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The law and the sublime: Rethinking the self and its boundaries

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Abstract

Christine Battersby has argued that it is Kant (and not Descartes) who provides the paradigm model of what it is to be a self in modernity. The Kantian self is established in opposition to its other. The body is commonly envisaged as a container, with selfhood as something that is defended against the outside. In contrast, she proposes a feminist reworking of such a model of selfhood, applicable to both men and women, in which the self and other emerge over time through patterns of relationality. This paper introduces Battersby’s work by focusing upon her early analysis of Kantian aesthetics, in particular the sublime. The aim is to draw out some of the legal and political implications of her work, particularly with regard to the common law’s developing conception of privacy. This is carried out by distinguishing her ontological position from the psychology of Carol Gilligan and then by considering the overlapping concerns of Jennifer Nedelsky in the area of legal theory.

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Notes

  1. J. Nedelsky, “Law, Boundaries and the Bounded Self”, in R. Post, ed., Law and the Order of Culture (California: California University Press, 1991), 162–189.

  2. See, for example, N. Naffine, “The Legal Structure of Self-Ownership: Or The Self-Possessed Man and Woman Possessed”, in Journal of Law and Society 25/2 (1998), 202; S.J. Hekman, Gender and Knowledge: Elements of a Postmodern Feminism (Cambridge; Polity Press, 1990).

  3. C. Battersby, The Phenomenal Woman (Cambridge: Polity Press, 1998).

  4. See C. Battersby, The Sublime, Terror and Human Difference (London: Routledge, forthcoming).

  5. C. Battersby, Gender and Genius: Towards a Feminist Aesthetics (London: The Women’s Press, 1989), 4.

  6. C. Lombroso, The Man of Genius (London: Scott, 1891), 138.

  7. See, for example, L.J. Moran, “Law’s Diabolical Romance: Reflections on a New Jurisprudence of the Sublime”, in M. Freedman, ed, Law and Popular Culture: Current Legal Issues 7 (Oxford: Oxford University Press, 2004), 226–242; C. Douzinas, “Legality of the Image”, in Modern Law Review 63/6 (2000), 813–831; S. Chaplin, “How the Sublime comes to Matter in Eighteenth Century Legal Discourse: An Irigarayan Critique of Hobbes, Locke and Burke”, in Feminist Legal Studies 9/3 (2001), 199–220.

  8. C. Battersby, “Terror, Terrorism and the Sublime: Rethinking the Sublime after 1789 and 2001”, in Postcolonical Studies 6/1, (2003), 69.

  9. Italics are in the original. Battersby, supra n. 3, 95.

  10. This has some similarities with the work of Gilles Deleuze but also important differences: see Battersby, supra n. 3, 176–197.

  11. See, for example, C. Battersby, “Unblocking the Oedipal: Karoline von Günderode and the Female Sublime”, in S. Ledger, J. McDonagh, and J. Spencer, eds, Political Gender: Texts and Contexts (London: Harvester Wheatsheaf, 1994), 129. C. Battersby, “Her Blood and His Mirror: Mary Coleridge, Luce Irigaray and the Female Self”, in R. Eldridge, ed., Beyond Representation: Philosophy and Poetic Imagination (Cambridge: Cambridge University Press, 1996), 249–272; C. Battersby, “Antinomies: the Art of Evelyn Williams”, in Antinomies: Works by Evelyn Williams (Catalogue of a Mead Gallery Exhibition: The University of Warwick, 1994), 25–37. For a discussion of the complexities of the female sublime in Battersby’s work see R. Jones, “You Kantian! Feminist Interpretations of Kant: A Review Essay”, in Women’s Philosophy Review (2001–2) 28, 49.

  12. I. Kant, Critique of Judgment, W.S. Pluhar trans. (Indianapolis: Hackett, 1987).

  13. Ibid., 114–115.

  14. Ibid., 120.

  15. Ibid., 21.

  16. Ibid., 22.

  17. Ibid., 124.

  18. Battersby, supra n. 3, 65.

  19. I. Kant, Anthropology from a Pragmatic Point of View, M.J. Gregor, trans. (The Hague: Martinus Nijhoff, 1974), 169. This point is also discussed in detail in C. Battersby, “Stages on Kant’s Way: Aesthetics, Morality and the Gendered Sublime”, in N. Zack et al, eds, Race, Class, Gender and Sexuality: The Big Questions (Oxford: Blackwell, 1998), 234.

  20. See, for example, G. Lloyd, The Man of Reason: Male and Female in Western Philosophy (London: Methuen, 1984).

  21. I. Kant, Observations on the Feeling of the Beautiful and Sublime, J.T. Goldthwaite, trans. (California: University of California Press, 1960), 78; discussed in Battersby, supra n. 3, 231.

  22. Italics are in the original. C. Battersby, “Unblocking the Oedipal: Karoline von Günderode and the Female Sublime”, supra n. 11, at 135–136 citing I. Kant, Critique of Judgement, J.H. Bernard, trans. (New York: Hafner, 1972), s. 49n, 160n.

  23. I. Kant, “On a Newly Arisen Superior Tone in Philosophy”, in P. Fenves, trans. and ed., Raising the Tone of Philosophy: Late Essays by Immanuel Kant, Transformative Critique by Jacques Derrida (Baltimore, MD: John Hopkins University Press, 1993), 64–66 cited in Battersby, “Unblocking the Oedipal: Karoline von Günderode and the Female Sublime”, in supra n. 11, at 136.

  24. Ibid.

  25. Italics are in the original. Battersby, “Unblocking the Oedipal: Karoline von Günderode and the Female Sublime”, supra n. 11, 136. Note that this is not the same as saying that the otherness of nature/infinity (which evokes the sublime experience) actually disrupts the self. For Kant, the self is affirmed though the role of reason, providing the educated man stands firm and does not experience terror at the might or vastness of nature. For a comparison between her reading of Kant and that of Derrida in J. Derrida, “On a Newly Arisen Apocalyptic Tone in Philosophy”, in Fenves, supra n. 23, 117–171, see Battersby, supra n. 3, 95–102.

  26. C. Gilligan, In a Different Voice: Psychological Theory and Women’s Development (Cambridge, Mass: Harvard University Press, 1982).

  27. Ibid., 156.

  28. Nedelsky, supra n. 1, 162–189.

  29. Battersby, supra n. 19, 227–247.

  30. Ibid, 227.

  31. Kant, supra n. 21, 79.

  32. Battersby, supra n. 3, 207.

  33. Gilligan, supra n. 26, 24–63.

  34. Italics are in the original. Kant, supra n. 21, 81.

  35. Ibid., 77.

  36. Ibid., 78.

  37. Battersby, supra n. 3, 65.

  38. Gilligan, supra n. 26, 36.

  39. I am including the possibility of being overwhelmed by social pressure as well as by the might of nature (which is consistent with Kant’s “What is Enlightenment?”). Kant describes an ontological framework, which is therefore not affected by empirical psychological evidence, as he can argue that if (moral) persons exist then they act in a particular way. Nevertheless, Kant’s description of the experience of the sublime with its evocation of nobility rings hollow when evidence such as that provided by the Milgram Experiment is considered. Neither men nor women in the culture of the West in the 1960s showed much fortitude when asked to electrocute another person in a mock up experiment. See S. Milgram, Obedience to Authority: An Experimental View (London: Tavistock, 1974). Women and men performed equally badly, ibid., 80.

  40. I. Kant, “An Answer to the Question: What is Enlightenment?” in Kant Political Writings, H.S. Reiss, ed. (Cambridge: Cambridge University Press, 1970), 54–60.

  41. M. Johnson, The Body in the Mind (Chicago: University of Chicago Press, 1987), 21 cited in Battersby, supra n. 3, 40.

  42. For a further discussion on this point, see J. Richardson, Selves, Persons Individuals: Philosophical Perspectives on Women and the Law of Obligations (Aldershot: Ashgate, 2004), 19–42.

  43. P. Matzinger, “The Real Function of the Immune System or Tolerance and the Four d’s (Danger, Death, Destruction and Distress)”, at http://glamdring.ucsd.edu/others/aai/polly.html.

  44. She is commenting upon an analysis of the different voices employed by Kierkegaard on the theme of ‘woman’ in S. Kierkegaard, “Stages on Life’s Way”, in H.V. Hong and E.H. Hong, trans. and ed., Kierkegaard’s Writings Volume 11 (Princeton: Princeton University Press, 1988).

  45. Battersby, supra n. 3, 172.

  46. Ibid., 174.

  47. Ibid., 150.

  48. Ibid., 66–69.

  49. This is the argument that Cornell uses against Nagel. In other words, her argument runs along the following lines: I do not care what behaviour you think is natural for women. This is irrelevant to the law, which must treat us as persons (that is, of equal worth). See D. Cornell, At the Heart of Freedom: Feminism, Sex and Equality (Chichester: Princeton University Press, 1998), 67. Cornell’s position is not shared by Battersby because, for Battersby, the Kantian concept of personhood is so flawed that it cannot simply be reformulated. Battersby, supra n. 3, 207.

  50. I. Kant, The Metaphysics of Morals, trans. M. Gregor (Cambridge: Cambridge University Press, 1996), 92.

  51. R. Nozick, Anarchy, State and Utopia (Bristol: J.W. Arrowsmith Ltd, 1974), 54–87.

  52. Ibid., 66.

  53. Ibid., 57. Italics are in the original.

  54. Many feminists have explored the relationship between private property and personhood. See, for example, M. Davies, “The Proper: Discourses of Purity”, Law and Critique, IX/2 (1998), 141–173; M. Davies and N. Naffine, Are Persons Property? Legal Debates on Persons and Property: Legal Debates about Property and Personality (Aldershot: Ashgate, 2001); M. Strathern, Property, Substance and Effect: Anthropological Essays on Persons and Things (London: Athlone Press, 1999); M.J. Radin, Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts and Other Things (Harvard; Harvard University Press, 2001). For a recent review of books in the area, see A. Bottomley, “Review”, in Feminist Legal Studies 14/1 (2006), 119–125.

  55. For example, J. Locke, Two Treatises of Government, P. Laslett, ed. (Cambridge: Cambridge University Press, 1999), 287.

  56. A. Cavarero, In Spite of Plato (Cambridge: Polity, 1995).

  57. Battersby, supra n. 19, 240.

  58. I. Kant, Critique of Pure Reason, N. Kemp Smith, trans. (London: MacMillan Press Ltd, 1929).

  59. Italics are in the original. Battersby, supra n. 3, 67. I will focus upon the image of boundedness rather than explore the problems with the way in which Kant treats space and time, which Battersby argues results in difficulties in conceptualising the inside of the body generally and the existence of pregnancy in particular. For further analysis of this see J. Richardson, “A Refrain: Feminist Metaphysics and Law”, in J. Richardson and R. Sandland, Feminist Perspectives on Law and Theory (London: Cavendish, 2000), 119–134.

  60. E. Goffman, Relations in Public (New York: Basic Books, 1971).

  61. Where Nozick does appeal to Kant it is to the Kantian image of personhood. This is evoked to support the argument that taxation beyond that for a minimal state fails to respect personhood, by treating that person as a means and not an end in his/herself. For a critique of this position see G.A. Cohen, Self-Ownership, Freedom and Equality (Cambridge: University of Cambridge Press, 1995). For an analysis of commodification see M.J. Radin, Contested Commodities: The Trouble with Trade in Sex, Children, Body Parts and Other Things (Harvard: Harvard University Press, 2001).

  62. Nedelsky, supra n. 1, 162–189.

  63. Ibid., 167.

  64. C. Reich, “The New Property”, Yale Law Journal 73 (1964) 733–787, at 731 and 771 cited ibid., 167.

  65. Ibid.

  66. A.N. Whitehead, Process and Reality (Cambridge: Cambridge University Press, 1929) cited ibid., 179.

  67. E.P. Thompson, “Custom, Law and Common Right”, in E.P. Thompson, Customs in Common (London: Penguin, 1991). See also C.B. Macpherson, ed., Property: Mainstream and Critical Positions (Oxford: Basil Blackwell, 1978).

  68. The image of boundedness need not be implied by different cultures’ uses of the term ‘property’, of course. Petchesky has argued that early European radicals employed the view of one’s body as one’s own property without reference to the idea of the body as an object or commodity. They highlighted rights between individuals in order to oppose government interference with their sexual and bodily life. R. Petchesky, “The Body as Property: A Feminist Re-vision”, in F. Ginsberg and R. Rapp, eds., Conceiving the New World Order: The Global Politics of Reproduction (Berkeley: University of California Press, 1995), 387–406.

  69. For the development of this area see Campbell v MGN Ltd [2004] 2 WLR 1232; The test is: whether a reasonable person of ordinary sensibilities, if placed in the same situation as the subject of the disclosure, rather than its recipient, would find the disclosure offensive. If so, then the Article 8 right of privacy is weighted against the Article 10 right to freedom of expression. See also Douglas v Hello! Ltd (No.6) [2003] 3 All ER 996; Ash v McKennitt [2006] EWCA Civ 1714.

  70. Peck v UK [2003] EMLR 15. The UK was criticised for failure to provide an effective remedy as the incident took place prior to the Human Rights Act 1998.

  71. The basic idea of protecting bodily boundaries does not always offer protection, however. In a case that started before Human Rights Act, Wainwright v Home Office [2003] 2 AC 406 relatives of a prisoner who, upon visiting him, were subject to a humiliating strip search in breach of prison rules were denied a remedy on the grounds that there was no right of privacy at common law. This UK judgment has been criticised by the European Court of Human Rights in Wainwright v UK [2006] 156 N.L.J. 1524.

  72. See, for example, N. Fraser, “Sex, Lies and the Public Sphere; Reflections on the Confirmation of Clarence Thomas”, in Justice Interruptus; Rethinking Key Concepts of a Post-Socialist Age (London: Routledge, 1997), 99–120; L. Berlant, The Queen of America goes to Washington City: Essays on Sex and Citizenship (Duke University Press, 1997) for a critique of the ‘intimate public sphere’ in the US.

  73. Theakston v MGN Ltd. [2002] EWHC137. See also A v B [2002] EWCA Civ 337 concerning details of married male footballers’ adulterous short-term relationships; The Court of Appeal allowed publication distinguishing ‘transient’ relationships from marriage.

  74. Argyll v Argyll [1967] 1 Ch. 302.

  75. Balfour v Balfour [1919] 2 KB 571.

  76. Argyll v Argyll [1967] 1 Ch. 329–330.

  77. Kant, supra n. 19, 169.

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    Janice Richardson

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Richardson, J. The law and the sublime: Rethinking the self and its boundaries. Law Critique 18, 229–252 (2007). https://doi.org/10.1007/s10978-007-9010-x

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