Thursday, May 29, 2008

Pagan Justice, Christian Love, and Levinasian Judaism

In his justly-famed essay, “Pagan Justice, Christian Love,” philosopher Bernard Williams identifies a certain tension in the developing Greek understanding of the demands of justice towards one’s “enemies” (and secondarily, towards slaves). Put simply, at least one question he engages is whether or to what extent for the ancients, treating one’s enemies badly – deliberately doing things to make them worse off – was either actually positively demanded by justice (as much as is doing well by one’s friends), or rather whether enemies (or more obviously, slaves) fell outside the demands of justice, so that justice in that sense permitted but did not require their bad treatment. Williams identifies Socrates (or Plato) as the source of a more universalizing tendency, together with a historical development away from individualized vengeance (the carrying out of private justice) and toward state-sponsored and state-regulated punishments of wrongdoers.

Still, one is left with a residual puzzle about the appropriate treatment of those who have wronged one (or one’s friends): is it ever morally permissible, we might ask in contemporary terms, to bring it about that a person is worse off in respect of those admittedly finite goods (health, wealth, comfort, etc.) we can affect? Like the secularist that he was, Williams recoils in both mock (literary) and apparently genuine horror at the Christian “solution” – that one may only “harm” someone when in doing so, one does good for him. That is, the requirements of Christian love or agape, that one “love” everyone, are not held to be incompatible with making certain people objectively worse off as part of a system of punishment, but rather undergird the system of punishment itself. Williams amusingly, but pointedly, calls this “a way that achieves, with awesome dialectical horribleness, the worst of two worlds.”

He concludes the essay by remarking, “The conclusion must be neither Socratic nor Christian. The old rule has to be tamed and directed, both politically and psychologically, rather than metaphysically transcended or transmuted into universal agape.”

The conclusion which is “neither Socratic nor Christian” is in fact to be found in the Torah, which antedates them both, and is articulated compellingly by Levinas in the Bible discussion contained in “Towards the Other.” Levinas fashions this subtle theory, which does indeed “tame[] and direct[], both politically and psychologically,” the impulse of the “old rule” (which closely resembles lex talionis), from an otherwise somewhat mystifying Biblical passage about a group who were in some way wronged, and who demanded, and received, justice from Israel.
Precisely what that wrong was is addressed by the rabbis of the Talmud at Yebamot 58b-59a. Although they were given justice in a form that would be entirely recognizable to the Athenian – the Gibeonites were mistreated by Saul, and demanded seven of Saul’s descendants to be handed over and killed. David acceded to this request. (2 Sam. 21.)

Two notable consequences followed. Notwithstanding that Israel had given justice in these terms, Israel continued to suffer punishment for the underlying offense, a somewhat bleak reminder that wrongs can never be made good, that there is a residual offense which can never be recompensed, because one cannot go back in time and undo the act. The incommensurability of wrongs and any subsequent compensation for them is a deep fact of history which Anglo-American law (among other forms of jurisprudence) systematically elides.

But more important for the Biblical narrative, the group that demands and receives justice is, we later learn, a group with whom intermarriage is prohibited. The reason for the prohibition is that they have set themselves apart from Israel, and the interpretive move that Levinas makes is to identify their (rightful) demand for justice as the act by which they set themselves outside of the moral community he identifies as “Israel.” The highest moral moment, for Levinas, comes when, fully understanding that one has a claim as a matter of justice, one refrains from demanding its satisfaction. This is the test the Gibeonites, as it were, failed.

As if often the case with standards of behavior set by Levinas, this goes much further even than the extreme formulation of Socrates that it is better to suffer injustice than to commit it. It is the claim that it is better to suffer injustice than to seek justice on one’s own behalf. Note that it is not Levinas’ claim that it is improper to seek justice on behalf of others, and this of course runs into the same paradox Williams identifies in Plato – namely, if the person cannot actually be harmed by the loss of finite goods, why is there such great concern that one not harm others in respect of these finite goods? Levinas not only is vulnerable to this problem, he actually embraces the radical asymmetry between self and Other that this opens up.

In any event, the point being made by Levinas here (in the larger context of the Holocaust, and Germans and Jews after the Holocaust), is to identify as the characteristic (aspirational) Jewish moral stance, that one correctly recognize that one has a claim of justice, and nevertheless elect not to pursue it. The political arrangement that tames the old rule is therefore a civil and criminal justice system with well-defined claims and penalties, and the Torah and its later elaboration in the Talmud certainly provides this, with a detail and subtlety not found in Anglo-American law until centuries later. But the psychological taming and direction consist precisely in a moral education that enables one to discern when one’s legitimate grievances ought nevertheless not to be pursued. Socrates, in all his moral grandeur, asks less of us than the rabbis of the Talmud as read by Levinas.

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