Abstract
As is clear from the last four chapters, one would not find anything in Merleau-Ponty’s texts resembling a fully developed discussion of law and morality. And certainly one would find nothing of the way this issue has been skewed in most discussions of it in the previous two decades of Anglo-American philosophy by being focussed almost exclusively on sexuality.1 Instead, as with Merleau-Ponty’s other references to law, those that concern morality are usually situated in the contexts of politics, economics, and history. Although productive of less exciting discussions, perhaps, these contexts do at least have the compensatory advantage of generating more interesting and thorny philosophical problems.
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Notes
For a good discussion of the way that the relationship of law and morality has been distorted through an exclusive focus on sexuality, see the “Preface” of Richard Wasserstrom, ed. Morality and the Law (Belmont, CA: Wadsworth Publishing Co., 1971.) For further details, see also the instructive articles in that volume in addition to H.L.A. Hart, Law, Liberty, and Morality (Oxford: Oxford University Press, 1963), and Sir Patrick Devlin, The Enforcement of Morals ( Oxford: Oxford University Press, 1965 ).
Hence, for example, the moral principle derived from natural law traditions which, among many others, made its way into the Anglo-Saxon common law, namely, that “No man is above the law.” Of course, this principle has been disputed vigorously from time to time, as for instance, Lord Coke found to his peril in James I’s Star Chamber. And in the minds of some, even after almost 200 years of Constitutional history, the principle was lost on Richard Nixon in his response to Watergate.
For an earlier version of the discussion following, see William S. Hamrick, “Humanity, Nature, and Respect for Law,” in A.-T. Tymienieka, ed. Analecta Husserliana (Dordrecht: Reidel, 1983), Vol. XIV, pp. 245–56. It is true that one could simply put an end to the difficulty by making a virtue of the differences between the earlier and later texts in what concerns our relation to nature, and then adopting the perspective of the later texts. For, as we saw above in the Introduction, L’oeil et l’esprit tells us that, “Visible and mobile, my body is as and amongst things, it is one of them, it is taken up in the tissue of the world and its cohesion is that of a thing. But because it sees and moves itself, it holds things in a circle around it; they are an annex or extension of the body, they form part of its definition and the world is made of the same stuff as the body” (p. 19). Nonetheless, I want to carry on the present discussion in relation to Merleau-Ponty’s earlier, rather than later, texts because, as also explained in the Introduction, it is in the former, rather than in the latter, that he is clearly committed to both phenomenology as a method for doing philosophy and to understanding the social world. Still, it is undeniable that the present discussion could only be helped by the even closer entrecroisement of the body and nature as described in the later works. And a similar conclusion follows for the discussion of the ideal of fidelity to law.
Was Ist Metaphysik? (Frankfurt a.M.: Vittorio Klostermann, 1965), p. 16.
For a similar view in a different context, see D.W. Robertson, A Preface to Chaucer (Princeton: Princeton University Press, 1962), p. viii: “This importance of social change as a determining factor in man’s psychic constitution has recently been stressed in a brilliant book by J.H. van den Berg, The Changing Nature of Man,which sets out to show that `earlier generations lived a different sort of life, and that they were essentially different.’… Their `human passions,’ although not very different from ours biologically, may have been stimulated and elaborated in ways that seem strange to us, and their art, in consequence, may have been appealing in ways that we do not readily understand” (italics in the original text).
On Law and Justice (Berkeley: University of California Press, 1959), p. 258.
Ross, pp. 259, 260.
Ross, p. 261.
Ross, p. 261. It is interesting to compare in Merleau-Ponty’s own legal context the first sentence of the Committee draft of the Code Napoléon: “Il existe un droit universel et immuable, source de toutes les lois positives; il n’est que la raison naturelle, en tant qu’elle gouverne tous les hommes.” In the same vein, the Constitution Française du 3 septembre 1791 begins with its “Déclaration des droits de l’homme et du citoyen” and lists seventeen “droits naturels, inaliénables et sacres.” L. Dugit, H. Monnier, and R. Bounard, Les Constitutions et les principales lois politiques de la France depuis 1789, rev. ed. by Georges Berlia ( Paris: Librairie Générale du Droit et de Jurisprudence, 1952 ), p. 1.
American Jurisprudence through English Eyes: The Nightmare and the Noble Dream,“ Essays in Jurisprudence and Philosophy (Oxford: The Clarendon Press, 1983), p. 125, n.8.
Wolfgang Friedmann, “Phenomenology and Legal Science,” in Maurice Natanson, ed. Phenomenology and the Social Sciences ( Evanston: Northwestern University Press, 1973 ), II, p. 363.
Naive, passive acceptance and critical reflection are diametrically opposed extremes. In actual practice, one might well find many different variations in attitude along the spectrum from one extreme to the other. Suspicion, for example, can occur before hardening into the certainty of sceptical rejection. In a parallel way, schizophrenic children are sometimes embroiled in this contrast between two different senses of “seeing through.” See William S Hamrick, “Language and Abnormal Behavior: Merleau-Ponty, Hart, and Laing,” The Review of Existential Psychology and Psychiatry, Volume XVIII, Nos. 1, 2, & 3, 1982–83 (but actually published in 1985 ), pp. 181–203.
As noted above in the Introduction, one of the most significant differences between MerleauPonty’s earlier and later works is that in the latter, there is apparently a great desire for unmediated immediacy and to obviate the standing requirement (now perceived as an obstacle) of interpretation in consciousness. It is hardly any accident that this changed attitude goes hand in hand with the remarkably different consideration of nature (see n. 2 above).
The Case for Natural Law Re-examined,“ Natural Law Forum I (1956), pp. 27–46. Reprinted and cited in Natural Law,2nd. edition (London: Hutchinson University Library, 1970). The passage cited is at p. 148.
Reason and Fiat in Case Law,“ 59 Harvard Law Review (1946), 371.
As also noted above, one must be careful not to read into Merleau-Ponty’s usage of “lumière naturelle” any moral content. This is quite clear in his return to this theme in Signes more than a decade after Sens et non-sens: the “lumière naturelle” is an “opening to being” which manifests itself “equally well in the most cruel forms of sadism as in Italian painting” (p. 304).
This is so because human beings are capable of a much richer and more fulfilling happiness than that with which Brave New World inhabitants are besotted—of immediate sensuous gratification, or an infantile happiness.
This is true not only of a plethora of forms of effective social conditioning, but also of its most successful accomplishment which is the conception of happiness framed by a suffusion of sex, drugs (whether legally recognized as such or not), the fetish of wealth, together with its ancillary dreary cycle of buying and having; and the acceptance of the deceitful promises of electronic media (chiefly television) for instantaneous solutions to life’s problems. For an interesting argument in favor of censorship based on the observations of the previous paragraph and in note 17, see Irving Kristol, “Pornography, Obscenity, and the Case for Censorship,” The New York Times Magazine,28 March 1971. Kristol’s views have been legally influential at least once when they were cited with approval by the United States Supreme Court in upholding a State’s right to control the exposition of pornographic materials even when viewed only by consenting adults in private. See Paris Adult Theatres v. Slaton,413 U.S. 49 (1973), at p. 64.
The expression is that of John Finnis in Natural Law and Natural Rights (Oxford: The Clarendon Press, 1980), passim. I shall return to Finnis’ essay at the conclusion of the present section.
Positivism and Fidelity to Law-A Reply to Professor Hart,“ 71 Harvard Law Review 643 (1958).
Finnis, pp. 59–99.
Finnis, pp. 88–89.
Finnis, p. 103. (Italics in the original text.)
Finnis, p. 89.
Jean-Paul Sartre, “Merleau-Ponty [I],” translated with introduction by William S. Hamrick, Journal of the British Society for Phenomenology, Volume XV, Number Two, May 1984, pp. 134–35.
Finnis, pp. 103–04.
Cambridge, Mass.: Harvard University Press, 1977), pp. 408–23.
Finnis, pp. 105–06.
Finnis, pp. 106–09.
Finnis, pp. 109–10.
Finnis, p. 110.
Finnis, p. 111.
Finnis, pp. 118–25.
Marx gets scant and insignificant attention in Finnis’s essay, Lenin even less, and Engels none at all.
Finnis, p. 125.
Sonia Kruks, The Political Philosophy of Merleau-Ponty (Sussex: The Harvester Press, 1981); published simultaneously by The Humanities Press (Atlantic Highlands, N.J.), p. 125.
Cited at Kruks, p. 126; translation Kruks’.
Finnis, p. 125.
A previous version of this section appeared in “Interests, Justice, and Respect for Law in Merleau-Ponty’s Phenomenology,” in William L. McBride and Calvin O. Schrag, eds. Phenomenology in a Pluralistic Context (Albany: State University of New York Press, 1984), pp. 39–48.
Law, Liberty, and Morals,p. 71.
Hart, p. 71.
Hart, p. 72.
Hart, pp. 77–78.
Hart, p. 79.
On matters of a closely related nature, see William L McBride, Fundamental Change in Law and Society (The Hague and Paris: Mouton, 1970), pp. 50–63 and 216–25.
Finnis, p. 9. See Lon L. Fuller, The Morality of Law (New Haven: Yale University Press, 1964), pp. 210ff.
Something of the same reasoning has been present in the body of American case law which is most concerned with “affirmative action” plans, and what some have interpreted as “reverse discrimination,” in attempts to deal justly with members of minority groups traditionally discriminated against. Effectively, the U.S. Supreme Court, as well as lower federal courts, have seen that treating such systematically disfavored members of society as Kantian-like selves, as pure ends in themselves, would be to inhabit a heaven of principles out of contact with the facts of violence that would thus be further entrenched. For appeals to (only) equal consideration in any given job-hiring or school admission decision-with no reference to race or sex-would do nothing to eliminate the lingering effects of past discrimination which, because of inequalities in the historical situations of the applicants, substantially disadvantage the preparation of minority-group members in competing for social goods. It also follows from Merleau-Ponty’s similar reasoning that the new liberalism would further have to wrestle with the tensions inherent between goals of freedom and equality.
The Phenomenon of Law“ in P.M.S. Hacker and J. Raz, eds. Law, Morality, and Society: Essays in Honour of H.L.A. Hart (Oxford: The Clarendon Press, 1977), p. 94.
In this particular, Merleau-Ponty would find himself in agreement with Fuller in the latter’s critique of positivism in “Positivism and Fidelity to Law-A Reply to Professor Hart,” pp. 642ff., and especially at p. 646.
In the United States, as in every other system of system of constitutional government, the protection of free speech and discussion has had to be balanced against other community interests, such as the security of the State, the maintenance of public order and decency, the protection of reputation, and the need for fair trial proceedings.“ Geoffrey Marshall, Constitutional Theory (Oxford: The Clarendon Press, 1971), pp. 167–68. Cf. Finnis (p. 220): ”In short, just as the right of free speech certainly requires `limitation’, i.e. specification, in the interests of free speech itself and of many other human goods, so too the procedure for settling the `limits’ of this and other human rights will certainly be enhanced in reasonableness by a wide freedom of cultural and political debate, in any society in which there is a sufficiently diffused respect for discussion and compromise as ways of being reasonable in community.“
See Marshall, pp. 179–83, and Joel Feinberg, “Limits to the Free Expression of Opinion” in Joel Feinberg and Hyman Gross, eds. Philosophy of Law (Encino, CA: Dickenson, 1975), p. 149, where the author points out that after the Russian Revolution flamboyant spokesmen for working-class parties in America “were commonly charged with violations of the Federal Espionage Act during and after World War I, of state sedition laws in the 1920s, and, after World War II, of the Smith Act,” but their trials “for advocacy of revolution tended to be extremely difficult and problematic partly because it was never clear whether revolution in any usual sense was something taught and approved by them, and partly because it was unclear whether the form of reference to revolution in the Marxist ideology amounted to `advocacy’ of it.”
D’Entrèves, p. 149.
J. Raz, “The Role of Law and its Virtue,” 93 Law Quarterly Review 195, at 208 (1977).
Fuller, pp. 644ff. See also The Morality of Law, pp. 210ff.
The fact that the Nazis did not do much mischief with the civil law prevents one from drawing any simple conclusions about whether there was a valid legal system under Hitler or not. For a charming (and classic) discussion of this problem, see “The Problem of the Grudge Informer,” appended to Fuller’s The Morality of Law.
Finnis, pp. 273–74. (Italics in the original text.)
Fuller, “Positivism and Fidelity to Law-A Reply to Professor Hart,” p. 636.
Lucas, p. 95.
Lucas, p. 95.
Lucas, p. 95.
The Concept of Law (Oxford: The Clarendon Press, 1961), p. 198.
Finnis, p. 13. (Italics in the original text.)
Finnis, p. 14.
It is striking how many pretended versions of the latter style themselves as “popular democracies” when in fact they are anything but democratic and are profoundly unpopular in terms of both representation in legal processes (if any) as well as public sentiment.
Albert Rabil, Jr., observes that Merleau-Ponty “might have added that it is the difficulty of every human institution.” Merleau-Ponty: Existentialist of the Social World (New York: Columbia University Press, 1967), p. 111. Jefferson counselled a new revolution in every generation, but one does not get from Merleau-Ponty a sense that the integrity of legal and political institutions is normally of such a short duration. Still, Rabil is surely correct to stress the applicability of Merleau-Ponty’s remark well beyond the domains of politics and law, and not least in philosophy itself—as anyone can attest who wishes to escape the stultifying, choking atmosphere of the salon des beaux arts approach of academic (institutional) philosophy, in order to recover the freshness of experience out of which enduring philosophical questions emerge. One of Nietzsche’s sub-titles was “A Philosophy for Good Teeth.” A similar ascription for academic thought might be “A Philosophy for Good Stomachs”—as when a cow endlessly chews its cud, before swallowing it, the taste is also quickly gone.
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Hamrick, W.S. (1987). Law and Morality. In: An Existential Phenomenology of Law: Maurice Merleau-Ponty. Phaenomenologica, vol 104. Springer, Dordrecht. https://doi.org/10.1007/978-94-017-0707-7_8
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