Reviews
| Published date | 01 January 2000 |
| DOI | http://doi.org/10.1111/1468-2230.t01-1-00256 |
| Date | 01 January 2000 |
REVIEWS
Hanne Petersen (ed),Love and Law in Europe, Aldershot: Dartmouth, 1998, 158 pp,
hb £39.50.
The spirit of love may be harder to follow than the letter of the law. It is no doubt in
part for that reason that the modern legal tradition has focused almost exclusively
upon written law, upon legislation and the positive records of adjudication. This
modernist and broadly empiricist attachment to the visible and legible expressions of
legal rule has tended to promote a jurisprudence centred upon the formal institutions
of goverment and upon the self-presentation of judicial decision-making. Equally
antique yet more informal traditions of amicable agreement, of affective compromise
and of the various species of judgments of love have been marginalised, dismissed or
ignored as emotive, irrational, or simply unlawful. Positivism does not know of any
jurisprudence of the emotions, let alone of love, and until recently has paid little
attention to the possibilities of an aesthetics of law that might address the affective
force of a more plural domain of techniques of governance.
Law and Love in Europe is an excellent and imaginative collection of essays that
attempts to begin the lengthy tasks of recognising, recollecting and rethinking the
social domain of emotions and the jurisdiction of love within the philosophy and
sociology of law. Prompted by the ironic observation that the primary reason that
people move country within Europe is love rather than labour, and yet the European
Union has no law that directly addresses the needs of the transnational love affair
(p7), Hanne Petersen defines the parameters of law and love in terms of what might
inelegantly be termed the globalisation of emotions. The culture of written law, the
identification of legality with textuality, has been overtaken by technological
innovations and by actuarial practices of government. We are entering an era of virtual
law in which the sedentary prose of the printed page is increasingly being superseded
by international media of communication and by instantaneous, statistically
generated, forms of governmental decision-making. Within the context of such new
technologies, Petersen argues that it is necessary to rethink the ethics of legality and
this means attending to new patterns of social affinity, to sympathies and synergies
that transcend the nationalistic codes of classical legal communication. The rule of
law should increasingly be understood in loosely postmodern terms. The generation of
cultural norms depends as much upon television and film, upon music, drama and
other popular fictions as it does upon any formally constituted law. Community and
solidarity, communication and collective emotion, attraction and harmony, develop
through a logic of identification which depends upon the creation and recreation ‘of a
more sensual, visual, musical or rhythmic form of order’. (p22)
The prototype of a jurisprudence of emotions within the western legal tradition has
historically been that of the jurisdiction of love familiar both to canon law and in
disparate forms to medieval secular law. For the Christian west, love was the higher
law, it was the law of the first Venus whose superiority to positive law was captured in
the maxim maior lex amor est. Similarly, in the Pauline tradition love was declared to
be the fulfilment of the law, just as, for the Augustinian, love – lex caritatis – was also
the method through which the law was to be understood. The secular tradition not only
ßThe Modern Law Review Limited 2000 (MLR 63:1, January). Published by Blackwell Publishers,
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134
inherited much of this doctrine but also developed independent modes of informal
decision-making per amorem (through love) in local contexts that ranged from the
amicable compromise to English lovedays (dies amoris) and to the southern French
courts and judgments of love. If love was variously conceived to be the spirit of law,
or in Fortescue’s terms the ‘nature of natural law’, the concept of justice as the flexible
expression of that higher law is probably the best point at which to begin the analysis
of the historical relation of law to love.
The classical and medieval doctrines of the law of love unequivocally subordinated
law to love and the justice of love, what Lyotard refers to momentarily as the diffe
´rend
affectuel, allows explicitly for the expression of the ‘bonds of affection’, emotions and
other amities in the judgment or compromise of disputes. Justice as an expression of
love, and as a method of governance through charity, mercy, and the aesthetic
apprehension of virtue, is clearly too poetic or musical a form of rule to be readily
comprehensible to, let alone to satisfy the prescriptions of positivistic or ‘pure’
theories of law. In two of the most stimulating essays in the collection the venerable
argument that love both is and should be distinct from law is made out in historical
and philosophical terms. For Koen Raes love is the antithesis or, more stongly, ‘the
very negation of law’. (p 29) Love, characterised here as ‘amour fou’, or in Freudian
terms ‘object choice’, is everything that law is not. It is unconscious, irrational,
enslaving, chaotic, unpredictable, particularistic and intrinsically partial. For Raes, the
irresponsibility and spontaneity of love constantly position it historically in conflict
with law: ‘there is no justice in love. There is no love in justice. There is only the
recognition that both are fundamental human values’. (p 49)
In a similarly antinomic vein, Emilios Christodoulidis spells out an absolute
disjunction between law and love predicated upon a stipulative distinction between
the reductive and the reflexive. In this Luhmannian argument, law must always be to
some extent reductive: it simplifies, it orders interactions, it defines expectations, and
in doing so renders the complexity and uncertainty of sociality governable. Love, by
contrast, is defined against a horizon of reflexivity. Love is continuously self-
questioning, particularistic, dynamic, uncertain and surprising: ‘Love’s self-
referentiality is radicalised through chance and expressed spontaneously: love’s
expression cannot be programmed’ (p 55) Law and love thus ‘stand dichotomous’
(p53), to which is added the curious hypothesis that the reflexivity of love ‘is hardly
tolerable; it makes our social communities anxious places’. (p 55)
In one respect, the dichotomy set out between the normativity of law and the
unconscious or at least very distant causes of love understood as a species of fate,
allows Christodoulidis to achieve a radical goal. The reductive definition of law as the
containment of contingency in formal institutional interactions allows him
dramatically to limit or sever law from civil society. Law should in this view play
no role in the definition of collective identity or in the aspiration to community: ‘if we
are to do justice to our ability to act in common towards a common future we should
not rely on law to perform a task it cannot even give expression to and bind us in a
community that elides the particularities of our attachment.’ (p 53) Yet if law can offer
nothing to love, then, as Irigaray and other feminists have asked, what then of ‘pauvre
Eros’, what then of love?
The issue posed by the reduction of law to the erasure of the contingencies of social
life, or the quieting of anxieties about the future, is that it unifies and simplifies the
plurality of laws and of forms of governance. It is a classically positivistic, functional
ideal of law that reduces the historical, cultural and symbolic diversity of legality if
not to a point of non-recognition, at least to a point far removed from contemporary
practices. The reductive concept of law as the antonym of love also has the
January 2000] Reviews
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