REVIEWS
| Published date | 01 July 1996 |
| DOI | http://doi.org/10.1111/j.1468-2230.1966.tb02104.x |
| Date | 01 July 1996 |
REVIEWS
Costas Douzinas and Ronnie Warrington,
Justice Miscarried: Ethics, Aesthetics
and the Law,
Heme1 Hempstead: Harvester Wheatsheaf, 1995,
x
+
326pp, pb
S17.95.
Towards the conclusion of this book, Douzinas and Warrington state: ‘Our
argument is that expected, received
or
authorised interpretations of texts can
be
challenged’ (p309). In a footnote to this statement, they declare: ‘The same, we
know, is also true of this text’ (p 309, n 43). I offer a challenge to the authors of
Justice Miscarried
in a shared spirit of critique and dialogue (even though my
offering is meagre in comparison), and as a small token in remembrance of Ronnie
Warrington.
In an earlier demonstration of intellectual pyrotechnics,
Postmodern
Jurisprudence: The
Law
of
the Text in the Texts
of
the
Law,
Douzinas and
Warrington declared their project to be one of confronting the certainties of the
legal values of the Enlightenment. That project, alas, lapsed into indeterminacy
and relativism
in
its commitment to plural forms of reason and community. In
Justice Miscarried,
the authors claim that justice has become subsumed beneath
law and that the task of a humanistically-oriented radical discourse of otherness
is
to retrieve justice. If there is a central criticism of their earlier work, it is that
postmodern jurisprudence
is
deployed as simply an oppositionist project. Here, the
imperative is affirmative: postmodernity does not simply mean a new modernity
or
an absolutely new beginning;
it
means, rather, never forgetting. There are atrocities
which one ought never
be
allowed to forget.
An ethical postmodern jurisprudence is both a process in the remembrance of the
violence of the law and an exercise
in
the retrieval of that which has been
forgotten, subjected to suppression or mythologisation. Douzinas and Warrington
offer a philosophical examination of the
absence
of justice in contemporary society
and a sustained cry for the retrieval of justice through the process of bridging the
apparent abyss between law and justice by way of the introduction of the ethical.
Analytical legal philosophers are content to ignore the violence of law (in
enunciation and action), and legal sociologists are content to examine the transition
from substantive legal formalism to discretionary and administrative procedure in
an
ethical and moral vacuum. From within the academy, the multiple injustices
performed
in
the
name of justice by the law upon community cannot
be
recognised. As Douzinas and Warrington note
in
their brilliant opening expository
chapter, the rush to modernity has ‘swamped any substantive notion of justice
which the law was supposed to embody’ (p 10).
Douzinas and Warrington dismiss
the
present authority
of
social justice in
modem society as being premised upon a prescriptive moral law operating through
a principle of non-contradiction: ‘The liberal theory of social and political justice
is only concerned to secure the rights and property of individuals and makes no
claims about the good
life,
the choice of which is
left
to individuals acting within
the confines of the laws’ (p 144). Justice with an ethical foundation differs from a
distributive justice. Claims about ‘the good life’ are not within the realm
of
modem
law precisely becauSe of an earlier separation of law and ethics (p 132). ‘Whilst the
law has been universally acknowledged as the only suitable arbitrator between
Q
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