The Heart of Law

The world of human societies is at its origin a normative universe, precisely in virtue of the need to define the boundaries of behaviour. It is out of this need that norms emerge and frame the space of social relations, on the basis of the ‘part’ that each person must have in every context of human experience, and they guide justice in recovering the measure of those boundaries when excess breaks out. Our awareness of the continuity between law and justice—and of their common rootedness in the complex space of the boundaries imposed by otherness—is present from the origins of human culture in the myths that in telling of gods and men reveal otherness and the limit of human existence. This complexity cannot be captured by modern Western legal science, nor can it be explained by the reflection that has accompanied the evolution of positive law. Little, if anything, will we achieve by bringing to bear on this complexity the distinction between law and morals (in its various formulations), or by abandoning natural or customary law and replacing it with an exclusively formal and rational law, or, generally, by relying on the concepts that have emerged out of the technicization of law. More eloquent is the sociological fact of the separation between internal and external legal culture, and of the confusion this distinction has generated in our common sense, in the meanings we ascribe to law, and in the feelings that feed our expectations of justice, or the claims we make in asserting a right. That fact invites us to look elsewhere in our culture in the effort to recover those aspects of the problem (or to understand the complexity involved in the problem of otherness) which the positive law has forced out, mistaking for an ‘evolutionary achievement’ its own movement away from the concrete reality of social life. Far from offering facile judgments about legal modernity, and far from pursuing the chimera of an original jus, I make it my aim here to analyze a few literary passages that have passed on to us, from the origins of Western culture, in Greece, the memory of the link between law and justice. Visibly manifesting itself in this space is the true sense of measure and the ancestral fear of that violence—the matrix of every excess—which emerges from our human drive to find identity, as against recognizing otherness and difference, and which jeopardizes the life of the community. It is my hope, then, to identify elements for thinking about measure, which has gradually been abandoned over time, as if measure were an aspect of the juridical that is taken for granted, any yet it is precisely with measure that we must reckon whenever our shared system of norms and meaning falls into crisis. That is the point from which we must proceed in an effort to shift this question of the law’s justice from the abstract plane of theory to the more-complex plane of experience and society, clarifying what the boundaries of law are and what its justice should consist in, apart from legal procedure. This is a problem we can work out by taking a law-and-humanities approach, which points out new avenues that legal science could take in seeking to get to the heart of juridicalness (juridicité). Among the several paths offered by the analysis of literary texts, the one that has won me over is that which takes the law as a story or narrative process (law as narrative). I follow Cover (1983) and Geertz (1983) in the belief that human communities are constitutively narrative and that the cultural universe by which these communities are structured is in itself normative. Which is to say that the transmission of moral, social, and legal norms, and the corresponding guiding of behaviour, happens through the telling of stories that we can share. These stories, fictional or nonfictional, can be of various sorts and be drawn from various sources. But what essentially makes a story juridical is its ability to structure daily life on a symbolic, normative, and emotional level, constantly offering formulas on which basis to achieve a balance in social coexistence. This also means that, as relational entities, we too are these stories, and above all it means that our way of understanding and access the world of everyday life does not reflect any rigid distinction between rational and emotional intelligence or between truth and imagination. Every human action always juggles emotions with rational strategies that kindle or mitigate one another. The stories of literature, as well as the more popular stories, do capture this reality interwoven with the intellect, with the heart, and with fantasy, giving us an understanding of life, while also enabling us to imagine other possibilities, and for this reason they can give us greater insight into the law’s justice than can the stories of positive legal science. This is what happens with Odysseus’ homecoming journey, or νόστος (nostos), the story that more than any other continues to exert an influence on Western culture. Unlike the story of war and siege told in the Iliad, the Odyssey addresses the theme of the hero’s homecoming, which also signifies a return to life, to community, and to the order needed for the community to thrive. The point is not simply to retell a traditional tale so as to keep us entertained, nor is it to collect the contents of the ἀοιδοί (aoidoi), or bards’ performances so as to preserve such contents and hand them down, as usually happens in communities based on oral culture. Homeric language gives shape to an anthropological grammar that makes it inherently normative, and it further enables the songs to guide behaviour in pursuit of an educational project inspired by values of peace (Havelock 1978). The songs’ project is particularly effective because rooted in an understanding of the conditions necessary for social cohesion, an understanding that uses intelligence in all its forms: in thought, body, and emotion. These are the very forms of intelligence that are brought into play by epic, its words rhythmically chanted and listened to, its plots fantastic, but carrying thoughts about reality, and its force draws us in, on account of the feelings such poetry elicits: pain, fear, compassion. Odysseus’ nostos can ultimately be read as an opportunity for the bards, to depict a real world while also envisioning a possible one, where the song telling of the hero’s homecoming and of his revenge becomes a means with which to explain the most sensitive, complex, and fragile aspects of human coexistence, while at the same time offering an ideal vision of humans and of their possibilities. As we will see shortly, the song is concerned at its core with the question of measure—the deepest nexus between law and justice—a theme the heart of the song keeps beating, keeping alive its memory not only for the epic’s original audience, present in the background of the narrative, but also for all those who have approached the same narrative over time and into the present.