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

* This paper was presented at the Values and Human Flourishing Conference, Department of Sociology, Yale University, at a Critical Theory and Criminal Justice Workshop at the National Law University, Delhi and as a lecture at the Indira Gandhi National Open University (IGNOU), New Delhi, in March and April 2017.

ABSTRACT

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.

KEYWORDS:

• Love
• guilt
• blame
• forgiveness
• transitional justice
• moral grammar of justice

Acknowledgement

I thank all those who gave stimulating and insightful comments in the very different settings in which this paper was presented. I gratefully acknowledge the award of a Major Research Fellowship by the Leverhulme Trust, which permitted me the time to write this paper.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes on contributor

Alan Norrie, Professor of Law, Warwick Law School, University of Warwick, Coventry, CV4 7AL, UK.

Notes

* This paper was presented at the Values and Human Flourishing Conference, Department of Sociology, Yale University, at a Critical Theory and Criminal Justice Workshop at the National Law University, Delhi and as a lecture at the Indira Gandhi National Open University (IGNOU), New Delhi, in March and April 2017.

1. I qualify the claim since in the realm of a realist moral psychology, one based on how human affect and agency relate naturalistically, space must be allowed for the exception as well as for the rule, meaning the overall tendency.

2. Jaspers developed a fourfold typology of political, legal, moral and metaphysical guilt. He found the first three of these limited and lacking in adequate depth, for reasons I explore in Norrie 2017, ch. 7.

3. Jaspers was himself concerned that metaphysical guilt would be seen as the ‘crazy idea of some philosopher’ (Jaspers 2000, 68). Its deep connection with love explains why it is more than this.

4. This may be treated as a case of emergence in critical realist terms, where the metaphysical level of experience is dependent on (emergent from) the existence of a being that is capable of the nurturing love of its offspring, and where the precise forms of the emergent metaphysical level cannot be reduced back to the ground from which they emerge but have a sui generis existence (Hartwig 2007, 166).

5. Striking is the publication within two years of each other (Benjamin in 1988, Lear in 1990) of two works by political theorists, one of Hegel, Marx and feminism, the other of Plato and Aristotle, which both articulate a psychoanalytic theory of love as the first building block of human life.

6. I do not state this as a necessary rule, only as a tendency, competing with other tendencies in an open world.

7. Here lies the basis for the kind of moral psychology called for, but not implemented by the philosopher Bernard Williams (2008). His task remains unachieved, and the reason why is one he recognised: the predominance of a politico-legal account of guilt, responsibility and blameworthiness, which blocks a more sophisticated analysis. See Norrie 2017b. The deeper moral grammar more attuned to ethical reality is anticipated by the young Hegel before he rethought his argument in legal terms: see Norrie 2018.

8. When Nussbaum speaks of transactional forgiveness, she means a form of forgiving linked to ‘payback’ or status degradation, in contrast to ideas of transition linked to unconditional love. For me, transactional forgiveness entails a relationship that is morally valid and goes beyond the negative forms she identifies, which are no doubt present in the world and closely linked to law.

9. Modern political philosophers such as Antony Duff (2001) argue that retributivism has both backward and forward-facing functions.

10. Though it does not stop her basing her own position on a philosophy of unconditional love.

11. For a powerful argument concerning the role of forgiveness in Christian thought that appears to transcend the distinction between conditional and unconditional forgiveness, while basing itself on unconditional love, see Volf (2005, 2006).

12. Nor would I deny that a transactional process can become a way of not moving forward, but a means of repeating the problems of the past. On this, see Volf (2006). Nonetheless, not to see the need to address the past in ways that are linked to the future seems to me to throw out the baby with the bathwater.

13. For Volf (2005, 168–9) this is a secondary feature. For me, I think both ‘giving to’ and ‘giving up’ are morally as well as analytically and linguistically central to ‘forgiving’.

14. Thanks to Gwen Norrie for drawing this to my attention.