Abstract
Various contemporary legal theorists have turned to ‘imagination’ as a keyword in their accounts of law. This turn is fruitfully considered as a potential response to the modern condition diagnosed by Max Weber as ‘disenchantment’. While disenchantment is often seen as a symptom of a post-metaphysical age, it is best understood as the consummation of metaphysics and not its overcoming. Law’s participation in disenchantment is illustrated by way of Holmes’ parable of the dragon in ‘The Path of the Law’, which illustrates the rationalization and demystification of law. Four ideal–typical turns to ‘imagination’ are identified: the theoretical (turning to imagination as synthesis), the progressive (imagination as empathy), the transformative (imagination as invention) and the nostalgic (imagination as attunement). Most of these turns to imagination remain complicit with disenchantment. ‘Imagination’ often appears only to be harnessed in the service of more conventional keywords of legal thought: theoreticians turn to imagination as synthesis to serve as a form of super-reason; progressives turn to imagination as empathy to make law a more effective instrument; transformatives turn to imagination as invention to serve as a form of super-will. By turning to imagination as attunement, nostalgics come closest to accepting a world that is not masterable, i.e. they come closest to accepting an enchantment that is a gift and not the product of our imaginations. Indeed, modern imaginations are themselves symptoms of disenchantment. If Weber’s diagnostic calls for a human response, it cannot be one of overcoming disenchantment by imaginative re-enchantment: it belongs integrally to enchantment to exceed any and all human capacities.
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Notes
That such a turn is not always aware of itself as a response makes it even more interesting to examine.
One recent example of this turn is Taylor (2004) who focuses on ‘modern social imaginaries’. An anonymous reviewer helpfully pointed out that much recent theory may prefer to use ‘imaginary’ as opposed to ‘imagination’. My focus on ‘imagination’ as a human faculty or capacity raises the question of whether and how human beings can shape their social imaginary. Taylor’s use of ‘imaginary’ and my consideration of ‘imagination’ both operate at a higher level of generality and are much less technical than, e.g., that of Castoriadis (1987).
Weber’s account of disenchantment also points to the impoverishment or shrinking of public life and hence to the possibility of community in our times. What is highest can no longer be shared publically, politically.
But see Stolzenberg (1999) who distinguishes Bentham’s position on fictions from his position on legal fictions.
These references to Hobbes emphasize his role in a broader story of disenchantment but do not do justice to the complexity and depth of his work. Leviathan is full of wonderful examples of the use of, for example, simile to attack the use of simile as untruthful, politically pernicious and the like. Referring to the imagination, Todd Butler notes, Hobbes appears to ‘rely upon the very faculty he suspects and seeks to restrain’ (2008, p. 142). Whelan also notes how ‘Hobbes himself is paradoxically forced to resort to the eloquence which he otherwise condemns’ (1981, p. 59). As an anonymous reviewer helpfully pointed out, imagination is central to Hobbes’ system and ‘according to many interpreters, even his definition of reason as calculation simply means just a more disciplined form of imagination’. In this vein, Kahn’s careful study shows how Hobbes’ production of an ‘at least in theory—calculable and dependable’ subject involved a re-working, and not simply a denial, of imagination, of mimetic desire (2004, p. 151). Modern rationality or rationalism, then, is not the product of a subtraction of imagination from the human psyche but of its existential modification: it is the product of a critique of one ‘genre’ or ‘plot’ in light of another. The modern separation of the poetic and the propositional paradoxically involves, to borrow Kahn’s choice of words, ‘a radically new poetics’ (1). See also Martel (2007) for an extremely insightful—and radical—reading of Leviathan that emphasizes its ‘metaphors, figures, and other rhetorical devices’ (13).
Imagination (eikasia) makes a famous appearance in Plato’s Republic, particularly in Socrates’ discussion of the image of the divided line in Book VI, 509d–511e. Imagination there appears as an affection in the soul tied to opinion rather than to knowledge proper. More generally, imagination appears as a mimetic faculty tied to copies—even copies of copies—rather than originals. However, just as it is reductive to read Hobbes as a straightforward attack on the imagination, so too is it reductive to read Plato in that manner. For example, Euben (1990) reads Plato’s Republic as a tragedy in the poetic tradition.
But one entirely dependent on the rise of the law report and the depositing of moments of practical wisdom on paper in propositional form.
Note that social justice itself is most likely a secularized version of Christian charity.
Nussbaum notes this possibility. See also Massaro (1989, p. 2113): ‘When pared to its roots, the “empathy” theme … seems not to be a call for more empathy, but for a different ordering of our empathic responses. It represents a hope that certain specific, different and previously disenfranchised voices … will be heard.’
The phrase ‘social imaginary’ is used by Castoriadis who is the subject of a chapter in Thompson’s book.
Recall the roots of modernity and Neuzeit.
At 81, he writes: ‘…it cannot be doubted that the great ages in the history of art were those in which people without an aesthetic consciousness and without our concept of “art” surrounded themselves with creations whose function in religious or secular life could be understood by everyone and which gave no one solely aesthetic pleasure’.
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Acknowledgments
I would like to thank the many people who commented on previous versions of this essay or who gave me their comments when I presented it orally at several workshops and conferences. Part of the reflection on this essay was done during a fellowship at the Stellenbosch Institute of Advanced Study, for which I am grateful.
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Antaki, M. The Turn to Imagination in Legal Theory: The Re-Enchantment of the World?. Law Critique 23, 1–20 (2012). https://doi.org/10.1007/s10978-011-9095-0
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DOI: https://doi.org/10.1007/s10978-011-9095-0