Justice Miscarried: Ethics and Aesthetics in Law (Postmodern Theory)

The law is going through a period of deep crisis, exemplified by continuing revelations of miscarriages of justice, which calls for radical reassessment of the relationship betwen law and morality. The technocratic efficiency aimed at by modern law can no longer be perceived as a subsitute for the law's failure to deliver justice. This new study seeks to reopen the law-ethics debate from a postmodern perspective and calls for a radical reassessment of the relationship between law and morality. It argues that the separation between law and ethics led to the failure of the law to deliver its promise of justice and claims that only by taking seriously a philosophy of otherness can the law be transformed into an acceptable ethical basis of social communication; otherwise it will remain divorced from ethics and its decline into amoral technocratic management will continue. The authors of this book confront an issue of great contemporary concern in an innovative and often controversial way. Theories of justice and the place of otherness in them are examined in detail, and the tragedy of Antigone is presented as the foundational myth of legality. Casuistry, another forgotten tradition, often contrasted with the reason of the law, is next traced in the common law. Legal philosophies, and the ideas of Kant, Hegel, Heidegger, Derrida and Levinas, are discussed in an exploration of the ethical elements missing in modern justice. The ethics alterity is then applied to a series of cases dealing with refugees.

The book concludes by proposing a theory of legal aesthetics through a reading of a Shakespearean sonnet and Sir Joshua Reynolds' discourses on art.