Modernism Polarity and The Rule of Law

Yale Journal of Law & the Humanities
Volume 24 | Issue 2 Article 1
5-8-2013
Modernism, Polarity, and the Rule of Law

Desmond Manderson
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Manderson: Modernism, Polarity, and the Rule of Law
Articles
Modernism, Polarity, and the Rule of Law
Desmond Manderson
The rule of law is in peril. Some say it is imperiled by reactionary

politics. Some say it is imperiled by radical theory. Some say that these
two dimensions are complicit: by working so avidly to undermine the
integrity of texts and institutions, key movements in contemporary legal
theory and philosophy are often said to weaken the bulwark of the rule of
law just when it is most needed. The question for this Article is the
following: is this true, and if it is, what can we do about it? Powerful
critiques of "rules," language, objectivity and meaning in law have been
accumulating for a long time now and cannot just be wished away,
regardless of our political preferences. The challenge is to address more
seriously what this means for the rule of law. But it is a challenge
confronted. Those interested in the rule of law tend to trivialize the
critique; those interested in the critique tend to ignore the rule of law. In
this Article, I attempt to get past this willful blindness and engage the
issue. The critique of positivism does indeed have serious implications for
* Future Fellow, College of Law / Research School of Humanities and the Arts, The Australian
National University, Canberra.
475
Published by Yale Law School Legal Scholarship Repository, 2012 1

Yale Journal of Law & the Humanities, Vol. 24 [2012], Iss. 2, Art. 1
476 Yale Journal of Law & the Humanities [Vol. 24:475
the rule of law. But by paying attention to the historical moment when
these two traditions most dramatically collided, there is much we can
learn. Not only does the historical context sharpen and intensify the issues
at stake, but it also reveals a third alternative that ignores neither the
critique of positivism nor the rule of law. In this Article, I will call this
alternative "polarity," and I want to show where and why it arises from
the historical context of modernism and what implications it might have
for a post-positivist rule of law. History therefore teaches us not only why
the problems with the rule of law have been so long-lasting, but what we
might do about it. Perhaps, after all, the peril to the rule of law might be
averted not by ignoring the critique of positivism but by embracing it.
In Part I, I show how the basic assumptions of positivism parallel those
of the rule of law such that the intellectual critique leveled at the former
causes acute problems for the latter. Yet, those who have attempted to
engage with the critique from the point of view of the rule of law have
merely avoided the issue. I illustrate that avoidance by looking at recent
work by Brian Tamanaha in particular.
In Part II, I show that missed opportunities and circular debates around
this critical issue go back many years. It is only by going back to the
historical and interdisciplinary origins of the conflict between the rule of
law and legal critique that we can see it properly and respond to it
adequately. History, I will argue, affords us insight, perspective, and new
opportunities. The challenge to the rule of law crystallized and was indeed
at its most intense at the height of the movement of modernism in the
fraught years following World War I. Right across Europe and in
America, the "crisis of modernity" unleashed by that cataclysm
profoundly undermined the faith of the West in its systems, mechanisms,
structures, and institutions. That led in many quarters to a reactionary
romanticism, a kind of anti-positivism of which, in relation to law and
politics, Carl Schmitt is emblematic. The force of Schmitt's argument
against the very possibility of rule-constrained decisionmaking has not
diminished. Powerful traces of transcendentalism or romanticism, which
would throw out the baby of the rule of law with the bathwater of
positivism, can still be found across many aspects of contemporary legal
theory.
Returning to the roots of the problem sharpens what is at stake in this
debate and demonstrates how closely the legal and political issue is tied to
a literary, aesthetic, philosophical and cultural context-modernism. In
Part III, I argue that while post-war modernism dramatizes the standoff
between positivism and romanticism, it also contains the resources to
move beyond it-resources which, like modernism itself, legal theory
keeps forgetting. The language and ideas of "polarity" articulated by D.H.
Lawrence in the early 1920s is one such resource. Polarity expresses
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2012] Manderson 477
Lawrence's insight that contradiction and opposition, such as those

between rules and applications, general norms and particular persons, law
and justice even, should neither be separatedas the positivists would have
it, nor harmonized as the romantics would have it. On the contrary, for
Lawrence the tensions and oppositions in our life must be maintained and
preserved. This insight came precisely out of his experience of literature
and his intense engagement with the political currents of the time. Neither
was he alone in making this move and thereby fully embracing the
contingency and uncertainty of the twentieth-century. Time and again the
great modernists of the 1920s, including Walter Benjamin, moved in the
same direction.
In Part IV, I briefly show polarity's continuing relevance to
contemporary legal theory as a way of embracing the very uncertainties
and contradictions which both positivism and romanticism wish to
overcome. In particular, the idea of polarity clarifies the contribution of
deconstruction to these debates. Deconstruction continues to be misread
and misunderstood. Polarity allows us to more clearly see that it is not
only an anti-positivist theory of law, but equally, and, despite many
assertions to the contrary, an anti-transcendental one.
In Part V, I apply what we have learned from our excavation of
modernism. The question I began with was whether the critique of
positivism must doom the rule of law. My answer is no. Polarity and
modernism suggest a way past this false dichotomy-a way of
understanding the rule of law while at the same time embracing
contingency, uncertainty, and contradiction. Polarity allows us to see the
rule of law as a site for oscillation rather than determination, as a place for
unending public discourse rather than decision, and therefore as the
occasion for the widening and deepening of our social involvement in law
and justice rather than its settlement. Modernism thus offers something
specific and necessary to our understanding of justice. It imagines the
court and the law as the forum for an ongoing process of learning built on
principles of dialogue, conflict, and imperfection, rather than the site of a
didactic set of outcomes. The rule of law, under the polarized light of
modernism, does not exist to maximize certainty but rather to manage
uncertainty. For the positivists and the romantics amongst us this is a
tragic conclusion. But for the modernists in our midst, it is an affirmation
of the human condition.
I. POSITIVISM AND ITS DISCONTENTS
A. Orthodoxy
The rule of law seems to depend upon positivist assumptions about the

certain and objective application of legal rules, while the critique of

positivism, both historically and now, has focused precisely on
undermining those same assumptions. The rule of law relies on the very
ideas that the critique insists are untenable. Positivism claims that
objective meaning can be derived from established legal rules such that
judges and other interpreters are able to apply them in a predictable and
pre-determined fashion-not all the time, of course, but enough of the
time to be treated as paradigmatic. In the "normal case," argues H.L.A.
Hart, the meaning of the rules is neutral, given, and inflexible:
[T]he hard core of settled meaning is law in some centrally
important sense and that even if there are borderlines, there must
first be lines. If this were not so the notion of rules controlling
courts' decisions would be senseless as some of the "Realists"-in
their most extreme moods-and I think on bad grounds-
claimed.
Hart embodies both a theory of interpretative method and legitimacy;
he seeks to explain what judges "do" and why they should do it. The great
Australian judge Sir Owen Dixon unites these features:
It may be that the court is thought to be excessively legalistic. I
should be sorry to think that it is anything else. There is no other
safe guide to judicial decisions in great conflicts than a strict and
complete legalism. . . . The authority of the courts of law
administering justice according to law is a product of British
tradition and it is for us to maintain it. There is I believe a general
respect for the Queen's courts of justice which administrate justice
according to law, and I believe that there is a trust in them. But it
is because they administer justice according to law.2
In this conception of the rule of law, justice plays a purely
"administrative" role. A judge who was tempted for whatever reason to
dispense justice but not administer it "according to law" would be
undermining the general respect given it.
Admittedly, the rule of law is a broad and nebulous concept. Ronald
Dworkin, for example, has been particularly critical of writers who
distinguish between the rule of law and "substantive" rights.3 Yet broad
and substantive visions of the rule of law (most notoriously the
Declaration of Delhi) are by and large suppletive.4 They reflect an
1. H.L.A. Hart, Positivism and the Separation ofLaw and Morals, 71 HARV. L. REV. 593, 614-15
(1958).
2. Owen Dixon, Address upon Taking the Oath of Office (Apr. 21, 1952) (transcript available in
85 CLR xiv-xv) (Austl.).
3. See generally RONALD DWORKIN, TAKING RIGHTS SERIOUSLY (1978).
4. The Declaration of Delhi provided an expansive statement of the rule of law which went well
beyond merely formal or procedural guarantees. It treated the rule of law as "a dynamic concept ...
which should be employed not only to safeguard and advance the civil and political rights of the
2012] Manderson 479
expanding circle of expectations implicit in the rule of law," but these add
to, rather than subtract from, its central features, most notably a
commitment to protecting values of predictability and certainty in the law.
This much was evident as far back as Aristotle, who famously
distinguished rule by "the best men" from rule by "the best laws."' As the
rule of law took its modem shape it came to express other concerns too:
the tripartite division of powers, habeas corpus, and law's equal
application to all persons.' But it never lost its principal commitment to a
theory of interpretation and certainty. As Friedrich Hayek put it in his
conservative manifesto, The Road to Serfdom, the rule of law does not
ensure justice. Rather, it ensures certainty and clarity in the application of
government power, which for Hayek is itself a moral principle:
"[G]overnment in all its actions is bound by rules fixed and announced
beforehand-rules which make it possible to foresee with fair certainty
how the authority will use its coercive powers in given circumstances, and
to plan one's individual affairs on the basis of this knowledge."' Thus,
positivist theories of interpretation seem to form the necessary condition
of what it means to do justice "according to law."
B. Critique
Yet critiques of this claim for a rational, abstract, and certain objectivity
have only multiplied with the passing years, from legal realists and
Marxists to feminists in the 1970s, race theorists and critical legal studies
in the 1980s, and post-structural theorists in the 1990s. Thus, according to
Derrida, justice embodies two opposed impulses: equal treatment and
singular respect. Justice expresses an aspiration towards "law or right,
legitimacy or legality, stabilisable and statutory, calculable, a system of
regulated and coded prescriptions"' and at the same time wishes to find a
unique and singular response to the particular situation and person before
us. Justice is both general and unique; it involves treating everybody the
same and treating everybody differently.9 If we could divorce justice from
law, then this would not present a problem. We could apply the law in
court and talk about justice over lunch. But this response will not work.
The rule of law tells us to follow the rules, but every legal decision
individual in a free society, but also to establish social, economic, educational and cultural conditions
under which his legitimate aspirations and dignity may be realized." INTERNATIONAL COMMISSION OF
JURISTS, THE RULE OF LAW IN A FREE SOCIETY: A REPORT ON THE INTERNATIONAL CONGRESS OF
JURISTS 2 (1959).
5. ARISTOTLE, POLITICS 1286a (Harris Rackham trans., 1932).
6. A.V. DICEY, INTRODUCTION TO THE STUDY OF THE LAW OF THE CONSTITUTION 203 (1902).
7. FRIEDRICH HAYEK, THE ROAD TO SERFDOM 54 (1944).
8. Jacques Derrida, Force of Law: The Mystical Foundation of Authority, II CARDOZO L. REV.
919, 959 (1990).
9. Id. at 961.

requires us to make a judgment as to the applicability of prior general

norms in the inevitably different and singular circumstance before us. We
must always decide if this unique case is the same as or different from the
past, and this is the very choice that the past cannot help us with.
The unavoidable passage of time between the enunciation of a norm
and its application, and the unavoidable uniqueness of the present
judgment by comparison to any prior instance, inevitably opens up a
space for choice.'o The decision might be obvious. But it cannot be made
without a moment of reflection. Once in a while that reflection will cause
us to change our mind, to reconfigure our understanding of what the rule
in question meant. That reflection cannot be limited in advance to
predictable aspects-"hard cases" or "grey areas"-since it is in the
nature of time and circumstances to transform easy cases into hard cases
unexpectedly. Uncertainty is built right into legal interpretation. The
judge cannot fall back on the established law to answer this question; it
would be circular reasoning to do so. Instead, the judge must have
recourse to something beyond the rules, some element of uncertainty
which, as we have seen, we had hoped to set aside. Responding to Hart,
Fuller too insisted that it is just not possible to apply a rule without being
forced to consider its meaning in relation to a greater framework or set of
principles that are themselves, by a logic of infinite regression, incapable
of reduction to some transparent meaning."
The standard view, however, remains the one articulated by H.L.A.
Hart: "If it were not possible to communicate general standards of
conduct which multitudes of individuals could understand, without further
direction, as requiring from them certain conduct when occasion arose,
nothing that we now recognize as law could exist."l 2 As Brian Langille
observes, if "language is indeterminate, unstable, subject to manipulation
and incapable of expressing rules and principles which constrain judges . .
. the law is a failure on its own terms and the virtues of the rule of law are
impossible to secure."" That's the problem.
C Response
Many scholars thus reject such critiques of legal interpretation on
purely normative grounds, dismissing them just because the rule of law
10. RICHARD BEARDSWORTH, DERRIDA AND THE POLITICAL 110 (1996) (arguing that the aporia
of law is nothing but the aporia of time); see also id. at 37, 98-121.
11. See Lon Fuller, Positivism and Fidelity to Law: A Reply to ProfessorHart, 71 HARV. L. REV.
630, 661-69 (1958).
12. H.L.A. HART, THE CONCEPT OF LAW 121 (1961).
13. Brian Langille, Revolution Without Foundation: The Grammar of Scepticism and Law, 33
MCGILL L.J. 451, 455 (1988).
2012] Manderson 481
could not survive.14 In Law as a Means to an End: Threat to the Rule of

Law, Brian Tamanaha argues that "relativism and postmodemism" pose a
threat to the rule of law that "cannot be overstated."'" He continues:
If judges substantially base their legal decisions . . . upon their
personal views, then the rule of law ideal would be a fraud....
Furthermore, when the total body of judges is made up of
individuals who hold divergent personal views, the formal rule of
law in the sense of stability, certainty, predictability, and equality
of application, cannot be sustained.'"
Tamanaha identifies the problem, but he does not begin to deal with it.
Instead, he neuters the critique by setting up a false dichotomy. On the
one hand, "objective" decisionmaking, and on the other, "willful
judging," which "instrumentally manipulat[es] the legal rules to reach a
particular end."' 7 For Tamanaha those are the only options:
A legal system requires that judges render decisions according to
the applicable rules, not according to their own political views or
preferences. . . . There is no doubt that the task of achieving
purposes or ends ... is more complicated, far more uncertain, and
far less ascertainable than strictly applying legal rules to an
existing situation.'8
So, Tamanaha thinks the integrity of the rule of law can be maintained
only if we simply refuse to manipulate or second guess the consequences
of applying the rules. The interpretation of rules in order to achieve
particular ends is a seduction to which a good judge will "just say no."
But this misses the point. For critics of positivism-whether we are
talking about Llewellyn in the 1930s or Fuller in the 1950s or Derrida in
the 1990s-the inability of rules to entirely constrain the decision of the
judge is not a choice. There is no hard and fast "rule" that judges either
choose or refuse to apply. The problem is how to work out what the law
''really means" in a never-before circumstance and at a never-before time.
Tamanaha is blind to the real critique, which lies in the necessary
limitations of rule-bound reasoning. Ultimately, his essential position
appears to be that the critique of positivism ought not be allowed because
14. BRIAN TAMANAHA, LAW AS A MEANS TO AN END: THREAT TO THE RULE OF LAW (2006)
[hereinafter TAMANAHA, LAW AS A MEANS TO AN END]; BRIAN TAMANAHA, ON THE RULE OF LAW:
HISTORY, POLITICS, THEORY (2004); see also TREVOR ALLAN, CONSTITUTIONAL JUSTICE: A LIBERAL
THEORY OF THE RULE OF LAW (2001); WILLIAM SCHEUERMAN, CARL SCHMITT: THE END OF LAW
(1999); John Gardner, The Legality ofthe Law, 17 RATIO JURIS 168 (2004); Andrei Marmor, The Rule
ofLaw and Its Limits, 23 LAW & PHIL. I (2004); Jeremy Waldron, Is the Rule ofLaw an Essentially
Contested Phenomenon?, 21 LAW & PHIL. 137 (2002).
15. TAMANAHA, LAW AS A MEANS TO AN END, supra note 14, at 236.
16. Id.
17. Id. at 237-44.
18. Id. at 227-29.

that would be the death of the rule of law. But the real question seems to
me how to face the critique and not how to ignore it. If law does involve
"madness"-an unavoidable "moment of undecidability"l 9 in which the
judge merely intuits what justice requires-what then? Must we ignore
the critique or forget the rule of law?
II. MODERNITY AND ITS DISCONTENTS
A. The Crisisof Modernity

Beneath this confusion and this forgetting lies another, greater problem:
the confusion and forgetting of history. These disputes about the rule of
law are far from new. Similar questions emerged and converged in
philosophy, literature, and the humanities at a crossroads in our
intellectual and social history, the aftermath of the Great War. The so-
called "crisis of modernity" into which Europe was then plunged is not
over. It has continuing implications for how we understand the
relationship between judgment and the rule of law, on the one hand, and
between law and literature, on the other.
As I have recently elaborated,20 the Great War stood as the graveyard of
not one but two nineteenth-century ideologies: romantic fantasies of unity
and progress and positivist fantasies of logic and system. The Great War
had traumatically shown that the problem of the modem world lay in man,
not the world, and that a greater knowledge of it, a greater institutional
control over it, a greater technological mastery over it, was likely to be
more terrible than good. The war was an event which entered a world of
social and technological arrogance, unmasking its inner contradictions
and its hollow rhetoric. George Orwell later described the emerging
conflict as between technology and humanity: the problem of social
relatedness in an era of scientific progress, of the deadening effect of
industry, rationality, and positivism on art, emotion, and community. 2 1
Max Weber too was alert to the dangers of the rationalist and specialized
tendencies of the West that he had so clearly identified as critical
characteristics of the modem world. In his posthumous Economy and
Society,22 Weber warned of the coming of a "polar night of icy darkness,"
which would trap individuals in an "'iron cage' of rules." 23 By 1917 "the
19. Derrida, supra note 8.

20. DESMOND MANDERSON, KANGAROO COURTS AND THE RULE OF LAW: THE LEGACY OF
MODERNISM (2012).
21. GEORGE ORWELL, THE ROAD TO WIGAN PIER (2007).
22. MAX WEBER, ECONOMY AND SOCIETY: AN OUTLINE OF INTERPRETIVE SOCIOLOGY
(Guenther Roth & Claus Wittich eds., Univ. of Cal. Press 1978) (1922).
23. Id.at241-71.
2012] Manderson 483
crisis of modernity" or the "crisis of civilization" 24 was already familiar

shorthand for this critique of the very idea, which now seemed nalve or
fraudulent, that rules, mechanisms, and systems could save us from
ourselves.
Romanticism was concomitant with the rise of modernity and to some
extent a counterpoint to it. M.H. Abrams defines romanticism as "a
metaphysics of integration, of which the key principle is that of the
'reconciliation' or synthesis of whatever is divided, opposed, and
conflicting." 25 The great romantics like Wordsworth or Coleridge
believed that imagination "reveals itself in the balance or reconciliation of
opposite or discordant qualities . . . rich in proportion to the variety of
parts which it holds in unity." 2 6 But the war had equally trampled that
utopian dream of unity or synthesis. The world seemed defined by its
incurable differences: conflicts between peoples, countries, or ideologies,
for example, or the conflict between man and nature, art and science, or
reason and emotion. In sociology as in poetry, in philosophy as well as
literature, the crisis of modernity articulated a widespread loss of
conviction in the possibility of ever reaching some promised land of
solidarity or harmony or peace. Materialism, technology, bureaucracy,
capitalism, and rationalism had undermined the illusory rhetoric of such
naYve alternatives but no credible replacements had been found. Max
Weber called this phenomenon "the disenchantment of the world."2 7 He
saw a modem world in which belief was no longer possible. The present
gave us nothing to believe in, and we could no longer believe in the past.
After the war this crisis and this vertigo imbued the question of positivism
and its "other" with an even more furious or desperate urgency-in the
expressionist art of Otto Dix and the literary modernism of Joyce or
Woolf as in Max Weber or R.G. Collingwood.2 8 In every sphere was felt a
disorienting loss of faith in both this world and the next, human and
divine, reason and love.
24. See RICHARD MURPHY, COLLINGWOOD AND THE CRISIS OF WESTERN CIVILIZATION: ART,
METAPHYSICS AND DIALECTIC 105, 142, 233 (2008).
25. M.H. ABRAMS, NATURAL SUPERNATURALISM 181 (1971).
26. Id.at220-21.
27. Max Weber, Science as Vocation, Speech at Munich University (1918), reprinted in FROM
MAX WEBER: ESSAYS IN SOCIOLOGY 129, 155 (H.H. Gcrth & C. Wright Mills trans. and eds.,1946);
see also RICHARD SVEDBERG, THE MAX WEBER DICTIONARY: KEY WORDS AND CENTRAL CONCEPTS
63 (2005); MAX WEBER, THE PROTESTANT ETHIC AND THE SPIRIT OF CAPITALISM (Talcott Parsons
trans., Routledge 1992) (1904).
28. See, e.g., OTTO DIX, DER KREIG (1924); JAMES JOYCE, ULYSSES (1922); RICHARD MURPHY,
COLLINGWOOD AND THE CRISIS OF WESTERN CIVILIZATION (2008); VIRGINIA WOOLF, TO THE
LIGHTHOUSE (1928).

B. The Logic ofReactionary Modernism

Contrary to casual usage, modernism is by no means a synonym for
modernity. 29 Rather, it encompasses the aesthetic and intellectual
trajectory of the late nineteenth and early twentieth century wherein these
artists and thinkers were united in their sensitivity to the crisis of
modemity and the dilemmas it posed and struggled for a way to
meaningfully respond to them. But the modernists were not united in the
nature of that response. For the "reactionary modernists," the post-war
period marked a turn away from modernity and a return to romanticism. 30
Carl Schmitt would certainly fall into that category despite his vehement
protestations to the contrary,3 1 as would Pound, Yeats, Auden, the later
Eliot, Heidegger, and many others.32 I mean by romanticism the gesture to
turn away from the disenchanted human world of modernity and towards
a holism based on something above and beyond the mundane world.
In legal and philosophical circles this might be framed in terms of an
appeal to an instinctive, responsive, and unbounded justice. Let us take
Carl Schmitt as a celebrated example of this romantic turn. Schmitt's
appeal to the power of the sovereign is tied to his rejection of the very
possibility of the rule of law. Now, some have argued that his critique is
relevant only in what he famously termed "the state of exception." He
argues that "the decision that a real exception exists cannot therefore be
entirely derived from a norm" but must be the result of a "decision that
frees itself from all normative ties and becomes in the true sense
absolute." 33 That clearly leaves no place for the rule of law. But Schmitt is
careful to emphasize that the "normal" situation, in which rules and
practices function in a predictable way, remains the aim of the legal order.
One might conclude from this that the exceptional circumstances that
override the rule of law are the rest of the time irrelevant. In that case, the
two realms would stand apart; an unbounded freedom in one small part of
the legal world would not undermine standard interpretative constraints
elsewhere. 34
Schmitt went much further, however. In The Dictator,he treats the gap
29. See, e.g., PETER FITZPATRICK, MODERNISM AND THE GROUNDS OF LAW (2001).
30. JEFFREY HERF, REACTIONARY MODERNISM (1984).
31. CARL SCHMITT, POLITICAL ROMANTICISM (Guy Oakes trans., The MIT Press 1986) (1919).
32. CHARLES FERRALL, MODERNIST WRITING AND REACTIONARY POLITICS (2004); see also
HERF, supra note 30.
33. CARL SCHMITT, POLITICAL THEOLOGY: FOUR CHAPTERS ON THE CONCEPT OF SOVEREIGNTY
6-13 (George Schwab trans., MIT Press 1985) (1922).
34. This was essentially the argument made by Kelsen in his work on sovereignty at the same
time as Schmitt. See HANS KELSEN, DAS PROBLEM DER SOUVERANITAAT UND DIE THEORIE DES
VOLKERRECHTS (IDC 1986) (1920). It was also made by H.L.A. Hart, still more explicitly, in his
discussion of the "penumbra" of legal interpretation in his debate with Lon Fuller. See H.L.A. Hart,
Positivism and the SeparationofLaw and Morals, 71 HARV. L. REV. 593, 614-15 (1958).
2012] Manderson 485
between norm and application as limited and exceptional.3 5 But in

Political Theology, written only a year later in 1922, the anomalous
moment of dictatorship or free decision goes viral. Since the power of the
sovereign is not limited to "he who decides in the state of exception" but
"he who decides on the state of exception," there exists an ever-present
potential for free decision that permeates the legal system. 6 In Political
Theology, Schmitt is explicit about this broader implication. He writes,
"All law is 'situational' law. The exception reveals most clearly the
essence of the legal authority."" So the exception is not marginal. On the
contrary, it reveals the essence of all law once the facade of liberal
legality has been stripped away. By 1922 Schmitt had concluded that the
state of emergency, far from being an anomaly capable of being contained
within the legal structure, ultimately undermined the whole structure.
Indeed, his first work of legal theory, written in 1912, had already
foreshadowed this conclusion." Coiled within each and every moment of
legal judgment or interpretation lay a fundamental indeterminacy
constituted by "the concrete exception" 39 and incapable of being foreseen
or limited by any structure of rules. We can see how closely this argument
parallels later critiques of positivism. Schmitt was addressing the inherent
problem of what he saw as the endemic undecidability of the law, binding
all law to the violence of a decision which must in the end be
ungovernable, and then legitimating that violence in the singular figure of
the sovereign who both belongs to the law and yet rises above it.40
In Schmitt's new legal order, the sovereign emerges as a Christ-like
figure, anomic, ecstatic, and charismatic. He does not follow the law; he
performs miracles." That, accompanied by his romantic hostility to the
moral vacuity of positivism, led Schmitt not only to reject the rule of law
as illogical but to embrace that rejection. For Schmitt, the Rechtstaat or
35. SCHEUERMAN, supra note 14, at 585; CARL SCHMITT, DIE DIKTATUR 585 (6th ed. 1994)
(1921).
36. DAVID DYZENHAUS, LEGALITY AND LEGITIMACY: CARL SCHMITT, HANS KELSEN AND
HERMANN HELLER IN WEIMAR 42 (1997).
37. SCHMITT, supra note 31, at 13.
38. SCHEUERMAN, supra note 14; CARL SCHMITT, GESETZ UND URTEIL. EINE UNTERSUCHUNG
ZUM PROBLEM DER RECHTSPRAXIS [LAW AND JUDGMENT: AN INVESTIGATION INTO THE PROBLEM OF
LEGAL PRACTICE] (MIinchen Beck 1969) (1912).
39. William Scheuerman, Legal Indeterminacy and the OriginsofNazi Legal Thought, 17 HIST.
POL. THOUGHT 571, 587 (1996).
40. SCHMITT, supra note 31, at 54-55; Carl Schmitt, Der Fiihrerschitzt das Recht [The Leader
Protects the Law], 39 DEUTSCHE JURISTEN-ZEITUNG, 945-50 (1934).
41. The miraculous might be defined as a fact or reality which emerges despite its physical
impossibility-that is, "against the law." The analogy draws our attention to the relationship between
Schmitt's jurisprudence and his arch-conservative Catholicism. The connection is made explicit in
SCHMITT, supra note 31, and is discussed in GIORGIO AGAMBEN, STATE OF EXCEPTION 80-85 (Kevin
Attell trans., 2005). See also CARL SCHMITT, ROMAN CATHOLICISM AND POLITICAL FORM (G.L.
Ulmen trans., 1996) (1923).

positivist rule of law was a "national poison" which refused to face up to

the necessity of this higher, finer law.42 Liberal legality was a form of
lying because it dishonestly denied the ultimate sovereign power of the
decision maker. It was also a form of cowardice because it gave up on the
power to do justice instead of law. 4 3
C. A Continuing Romanticism
Right after World War I, the crisis of modernity raised the stakes and
sharpened the distinction between positivism's fetishization of certainty
and romanticism's appeal to a transcendent justice unassimilable to legal
rules. But the romantic turn has not died. It can still be heard in Lon Fuller
and Philippe Nonet; 44 in a revival of interest in Schmitt and Heidegger
wherein we find prominently these appeals to the palpable yet ineffable
power of this idea of justice;4 5 and in the transcendentalism of some
recent scholars of Derrida and law.46 Gillian Rose for example, accuses
Derrida, Levinas, and their followers of advocating a kind of "messianic
justice" which surrenders all reason and knowledge in favor of a "new
ethics" with no justification or relation to either.4 7 Meanwhile, as I have
argued elsewhere, the belief in the natural, anomic, and healing power of
literature still influences a great deal of writing in law and literature. 4 8
Neither is that all. An elegiac sense of loss and betrayal colors almost
all of the work of critical legal studies (CLS) from the 1980s. Juxtaposed
against its general nihilism, the almost routine gestures towards love or
politics or community in Peter Gabel or Duncan Kennedy or Mark
42. F.R. Cristi, Hayek and Schmitt on the Rule of Law, 17 CANADIAN J. POL. SC. 521, 529
(1984); see also ELLEN KENNEDY, CONSTITUTIONAL FAILURE: CARL SCHMITT IN WEIMAR 24 (2004)
(describing Schmitt's concern that Rcchstaat theory subordinated the substantive content of the state
to procedure).
43. Heiner Biclefcldt, Carl Schmitt's Critique of Liberalism: Systematic Reconstruction and
Counter-criticism,in LAW AS POLITICS: CARL SCHMITT'S CRITIQUE OF LIBERALISM 23, 25-27 (David
Dyzcnhaus ed., 1998) [hereinafter LAW AS POLITICS]; Robert Howse, From Legitimacy to
Dictatorship-AndBack Again: Leo Strauss 's Critiqueof the Anti-Liberalism of CarlSchmitt, in LAW
AS POLITICS, supra, at 56, 61-63.
44. Philippe Nonet, Antigone's Law, 2 LAW, CULTURE & HUMAN. 314 (2006); Philippe Nonet,
What is Positive Law?, 100 YALE L.J. 667 (1990).
45. See, e.g., MARIANNE CONSTABLE, JUST SILENCES: THE LIMITS AND POSSIBILITIES OF
MODERN LAW (2007); MARIANNE CONSTABLE, THE LAW OF THE OTHER: THE MIXED JURY AND
CHANGING CONCEPTIONS OF CITIZENSHIP, LAW, AND KNOWLEDGE (1994).
46. See, e.g., MARINOS DIAMANTIDES, LEVINAS, LAW, POLITICS (2007); SUSANNA LINDROOS-
HOVINHEIMO, JUSTICE AND THE ETHICS OF LEGAL INTERPRETATION (2012); DESMOND MANDERSON,
PROXIMITY, LEVINAS, AND THE SOUL OF LAW (2006); see also GILLIAN ROSE, JUDAISM AND
MODERNITY (1993); GILLIAN ROSE, THE BROKEN MIDDLE (1992); Jack Balkin, Deconstruction's
Legal Career, 27 CARDOZO L. REV. 719-40 (2005); Jack Balkin, TranscendentalDeconstruction,
TranscendentalJustice,92 MICH. L. REV. 1131 (1994).
47. See ROSE, JUDAISM AND MODERNITY, supra note 46, at 6; ROSE, THE BROKEN MIDDLE,
supra note 46, at 310.
48. Desmond Manderson, The Irony ofLaw and Literature,35 AUSTL. FEMINIST L.J. 107 (2011).
2012] Manderson 487
Tushnet or Arthur Leff show an unerring faith that-not in law but

somewhere outside of it-an unlimited and undefined justice could cure
the limitations of law. 49 Roberto Unger is paradigmatic, at least in his
early work."o The very last words of Knowledge and Politics capture
precisely the combination of nihilistic despair and need rooted in legal
romanticism: "Speak, God."5 1 In fact, although resolutely opposed to
CLS, Brian Tamanaha himself appeals to a "non-instrumental" vision of
law in which "divine and natural law and . . . the wisdom of custom and
tradition were thought to provide correct principles for morality, law, and
life . . . ."52 Somewhat bizarrely, it seems to me, he makes that appeal
central to his defense of positivism. From the historical point of view,
Tamanaha has it upside down. The development of law's structural,
systemic, and linguistic neutrality-legal positivism-was a creature of
modernity and a consequence of the steady leeching away of some
underlying religious or customary sense of the common good or justice.
The whole notion of positivism was built on the claim that we cannot
agree on any of these things anymore; it replaced that kind of justification
for law with a purely structural or formal justification which was entirely
content-free.s" For modem positivists like Joseph Raz,54 for example,
formalism is the means by which law becomes effective precisely as an
instrument; it provides the certainty that ensures that the instrument of law
is capable of realizing whatever ideals, wise or unwise, moral or immoral,
are set for it. Tamanaha is right to see the loss of these ideals as "an
enduring, bedeviling legacy of the Enlightenment,"ss but it is puzzling
that he thinks positivism was designed to protect them rather than to take
over from them.
49. See, e.g., Peter Gabel, Phenomenology of Rights-Consciousness and the Pact of the
Withdrawn Selves, 62 TEX. L. REV. 1563 (1984) (discussing community as the salvation of law);
Mark Kelman, Trashing, 36 STAN. L. REV. 293 (1984) (defending nihilism as method); Duncan
Kennedy, Freedom & Constraint in Adjudication: A CriticalPhenomenology, 36 J. LEGAL EDUC. 518
(1986) (discussing politics as the salvation of law); Arthur Leff, Unspeakable Ethics, UnnaturalLaw,
1979 DUKE L.J. 1229, 1249 (discussing the possibility of God as the salvation of law); Joseph Singer,
The Player and the Cards: Nihilism and Legal Theory, 100 YALE L.J. 94 (1984) (describing the
nihilistic streak of CLS); Mark Tushnet, An Essay on Rights, 62 TEX. L. REV. 1363 (1984) (discussing
politics as the salvation of law).
50. ROBERTO UNGER, KNOWLEDGE AND POLITICS (1975); ROBERTO UNGER, PASSION: AN
ESSAY ON PERSONALITY (1986); ROBERTO UNGER, POLITICS: A WORK IN CONSTRUCTIVE SOCIAL
THEORY (1987); see also Drucilla Cornell, Beyond Tragedy and Complacency, 81 Nw. U. L. REV. 693
(1987); Martin Stone, The Placement ofPolitics in Roberto Unger's Politics, in LAW AND THE ORDER
OF CULTURE 78 (Robert Post ed., 1991).
51. Compare UNGER, KNOWLEDGE AND POLITICS, supra note 50, at 295, with Leff, supra note
49, at 1249 (concluding, similarly but ironically, "Sez who? God help us.").
53. HART, supra note 12; JOSEPH RAZ, AUTHORITY OF LAW (1979); Michael Giudice, Existence
andJustification ConditionsofLaw, 16 CANADIAN J.L. & JURISPRUDENCE 23 (2003).
54. Joseph Raz, The Rule ofLaw and its Virtue, 93 L.Q. REV. 195 (1977).

In different ways, then, these modes of legal theory all seek some
transcendent balm-sometimes literature, sometimes politics, sometimes
ethics, sometimes God, sometimes wisdom-capable of overcoming the
limitations of legal judgment. Roger Berkowitz is a good example of the
new romantics. He argues that "the gift of science" is a poisoned chalice.
Indeed, the plea to re-forge the relationship between law and justice runs
through The Gift of Science from the first sentence: "Justice has fled our
world." 56 This justice is presented throughout as "transcendent."57 Modern
law's promise of scientific objectivity suppresses precisely "the legal idea
of justice ... in its connection with transcendence . .. the beautiful dream
of transcendence."5 Justice as law's underlying "ethical unity" appears to
transcend individual or conflicting interests in favor of the unification of
the community. Berkowitz argues:
Active thinking . . . is irreducible to rules or laws. . . . Similarly,
justice demands that man think and in thinking transcend the
limits of his unique self and enter into an ethical community with
others. The dream of justice, in other words, is the dream of
transcendence. 5 9
Ultimately, "the natural connection with the divine" underpins
Berkowitz's argument. Our "incalculable yet manifest sense of divine and
human justice" girds this authority, provides this insight, ordains this
inhuman unity, and grants this transcendence.o
According to Berkowitz, "the impulse to think deeply and critically
about whom we have become need not and should not be confused with
the romantic longing for a return to a glorified past."6 ' But this disclaimer
is not convincing. Berkowitz is an advocate "striving to rejuvenate an idea
of justice." 62 Nothing could be clearer, it seems to me, than that the very
ideas of insight, nature, and transcendence that mark legal romanticism
are the foundation of Berkowitz's approach. Just as in the influential work
of Philippe Nonet, Berkowitz displays "a mourning, or, rather,
melancholic longing for a lost utopia, a world without the things the law
decides." Judgment becomes a game played with invisible trumps, in
which one just leaps over the gap between rules and particulars, between
then and now, by reference to some inarticulable thing above and beyond
56. ROGER BERKOWITZ, THE GIFT OF SCIENCE: LEIBNIZ AND THE MODERN LEGAL TRADITION, at
ix (2005).
57. Id. at x, xiii, xv, 90, 139.
58. Id. at 159-60.
59. Id. at x.
60. Id. at 159, 24.
61. Id. at xiv.
62. Id.
63. Andrew Norris, Heideggerian Law Beyond Law? Technique, Recht, and Phusis, 2 LAW,
CULTURE & HUMAN. 341, 348 (2006).
2012] Manderson 489
the "inevitable totalising horizon" of rules.64

There is a sleight of hand here, a crucial amnesia. Berkowitz gives us
dichotomies, one side of which he subjects to a very careful historical
critique-law, positivism, rules, social policy-while its counterparts-
nature, authority, justice, tradition, insight, community-are not
interrogated at all. The reason for this partiality is that Berkowitz stops his
history in 1900, the very apotheosis of German positivism. His attacks on
this tradition reproduce in both tone and argument the critique of
modernity that dominated the period that followed it, from 1900 to 1930.
Berkowitz's response to the legal and social history of positivism, and his
attacks on mechanics, systems, and rules, echo almost word for word the
arguments of early twentieth century "New Romanticism." The language
and arguments of this later period lie outside Berkowitz's book but
nevertheless frame and indeed haunt his argument. He relives and repeats
this intellectual history, denuo e de novo, but without ever allowing us to
see its context or its problems.
III. ANOTHER MODERNISM
A. Background and Antecedents

In the years following the Great War, however, the choice did not
simply lie between a failed positivism and a failed romanticism. Another
possibility, more closely allied to the sensibilities of modernism, lay open.
I want now to introduce D.H. Lawrence. He was unquestionably a child of
the romantic world. It told in his social, religious, and intellectual
upbringing and through the time he spent in Germany before the War. As
a romantic and a student of Apocalypse,65 Lawrence at times sounds a lot
like Schmitt. He too craves a humbling purification-a second flood to
cleanse the world. Indeed, the mythical phoenix or firebird was a symbol
particularly close to Lawrence's own heart. He referred to it frequently in
his writings, as the name of the journal he edited, and even in bookplates
he designed.66 The phoenix, burnt to death every five-hundred years and
from whose ashes a new bird is then born, symbolized the possibility of a
new beginning forged out of the ashes of war-the promise of
transcendence. Nonetheless, Lawrence's most sustained attempt to engage
with literary, political, and psychological modernism lies in his
misunderstood novel Kangaroo, written from far-off Australia in 1922, at
64. JACQUES DERRIDA, SPECTRES OF MARX: THE STATE OF THE DEBT, THE WORK OF MOURNING
& THE NEW INTERNATIONAL 28 (Peggy Kamuf trans., 1994).
65. PETER F]AGESUND, THE APOCALYPTIC WORLD OF D.H. LAWRENCE (1991).
66. D.H. LAWRENCE, PHOENIX: THE POSTHUMOUS PAPERS OF D.H. LAWRENCE (E.D. McDonald
ed., 1936).

the very height of these debates." That novel, while perfectly

comprehending the attractions of a purified and transcendent justice,
ultimately responds to the crisis of modernity without reverting to either
nineteenth-century positivism or to nineteenth-century transcendentalism
or rism.
At the beginning of Kangaroo, its main character and the author's alter
ego, Richard Lovatt Somers, is a romantic in precisely the legal,
jurisprudential, and political ways that I discussed above. He seeks a "new
show" to replace the lies and weakness of liberalism and democracy. He
seeks leadership and honor and glory. He seeks the end of pettifogging
rules and pedantic law and the triumph of instincts and of justice, in just
the same way as we have seen in Berkowitz. But by the end of the novel,
Lawrence repudiates the hysteria into which his post-war melancholia led
him (and by no means him alone)." As Lawrence's oeuvre develops,
particularly in Kangaroo, the central framing principle that emerges is
neither.the triumph of disenchanted reason, nor the mystical force of a
community or instinct. He draws instead on a different tradition going
back to Samuel Taylor Coleridge and Friedrich Schelling and before them
to Heraclitus: polarity.69
Polarity maintains the power of oppositions rather than seeking to
eliminate or synthesize them. Now, it is true that this idea was current
throughout the romantic period. "Contradiction," wrote Schelling, "is
life's mainspring and core . . . . If there were only unity, and if everything
were at peace, then truly nothing would want to stir."70 Coleridge wrote:
[I]f all knowledge has, as it were, two poles, which reciprocally
presume and demand each other, then these poles must seek each
other .... Two forces should be conceived which counteract each
other by their essential nature; . . . these forces should be assumed
to be both alike infinite, both alike indestructible."
In the romantic period, this idea of "two poles" was merely the catalyst
for an ultimate fusion. Coleridge describes his work as "transcendental
philosophy" because he insists that these poles must finally unite in a new
entity that perfectly "interpenetrates" and "partakes" of both.72 But
Lawrence gradually goes beyond this movement of reconciliation. As he
67. D.H. LAWRENCE, KANGAROO (Bruce Steele ed., 2002) (1923).

68. This rejection is certainly apparent in Kangaroo, although the situation is less clear in his
next novel, THE PLUMED SERPENT (1926), from which all traces of irony and humor have been
surgically removed.
69. ROBERT MONTGOMERY, THE VISIONARY D.H. LAWRENCE 36 (2009).
70. ABRAMS, supra note 25, at 173.
71. SAMUEL TAYLOR COLERIDGE, 7 BIOGRAPHIA LITERARIA: THE COLLECTED WORKS OF
SAMUEL TAYLOR COLERIDGE 255, 299 (J. Engell & W.J. Bate eds., 1983) (1817).
72. Id.
2012] Manderson 491
writes in The Crown, a strange work from 1915, "[T]here is no rest, no

cessation from the conflict. For we are two opposites which exist by
virtue of our inter-opposition. Remove the opposition and there is
collapse." 73 We can see the development of this idea in Lawrence's
books. In The Rainbow, published the same year, the character Ursula
says, "If the lamb might lie down with the lion, it would be a great honor
to the lamb, but the lion's powerful heart would suffer no diminishing."74
Yet, in Twilight in Italy, published only twelve months later, Lawrence
writes otherwise: "They are two Infinites, twofold approach to God. And
man must know both. But he must never confuse them. They are eternally
separate. The lion shall never lie down with the lamb."" Lawrence begins
to sound less like the romantics than like earlier writers whose attention to
antinomy and paradox had been articulated in Renaissance theories of
concordiadiscors, not to mention Carl Jung's vision of an eternal struggle
between mythic opposites of dark and light. In each case, what we see is a
refusal to choose between opposites or to attempt to harmonize them.
Instead, polarity respects the constitutive and ineradicable fact of their
opposition-an unending and productive back-and-forth movement
between incommensurable principles.
B. Polarity in Lawrence
Polarity for Lawrence is most emphatically not a reconciliation or a
fusion, but an oscillation. Take the magnet as a model. Here we have two
opposite poles, positive and negative, but what at first glance appears to
be an irreconcilable dualism is in fact the source of its energy. The two
opposite poles that wage war within a man or an idea or an institution
remain necessary to one another. Its forces form the electrical circuit that
drives us on. Lawrence wrote, "I know I am compounded of two waves. I
am framed in the struggle and embrace of the two opposite waves of
darkness and of light."76 Likewise, polarized light does not mix or meld. It
has been separated into its distinct component parts. In Psychoanalysis
and the Unconscious, Lawrence writes of "the polarity of the dynamic
consciousness . . . the sharp clash of opposition . . . and no possibility of
creative development without this polarity from the beginning of life."
He even attempts to map these polarities onto the body, the contrast
between upper and lower bodies, front and back, man and woman-even
73. D.H. LAWRENCE, The Crown, in REFLECTIONS ON THE DEATH OF A PORCUPINE AND OTHER
ESSAYS 251-306 (Michael Herbert ed., 1988) (1915).
74. D.H. LAWRENCE, THE RAINBOW 317-18 (M. Kinkead-Weekes ed., 1989) (1915).
75. D.H. LAWRENCE, TWILIGHT IN ITALY AND OTHER ESSAYS 252 (Paul Eggert ed., 1994)
(1916).
76. MONTGOMERY, supra note 69, at 15.
77. D.H. LAWRENCE, PSYCHOANALYSIS AND THE UNCONSCIOUS 65-66 (1923).

sun and water-becoming corporeal sites of inherent oppositions that

ignite "circuits of passion."78
Lawrence's notion of polarity, like his rejection of unity and coherence,
derives from his experience of literature as a genre that does not aim to
resolve or overcome tensions but, on the contrary, to draw them out. The
introduction to Studies in Classic American Literature, published the
same year as Kangaroo, contains one of the most celebrated passages on
literature: "But if it really be a work of art, it must contain the essential
criticism of the morality to which it adheres. And hence the antinomy,
hence the conflict necessary to every tragic conception."79 In Kangaroo,
the "laws of polarity" are described as the movement between two flows,
one sympathetic and loving, the other mighty and authoritarian. "There is
a dual polarity and a dual direction," he writes. "The whole movement is
but a polarized circuit. Insist on one direction overmuch, derange the
circuit, and you have a terrible debacle."so The Whitmanseque theme of
"call and answer," describing both the backwards-and-forwards form and
the discursive themes of the novel, becomes Lawrence's way of
articulating how we are nourishedby contradiction. Lawrence writes:
A man's soul is a perpetual call and answer. He can never be the
call and the answer in one: between the dark God and the
incarnate man: between the dark soul of woman, and the opposite
dark soul of man: and finally, between the souls of man and man,
strangers to one another, but answerers. So it is forever, the eternal
weaving of calls and answers, and the fabric of life woven and
perishing again."
This language captures both the tensions of the novel's broader
structure and the intense internal dialogue and disputation that marks the
text. The book embodies an earnest if perverse commitment: not to
resolve its contradictions and tensions but to see in them its main
character's essential activity. The polarity between opposed forces is
further figured as a tension between the substantive and the formal
elements of the novel, creating "an unstable locale between the move to
multiply and disseminate meanings, and an alternative move to retrieve
and reclaim them."82 This love of instability, this internal tension, is what
accounts for the book's indeterminacy and for the perplexity with which
critics greeted it. Yet these same elements are what make the book,
78. D.H. LAWRENCE, FANTASIA OF THE UNCONSCIOUS 83 (1933).

79. D.H. LAWRENCE, STUDIES IN CLASSIC AMERICAN LITERATURE 2 (Ezra Greenspan, Lindeth
Vasey & John Worthen eds., 2003) (1923).
80. LAWRENCE, KANGAROO, supra note 67, at 302-03.
81. Id. at267.
82. Gerald Doherty, White Mythologies: D.H. Lawrence and the Deconstructive Turn, 29
CRITICISM 477, 477, 493 (1987).
2012] Manderson 493
written in 1922, the same year that both T.S. Eliot's The Waste Land and
James Joyce's Ulysses were published, one of the most characteristic if
unsung works of modernism.
In Kangaroo, the abiding metaphor for polarity is the Australian surf:
Then, when [the waves] fell, the fore-flush in a great soft swing
with incredible speed up the shore, on the darkness soft-lighted
with moon, like a rush of white serpents, then slipping back with a
hiss that fell into silence for a second, leaving the sand of
granulated silver . . . . A huge but a cold passion swinging back
and forth. Great waves of radium swooping with a down-curve
and rushing up the shore. Then calling themselves back again,
retreating to the mass. Then rushing with venomous radium-
burning speed into the body of the land. Then recoiling with a low
swish, leaving the flushed sand naked."
The oscillation of the waves evokes Somers's own polarity, towards
and away from the romance of ecstatic belonging, and presents it not as a
conflict or a problem, but as part of him. Although they "seem to sunder
life into an irreconcilable dualism [they] are in fact polar opposites ....
We can distinguish them but we cannot divide them."84
Polarity is thus not synthesis, not balance, not transcendence, and
categorically not harmony-it is opposition. Polarity describes forces that
cannot be compromised since we are committed too much to both.
Lawrence articulates "antitheses, contraries, contradictions." 85 He
advocates a metaphysics of modernist energy, not romantic peace.
C. Polarityas the Discourseof Modernism: The Question of Benjamin

Lawrence was far from alone in these ideas. What is so striking about
the period around the Great War is the way in which similar ideas kept
springing up. We see a similar approach to contradiction and opposition
in R.G. Collingwood's work, including Truth and Contradiction; 8 7 in
Jung, of course, where the dark and the light exist simultaneously within
us;88 and in Freud's concept of "ambivalence," which is not treated as a
feeling of indifference but rather as a desire that pulls us with equal force
83. LAWRENCE, supra note 67, at 340.

84. MONTGOMERY, supra note 69, at 21.
85. Id. at 17-18.
86. ANNE FERNIHOUGH, D.H. LAWRENCE: AESTHETICS AND IDEOLOGY (1993); JOHN B.
HUMMA, METAPHOR AND MEANING IN D.H. LAWRENCE'S LATER NOVELS (1990); Philip Skelton, A
"Slobbery Affair" and "Stinking Mongrelism ": Individualism, Postmodernity and D.H. Lawrence's
Kangaroo, 81 ENG. STUD. 545 (2003).
87. See RICHARD MURPHY, COLLINGWOOD AND THE CRISIS OF WESTERN CIVILIZATION: ART,
METAPHYSICS AND DIALECTIC (2008).
88. CARL JUNG, PSYCHOLOGY OF THE UNCONSCIOUS (Beatrice Hinkle trans., Moffat, Yard & Co.
1916) (1912).

in two quite contradictory directions.89 One might even detect the trace of
polarity in Erwin Schrodinger's "superposition," the strange suspension of
matter in simultaneously contradictory states. 90
No discussion of this period or these ideas would be complete, certainly
in the context of law and politics, without reflecting on the work of
Walter Benjamin. In the period immediately following the Great War,
Benjamin was pondering the very same questions as Carl Schmitt and the
great German positivist Hans Kelsen. Kelsen's monograph on sovereignty
was published in 1920, Benjamin's Critique of Violence in 1921.91
Schmitt's Political Theology appeared in 1922 as a riposte to both.9 2 In
1928, Benjamin returned the favor with the publication of The Origin of
German Tragic Drama, which was likewise addressed to the relationship
between exception, decision, and sovereignty. 93 Complications arise,
however, because of the enigmatic and inimitable quality of Benjamin's
thought. Throughout his work there is undoubtedly a messianic and
utopian strain. 94 In Critique of Violence, he agrees with Schmitt that the
ungovernable "decision" is a necessary implication of "the curious and at
first discouraging experience of the ultimate undecidability of all legal
problems." Of course, this is the very problem with which we began our
reflections about the crisis facing the rule of law. The violence of a free
decision, not the passive application of a prior norm, becomes the
necessary predicate of all law. But Benjamin attempts to distinguish
between different modes of violence: law-preserving violence and law-
making violence in the first place, two forms of human power, and then a
pure or divine violence outside of the law which deposes it and thus
89. SIGMUND FREUD, TOTEM AND TABOO (A. A. Brill trans., Moffat, Yard & Co. 1918) (1913).
90. Erwin Schrddingcr, Can Quantum-Mechanical Description of Physical Reality Be
Considered Complete?, 47 PHYSICS REV. 777 (1935). 1 do not intend to square the circle by claiming
the mantle of scientific truth for the philosophical or legal notions of polarity, although I think it is
fair to say that they recognize a truth-in-contradiction from an unexpected source. What I do wish to
claim is that all ideas are born of a particular cultural context or zeitgeist, and the emergence of
cognate ideas at the same time demonstrates clearly the potency of the particular historical moment to
call forth a particular constellation of insights. Every era formulates its own set of problems and
perspectives, and these multiple connections across very different fields demonstrate their fecundity
and their continuing relevance.
91. 1 Walter Benjamin, Critique of Violence, in WALTER BENJAMIN, SELECTED WRITINGS 1913-
26, at 236 (Marcus S.C. Bullock & Michael W. Jennings eds., 1996); Walter Benjamin, Zur Kritik der
Gewalt, 47 ARCHIV FOR SOZIALWISSENSCHAFT UND SOZIALPOLITIK 809 (1920/21).
92. SCHMITr, supra note 35.
93. WALTER BENJAMIN, THE ORIGIN OF GERMAN TRAGIC DRAMA (John Osborne trans., New
Left Bks. 1977) (1928); see also AGAMBEN, supra note 41; Samuel Weber, Taking Exception to
Decision: Walter Benjamin and Carl Schmitt, 22 DIACRITICS 5 (1992).
94. The point is fundamental, in different ways, to the argument made in the following: Catherine
Mills, Playing with Law: Agamben and Derrida on Postjuridical Justice, 107 S. ATLANTIC Q. 15
(2008); Michael Mack, Modernity as an Unfinished Project: Benjamin and Political Romanticism, in
WALTER BENJAMIN AND THE ARCHITECTURE OF MODERNITY 59 (Andrew Benjamin & Charles Rice
eds., 2009).
95. AGAMBEN,supra note 41, at 53.
2012] Manderson 495
makes real revolution possible.9 6 Clearly, this messianic justice, this pure
violence unsullied by calculation, expressive rather than teleological, and
coming from outside either present or projected legal structures, is closely
allied to a transcendental instinct and to the anti-modem hostility to
calculation and system.97 For Benjamin, this violence escapes the cycle of
instrumental politics because it is not a means to achieve an intended end
(as a strike is intended to raise wages or a revolution is intended to take
over the State). Divine violence is an end in itself. It is an expiation of the
past and provides the opportunity for an unimaginable and unpredictable
future. Like Lawrence's phoenix, it is the purifying fire from whose ashes
something new might rise. Benjamin writes, "But all mythic, law-making
violence, which we may call 'executive,' is pemicious. Pernicious, too, is
the law-preserving, 'administrative' violence that serves it. Divine
violence, which is the sign and seal but never the means of sacred
dispatch, may be called 'sovereign' violence."98
That last sentence is critical. It holds the key to where Benjamin and
Schmitt part company. In Benjamin, "sovereign" characterizes a force-it
is an attribute of a kind of violence itself. But in Schmitt, the word
"sovereign" shifts from being a subset of violence to being an agent,
indeed a personification, of it. In Benjamin, "sovereign" is an adjective;
for Schmitt, it is a noun. By concentrating the inevitable violence of
decisions beyond-the-rules onto a particular human person, Schmitt solves
the problem of rule-indeterminacy by subordinating everything to human
control and state interests. Benjamin's transcendence on the other hand
remains irreducible to human control and entirely outside the state.
Sovereign violence for Benjamin is radical and destabilizing; sovereignty
for Schmitt is reactionary and authoritarian. The Schmittian sovereign
tames the Benjaminian divine.
The difference between the two becomes even more apparent in The
Origin of German Tragic Drama, in which Benjamin explores the
baroque concept of sovereignty. Benjamin takes from the baroque the idea
of a transcendent figure (such as justice or the gods) that eludes the grasp
of the state and remains strictly unattainable. In direct response to
Schmitt, Benjamin argues that the role of the sovereign is not to seize
supreme executive power but rather to refuse it as one would a
temptation.99 Furthermore, in theatrical, artistic, and philosophical terms,
96. Id.; Benjamin, Critique of Violence, supra note 91, at 243, 250-52.
97. Anthony Aucrbach, Remarks to the After 1968 Seminar on Walter Benjamin's Critique of
Violence (Sept. 3, 2001); Antonis Balasopoulos, Crisis, Justice, Messianism: On Walter Benjamin's
Critique of Violence (July 9, 2011) (paper presented at Utopia/Crisis/Justice: Twelfth International
Conference of Utopian Studies Society).
98. Benjamin, Critiqueof Violence, supranote 91, at 252.
99. BENJAMIN, supra note 93.

Benjamin claimed that the baroque embraced indeterminacy and played

constantly with tricks of subjectivity and illusion. As Samuel Weber
concludes, "[I]t is precisely the absence of such a verdict and the
possibility of unending appeal and revision that marks the Trauerspiel.
Nothing could demonstrate more clearly the distance between this eternal
revision and Schmitt's notion of an absolute and absolutely definitive and
ultimate decision." 00 Benjamin's idea of a transcendent promise-a
harmonized world, a perfect justice-is presented as infinitely distant
from our everyday reality. This leads him to insist upon the flawed and
provisional nature of decisionmaking. On the other hand, Schmitt's idea
of a transcendent order is continually located in our everyday reality. This
leads him to insist upon the arrogant and unequivocal power of
decisionmaking. While in some ways Benjamin's vision is as romantic as
Schmitt's, there is nonetheless a fundamental difference between the two.
We can see then that Benjamin has more in common with Lawrence and
the modernist path which Schmitt rejected. Benjamin struggled to come to
terms with the uncertainty, subjectivity, and rootlessness of the modern
world. Like the literary and artistic modernists around him and quite
unlike the reactionary modernists, he sought to turn those terms from
problems to be solved into opportunities to be seized.
IV. POLARITY AND "POST"-MODERNISM
A. DeconstructionandPolarity
These arguments closely parallel those of deconstruction. This is not so
surprising if we recall that Derrida's seminal article Force ofLaw takes as
its starting point a close reading of Benjamin's critique.'o' Derrida also
recognizes the power of the undecidable to contaminate legal judgment;
he also emphasizes the empty and unfillable space of transcendence, the
unattainability of perfection, and the inadequacy of human calculations. In
all these ways, he acknowledges Schmitt's critique of the rule of law, and
in some ways that is precisely what Force of Law is about. But Derrida's
principal contribution may lie in his eschewal of the messianic waiting for
justice that we find in Benjamin just because the urgency of the demand
for justice "does not wait."' 02 This was Schmitt's fundamental point too,
but Derrida's response to it is radically different. Schmitt, drawing on
Hobbes here, says the sovereign's decision is infallible because it is final.
Derrida says it is neither-and a good thing too. Thus, Derrida combines
Benjamin's normative openness with Schmitt's analytic realism.
100. Weber, supra note 93, at 17; see BENJAMIN, supra note 93, at 137.
101. See Derrida,supra note 8.
102. Mills, supra note 94, at 28-29.
2012] Manderson 497
Connecting the impossibility of a ground for legal violence, the necessity

of that violence, and the inescapability of the decisions that give rise to it,
he argues more explicitly than Benjamin for the ongoing critique of our
interpretative assumptions as the best and only ground for judgment that
we possess. o3 Such a judgment would in no way attempt to transcend its
weakness but would instead attempt to see it more clearly and question it
more closely. We can thus see in Derrida not a rejection of modernism
but, on the contrary, its apotheosis.
Polarity crystallizes perfectly what Derrida adds to Benjamin's
provisional openness-why a transcendence of or solution to the problem
of judgment is impossible. Justice as polarity is just what Derrida is
getting at in many of his later works. The tension between justice as
sameness and justice as difference, between law as calculation and justice
as the incalculable, describes a predicament that is incapable of yielding
to a choice, a compromise, a balance, or a synthesis. "Between justice
(infinite, incalculable, rebellious to rule and foreign to symmetry) and the
exercise of justice as law or right . . . a system of regulated and coded
prescriptions,"l04 we cannot choose. Like Freudian ambivalence, our
desires pull us with uncompromising force in opposite directions without
our being able to abandon or resolve either one.
Similar explorations of incommensurable and insoluble forces, called
by Lawrence "the laws of polarity," are to be found throughout Derrida's
later work-in his discussions of responsibility/accountability or of
communication/expression.' 0 In On Cosmopolitanism and Forgiveness,
Derrida discusses the "tension at the heart of the heritage" between
forgiveness as the unconditional pardon of the guilty as such and
forgiveness as a conditional grant, as an economy of repentance:106
These two poles, the unconditional and the conditional, are
absolutely heterogeneous, and must remain irreducible to one
another. They are nonetheless indissociable: if one wants, and it is
necessary, forgiveness to become effective, concrete, historic; if
one wants it to arrive, to happen by changing things, it is
necessary that this purity engage itself in a series of conditions.o 7
Here and elsewhere the connection to polarity is explicit-"two poles,
103. Drucilla Cornell, The Violence of the Masquerade, II CARDOZO L. REV. 1047, 1057-58
(1990).
104. Derrida, supra note 8, at 959.
105. JACQUES DERRIDA, GIFT OF DEATH [DONNER LA MORT] (David Wills trans., 1996);
JACQUES DERRIDA, OF GRAMMATOLOGY (Gayatri Chakravorty Spivak trans., 1998).
106. JACQUES DERRIDA, ON COSMOPOLITANISM AND FORGIVENESS 34-35 (Mark Dooley &
Michael Hughes trans., 2002).
107. Id. at 44.

irreconcilable but indissociable."'os Derrida's posthumous The Beast and

the Sovereign is likewise saturated with the language of "poles," "sudden
transitions," "oscillations," and, indeed, "superpositions."o 9
The moment of legal judgment is similarly torn by an ambivalence in
the Freudian sense between the obligation to follow the prior rule, general
and certain, and the question of its application in this case. This is really
to say no more than was said by Justice Harry Blackmun when he
concluded, at the end of his career, that capital punishment was
irredeemably flawed. The problem with justice, he argued, is that we
require of it both consistency and fairness, yet these two necessary
attributes-the first a demand that the law be general and the second a
demand that the law be specific-pull us in opposite directions. Blackmun
wrote, "A step toward consistency is a step away from fairness.""o There
is an uncomfortable superposition here which cannot be balanced or
cured. Now this gives no comfort to the positivists who think that the
prior rule can be relied upon to simply tell us what to do. But neither does
it give comfort to the transcendentalists or reactionary modernists from
Schmitt to Berkowitz. This beyond-the-rules moment of ungoverned
singularity in no way solves the problem of justice. It creates the problem.
Polarity is not a circuit-breaker; it is, as Lawrence always said, a circuit
maker.
B. Beyond Transcendence
The vital distinction between polarity and transcendence (and therefore
between deconstruction and romanticism) has not always been
acknowledged. In a series of influential articles Jack Balkin, for example,
insisted that justice for Derrida is "transcendent" in just the sense of
appealing to an unreasoned and instinctive insight as a way to escape
from the paradox ofjustice."' So too for Gillian Rose, the "new ethics" of
"Messianic deconstruction" ultimately abandons justification in favor of
the sublime leap into the arms of a "sacralized polity."" 2 Although that
criticism might be correct about Heidegger or Levinas, I think it is quite
wrong about deconstruction." 3
108. Id. at 51.

109. JACQUES DERRIDA, THE BEAST AND THE SOVEREIGN, VOLUME 1: THE SEMINARS OF
JACQUES DERRIDA 17, 18, 54, 65 (Geoffrey Bennington ed. & trans., 2009).
110. Callins v. Collins, 510 U.S. 1141, 1144 (1994) (Blackmun, J., dissenting from denial of
cert.).
11l. Balkin, Deconstruction's Legal Career, supra note 46, at 737; Balkin, Transcendental
Justice, supra note 46, at 740; Pierre Schlag, A Brief Survey of Deconstruction, 27 CARDOZO L. REV.
741, 746-748 (2005).
112. ROSE, JUDAISM AND MODERNITY, supra note 46, at 87; ROSE, THE BROKEN MIDDLE, supra
note 46, at 293.
113. Jesse Sims, Exceptional Justice, Violent Proximity, in ESSAYS ON LEVINAS AND LAw: A
2012] Manderson 499
The difference between polarity or deconstruction and transcendence is

this: we have not lost the foundations of law, we lack them. Paradise has
not been lost, as the elegiac romantics contend. It never existed. The
romantics and the reactionary modernists until early Unger, the CLS
movement, and contemporary neo-romantics are united in their critique of
positivism and in seeking some redemptive escape from the problems of
modernity. We hear again and again echoes of the millenarian tradition in
which the modern world is to blame for our "loss" of justice, judgment,
and insight. Repeatedly we are invited to reclaim law as an eternal truth
that we have tragically lost sight of. But this was only ever a fantasy or an
ideological construction. Our tradition is not whole: it was riven from the
moment of its birth. No one did this to it; it did this to itself, although
perhaps it took a Great War (or two) to tear down the temple veil that hid
it from us.11 4 From Kangaroo to Force of Law, the non-reactionary
modernists, if I can put it that way, have relentlessly drawn our attention
to the contradictions and ambiguities that inhere at every moment of our
lives and to the toxic character of any rhetoric that purports to escape or
precede or transcend them."' In this task, deconstruction only recasts and
expands the modernist moment at the start of the last century when
thinkers from so many different fields tried to come to terms not with a
loss but a lack.
V. TOWARDS A MODERNIST RULE OF LAW
A. The Tug of Oscillation

What does this mean for the rule of law and the question of legal
judgment? Polarity is clearly distinct from positivism, which seizes only
one end of the pole, and from transcendentalism that seizes only the other.
It asks us instead to hold both ends at once and feel the current-the
life-coursing through us. An argument for linguistic fluidity and
responsiveness-what Benjamin called "the curious and at first
discouraging experience of the ultimate undecidability of all legal
problems"' --might initially lead us toward the romantic rejection of
abstract rules, the logic of reason, or the rule of law. We seem at the
mercy of a universe of instances in which justice is singular, uncodifiable,
MOSAIC 217-39 (Desmond Manderson ed., 2009); Nick Smith, Questions for a Reluctant
JurisprudenceofAlterity, in ESSAYS ON LEVINAS AND LAW: A MOSAIC, supra, at 55-75.
114. Barbara Johnson, The Surprise of Otherness: A Note on the Wartime Writings of Paul de
Man, in LITERARY THEORY TODAY 13, 18-21 (P. Collier & H. Geyer-Ryan eds., 1990).
115. See, e.g., BEARDSWORTH, supra note 10; SIMON CRITCHLEY, THE ETHICS OF
DECONSTRUCTION: DERRIDA AND LEVINAS (1992); Alletta Norval, Hegemony After Deconstruction:
The Consequencesof Undecidability,9 J. POL. IDEOLOGIES 139-57 (2004).
116. AGAMBEN, supra note 41, at 53.

unrepeatable, and spontaneous. That was exactly the logic that appealed
to Schmitt and appalled Tamanaha.
There is a second and countervailing element here. The Lawrentian
polarities that tug at us require a constant listening and correction of
received ideas. A "determinate oscillation" swings us between two
irreconcilable poles-general and particular, prior rules and new
circumstances-forcing us to rethink our rules, the meaning we give our
words, the imagined "essences" of those words, and the purposes that are
served by them. But in the end, the decision cannot wait-polarity,
opposition, and contradiction are never completely resolved. The pull of
singularity forces us to reflect on what the rule means and accomplishes
in this particular circumstance. We are forced to reconsider, to question,
to doubt. Our understanding of the rule is thus not static. The pull of
generality forces us to account for the implications of our decisions for
other circumstances. Our understanding of those circumstances is thus not
unconstrained. The decision that we make neither surrenders to the rules
nor abandons them; instead, it attempts to understandthem.
The decision that emerges-a legal judgment perhaps, or the practical
application of a rule-will always be an unstable and imperfect response
to these tensions. Unlike the romantics, however, we should never expect
our decision to transcend or heal them. The judgment we make endeavors
to reassess meaning and to question our assumptions, but the result,
whatever it may be, is provisional and open to reconsideration at every
moment. Our understanding of the rules may have been either shifted or
confirmed by our situation. Present circumstances may lead us to reflect
on the meaning of the rules we thought we knew, but on the other hand,
the pressure of the future may lead us to hold, despite everything, to our
previous interpretation. Either way, the new decision we make necessarily
attempts to impose and to justify a new stability and generality on the
swirling forces around us. Thus, we are constantly thrown from one pole
to the other, from the singularity of justice back to the (re-)construction of
rules. Of course, as soon as we are confronted with a new circumstance,
the previous interpretation must generate new tensions and a new polarity
pulling us in opposite directions again. Like the moon and the tides, the
experience of polarity, of the impossibility of our ever satisfying contrary
expectations, will always be felt as a tug and a repetition.
B. The Necessity of Conversation

Tamanaha thinks that the critique of modernity threatens to destroy the
rule of law; Berkowitz think that the rule of law threatens to destroy
justice. Both are wrong. Both misunderstand what the rule of law is about.
Its value does not lie in the legal decision itself which is, as we have seen,
2012] Manderson 501
of necessity unsettled and partial, but in the doubt and the challenge that
comes before it and in the public discourse of reason-giving and argument
that comes after it. That the promise of science or objectivity as some new
and perfect ground to the rule of law is doomed to fail, I have no doubt.
But it does not follow that we should give up on reasons, now in the
plural, understood as an ongoing social process of transparency,
justification, and response. The arguments it resolves may be less
important for the rule of law than the conversations it allows. It is the
movement itself that matters, the irresolution rather than the resolution-
an endless polarity that ensures that we never stop deciding.
Derrida makes a similar point in a slightly different way. He describes
the "madness of decision" as that moment in which one is forced to
confront a polarity between the responsibility to "conserve the law and
destroy it or suspend it enough to have to reinvent it in each case."" 7 At
the same time, as we have seen, the polarity that tugs at justice from
contradictory directions and the gap that opens up between the abstract
rule and the unique circumstance that sheds light on it, mean that there is
a necessary imperfection or remainder to this process of inquiry. Due to
the critical and imperfect dimension inherent in the moment of judgment,
the obligation to decide is never severable from the obligation to
ruthlessly and publicly expose one's judgments, to explain, justify, and be
criticized for our imperfect decisions and interpretations. All decisions are
violent but not all violence is the same. The violence that sees itself as
such and attempts to think through and explain the choices that are made
is different from the violence that is ignorant of itself and pretends to have
escaped the dilemma.
Crucially for our understanding of the rule of law, then, this eternal
weaving of correction and change is not a private affair, but a public,
social event. It must be articulated, explained, and criticized. "There must
be resistance," wrote Lawrence. "We ought to pray to be resisted and
resisted to the bitter end . . . . There must be resistance in relationships. It
is the basis of strength, of balance, of unison."" 8 Without argument and
corrigibility, there can be for Lawrence no change. Thus, Lawrence sees a
moment of accountability, perhaps even of apology, as we confront
others. The Rainbow "deals in the soul's mistakes and self-retrieval, so
that the erring course is constantly under correction."" 9 Kangaroo is
riddled with the same public mea culpas:
"I am a fool," said Richard Lovatt, which was the most frequent
discovery he made. It came, moreover, every time with a new
117. Derrida, supra note 8, at 961.

118. ANAIS NIN, D.H. LAWRENCE: AN UNPROFESSIONAL STUDY 55 (1964) (quoting Lawrence).

shock of surprise and chagrin. Every time he climbed a new

mountain range and looked over, he saw, not only a new world,
but a big anticipatory fool on this side of it, namely, himself.12 0
Now such an approach, with its emphasis on discourse and
provisionality, would have given Carl Schmitt and the reactionary
modernists hives. Schmitt was a caustic critic of bourgeois democracy
precisely because he thought parliamentary debate a charade that
grandstanded and perpetuated differences rather than a deliberative forum
in which disputes could be resolved.121 Even more centrally, Schmitt
adjudged conversation itself a sign of weakness. He had a horror of "una
clasa discutidor"-what the contemporary right would call the chattering
classes. "A class that shifts all political activity onto the plane of
conversation in the press and in parliament," wrote Schmitt, "is no match
for social conflict."' 22 He held "conversation" in contempt because he saw
it as merely a way of avoiding conflict, "the enemy of enemies."23
Today, as in the Weimar Republic, there are naive liberals, whom
Schmitt was right to skewer, who think that if only we could sit down and
talk we would all finally agree. But that is exactly what the modernists,
Lawrence included, did not think. What Schmitt condemned as
quintessentially romantic, "a world . . . without decision, without a final
court of appeal, continuing into infinity," 24 becomes transfigured in
modernism for the fundamental reason that the modernists celebrated the
uncertainty and the fluidity of the self. Conversation is therefore
understood neither as to the mere prologue to a decision nor as a way of
forever postponing it. Conversation is the framework through which
identity is actually formed, and likewise sets the conditions under which it
remains continually in movement. Just as the modernists thought that
conversation in the sense of a fragmented and transitory inter-subjectivity
was constitutive of the self, so too for a thinker like Lawrence it became
constitutive of social relations and even of legal decisions. Someone like
Schmitt wanted us to get past such doubt and instability, but the
modernists embraced these features as intrinsic to the human condition.
For Lawrence then, polarity was an integral component of all human
functioning-from personal relations to political and legal structures.
Framed by the public conversation and critique established through the
rule of law, the irreconcilable and irresolvable conflict between
predictable rules and unpredictable circumstances is not a legal disaster,

121. CARL SCHMITT, THE CRISIS OF PARLIAMENTARY DEMOCRACY (Ellen Kennedy trans., 1988)
(1923).
122. SCHMITT, POLITICAL THEOLOGY, supra note 33, at 59.
123. SCHMITT, POLITICAL ROMANTICISM, supra note 31, at 17.
124. Id. at 19.
2012] Manderson 503
but a vital opportunity. The humanness, complexity, and inadequacy of

judgment are an invitation to judge the judges, to judge their
justifications, and so to participate in the making of law. Rather than
promising certainty or finality, the rule of law might promise something
more human and more honest. Firstly, that a decisionmaker will be
required to articulate and justify his or her decision, to relate it back to the
rule even as it has been modified or developed by their experience of the
context before them. Secondly, that they will be challenged on these
reasons, forced to question them and think again, without ever simply
being able to appeal to either interpretative certainty or personal insight as
some kind of ineffable trump. Change emerges through the eternal
weaving of call and answer, in which courts or judges are implicated but
not alone. On this view, legal decisions prefigure not an end to
interpretative and normative disagreement, but another text to be
defended and transformed in the flux of their ceaseless oscillation. If we
look around the world at societies in transition, and the profound legal
problems they face, that seems to me a more important goal to advance
than a promise of objectivity that is increasingly viewed with
incredulity.'2 5
CONCLUSION
The rule of law is not an arid technical exercise, which is the ethical
poverty of positivism. Neither is it an unanswerable and divine decree,
which is the ethical poverty of romanticism. It becomes instead the
framework for a social and human dialogue, which is as it should be. That
pluralism and that modernism Schmitt, for one, simply could not
fathom.' 2 6 But without the antiphonal response of reason-giving and
contingent justification, which Lawrence calls "call and answer," the law
would cease to offer us-all of us, whether citizens or lawyers or
judges-the possibility of learning something about ourselves and the
world.
This too, I think, reflects a crucial distinction in how we might think
about the rule of law. On the one hand, positivism does not conceive of
judges as learning something new. Judges, on the standard model, merely
apply what they already know: the answer is to be found in the rules
written down on the page in front of them. So the dialogue in a courtroom
125. RUTI TEITEL, TRANSITIONAL JUSTICE (2000); THE RULE OF LAW AFTER COMMUNISM:
PROBLEMS AND PROSPECTS IN EAST-CENTRAL EUROPE (Martin Krygier & Adam Czarnota eds.,
2007); Martin Krygicr, The Rule of Law: Legality, Teleology, Sociology, in RELOCATING THE RULE
OF LAw 49 (Gianluigi Palombella & Neil Walker eds., 2011).
126. The importance of the state and of a homogeneous society, and Schmitt's consequent
hostility to liberal pluralism, became increasingly clear in his writing. See CARL SCHMITT, THE
CONCEPT OF THE POLITICAL (G. Schwab trans., 1996) (1927); see also DYZENHAUS, supra note 36.

is all one-way. Only the parties to a dispute learn something: what the law
means and how to obey it. Such a model of legal judgment is resolutely
hierarchical.
But this will not do. Judgment-literary, personal, political, or legal, it
hardly matters-is a constant process of learning. There is no learning
without resistance and struggle. On this model, the judge listens and,
having heard something new (about the world, perhaps, or the people who
live in it) must correct his or her assumptions of what a proper application
of legal principles requires. Arrogance is the worst crime for any judge to
commit-and the most typical. A judge, like the rest of us, must be
prepared to make the frequent discovery that he or she is a fool. The rule
of law thereby cedes its mythical certainty, but by listening, deciding,
explaining, and listening again, law becomes better connected to its
community and able to develop, step by step, while always remaining
publicly answerable for its decisions. The rule of law facilitates a
structure of oscillation capable of learning from us rather than merely
instructing us.
On the other hand, the word "insight," the romantic foil to rule
following, appears equally to acknowledge no argument or struggle or
explanation. It is as hierarchical as its positivist counterpart. Justice
appears like a revelation, as the product of a purely inward process by
which one intuits the big picture. Every page of Berkowitz's The Gift of
Science exudes this static and non-discursive image of judgment. To
speak of law as a "natural or traditional insight" "that grows of its own
accord" implies that intuition arrives without need of any interrogation,
27
modification, or argument.1
But this will not do either. As Lawrence made so clear in all his work,
nothing in this world is free, natural, or manifest. What we learn about
justice-and, of course, this continually changes in a world of
bewildering complexity and endless polarity-we earn, precisely by
going through the ordeal of justification and reasons, and through the
resistance provided by others. Insight is not the opposite or transcendence
of reasons. On the contrary, like wisdom and foolishness, they are
productively related, the one chiseled out of us by the constant nagging of
the other. "Trial and error" is not an insult. It is the methodology of the
rule of law.
Understanding the rule of law through the lens of modernism, and in
particular through that of polarity, disturbs the hegemonic reason of
positivism and the hegemonic unreason of romanticism alike. Polarity's
backwards-and-forwards movement of constant correction, adjustment,
127. BERKOWITZ, supra note 56, at 51, 29.
2012] Manderson 505
and metamorphosis cannot resolve the opposition between general rules

and specific circumstances, between paying attention to uniqueness and
difference and the public demand for an articulated and defensible
interpretation of existing principles. Instead, both sides remain continually
in play. The imperfectability of justice turns the rule of law into an
endless process of reassessment and learning. The irreducible tension of
polarity or contradiction generates a public process of call and answer, in
which our opinions are constantly amended and tested against the
challenge of the voices of others.
Against positivists' assertion of law's perfection and the romantics' of
its perfectibility-the former a claim of purity centered on the past and
the second a dream of it focused on the future-the current approach
seeks to find in the critique of modernity a way to understand the rule of
law while fully embracing our present imperfection, our fragmentation,
and the imperfection and fragmentation of justice with us. My argument
has been for us to learn to accept and build on these qualities of the
human condition, with which modernism was so absorbed, rather than to
fear or deny them. Indeed, an awareness that lack lies at the heart of the
human condition implies an abiding humility about our human capacities
with specific relevance to the claims that institutions might make. In the
wake of the First World War, modernist art and literature in particular
seems to have striven to achieve greater understanding not by maintaining
its closure, determinacy, or authority, but by undermining it. That is a
trick that the rule of law might do well to emulate.


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Yale Journal of Law & the Humanities

Volume 24 | Issue 2 Article 1

Modernism, Polarity, and the Rule of Law

Follow this and additional works at: http://digitalcommons.law.yale.edu/yjlh

Modernism, Polarity, and the Rule of Law

The rule of law is in peril. Some say it is imperiled by reactionary

Published by Yale Law School Legal Scholarship Repository, 2012 1

476 Yale Journal of Law & the Humanities [Vol. 24:475

2012] Manderson 477

Lawrence's insight that contradiction and opposition, such as those

I. POSITIVISM AND ITS DISCONTENTS

Published by Yale Law School Legal Scholarship Repository, 2012 3

478 Yale Journal of Law & the Humanities [Vol. 24:475

certain and objective application of legal rules, while the critique of

2012] Manderson 479

Published by Yale Law School Legal Scholarship Repository, 2012 5

480 Yale Journal of Law & the Humanities [Vol. 24:475

requires us to make a judgment as to the applicability of prior general

2012] Manderson 481

could not survive.14 In Law as a Means to an End: Threat to the Rule of

Published by Yale Law School Legal Scholarship Repository, 2012 7

482 Yale Journal of Law & the Humanities [Vol. 24:475

II. MODERNITY AND ITS DISCONTENTS

A. The Crisisof Modernity

19. Derrida, supra note 8.

2012] Manderson 483

crisis of modernity" or the "crisis of civilization" 24 was already familiar

Published by Yale Law School Legal Scholarship Repository, 2012 9

484 Yale Journal of Law & the Humanities [Vol. 24:475

B. The Logic ofReactionary Modernism

2012] Manderson 485

between norm and application as limited and exceptional.3 5 But in

Published by Yale Law School Legal Scholarship Repository, 2012 11

486 Yale Journal of Law & the Humanities [Vol. 24:475

positivist rule of law was a "national poison" which refused to face up to

2012] Manderson 487

Tushnet or Arthur Leff show an unerring faith that-not in law but

Published by Yale Law School Legal Scholarship Repository, 2012 13

488 Yale Journal of Law & the Humanities [Vol. 24:475

2012] Manderson 489

the "inevitable totalising horizon" of rules.64

III. ANOTHER MODERNISM

A. Background and Antecedents

Published by Yale Law School Legal Scholarship Repository, 2012 15

490 Yale Journal of Law & the Humanities [Vol. 24:475

the very height of these debates." That novel, while perfectly

67. D.H. LAWRENCE, KANGAROO (Bruce Steele ed., 2002) (1923).

2012] Manderson 491

writes in The Crown, a strange work from 1915, "[T]here is no rest, no

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492 Yale Journal of Law & the Humanities [Vol. 24:475

sun and water-becoming corporeal sites of inherent oppositions that

78. D.H. LAWRENCE, FANTASIA OF THE UNCONSCIOUS 83 (1933).

2012] Manderson 493

C. Polarityas the Discourseof Modernism: The Question of Benjamin

83. LAWRENCE, supra note 67, at 340.

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494 Yale Journal of Law & the Humanities [Vol. 24:475

2012] Manderson 495