Love in Law’s Shadow: Political Theory, Moral Psychology and Young Hegel’s Critique of Punishment
| Date | 01 February 2019 |
| Author | Alan Norrie |
| Published date | 01 February 2019 |
| DOI | 10.1177/0964663918758512 |
| Subject Matter | Articles |
Article
Social & Legal Studies
2019, Vol. 28(1) 10–30
Love in Law’s Shadow:
ª The Author(s) 2018
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Political Theory, Moral
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DOI: 10.1177/0964663918758512
Psychology and Young
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Hegel’s Critique of
Punishment
Alan Norrie
Warwick University, UK
Abstract
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.
Keywords
Grief, moral psychology, political theory, punishment, reconciliation, violation, young
Hegel
Corresponding author:
Alan Norrie, Warwick Law School, Warwick University, Coventry CV4 7AL, UK.
Email: a.w.norrie@warwick.ac.uk
Norrie
11
Is there truly ‘that of God in everyone’?
Lucy, when I kissed your skull
The dome of the sky took root in my heart.
Marian Partington (2012: 52)
Love and Law: Deepening Punishment’s Critique
This essay seeks to develop a new position in the critical theory of punishment, a field in
which it might be thought that all that could be said has been said. That punishment is a
form of political power, is historically specific, is embedded in unjust social relations, is
linked to violence and occlusion of difference, is positive and productive of persons,
these are all well-known themes. That its juridical expression is formalistic and in its
formalism both repressive and expressive, and that this generates in practice more con-
crete, less abstract individualist, alternatives in the shape of restorative and transitional
justice forms: such themes have also been rehearsed. I argue, nonetheless, that there
remain issues marginalized in critical and mainstream discussion which should be devel-
oped to understand how punishment works as a concept and practice in modern society. I
want to pursue a fresh enquiry that starts with some thoughts of Bernard Williams (1995,
2008) and which develops the idea of a moral psychology as punishment’s underlying
ethical ground.1 This is a ground that stands adjacent to the practice, enabling a critical
distance and deeper understanding.
For a Moral Psychology of Punishment
The peg on which I hang the new critical position is punishment’s ongoing attraction. I
want to take this not just as an expression of the continuing effectiveness of history,
power, ideology, or politics, the subject of existing critiques, but as a question of the
intrinsic yet oblique moral salience of punishment’s conceptual complex (its ‘moral
grammar’). It is not that I deny the importance of existing critical themes, far from it,
but my argument is that history, power, ideology and politics remain well served by
punishment because of its intrinsic connection to issues of morality, albeit these are
expressed through a particular, by no means inevitable, form. The form in question is that
of modern state law. As I will argue, what has been insufficiently understood is what
lurks in that law’s shadow.
That the law–punishment nexus is a particular way of thinking about punishment
can be seen in the way that punishment is debated as a matter of political theory
rather than what I call, following Williams, moral psychology (see Norrie, 2017b;
Williams, 1995, 2008). It is generally taken as given that to speak about the complex
of punishment terms is to speak about a form of state, law-based, action. Why not,
since the whole history of modern political philosophy has cast the problem of punish-
ment in such terms? The theory of punishment is precisely a theory of the terms in
which a state can act to sanction its subjects: traced from the sovereign in Hobbes and
Locke to the state based on reason in Kant, and Hegel, and on through the utilitarians,
the British Hegelians and the 20th-century positivists (Carvalho, 2017; Norrie, 1991)
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Social & Legal Studies 28(1)
to Hart’s liberal (1968), Duff’s communicative (2001), Brudner’s political (2009) and
Tadros’s harm preventing state (2011). It addresses the proper province of state
punishment (Ashworth and Zedner, 2014), the political sociology of the state today
(Ramsay, 2012), the subjects of that state (Lacey, 2016) and its civilizing process
(Farmer, 2016). We might also naturally think of punishment as something that states
do through law in a world where prisons and courts provide the setting in which
punishment occurs. But political theory may not be the only way to view the matter,
and it may be complicit with a particular reality in a way that occludes what is really
going on. To see how that might be the case, I take my initial bearing from two
quotes from Williams. Here is the first:
As soon as we look at blame not as a uniquely appropriate expression of truly moral
judgment, and not, on the other hand, simply as an instrument of social control, but see it
as part of a concrete ethical life, we shall be helped to understand the other psychological
forces (such as love, perhaps) that are needed to make blame possible as a manifestation of
the ethical dispositions. (Williams, 1995: 16)
Williams’s interest was to get beyond what he called ‘the morality system’ or the
‘ethical conceptual system’ for understanding moral action, and to look at concrete
ethical settings alongside what it means to possess a human psyche, subject to psychic
forces such as love. Williams sensed the need for a moral psychology that would be
linked in naturalistic terms (Altham and Harrison, 1995: 202–205) to the real psycho-
logical grounds of action. While he himself remained a philosopher, so that he did not
push his thought as far as he might, he began to open the door to another domain, that of
psychology (Lear, 2003, 2004). Emblematic of this ambivalence is the development of a
psychoanalytic approach to philosophy in his Shame and Necessity (2008) – but as an
appendix to the work as a whole.
In considering where thought might have gone wrong, Williams pointed the blame at
political theory, theory that is inflected by particular political assumptions:
To the extent that our ideas about legal responsibility are shaped by [the] ideal [of self-
control], they are governed by a certain political theory of freedom in the modern state, not
by a moral refinement of the very conception of responsibility. (Williams, 2008: 66)
He also wrote, in the aforementioned appendix, of ‘guilt-centred, autonomous, moralities’
in which ‘guilt is pictured as an emotion experienced in the face of an abstraction, the
moral law, which has become part of the subject himself’. This generated an ‘idealized
picture’ in which ‘guilt comes to be represented simply as the attitude of respect for an
abstract law, and it then no longer has any special connection with victims’ (Williams,
2008: 219–222). Note here the concern about abstraction in punishment theory and the
wish to speak in a different mode about the experience of victims. Of course, the modern
political theory of punishment pushes in many different directions – towards communitar-
ianism, Aristotle or Hegel, or towards consequentialism – and not just towards what might
be thought to be Williams’s Kantian target above. Though Kant is never far away (Norrie,
2000), Williams’s aim was not just to broaden political theory. It was to take our
Norrie
13
understanding of punishment’s terms to a different level, one in which we could under-
stand in naturalistic, not merely normative, terms the psychological as well as the moral
experience of being guilty or a victim, and, under that, of being a creature capable of love.2
What Williams suggests is demanding. It involves thinking about love, what it means
to be violated, and how the deepest human emotions inform moral being and experience.
This is the move towards psychoanalysis, opening up the ground from which to explore
human moral psychology and its resulting moral grammars (c.f. Nussbaum, 2014, 2016).
Here, I start this project by considering the young Hegel, who wrote about these things in
a persuasive ethical voice, focused precisely on love, morality and violation, and did so
while maintaining a critical distance to law. Hegel of course wrote before the question of
moral psychology could be linked to intramental processes first identified by Freud.
Nonetheless, the young Hegel has things to say that have been too much ignored in
punishment scholarship, probably because they are too far from the mainstream. The
interest here is all the greater in that the mature Hegel qua political and legal theorist took
a very different view of the same topic. Thus, I argue that in the contrast between the
young and the mature Hegel, we observe something like the difference between a moral
psychology in the Williams mode and the kind of ‘morality system’ that he saw as so
limited.
How Does Modern Punishment Retain Its Moral Traction?
This...
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