Jeanne Gaakeer Close Encountersofthe ‘Third’ Kind [M]emory is an integral part of anysystem of justice,[…]itispreciselythe act of forgetting that makesitpossible for lawtobeapplied indiscriminately and thereforeunjustly.¹ 1. Introduction My starting point is the basicidea that the common bond of lawand literature is languageand thatlanguageisour wayofbeing in the world, i.e., our onlyway, too, to expressour humanity.² Since timesimmemorial this has been connected to power and autonomy. Recall the story of the tower of Babel that occurs after the Flood when Noah’sdescendants are the onlyones left on earth (and aren’t they diasporic creatures too?). In the Bible’sBook of Genesis, we read how the whole earth had one languageand one speech, i.e., people used the same words, and how the people decided to build atower and make aname for them- selves, “lest we be scattered abroad upon the face of the whole earth” (Genesis 11:4,AV). God’sinterpretation of this human action is basedonfear of losing au- thority,because “now nothing will be restrained from them, which they have im- agined to do” (Genesis 11:6,AV). The divine reaction is to cause linguistic dia- spora. God confuses the people’slanguageand, as aresult, preciselywhat they feared might happen, occurs.They are scattered abroad, – the literal mean- ing of the Greek root diasperein being to sow or to scatter – and the original re- lation between languageand the individual is destroyed. Viewed metaphorically, this earlyexample of diasporainspires me to inves- tigate the topic of Lawand Literature’simportance for diasporadiscourse by means of an analysis of the concept of Humanität as developedbyJohann Gott- fried Herder (1744 – 1803)and to connect that to contemporary ideas about the value of literary-legal Bildung for (the topic of)our common humanity by asking whether the genre of the Bildungsroman is afeasible lens with which to view lit- erary-legal representations of diaspora. If we keep in mind the current emphasis put on empathy, (self‐)reflection and education in humanisticstudies, aturn to relevant aspectsofthe history of ideas on how literatures function as binding Michael Blumenthal, “Poetic Justice, Legal Justice,” Legal Studies Forum .(): –, . Or,asMartin Heideggersaid in his letter on humanism, “die Sprache [ist] das Haus des Seins” (Über den Humanismus [Frankfurt am Main: Klostermann, ]: ). DOI 10.1515/9783110489255-005, © 2020 Jeanne Gaakeer, published by De Gruyter. This work is licensed under the Creative Commons Attribution-NonCommercial-NoDerivs 4.0 License. 42 Jeanne Gaakeer agents within and without diaspora, in my view at least,can also help to shed a new light on the question how to accomplish the aim of finding a third that can give form to the bond of law, literatureand diasporaand, at the same time, it can illuminatethe ongoing importance of the meta-level discussion on the very idea of interdisciplinarity itself.³ Formethodological as well as epistemological reasons, my suggestion would be to try and think of interdisciplinarity itself as the result of adiasporic move- ment.That is to say, whynot applythe idea of diasporafiguratively to think about the nineteenth-century differentiation of disciplines, or Ausdifferenzier- ung? This processhas resulted in autonomous, academic disciplines, and, also as far as the subsequent development of apositivistic approach to lawiscon- cerned, in the idea that the autarchyofthe discipline is aprecondition for the objectivity of its results. This differentiation maywellbelooked upon as a form of diasporawhen we recall the unity of lawand humanities until the eight- eenth century and the subsequent developmentofsociology, economyand an- thropology that occurred when scholars trained as lawyers, with Karl Marx and Emile Durkheim as well-known examples, began to leave the mother disci- pline of law. Or,evenmore provocativelyperhaps,wemay turn the argument up- side down and think about the reaction to the very idea of autonomous disci- plines since the 1970sinthe form of various Law and … – movements as diasporic themselves, paradoxicallyperhaps giventheir return to the ideaof unity,but feasible from another point of view,ifwethink of them as driven away from the safety of the monodisciplinary methodologies of the disciplines they originallycame from, in the case of Law andLiterature,from the safety of doctrinal black letterlaw.Viewed this way, what can the Law ands as diasporic phenomena teach us? These topics are acute. On the one hand, because the function of humanism as constitutive of friendship between people across borders,literallyand meta- phorically,iscontested for reasons as varied as aloss of faith in the Grand Nar- rativesofthe Western Tradition, as Lyotard alreadyput it in his 1979 analysis of the postmodern condition, and technological developments in the field of com- Iaminspired here by Homi K. Bhabha’sview that culturalidentity cannot be understood simplyasasynthesisoftwo original sourcesbut rather as anew form constructedinacontra- dictory thirdspacethat destroysany “hierarchical claims to the inherent originality or ‘purity’ of cultures” (TheLocation of Culture [London: Routledge, ]: )and, as far as the perspective of Law and Literature is concerned, by James BoydWhite’sview on interdisciplinarity as aform of translation and integration, i.e. the effort to put twothingstogether with the hope to make somethingnew with ameaningofits own (Justice as Translation [Chicago:Uof Chicago P, ]: ). Close Encountersofthe ‘Third’ Kind 43 munication, with new possibilitiesfor the creation of identity and social cohe- sion in diasporic situations.⁴ Whereas,onthe other hand,fields such as Law and Literature and/or Law and Humanities stronglyemphasize the value of liter- ature for other disciplines, lawobviouslyincluded, by meansofafocus bothon the edifying function of literary Bildung,and on language, generally, in the form of narrative.That is to say, as far as the latter is concerned, the focus is on the ontological view proposed by James Boyd White: ⁵ One fundamental characteristic of human life is that we all tell stories, all the time, about ourselvesand others,both in the lawand out of it.The need to tell one’sstory so that it will makesense to oneself and others maybeinfact the deepest need of that part of our nature that marks us as human beings,asthe kind of animal that seeks for meaning. At the same time,there is the epistemological perspective proffered by Jerome Bruner, that “[…]narrative is alsoour simplest mode of imposing amoral struc- ture on experience” so that “aprincipal function of narrative is to explore alter- native versions of the human condition, ‘possibleworlds’ as it were,” with as a resultofour going back and forth between fiction and the worldwefind our- selvesin, that we can gain abetter understanding of our ownexperiences and learn to empathize with other people’sexperiencesaswell.⁶ Such counterfactual engagement is importantfor our ethical development.⁷ And, put more broadly, it is closelyconnected to the political aspect of the educative function of culturefor the development of democracy as found in ancient Greeceinthe idea that at- tendanceattheatrical performances of the tragediestriggers the imagination to accept the worldpresented before us so that we can not onlylearn to empa- thize with others, but also to reflect on theirand our ownexperiencesasavital Peter Sloterdijk, Regeln fürden Menschenpark: Ein Antwortschreiben zu Heideggers Brief über den Humanismus (Frankfurt am Main: Suhrkamp, ): , ;Jean-François Lyotard, ThePost- modern Condition: AReport on Knowledge,trans. Geoff Bennington, Brian Massumi(Minneapo- lis,MN: UofMinnesotaP,). James BoydWhite, Heracles’ Bow (Madison,WI: UofWisconsin P, ): . Jerome Bruner, “The Reality of Fiction,” McGill Journal of Legal Education . (): – , . Forthe counterfactual aspect,see JürgenHabermas, “Philosophyand ScienceasLiterature?,” in Postmetaphysical Thinking:Philosophical Essays,ed. JürgenHabermas,trans. William Mark Hohengarten (Cambridge,MA: MITP,): –, ; “Aliterary textismarkedbythe fact that it does not comeforth with the claim that it documents an occurrence in the world; nonetheless,itdoes want to drawthe reader into the spell of an imagined occurrence step by step,until he follows the narrated events as if they were real.” On the ethical aspect,see Steven L. Winter, “Law, Culture and Humility” in Law and the Humanities: An Introduction,ed. Austin Sarat,Matthew Anderson,CathrineO.Frank (Cambridge:Cambridge UP, ): –. 44 Jeanne Gaakeer element of our shared, peaceful co-existenceinthe polis. This is important, whether or not we think of diasporaasachallengetothe nation state or in terms of the formation of anew community,imagined or real.The playthat comes to my mind here in relation to the subject of diaspora,isEuripides’ The Trojan Women. Relatedinalater ageisThomas Paine’scomparison in Rights of Man (1791) of the aims of the republic of letters and thoseofthe best form of government: to bring forth the best literary works and the best law.⁸ At the same time, to strike afair balance between an idealistic and amorepragmatic approach, we should recognize as Elaine Scarry asks us to, “[…]the severe limits of imaginative accomplishment” because “[t]he human capacity to injureother people has always been much greater than its ability to imagine other people” and, arguably, in the end the juridical-political litmus test of the imagination is whether we are prepared to act on it and changethe law.⁹ Allofthe abovemat- ters,Iwould