Abstract
The Preventive Turn in Criminal Law reflects on how liberal criminal law undermines itself through basic commitments it acknowledges then forgets. It develops a critical basis for thinking about criminal justice based on Hegel’s idea of recognition, especially in Kojève’s development of it. Here, the legal subject is taken in two ways: first, as the abstract formal subject universally recognized with every other subject conceived similarly. Onto abstract legal subjectivity are added various necessary but contradictory supplements such as that of dangerousness. Second, abstract legal subjectivity is contrasted with a deeper, immanent, form of recognition that imagines all subjects as concretely, formally and substantively, equal, where as a necessary corollary, respectful co-presence is political, but also operates in appropriate social, economic and environmental conditions. Legal subjectivity thus points both to hypostatization and the creation of the dangerous other within the standard liberal mode, and to the critical theme of emancipation in a world fit for subjects for whom subjectivity is finally taken seriously.
In this brief comment I focus on the second critical theme which links Carvalho to other recent work from outside law and is relevant to questions of, for example, transitional justice. In her recent book, Beyond Doer and Done To, Jessica Benjamin (2018) talks about recognition as it relates to psychoanalysis and law. She argues in psychoanalysis for the importance of what she calls the ‘lawful world’ as a central category of human experience. By this she means a world in which ‘the other’s behaviour is not simply always predictable but more importantly confirms when the unexpected or painful wrongness occurs as well as the need to put things right’ (2018: 6). The lawful world ‘refers not to juridical law, but to a belief in the value and possibility of intelligible, responsive and respectful behaviour as a condition of mental sanity and interpersonal bonds’ (2018: 6). Such a possibility is essentially one of recognition, but recognition involves a context, a world in which it can happen, and it raises the question how this might operate in the world of law and in a lawful world, where these may not be the same.
Benjamin’s interest is that of a psychoanalyst, moving from the dynamics of child development and therapeutic encounters to the role that psychoanalytic understanding can perform at the level of society, politics and law, in situations of social traumatization. The lawful world is a way of speaking about what she calls the ‘moral third’, an overall sharing of assumptions and practices that can hold together the relationship between a ‘first’ and a ‘second’, and render their relationship appropriately respectful. In the parent/child dyad, or in the analyst/patient setting, thirdness is a negotiated set of asymmetrical relations which holds the parties together and permits developmental progress. This starts with a sense of bodily co-understanding in the parent/child setting (the ‘rhythmic third’—the ‘One in the Third’), and progresses to moral or lawful thirdness (the ‘Third in the One’) as a relationship progresses. Allowing for obvious differences, the psychotherapeutic relationship reflects what evolves in the parent/child relation. The process of recognizing, sharing and emotional holding provides a moral setting in which a patient can articulate her concerns, learn from her actions and identify new ways to proceed.
How does this relate to the juridical? In social and political settings of traumatization and transitional justice, recognition as moral thirdness may be, as in the other settings, ‘embodied’, as in processes of shared empathic feeling in truth processes. It is also most generally ‘public’, and here a political and legal process acts to publicize, and to state authoritatively that violations happened. It may stand for a generalized statement of truthfulness; and it may be universal in the sense of affirming the value of all lives: ‘the principle that we are all human, that vulnerability and suffering must be honoured’ (Benjamin, 2018: 235). Law is linked to much of this. Hence we can extend the idea of moral thirdness as what is lawful to include co-related ideas of the ‘public’, the ‘legal’ and the ‘universal’ third.
Such an extension of recognition as thirdness to the socio-political, the public and the legal must however be treated with caution: where public witnessing fails, for example, recognition cannot happen, and we are in the place of what Benjamin (2018: 228, following Samuel Gerson; see also Améry, 1980) calls the ‘failed’ or the ‘dead’ third. More broadly, we live in a social and political world where nationalism and imperialism prevail (Benjamin, 2018: 232). This is generally a world of structural violence, and this inculcates the fantasy at different levels that a child, a patient, a social group is other and must be denigrated. This is Benjamin’s split (in the title of her book) between ‘the doer and the done to’, to which we can compare Carvalho’s split between the responsible and the dangerous subject in law. This splitting is a significant element in public settings, so how does it affect claims of public, legal and moral recognition?
In thinking about Benjamin’s position, an interesting interlocutor might be Robert Meister’s (2011) After Evil, in which the author argues that the human rights and transitional justice movement in the post-1989 unipolar world is a way of providing victims with only the appearance of resolution to their traumatic suffering. A merely symbolic recognition of victims is provided as a means of ensuring that the beneficiaries of violation retain their status and wealth in the transitioning community. Relating this to Benjamin’s terms, should we speak here of a failed or dead third, or perhaps, I would suggest, one that is ‘hollow’ or ‘broken’? It would be a mistake to think that the engagement of the moral third does not remain a central element in what is happening, even if its potentialities are significantly limited by the overall social, political and economic setting and function.
To examine the processes we see occurring in countries such as Chile, South Africa, Colombia and Northern Ireland cannot be to deny the moral commitment to hard emotional work involved in addressing past traumatization—at the same time as we cannot deny the ‘functional’ role that truth and reconciliation plays. There has to be room for ambivalence. Struggles demanding recognition, seeking to create moral thirdness, should be honoured, while failing to acknowledge the systematic limitations and the structural violence operating against it, often with bitter outcomes for those involved, would be to turn away from the validity of the moral drive to recognition. 1 One possible way of exploring the gap between the world of law and the lawful world would be to speak of a position of partial, or broken, thirdness (Norrie, 2017).
Carvalho’s critique of liberal criminal justice is important for two reasons. The first is that it renews the critique of criminal justice thinking as unconscious repetition. The second is that it makes a critical theory of recognition available to criminal justice scholarship, and opens a door to recent developments in psychoanalytic theory. That these two reasons might find a deeper connection is apparent from the language in which the first is expressed.