formation makes loving identification with others the root of responsibility, guilt and atonement. Following Lear, the moral psychology of guilt developed on these lines renders psychoanalysis part of a broadly understood philosophical project following Aristotelian and Socratic principles. Underlying Morris’s account of guilt is the possibility of ‘prospective identification’, understood as the moral and psychological ground of guilt and reconciliation. This is the rational core of criminal justice, which maintains an uneasy relationship with law’s ‘peculiar’ morality

Beyond persecutory impulse and humanising trace : on Didier Fassin’s The Will to Punish

This essay argues that Didier Fassin’s ‘The Will to Punish’ (2018) reveals the social grounds for a ‘persecutory impulse’ in modern punishment, which sits alongside a ‘humanising trace’. The challenge for a critical theory of modern penality is to think through this strange combination. The work of Melanie Klein and Freud, properly interpreted, can illuminate its conjunction and disjunction

Critical realism and the metaphysics of justice

This essay 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 Levi’s 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 Bhaskar’s 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

Identification, atonement and the moral psychology of violation : on Patricio Guzman's Nostalgia for the Light

This essay considers the nature of mourning and melancholia in light of Patrizio Guzman’s film, Nostalgia for the Light. It examines the position of three women dealing with the aftermath of Pinochet’s dictatorship in Chile, in which their close family members were disappeared and murdered. It views their experiences through the lens of a moral psychology that is at once ethical and psychoanalytical. A key concept in both fields is loving identification, and this is linked to a desire to atone, in the original meaning of making whole or being ‘at one’ with another. It is argued that such a conception lies at the core of a moral psychology of guilt, and the analysis is then developed into an understanding of mourning and melancholia. The women in the film are understood as involved in a dual struggle: to mourn their lost loved ones, and to resist efforts to make them see themselves in melancholic terms

Legal and social murder : what's the difference

I will focus on the main element in the legal definition that distinguishes murder and manslaughter, mens rea. I will reflect on two issues that ultimately may be conjoined. The first concerns the form of mens rea for murder that involves an intention to cause serious harm, where intention involves foresight of a virtual certainty that harm will ensue. Here, I consider the possibility that such an (indirect) intention may be more likely to be found where actors within a system have responsibility for, and the vantage point of oversight of, the system as a whole. The second concerns the potential flexibility of the law of indirect intention in a situation where the law retains a certain ‘moral elbow room’, which may be used where a jury is ‘entitled to find’ that a defendant foresaw an outcome as virtually certain. This is said, most recently by the Supreme Court in Jogee, to lead to an evidential standpoint, which leaves the precise nature of the legal rule open to interpretation by a jury. These two points, jointly and severally, suggest that the gap between murder in law and as it is perceived in a setting like Grenfell may not be as wide as is sometimes thought

'In this Interregnum' : dialectical themes in the critique of criminal justice

In this article, we offer a critical examination of the long and rich history of criminal justice scholarship in the pages of Social & Legal Studies. We do so by identifying and exploring a dialectical tension in such scholarship, between the recognition of the role of criminal justice as an instrument of violence, exclusion and control on the one hand, and the effort to seek, through or perhaps beyond the critique of criminal justice, an emancipatory project. We explore this tension by examining four areas in scholarship: popular justice, social control and governmentality, gender and sexuality, and transitional justice. Relating forms of critique to the historical development of a unipolar political world order from the time of the journal’s inception, we argue that the criminal justice scholarship in Social & Legal Studies positions it, like the world it describes, in a sort of ‘interregnum’. This is a place where the tension between the two poles of emancipation and control is evident, but shows few signs of resolution. Each of the four themes displays a different critical perspective, one that reflects a different response to living in a world where legal, social and political emancipation struggles against the weight and direction of history. Critique nonetheless reflects on criminal justice to reaffirm the need for emancipatory change and consider how it may be achieved