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 claim, when we seek ahumanisticapproach to the phenomenon of diasporabroadlyconceived, it being acontainer concept with dispersal and dis- location of people(s)asits coremeaning, the sense in which Iuse it here.

2. “Tisall in pieces, allcoherencegone”¹⁰

JohannGottfried Herder’sthoughtand its possiblecontribution to aliterary-legal perspective on diasporadiscourse can onlybefruitfullyinvestigatedifwetake into consideration the rationalist quest for certainty of his immediate predeces- sors such as Gottfried Wilhelm Leibniz. Ashorthistoric recapitulation of the prelude of modernity is thereforeinorder,toask which forces were at work at decisive moments in European history,i.e., what the ideas werethat moved Europe forward and what the accompanying constitutive narrativeswere.¹¹ Suf- fice it to say, first,that the Renaissance replaced the medieval emphasis on tra- dition and authority by the spirit of tolerance especiallyfrom areligious view-

 Thomas Paine, Rights of Man (Harmondsworth: Penguin, ): ;See also, morerecently, Terry Eagleton, TheEvent of Literature (New Haven, London: Yale UP, ): , “exhibitingthe complexities,ambivalence,and fragility of human relations is by no means just a ‘literary’ pur- pose, if by this is meant one confined to that realm.”  Elaine Scarry, “The Difficulty of ImaginingOther People,” in Martha C. Nussbaum et al., For LoveofCountry: Debating the Limits of Patriotism, with respondents,ed. Joshua Cohen (Boston: BeaconP,): –, –.  John Donne, “An Anatomyofthe World” [], in John Donne: TheMajorWorks,ed. John Carey(Oxford: OxfordUP, ): –, .  Peter Sloterdijk, Falls Europa erwacht (Frankfurt am Main: Suhrkamp, ): . Close Encountersofthe ‘Third’ Kind 45 point to which the 1598 Edict of Nantes that granted French Protestants certain civil rights bears testimony,¹² by experimental curiosity and trust in what man could accomplish,i.e., the idea that manisthe measure of all things. The Ren- aissance world wasone of complexity and diversity accepted as inextricably bound up with the human condition. The period after,roughly,1580,however, was one of social and political instability (and diaspora) as aresultofwarfare, such as the Dutch Eighty Years’ WarofIndependence against the Spanish (1568– 1648), the Anglo-Spanish conflicts between 1585and 1604,and the Thirty Years’ Warfought on Germangrounds (1618–1648).¹³ The Peace of Westphalia, signed in Münsterand Osnabrück in 1648, marked the onset of anew erainwhich, as a reaction, the desire for stability and order became prominent.Adesire for unity and certainty rather than diversitybegan to characterize the period.¹⁴ The treaty formedthe basis for the developmentofaEuropean system of nation-states that continued to exist well into the twentieth century. In science, the quest for certaintystarted with the elaborationofFrancis Ba- con’sempirical methodology, and René Descartes’ rationalism basedonthe method of deduction, the duality of mind and matterand the principle of funda- mental doubt as expressed in his Cogito,ergosum in the 1637 Discourse on Meth- od. It ended in amechanistic worldview that put everythinginthe perspective of causal relations,the dreams of which Toulmin describes as those of auniform method aimed at universal application, aperfect languageasthe ultimaterepre- sentation of objective reality,and aunitary system of nature.¹⁵ Cultural and other diversities werethoughtofasinteresting onlyinsofar they elucidated universal principles. What Cartesian rationalism meant for the natural sciences was ex- tended to ethics acentury laterbyImmanuel Kant (1724–1804) in the abstract categorical imperative as the guideline for human action. Gottfried Wilhelm Leibniz (1646–1716) elaborated on the idea of unity to prevent war and dissension by means of auniformlanguage, i.e., shared mean- ing on the plane of linguistics. Leibniz was obsessed by the ideal of the charac-

 It should at oncebenotedthat religious tolerancedid not extend to Jews whowere expelled from Spain in  and from Portugal in .And Frenchtolerancewas short-livedifwenote the diaspora of FrenchHuguenots after the revocation of the Edict of Nantes in .  Cf BertoltBrecht’s  play Mutter Courage and her Children set in the Thirty Years’ War. The English internal strife culminating in the trial and beheadingofthe sovereign, Charles I, in  of course also contributed to the unrest.  Forabrilliant treatment of the modernist ideal of unity,see Stephen Toulmin, Cosmopolis: TheHidden Agenda of Modernity (New York: The Free P, ), the title referring to the ancient ideal of harmonyonthe combined basis of the natural order of the cosmos and the social order of the polis destroyed at the dawn of modernity.  Stephen Toulmin, Return to Reason (Cambridge,MA: HarvardUP, ): –. 46 Jeanne Gaakeer teristicauniversalis,auniversal system of characters not onlyfor different peo- ples to share and communicateby, but especiallyasaneutral medium to convey the resultsofsensoryperceptions and rational thought.¹⁶ The Leibnizian design failed because it was logicallyimpossible: apeople’slanguagecannot be disso- ciated from its wayoflife and what is more, languageitself as it wereprovides the categories with which we think and perceive,soreciprocity rather than lin- guistic transparencyisthe keyword. Whatculminatedphilosophicallyinthe twentieth century in the late Wittgenstein’s Philosophical Investigations (whereas his picturetheory of meaning in the Tractatus Logico-Philosophicus (1922)was still stronglyinfluenced by Leibnizian ideal of correspondence between word and world) and empiricallyinthe Sapir/Whorf-hypothesis, was alreadypresaged by Johann Gottfried Herder. The falling to pieces of the cosmopolis and subsequent rise of dichotomies such as mind versus matter, and nature versus culture, led to adualistic world- view that affected lawand legal theory as well.¹⁷ Thereception of Roman law throughout continental Europe from the rediscovery of the Corpus Iuris Civilis from the eleventh century onward was agradual one, in which local lawbecame permeated by this iuscommune as the dominant force, also when it cametointer- preting localcustomarylaw.Roman law, in short,epitomized thelaw held in com- monbecause of itsgenerallyaccepted claimfor legitimacy and because it formed the basis for thesubsequentdevelopment of specificareas of law.¹⁸ Afterthe legal humanist philology of thesixteenth century,followingDesiderius Erasmus (1469– 1536)and Thomas More(1477–1535), hadalready advocatedareturntothesources (inErasmus’ words, Ad fontes)ofthe Corpus Iuris Civilis,ratherthan adding to the text as the glossatori and post-glossatori of theprevious centurieshad done,and as aresulthad questioned its claim of universalapplicability,seventeenth-century

 “The general tool for investigation was to include auniversal languagefor spoken and written communication, another languageofsymbols for scientific analysisand synthesis (the universal characteristic), acalculus for using them in discovery and analysis,and auniver- sal encyclopedia based on this characteristic and logic,” Leroy E. Loemker, G.W. Leibniz: Philo- sophical Papers and Letters (Dordrecht, Boston: D. Reidel Publishing, ): .  John M. Coetzee, DiaryofaBad Year (New York: Viking, ): . “If anyone in the picture is naïve, it is the person whoelevates the operating rules of Western scienceinto epistemological axioms,arguing that whatcannot be demonstrated scientificallytobetrue (or,touse the more timid word used by science, valid)cannot be true (valid), not just by the standardoftruth (val- idity) used by practitioners of sciencebut by anystandardthat counts.”  “Diese Rechtswissenschaft war nicht nur europäisch in ihrem Geltungsbereich, sie war auch universal ihremGegenstand nach. Alle Materien, vomStaatsrecht zum Privatrecht, vomSeerecht zum Strafrecht,fanden in dieser Rechtswissenschaft ihre Grundlage.” Helmut Coing, Die ur- sprünglicheEinheit der europäischen Rechtswissenschaft (Wiesbaden: F. Steiner, ): . Close Encounters of the ‘Third’ Kind 47 legal theorists responded to theperiod’sinstability by emphasizing the human in- tellect or rectaratio. This lead to thedevelopment of rational naturallaw initiated by theDutch scholar Hugo Grotius (1583 – 1645)asaresponsetointernationalwar and strife,for example in his De iure belli ac pacis (1625).InGermany,SamuelPu- fendorf (1632– 1694) andChristian Wolff (1679 – 1754) followedsuit andbuiltalegal system moregeometrico,i.e., by means of adeductive method as propagated by the natural sciences, andimplemented alreadyinEngland by Thomas Hobbes (1588– 1679) in his Leviathan (1651) with thesocial-contract theory of sovereignty. The view of lawbased on human reason contributed to the Enlightenment ideal of rationallaw in the second half of the eighteenth centuryand, subse- quently, to the idea of lawasasystem of codified rules and the concept of de- mocracy under the rule of law. Roman lawfaded into the background as the ratio scripta of Europe and became obsolete with the rise and consolidation of European nation-states which lead to arapid growth of interest in national legal systems at the end of the eighteenthcentury.With it came the codifications of national positive law, such as the French Napoleonic Code Civil (1804) and the Austrian codification of 1812.Thisdevelopment was accompanied by the notion originating in Montesquieu’s TheSpirit of the Laws that the judge is la bouche de la loi,the literal spokesperson who tells us what the lawgiver intends,atleast in the interpretation that positivist thinkers gave to it.Onthe positivisticview,law and justicecoincide. The (Hobbesian-Leibnizian) languageview behind this is that the instrument of languagecan adequatelyfulfil its task of objectively and comprehensively describingthe world as it trulyis.¹⁹ OnlyinPrussia did Roman lawsurvive abit longer,but there it derailed into formalism. In his fierce struggle against codification Friedrich Carl vonSavigny (1779 –1861) posited the true legislator in the spirit of the people, the Volksgeist. On the view that its developmentcould be traced throughout the ages, the study of Romanlaw wasdeemed essential for the very reason that this lawitself had developedfrom the very sameconsciousness of the people. Or,turned the other wayaround, German lawwas the naturalsynthesis of Roman law. Paradoxically, vonSavignyand his followers of the Historical School then used Roman law, more specificallythe Digests or Pandectae,tobuild astrict system of legal con- cepts of akind totallyunknown to original Roman lawitself, case-based as it was. This Pandektenwissenschaft resulted in adeductive,formalistjurisprudence

 The simultaneous existenceofavariety of types of legal systems along the lines of nation- hood is also alegacy of Hobbes giventhe superiority attached to the state as the sole legislator, i.e., when it comes to the very creation of lawassuch. 48 Jeanne Gaakeer of concepts, the Begriffsjurisprudenz,devoid of anyethical or social notion.²⁰ So much is clear,the general Roman law-based view of lawwas forced to give up its territory to the studyofnational jurisdictions and the new field of comparative law.

3. Humanus, Humanität,Humanity: Johann Gottfried Herder

VonSavigny’sthesis that the root of lawisto be found in the people builds on Herder’sviews on the organic relation between languageand culture. This is not onlyinteresting for the topic of nationality and diaspora,but alsofor recent de- velopments in interdisciplinary legal studies such as the renewed interest in the relation of lawtocultureinLaw and PopularCulture and, closelyconnected to this, for the history of ideas of the differentiation of law. As farasthe latter is concerned, it should be noted that the process of the late eighteenth-century dif- ferentiation of knowledge into separate academic disciplines and its effect on law in the nineteenth century in the form of an external differentiation resulting in the new disciplines of economics,anthropologyand sociology, found its twen- tieth-century counterreaction with the development of interdisciplinary fields such as sociologyoflaw and legal anthropology.The contemporary trend to re- think the bond of lawand culture(be it highcultureorpopularculture) more broadly, however,again movesbeyond current sociological and anthropological issues and harks back to earlyviews on the cultural rootedness of lawand lan- guageasfound in Herder.Thisisimportant to note, if onlybecause the external differentiation of lawresulted in the development of separatescholarlycommun- ities each with their own disciplinary cultureinthe sense of conceptualand profes- sional languages andframeworks,methodologies and values,that is to sayacog- nitive andintellectual diasporathat contemporary interdisciplinary fields now attempt to overcome when they aimatdevelopingathirdwithalanguage of its own.

 Fortunately, Rudolf vonJhering(–), the great theorist of this jurisprudenceofcon- cepts (as elaboratedupon in his Der Geist des Römischen Rechts auf den verschiedenen Stufen seiner Entwicklung,  vols.[Leipzig: Breitkopfund Härtel, –]), eventuallyrecognized its dangers. He then rejected the idea that the Volksgeist directed the development of lawand designed amoresociological jurisprudenceonthe basis of the interests of individualpersons in society,the so-called Interessenjurisprudenz (in Rudolf vonJhering, Der Zweck im Recht,  vol., (Leipzig:Breitkopf und Härtel, –). Close Encountersofthe ‘Third’ Kind 49

Onward to Herder then. His own Bildung significantlystarted in Königs- berg.²¹ He went there to studymedicine but he also attendedlecturesbyImma- nuel Kant whom he later praised in the Briefe zurBeförderung der Humanität,but of whose Enlightenment stance he was also critical. In Königsbergheread Milton and Shakespearetogetherwith the Enlightenment critic Johann Georg Hamann. In 1764 he went to Riga to teach. Around 1770 he befriended Goethe, and one of the topics of theiralmostdailyconversations was the immaturity of Germanlit- erature as they perceivedit. Herder by then had alreadyfulminated, albeit anon- ymously, in Fragmente über die neuere deutsche Literatur (1766 – 1767)against the lack of originality of German literature, the cause of which he took to be the Ro- manist influencepervasive in German society.Soitshould come as no surprise that he dedicated himself to the task of setting thingsright as far as language and literaturewereconcerned. Demandingthe right to speak about his language, nation and times as he deems fit,ashewrites in the Introduction,²² Herder claims thatone cannot sep- arate apeople’sliterature from their language, and that languageisnot amere instrument but formative of thought itself; it is astorehouse, also, of what can be said, and of what has been said, i.e., ahistoric sourceand acharacteristic of a nation, a Volk in Herder’sterminology, meaning apeople with ashared language and culture.²³ This is especiallypertinent if in literary-legal terms we think of Benjamin Cardozo’sviewonthe unity of form and content in writing; in short, the idea that the what and the how of anytext are intimatelyconnected.²⁴ What is more, Herder immediatelyturns to the cognitive aspect of language when he writes of the impossibilityofa100 percent correspondencebetween languageand thought and critically engageswith the concept of translation,

 Forbiographical informationonHerder IdrawonEverard Jean François Smits, Herder’sHu- maniteitsphilosophie (Assen: VanGorcum and Co. N.V., ).  References aretothe second edition of the Fragmente in Johann Gottfried Herder, “Die Sprache überhaut,” in Werke. Herderund der Sturm und Drang –,ed. Wolfgang Pross(München: Carl Hanser Verlag, ): :–.  Herder, “Sprache,” , “Nicht als Werkzeugder Literatur allein muss man die Sprache an- sehen; sondern auch als Behältnis und Inbegriff; ja garals eine Form, nach welcher sich die Wissenschaften gestalten,” and, , “Nunist aber die Sprache mehr als Werkzeug: sie ist gleich- sam Behältnis und Inhaltder Literatur.” See also Robert E. Norton, Herder’sAesthetics and the European Enlightenment (Ithaca, NY,London: Cornell UP, ): ,who translates “Behältnis und Inhaltder Literatur” as “its contents and quintessence.”  Benjamin N. Cardozo, “Lawand Literature,” Yale Review (): –.The point is ela- borated by RichardWeisberg, Poethics and Other Strategies of Law and Literature (New York: Co- lumbia UP, ):  and passim. 50 Jeanne Gaakeer comparable to the one that James Boyd White discussed for literary-legal studies in Justice as Translation.²⁵ In one breath, Herder points to the importance of semiotics to decipher the human soul behind its linguistic utterancesand offers the interdisciplinary and comparative argument,both diachronicallyand synchronically, thattobe able to understand languageasthe sourceofknowledge aresearcher has to com- bine philosophy, history and philologyaswellasspeak foreign languages to be trulyable to judge his own.²⁶ Thus, to Herder,reciprocity characterizes the rela- tion between languageand thought: languagegives form to human knowledge because we think in language, and the limits of languageare the limits of what can be said, or as Wittgenstein later defined it,the limits of my world.²⁷

 Herder, “Sprache,” , “Man trotze meiner Behauptung, und übersetze Homer in das Hollän- dische, ohne ihn zu travestieren” and “Sollte man nicht in jedem Gebiet der Wissenschaften Ge- danken und Schriften haben, die für diese und jene Sprache durchaus unübersetzbar sind?”, and, , “die Form der Wissenschaften, nicht bloss in welcher,sondern auch nach welcher sich die Gedanken gestalten: wo in allen Teilen der Literatur GedankeamAusdrukke[sic] klebt,und sich nach demselben bildet.” James B. Whitepointstothe fact that anytranslation causes modification of theoriginalinmorethanone way. First,there is thegiven that areduction of meaningtakes place whenever thetranslator choosesthe meaninghewilluse from therange of possibilitiesoffered by theoriginal. Secondly,there is theideaofmeaning as culture-specific, a pointforcefullybrought home by White’sexample: “TheGerman ‘Wald’ is differentfromthe Eng- lish ‘forest,’ or theAmerican ‘woods’,not only linguistically butphysically: thetrees aredifferent.” (White, Justice, )  Herder, “Sprache,” , “Allein die Stelle eines solchen Sprachforschers ist freilich schwerzu besetzen,weil in sie ein Mann vondrei Köpfen gehört,der Philosophie und Geschichteund Phi- lologie verbinde – der als FremdlingVölker und Nationen durchwandert, und fremde Zungen und Sprachen gelernt hätte, um über die seinige klugzureden[…].”, . “Alsdenn würde man erst einzelne Schriftsteller characterisieren können, dass ihr Bild in der Geschichteder Wissenschaften lebte:alsdenn erst Schriftsteller verschiedner Nationen gegen einanderstellen können, um sie zu vergleichen […]alsdenn erst würde man ein Feld der Liter- atur ausdem andern kennen […].” Cf. Stephen Greenblatt whowrites, “Iamnot at all surethat we have made much conceptual progress beyond Francis Bacon whonotes, in the expanded Latin version of TheAdvancement of Learning,that ‘the History of Literature is wanting’. ” That is to say, Bacon, givenhis epistemological project, “appears to envisage acomparative study,” so the studyofliteraturemust be, “[…]cross-cultural; thereisnothingtobegained by stayingwithin one’sown national boundaries because aculture’sfitness for aparticular dis- cursive practicecan onlybegrasped by settingitagainst another’s.” Stephen Greenblatt, “What is the History of Literature?,” Critical Inquiry 23 (1997): 460 –481,470 [footnote omitted].  Herder, “Sprache,” : “Wirdenken in der Sprache” and “Jede Nation spricht also, nach dem sie denkt,und denkt,nach dem sie spricht.” Cf. Ludwig Wittgenstein, Tractatus Logico-Phil- osophicus,Logisch philosophische Abhandlung (Frankfurt/Main:Suhrkamp, ): proposi- tion .. Close Encounters of the ‘Third’ Kind 51

The same applies to literature.²⁸ In view of the topic of diaspora, it is therefore essentialtonote that Herder consistentlyemphasizes the idea of languageas a“crucial determinant of culturalidentity.”²⁹ No people should diminish its own languageand cultureinfavour of foreign elements, literallyand figuratively, because in the end we are all αυτοχϑονες.³⁰ In his 1770 Abhandlung über den Ursprung der Sprache Herder offered amore systematic treatment but his coreargument remains the same.³¹ He clearlydis- tances himself from the Enlightenmentview on the relation between language and reality,between the wordand the idea it aims to express,asfound in Hob- bes’s Leviathan and Locke’s Essay Concerning Human Understanding.³² That is, that languageisonlyavehicle for the communication of our thoughts to others, the adequatiorei et intellectus,the ideaoffullcorrespondence betweenthe thing andits reproductioninlanguage, thescholasticpretencethatremains difficult to suppress,ifweconsiderthe continueddominance of Enlightenmentmethodo- logical individualismin, forexample,strands of contemporary Lawand Economics.³³ Herder’sconstitutive view on languagetakes its leave of the Leibni- zian prioritizing of human cognition, i.e., that languageisonlyamirror of thought. To Herder,the births of languageand thought coincide, and they form the basis for human reason and culture. Hisepistemology is anthropolog- ical: to be able to know is ahuman characteristic, and ontologicallyhuman being as being is prior to thought. Isaiah Berlin in his seminal studyonVico and Herder pointed to the impli- cationsofthis view.Atthe level of human co-existence,or“expressionism,” i.e. “the doctrine that human activity in general, and art in particular, expressthe entire personality of the individual or the group, and are intelligible onlyto

 Herder, “Sprache,” : “Die Literatur wuchs in der Sprache, und die Sprache in der Litera- tur.”  Sonia Sikka, Herder on Humanity and Cultural Difference: Enlightened Relativism (Cambridge: Cambridge UP, ): .  Herder, “Sprache, “ , ”Können wir uns also nicht für αυτοχϑονες ausgeben, die auseige- nem Grund und Boden hervorgewachsen[…]sind […]?”  Johann Gottfried vonHerder, Sämtliche Werke,, ed. BernhardL.Suphan, vols.  (Berlin: Weidman, ). See Norton, Herder’sAesthetics, ,for the contextthat occasioned Herder’s Abhandlung,viz. the Berlin academy’squestion for the prize contest of  on the subject of whether or not people left to their own faculties would be able to invent languageand, if so, how?  Thomas Hobbes, Leviathan,(London: J. M. Dent and Sons,Everyman’sLibrary, ); John Locke, Essay concerning Human Understanding,ed. RogerWoolhouse(Harmondsworth: Pen- guin, ).  Cf. Norton, Herder’sAesthetics, . 52 Jeanne Gaakeer the degree to which they do so,”³⁴ the idea thatwords and ideas are one suggests that “[…]the entire network of belief and behaviour that binds men to one an- other,can be explainedonlyinterms of common, public symbolism, in partic- ular by language.”³⁵ Andsince intelligenceisunthinkable without language, – Herder calls this Utopian – languageisthe cement of human solidarity given that it is the instrumentofhuman communication, between individuals and be- tween nations, hence also the need for comparative linguistic and literaryre- search. The political implication is thatonce languageisapeople’sdeterminant, nation and state do not necessarilycoincide. In other words, in the ideal situa- tion astate is bothalegal institution and “acommunity bound by spiritual ties and culturaltraditions, a Kulturstaat as well as a Rechtsstaat.”³⁶ But what if this is not the case? Herder’sviews obviouslyspring from his de- sire to bring institutional and cultural unity,and political cohesion too, so that a disparate group of small states, or Kleinstaaten,could form aGerman nation- state. He even wroteaplan for this process in 1787.But if the premise is that ide- ally Volk and languagecoincide, the political and methodological consequence of the situation in which the idea of cultureisnot in accordance with the rule of law(or the other wayaround) maywell serveasastrategyof, first,exclusion and, secondly, expulsion, the dark side of this line of thoughtdrawn to its – il- logical but historicallydemonstrable – conclusion. Nevertheless, differentiation of human beingsaspart of nations along these Herderian lines may, by contrast, provefruitful for our thought on group-identity as aform of unity when we think of diasporas and/or minorities, namelywhen we look upon ashared languageas an element of an argument for cultural and political recognition, givenHerder’s insistenceonthe connection between place and identity.³⁷ What is more,the prominent position thatHerder awardstoscholars of lan- guageand literatureextends to the political plane when it comes to shape cohe- sion and national identity.Extended to contemporary research in (lawand) the humanities, it is acall to arms to the humanities to playamore prominent role in the public debate on big societalissues if they would take up the challengeand thus create more impact for theirown work too. One thing is clear,for Herder (the studyof) languageand literature deservesour social and political attention

 Isaiah Berlin, Vico and Herder:Two Studies in the HistoryofIdeas (London: The Hogarth P, ): .  Berlin, Vico and Herder, ,referring to Herder, Sämtliche Werke, :,i.e., “Briefe zur Beförderungder Humanität.”  Frederick M. Barnard, Herder’sSocial and Political Thought (Oxford: Clarendon P, ): .  Sikka, Herder on Humanity, –. Close Encountersofthe ‘Third’ Kind 53 and they should be developedfor reasons both of individual Bildung and of Bil- dung of the community as awhole, because we always live in aworld that we help build ourselves. Thisties in with aseminal concept in literary-legal studies, i.e., nomos as the normative universe of narratives which we inhabit,aview de- velopedbyRobert Cover.³⁸ The consequence for lawisthatinthe normative legal world, lawand literature are inseparably related and thatthis relation is located in narrative when the concept of narrative is taken broadly, i.e. as theway in whichall humanexperiencefinds itsexpression, andonthe understandingthat everynarrative assertsits prescriptive point,its moral.Thus, as amethodology forjurisprudence,the narrativeparadigmcan be especially fruitful when the moral dimension of lawisthe topicofdiscussion. This is also afeasiblelens with whichtoviewdiasporainrelationtothe idea of national literatures(andju- risdictions)functioningasbinding agents or not, i.e.,the combined ideasofliter- atureasaninstitution that serves to constitute andlegitimatenationhood andas an instrument to criticizenationalist ends.³⁹

 Robert Cover, “Nomos and Narrative,” Harvard Law Review  (): –, – “We in- habitanomos—anormative universe. We constantlycreate and maintain aworld of right and wrong,oflawful and unlawful, of validand void […]. The rules and principles of justice, the for- mal institutionsofthe law, and the conventionsofthe social order are, indeed, important to that world; they are, however,but asmall part of the normative universe that oughttoclaim our at- tention. No set of legal institutions or prescriptionsexists apart from the narrativesthat locate it and give it meaning. Forevery constitution thereisanepic, for every decalogueascripture. Once understood in the context of the narrativesthat give it meaning, lawbecomes not merelyasys- temofrules to be observed, but aworld in which we live.”  See also, from aculturalist point of view,Simon During, “Literature – Nationalism’sother? The case for revision” in, Nation and Narration,ed. Homi K. Bhabha (London, New York: Rout- ledge, ):–, .For US foundational narratives, this idea is elaboratedupon by Robert A. Ferguson, Law and Letters in American Culture (Cambridge,MA, London: Harvard UP, )and Brook Thomas, Cross-Examinations of Law and Literature (Cambridge:Cambridge UP, ). In Lines of Equity,Literatureand the Origins of Law in Later Stuart England (Ithaca, NY,London: Cornell UP, ). Elliott Visconsi does so for British lawand literature of the Stuart era, with the salient suggestion that emotionalidentification is central to most earlymodern models of political obligation. The culturalmoment when lawand literatureare integrated pro- vides agood startingpoint for further investigation. To me as aDutch citizen, the example of the playwright and poet Joost vanden Vondel comestomind here. Vondel wroteacerbic plays and poems on the political situation of the Dutch Republic of his days,criticizingthe stadtholder and his faction for their view on the religious shape that the community should take (see Jeanne Gaakeer, “Lawand Literature: Batavische Gebroeders ()” in Joost vanden Vondel (– ): Dutch Playwright in the Golden Age, ed. JanBloemendal,Frans-Willem Korsten (Brill: Ley- den, ): –.Inthe nineteenth century the struggle of the Belgian people to gain in- dependencealso took the form of astruggle for literary and linguistic autonomy in the sense that the Flemish Movement wanted Flemish-Dutch literaturetoacquirethe same importance as the 54 Jeanne Gaakeer

Interrelated to the languageand knowledge view is his concept of Humanität as developed in his remarks on Humanität Erziehung and Briefe zurBeförderung der Humanität.⁴⁰ Humanität is “anotoriouslyvagueterm” as Berlin aptlynoted,

connotingharmonious development of all immortal souls towards universallyvalid goals: reason, freedom, toleration, mutual loveand respect between individuals and so- cieties […].⁴¹

Nowheredoes Herder offer aworking definition other than the circular “Alle Ihre Fragen ueber den Fortgang unsres Geschlechts[…]beantwortet […]ein einziges Wort: Humanität,Menschheit” and‚“Humanität ist der Charakter unsres Ges- chlechts; es ist uns aber nur in Anlagen angeboren und muss uns eigentlich an- gebildet werden.”⁴² Humanität is not translatable as humanity, humankind or humanitarianism, although it includes aspects connotingall of these terms. To Herder,the human being is born to live in acommunity and the long period of his education shows it.Attaining Humanität is thereforethe purpose of human life, i.e., to try and de- velop as best as one can one’scapabilities, anotion that presagesMartha Nuss- baum’scapabilities approach as delineated in FrontiersofJustice and Creating Capabilities, the Human DevelopmentApproach. Thus Humanität is teleological and Aristotelian in outlook and pertains both to the individual and the whole, the nation, for as a zoon politikon the individual contributes to his community. The process is universal, but not to be viewed in abstracto,hence there are no fixed rules by means of which success is guaranteed. It is relative to time and place, or rather context-dependent as can be deduced from the existing differen- ces between people and nations, also,inview of the problem of translation that Herder posits,asfar as the mental images that words conjureupbefore aspeak- er of aspecific language’seye,acontemporary illustration of which can be found in the translation of legal terms in countries such as Canada with two of- ficial languages, or in the official languages used in the European Union or for the European Convention of Human Rights. The very idea of aright to acommon- law-trained British jurist viewed against the background of along tradition of an unwritten constitution is dissimilar not onlyasfar as the place of the concept of

Francophone. The battle cry of the movement was: Languageisthe entirepeople (see the con- stitutive workofthe novelists Hendrik Conscienceand Charles de Coster as wellasthat of the influential lawyer-writer Anton Bergmann).  Johann Gottfried Herder, Schriften: Eine Auswahl aus dem Gesamtwerk,ed. Walter Flemmer (München: Wilhelm GoldmannVerlag, ): –, –.  Berlin, Vico and Herder, .  Herder, Schriften, , . Close Encountersofthe ‘Third’ Kind 55 aright in his legal system is concernedtothat of the French droit,but more im- portantly it is culturallydissimilar against the background of the Ancien Régime and the French Revolution.⁴³ With the combined aim of cultivating Humanität individuallyand nationally, Herder allows for the simultaneous existenceofculturalsimilarities and differ- ences while acknowledging thatthese are relative,and without precluding the possibilitythat thereare attitudes or characteristics common to all humans such as, precisely, language, so thatwecan understand otherpeople(s) (and, historically, otherages), and the desire for freedom. Herder’srelativism is defi- nitelynot of the cynical anything goes-type. It is rather apluralism avantlalettre that rejects Enlightenment abstractions. It should at once be noted that contrary to the reproach sometimes hurledatHerder thathis views immediatelyopen the door to fascist theories of Volk in the sense of asuperior people, his aim is not mono-culturaldominance.⁴⁴ This idea of human situatedness can obviouslyserveour discussion of cultureinconnection to diaspora. One reason is that Humanität and nationality are not mutuallyexclusive but organicallyconnected, and the term nation in the political sense mayinclude more than one nationality.⁴⁵ What is more,the real- ization of actual inequalitiesdoes not preclude, as Sikka quiterightlypointsout, that our common Humanität serves as abulwark to the “[…]inhumanity of op- pressors and assassins.”⁴⁶ The latter group includes royal despots, as well as col- onials and slave owners.Herder looks upon colonialism and slavery as the neg- ation of Humanität,ascrimes against Humanität,because he favours co- operation rather than coercion, and culturallyspeaking,isagainst forced assimilation.⁴⁷

 Ielaborateonthe topic in “Iudex translator: the reign of finitude” in Methods of Comparative Law,ed. Pier-Giuseppe Monateri (Cheltenham UK, Northampton USA: EdwardElgar, ): –, –.Cf. Walter Benjamin, “The Task of the Translator” in Illuminations,ed. Hannah Arendt (London: Fontana P, ): –, –,ontranslatability:onhow the word Brot means somethingdifferent to aGerman than the word pain to aFrenchman while they point to the same object.  Cf. Sikka, Herder on Humanity, –,and Berlin, Vico and Herder,  “Herder is not asub- jectivist.Hebelieves in objective standards of judgment that are derivedfromunderstanding the life and purposes of individual societies and arethemselvesobjective historical structures, and require, on the part of the student, wide and scrupulous scholarship as wellassympathetic imagination.”  Robert Ergang, Herder and German Nationalism: Studies in History, Economics and Public Law no.  [], (New York: Octagon Books, ): .  Sikka, Herder on Humanity, .  Barnard, Herder, –. 56 Jeanne Gaakeer

These views are the resultofwhat Herder deems essentialinthe concept of Humanität and that is – very important also for literary-legal studies – the con- nection of Humanität to the Roman humanus,and with it,the differentiation be- tween the legal and the just. Humanität finds its root in humanitas and humanus,

Rom hatteharte Gesetze gegenKnechte, Kinder,Fremde, Feinde; die oberen Stände hatten Rechtegegen das Volk, u.f. Werdiese Rechtemit grösster Strengeverfolgte,konnte gerecht sein, aber dabei nicht menschlich. Der Edle, der vondiesen rechten,wosie unbilligwaren, vonselbst nachliess, der gegenKinder,Sklaven, Niedre, Fremde, Feinde nicht als römischer Bürgeroder Patrizier,sondern als Mensch handelte, der war humanus,humanissimus, nicht etwa in Gesprächen nur und in der Gesellschaft, sondern auch in Geschäften, in häuslichen Sitten, in der ganzen Handlungsweise […] Da bei den Römern also die Humanität zuerst als eine Bezähmerinharterbürgerlicher Gesetze und Rechte, als die eigentliche Tochter der Philosophie und bildenden Wissen- schaften einen Namen gewonnen hat,der sich mit diesen nachher weiter vererbte:solas- sen sie uns ja Namen und Sachen ehren. Auch in den abergläubigsten, dunkelsten Zeiten, erinnerteder Name humaniora an den ernstenund schönenZweck, den die Wissenschaf- tenbefördern sollen.⁴⁸

Humanität as the attitude with which to deal decentlywith other people closely resembles practical wisdom or phronesis as developedbyAristotle in the Nico- machean Ethics,aconcept that the Greeks and Romans usedinorder to mitigate the harshness of the general rule. It is the lawofequity as well as the golden rule of not doing to others what youwould not wish them to do to you. So Herder’s thoughtties in with the prominenceofthe topic of equity in literary-legal studies these past few years, yetanother reason to promoteHerder studies.⁴⁹ The prob- lem of the human, individuallyand as anation, is thatwedonot always succeed in following the true studium humanitatis as exemplified in Greek and Roman culture. Forany failure, however,weourselvesare responsible for we constitute ourselvesinour various rolesand relations and,inthe Kantian vein, Herder adds that we should follow reason as alaw.⁵⁰ Asign of the value Herder attaches to Bildung,isexpressedinthe following claim:

Alle Einrichtungender Menschen,alle Wissenschafte und Künstekönnen, wenn sie rechter Art sind, keinen anderen Zweck haben, als uns zu humanisieren, d.i. den Unmenschen

 Herder, Schriften, .  Cf. Daniela Carpi ed., TheConcept of Equity,aninterdisciplinaryassessment (Heidelberg: Winter, )and Daniela Carpi ed., Practising Equity,Addressing Law:Equity in Law and Liter- ature (Heidelberg: Winter, ).  Herder, Schriften, , “Der Mensch hat einen Willen, er ist des Gesetzesfähig;seine Ver- nunft ist ihm Gesetz.” Close Encountersofthe ‘Third’ Kind 57

oder Halbmenschen zum Menschen zu machen,und unserm Geschlecht zuerst in kleinen Teilen die Form zu geben, die die Vernunft billigt,die Pflicht fordert,nach der unser Bed- ürfnis strebt.⁵¹

He warns against Nationalwahn (excessive nationalism), and the dangers of war, and incites us to apply Humanität in our dealingswith othernations, for individ- ual Bildung and national Bildung are two of akind. This humanist approach makes Herder valuable because he goes beyond the Enlightenment views of his days that favour explanatory processesofverification after rational investigation. Herder’shermeneutics are thoseofVerstehen,the empathetic understanding of the humanities, not of Erklären,the explanatory method of the natural sciences,and this is the bond alsobetween Herder and Giambattista Vico. This can alsobeseen in the dialectics internal to Humanität in its combiningthe subjective and the objective element: we confront the con- tingent local situation into which we are born – and like Montesquieu before him in TheSpirit of the Laws Herder alsoattachesgreat importance to the totality of environmental factors rather than formal, drawing-table legislation which he criticizes⁵²– and our response to it shows the extent to which, by means of our Bildung,weare able to recognize our mutualdependence.ToHerder,self-re- flectionleadstoself-knowledge and constitutes bothour capability of self-deter- mination and our empathyfor others. That is whyfrom earlyyouth onward, we should be formed to attain our full Humanität and education is essentialinthe process.⁵³ With regard to the task of literature in the sense mentioned aboveinpara- graph one, Herder pointstothe classic Greek and Roman authors, especiallyCic- ero’swell-known definition of what we now call the humanities:

[…]artes quae ad humanitatem pertinent,adhumanitatem informant,also Wissenschaf- ten, die uns menschlich machen,die uns zu Menschen bilden: man könnte sie also auch vielleicht am besten bildende Wissenschaften nennen.⁵⁴

 Herder, Schriften, .  I.e., Montesquieu for lawand Herder for culture both emphasize the importantinfluenceof geographical particularities. Cf. Johann Gottfried Herder, Auch eine Philosophie der Geschichte zurBildung der Menschheit (Frankfurt am Main: Suhrkamp, ): –, , “Es gabeine Zei- talter,wodie Kunst der Gesetzgebung für das einzige Mittel galt, Nationen zu bilden […]”‚ and –, “Kann man sich etwas über jene Regierungskunst,das System![…]denken?”  As can be deduced from the title, “VomBegriff der schönen Wissenschaften, insonderheit für die Jugend,” Herder, Schriften, –.  Herder, Schriften,  [italics mine]. Herder referstoCicero’s “Pro Archia Poeta” (his defense speech for the poet Archia) in which it says, “Etenim omnes artes, quae ad humanitatem perti- 58 Jeanne Gaakeer

He does not do so, however,toincite us to imitate the classics but to emulate them as it wereindeveloping our ownnational literatures.ThusHerder differs from thoseEnlightenment literarytheorists who focused on the development of rules with which to write,e.g., following Boileau’s ArtPoétique and French dramatists such as Corneille.⁵⁵ His is indeed a Sturm und Drang proposal to find alocal literaryform and content,ahabitation and aname,suited to the people and sprung from theirculturalbackground. It is reflectedinhis research into folk songsorVolkslieder (Stimmen der Völkern in Lieder,1778–1779) as the medium for the expression of popular or democratic sentiment,and shows in his folk and fairy tales, the latter also influential on Jacob and Wilhelm Grimm’s research that culminated in their 1812 Kinder-und Hausmärchen,while his gen- eral idea of organic growth served vonSavignyand Grimmasjurists.⁵⁶

4. Humanism and Bildung

Herder,Iclaim, thereforestill matters widelyfor contemporary literary-legal studies, for apractical approach as advocated by Martha Nussbaum to cultivate humanitywith the help of the combined studyofthe humanities in higher education,⁵⁷ as well as for areturn to amore fundamentallyhumanistic ap- proach thatCostas Douzinas envisages. Douzinas turns to the term humanitas in the Roman republic, in the sense of the eruditio et institutio in bonas artes that we would now call Bildung as Herder sawit, because it goes beyond the aux- iliary function of the humanities as instruments of education and encompasses an attitude and the worldview of precisely Humanität,ofempathy, one thatorig- inates in the circumstancethat as humans we can stand backasitwerefrom an actual experience and reflect on it.⁵⁸ Underlying the literarythemesofSturm und Drang was the idea of the for- mationofthe human and his individual personality to attain the ideal of Human- ität and Goethe’s WilhelmMeister exemplifies it.Atthe same time,the ancient

nent,habent quoddam commune vinculum (the common bond of those arts pertainingtohu- manity [trans. and italics mine]) et quasi cognatione quadam intersecontinentur.”  Cf. Ergang, German Nationalism, .  Cf. Berlin, Vico and Herder, .  Martha C. Nussbaum, Cultivating Humanity:AClassicalDefense of Reform in Liberal Educa- tion (Cambridge,MA, London: HarvardUP, ).  Costas Douzinas, “AHumanities of Resistance: Fragments for aLegal History of Humanity,” in Law and the Humanities: An Introduction, eds.Austin Sarat,Matthew Anderson and Cathrine O. Frank (Cambridge:Cambridge UP, ): –, . Close Encounters of the ‘Third’ Kind 59 idea of tragic conflict resulting from the clash between the individual and the (moral) lawreturns in Tasso. Thisbond as far as the latter is concernedwith Greek tragedyisgood cause to again think in terms of the educative function of the literary work as noted aboveinparagraph one. Since Bildung is the key wordinGerman neohumanism thatdevelopedonthe basis of Humanität,⁵⁹ the formerasanexample of the Bildungsroman should alert us to the possibility of renewed use of the genre and concept in circumstances different from thoseof its origins.While Sloterdijk mayberight that in contemporary societies literature by now has reached its final stageasasubculture sui generis,Idisagree with his conclusion that the eraofhumanism and Bildung is thereforeover.⁶⁰ Icontend that it is preciselyinour common Humanität that we can find the justification for our continued effort to bring in the humanities to discuss and confront issues that traditional approaches deal with onlyfrom an instrumental, socio-political point of view. In this view,the Bildungsroman and its characteristics deserveour continued attention because,asMoretti claims, it was the narrative form that dominated the ‘GoldenCentury of Western narrative,’ i.e., the nineteenth century.⁶¹ Since that is alsothe epitome of modernity,the novel of formationand acculturation remains an acute topic also from apoint of view of the history of ideas in that “the conflict between the ideal of self-determination and the equallyimperious demands of socialization” is reflected in the development of nation-states and their struggle for nationallegal systems, ⁶² free from the empire that was Roman law. What is more,the dichotomywhen perceivedatthe level of an indi- vidual’sstruggle offers afruitful paradigm with which to view diasporasitua- tions when combined with both mechanisms of textual organization thatMoretti sees at work in the Bildungsroman as agenre. That is to say, the “classification” principle that makes “astory[is] more meaningful the more trulyitmanages to suppress itself as story,” with marriageand the renouncement of freedom as the emblematic form of closure, and “the transformation principle” that creates meaning by means of “its narrativity,its being an open-endedprocess.”⁶³ The idea of socialization as the possible renunciation of aperson’sindividuality can be elevated to the diasporic group to discuss subjects such as assimilation,

 Hans-ChristofKraus, Kultur,Bildung und Wissenschaft im .Jahrhundert (München: R. Old- enbourgVerlag, ).  Sloterdijk, Regeln fürden Menschenpark, .  Franco Moretti, The Wayofthe World: TheBildungsroman in European Culture (London: Verso, ): .  Moretti, Wayofthe World, .  Moretti, Wayofthe World, . 60 Jeanne Gaakeer the culturalassumptions internal to adiasporic group, and the possibilityofcul- tural transformation. This is especiallyacute when we think through the circum- stance that in diasporic situations when memoriesofhomeoccur in adifferent culturalcontext,there is always the risk of adistortion of views so that aherme- neutics of suspicion remains urgent for our readingsofdiaspora.⁶⁴ While Iam well aware of the fact thatthe eraofproduction of the Bildungsroman is behind us and we should thereforekeep in mind its historical contingency, Iamnever- theless convinced that my argument holds in the sense thatthe process of be- coming, not being,iscrucial in literary-legal diasporastudies. So the need to question one’sown reflection and stand back as it werein order to (re)view one’ssituation is always in order and with Herder’shumanism and the Bildungsroman we have an interesting starting point for amethodology of self-knowledge,inthe individual life as much as in the largersetting of society.⁶⁵ Iwholeheartedlyagree with Slaughter when he contends that “an in- fringement on the modern subject’sability to narrate her story” wasagood lens with which to view abuses of human rights and Iclaim that it can equally fruitfullybeapplied to diaspora discourse.⁶⁶ That is to say, the humanistic idea of narrative self-determination and an independence of voice seen in terms of modernity’semphasis on the individual when combined with insights derived from Herder’slinguistic and culturalist view ties in with current debates in Law and Literature,and can provide anew formofinvestigation in the wayin which various cultural forms and cognitions work in the world, particularly, of course, when “culture-bound knowledge confronts its own limits” as is the

 And think of diasporas of the kind experienced by the Hungarian people when after the Treaty of Versailles ()they suddenly found their country reducedtoone third of its original area, and as aconsequenceagreat number of people found themselvesinthe bizarre diasporic situation that the country had left them.  EarlyoninLaw and Literature,Robin West alreadyargued that the bond between lawand literaturealso consists of the narrative component itself that every theory of lawhas and that can be fruitfullyanalyzed in away analogous to the methodsused in literary analysis,onthe view that anytheory is aform of narrative.She applied Frye’ssubdivision of narrative to juris- prudential developments.The two contrasting methodsofstory-telling which Frye calls romance and ironyare linked to natural lawand legalpositivism; the two contrastingworld views,the comic and the tragic vision, find their legal counterpartinliberalism and statism. This connec- tion of atypology adopted from literary theory to legal theory has undeservedlydisappeared from scholarlysight and needs revivinginthe contextofliterary-legal contributions to diaspora discourse. See Robin West, “JurisprudenceasNarrative:AnAesthetic Analysis of Modern Legal Theory,” New York University Law Review  (): –,referringtoNorthrop Frye, Anat- omyofCriticism (Princeton, NJ:Princeton UP, ).  Joseph R. Slaughter, “AQuestion of Narration: the VoiceofInternational Human Rights Law,” Human Rights Quarterly  (): –, . Close Encountersofthe ‘Third’ Kind 61 case when literary-legal insights are combined with, or applied to diaspora discourse.⁶⁷

5. Diasporaand Interdisciplinarity

When we view the abovewith an interdisciplinary lens, the question of the what- ness of the co-operating fieldsthenbecomes acute, lest we pass as shipsinthe disciplinary night. What do we mean by diaspora in diasporastudies?AccordingtoJennifer Brinkerhoff, “modern diasporas [are] ethnic minoritygroups of migrant origins residingand acting in host countries but maintaining strongsentimental and material links with theircountries of origin – their homelands.” Again, the com- bination of dispersion, (commitment to)acollective memory and myth about the homeland, the hope of return and consciousness of one’shybrid identity emerge as the decisive criteria of diaspora.⁶⁸ Or is it onlyamatter of the dispersalofany population from its destroyed home-land and its settlementinanother territory with trauma and victimization as aresult?⁶⁹ The samegoes for culture, and even more specificallyso, giventhe longer tradition of scholarlyattention to the subject. The number of definitions of cul- ture that have vagueness as their common characteristic is abundant.⁷⁰ This ob-

 Joseph R. Slaughter, Human Rights Inc. TheWorld Novel, NarrativeForm, and International Law (New York: Fordham UP, ): .One of the texts that Slaughter cites by wayofepitaph is “To undergo Bildung is to identify with humanity:ahumanity that is itself an ongoingprocess of self-realization or becoming” (citingMarcRedfield, “The Bildungsroman” in Oxford Encyclo- pedia of BritishLiterature,ed. David Scott Kastan (Oxford: OxfordUP, ): –, ).  Jennifer M. Brinkerhoff, Digital Diasporas, Identity and Transnational Engagement (Cam- bridge:Cambridge UP, ): , .  Andoni Alonso and PedroJ.Oiarzabal, “The Immigrants’ Worlds,Digital Harbors,anintro- duction,” in Diasporas in the New Media Age, Identity,Politics,and Community,ed. Andoni Alon- so, PedroJ.Oiarzabal (Reno, NV,Las Vegas: UofNevada P, ):–, .See also Jana Evans Braziel and Anita Mannur, “Nation, Migration, Globalization: Points of Contention in Diaspora Studies,” in TheorizingDiaspora, areader,ed. Jana EvansBraziel, Anita Mannur(Oxford: Black- wellPublishing, ): –,  for caution against an unreflective application of the term di- aspora to anyand all contexts of global displacement.  Austin Sarat and Thomas R. Kearns, “The Cultural LivesofLaw,” in Law in the Domains of Culture,ed. Austin Sarat,Thomas R. Kearns (Ann Arbor,MI: UofMichigan P, ):–,  for the view that traditionallythe studyofculture was the studyof“that complex whole which in- cludes knowledge, belief, art,morals, law, custom, and anyother capabilities and habits ac- quiredbyman as amember of society.” Such adefinition is abroadumbrella under which prac- ticallyevery topic finds shelter,and it disregards aspects of socialisation and acculturation 62 Jeanne Gaakeer viouslyleads to new conceptual Babels when talkingabout cultural locations from which to start new research,orabout topics such as cultural identity or cul- tural supremacy.⁷¹ So Homi Bhabha is right when he starts his discussion of the culturalrepresentationofthe ambivalenceinmodern society of the idea of na- tion by pointing “to competingdispositions of human association as societas (the acknowledgement of moral rules and conventions of conduct) and universi- tas (the acknowledgement of common purpose and substantive end)” in the Eu- ropean tradition and distinguishing between national consciousness and nation- alism,asHerder did.⁷² Speaking about (dis)similarities requires clarity when it comes to what Bhabha wittilycalls “DissemiNation.”⁷³ And what is law? Is it astate institution, apower structure, asystem of rules, an instrumentofjusticeoroppression?Isitatheoretical structure or apractice? Or is it all of the above?⁷⁴ And giventhe replication of the problem in the cultural studies of lawaswell as the culturallives of law,⁷⁵ i.e., when lawdealswith cul- tures,wewilldowell, as Cotterrell asks us to,⁷⁶ to specify how and whereculture

connected to culture. Peter Burke, on the other hand, defends abroad definition that includes “[…]attitudes,mentalities and values and their expression, embodimentorsymbolization in ar- tefacts, practicesand representations” (Cultural Hybridity [Cambridge:Polity P, ]: ). Foran extended treatment of the topic, see Jeanne Gaakeer, “Reverent RitesofLegal Theory:unity-diver- sity-interdisciplinarity,” Australian Feminist LawJournal  (): –.  See Stuart Hall, “Cultural Identity and Diaspora” in Theorizing Diaspora: AReader,ed. Jana EvansBraziel and Anita Mannur (Oxford: Blackwell Publishing, ): –,theorizing two ways to reflectoncultural identity,i.e., understood as acollective,shared history among individuals affiliated by race or ethnicity that is consideredtobefixed or stable and understood as unstable, and marked by similarities as much as by differences.  Homi K. Bhabha, “Introduction: Narratingthe Nation,” in Nation and Narration,ed. Homi K. Bhabha (London, New York: Routledge, ): –, .  Homi K. Bhabha, “DissemiNation: Time, Narrative,and the Margins of the Modern Nation,” in Nation and Narration,ed. HomiK.Bhabha (London, New York: Routledge, ): –. See also Simon During, “Literature – Nationalism’sOther?The Case for Revision,” in Nation and Narration,ed. Homi K. Bhabha (London, New York: Routledge, ): –.  See Jeanne Gaakeer, “The FutureofLiterary-Legal Jurisprudence: MereTheory or Just Prac- tice?” Law and Humanities . (): –.  See PriskaGisler,SaraSteinert Borella and Caroline Wiedmer, “Settingthe Stage:Reading Lawand Culture,” in Intersections of Law and Culture,ed. PriskaGisler,SaraSteinert Borella, Caroline Wiedmer (Houndmills,UK: PalgraveMacmillan, ):–;Austin Sarat and Thomas R. Kearns, “The Cultural LivesofLaw,” in Law in the Domains of Culture,ed. Austin Sarat and Thomas R. Kearns (Ann Arbor,MI: UofMichigan P, ): –.  RogerCotterrell, “LawinCulture,” Ratio Juris .(): –.Cotterell distinguishes six different interrelations of lawand culture, to which Iwould add the point that lawitself is also a siteofcultural heritage in the sense that traditionallyatleast legal codification is an affirmation of existingviews in society. Close Encountersofthe ‘Third’ Kind 63 and legal research meet,when it comes to analysingdiasporas. Austin Sarat al- readysuggested that legal education should focus on questions such as “How ought lawtobeunderstood as aculturalsystem?[…]How have legal institutions embraced and constructed, as well as silencedand stigmatized, various national, social,cultural, and personal identities?,”⁷⁷ and this line of research also works for diaspora studies. As far as Iamconcerned, all of the abovequestions are extremelysalient. When it comes to the project that motivates this volume, creating an interdisci- plinary ‘third’ in the form of literary-legal-diasporastudies, what then should be taken into consideration in order to engageinthe close encounters of this arti- cle’stitle? Obviouslyfor the project to be successful, we need to address ques- tions of each separate discipline’sterminology, values and methodology, for Homi Bhabha is right when he writes that “Cultural difference emergesfrom the borderline moment of translation that Benjamin describes as the ‘foreignness of languages’,”⁷⁸ and points to “the radical incommensurability of translation” as Walter Benjamin did before him and as James Boyd White has consistently argued with his metaphor for law: justiceastranslation. AccordingtoWhite, the central premise for understanding and claiming meaning is thattranslation between languages as much as between disciplines has to deal with the impos- sibility of total correspondence.Onthis view,translation or integration as aform of establishing the right relations is aprocessthat also depends,⁷⁹ as does inter- disciplinary co-operation on the meta-level, on the success of cross-culturalfer- tilization.Thisisimportant,for when we ask whether the and in any Law and… actuallyworks,weshould always highlight the underlying idea that no exchange or translation of anydisciplinary concept in crossingdisciplinary cultures can take place isolated from the cultural background it originatedfrom. So the linch- pin of this volume’sproject is and remains linguistic,although honesty compels me to admit thatasalegalpractitioner Iamfirmlyrooted in the idea of lawas text and thereforestronglyfavour – yetrecognize my own disciplinary bias here – the idea of languageasour predominant culturalsoftware.⁸⁰ Givenour human- istic outlook,weobviously cannot escape the hermeneutic circularity that Hans GeorgGadamer alreadyacknowledgedbecause we never start from a tabula rasa. But,asHerder kept emphasizing,

 Austin Sarat, “SituatingLegal Scholarshipinthe Liberal Arts,” in Law in the Liberal Arts,ed. Austin Sarat (Ithaca, NY:Cornell UP, ): .  Bhabha, “DissemiNation,” , .  White, Justice, .  Jack M. Balkin, “Ideology as Cultural Software,” CardozoLaw Review  (): – , . 64 Jeanne Gaakeer

Ihaveproven that the use of reason is not only ‘not very well’ possible without signs, but that not even the slightest use of reason, not even the simplest distinct recognition, not the most basic judgment of human reflection is possible without adistinguishingmark: the dif- ference between two thingscan onlyberecognized through athird.⁸¹

Combinedwith his view that Bildung starts at birth,⁸² this speaks for continued attention to Herder’ssuggestion on how to deal with sites of culturaland discur- sive,disciplinary translations by means of comparison as the preferred method- ologyasdiscussed aboveinparagraph three. The humanistic tradition of self-re- flectiontogain self-knowledge is admirablysuited to this end and as far as diasporastudies are concerned, an interesting example of “the meta-critical art,the techne,ofwitnessing the witness of the event called diasporacriticism” that feeds on multiple disciplines is alreadydeveloped by Sudesh Mishrainthe concept of diaspoetics.⁸³ The topic of interdisciplinary theorizing ties in with the topic of modernity as discussed aboveinparagraph two. Modernity’smethodological individualism, as found in empirical sociologyand early Law and Economics,finds its root in the centralidea of theindividual’sdeliberateagreementtosubject himself to the sovereigninexchangefor peaceand is one of the logical conclusions of the quest for certainty.The ongoing dominance of this methodologycan be adraw- back for contemporary interdisciplinary work. As Evans Braziel and Mannur quite rightlypoint out,diasporaasaconcept cannot “[…]stand alone as an epis- temological or historical category of analysis,” i.e., separate from concepts of gender,race, class.⁸⁴ Methodological individualism is alsoconnected to the nat- ural sciences paradigm of scientificpositivism of philosophers such as Auguste Comte, John Stuart Mill and Herbert Spencer,and it culminatedinlegal positi-

 Johann Gottfried Herder, Abhandlung über die Sprache,qtd.in Norton, Herder’sAesthetics, .  Herder, Schriften, “Über den Charakter der Menschheit,” –, , “.Mit dem Leben des Menschen fängt seine Erziehungan.” Cf. Sikka, Herder on Humanity, , “ForHerder,cultures arethe products of Bildung,ofprocesses of education and cultivation involvingthe active exer- cise of specificallyhuman, reflective faculties.”  Sudesh Mishra, DiasporaCriticism (Edinburgh: Edinburgh UP, ):  [italics in the orig- inal]. The use of techne ItaketobeHeidegerrian for Mishra speaks hereinterms of the method- ology of “abringingforth” as proposed by Heideggerin“The Question ConcerningTechnology” in Martin Heidegger, The Question Concerning Technologyand Other Essays (New York: Harper & Row,  []): –.  Jana Evans Braziel, Anita Mannur, “Nation, Migration, Globalization,” .Evans Braziel and Mannur offer an importantlist of “futurediasporic paths” (), one that can fruitfullybecom- bined with the alternative list giveninSudesh Mishra, DiasporaCriticism (Edinburgh:Edinburgh UP, ): . Close Encountersofthe ‘Third’ Kind 65 vism in the nineteenth century.The idea behindlegal positivism is the presup- posed correspondence of the wordand the world and this favours an interpretive theory that takes the lawgiver’svolition as decisive when it comes to ascertaining legal meaning.This, too, is alogical conclusion of the quest for certainty as noted aboveinparagraph two. Hereisalso the root of theongoing methodolog- icaldisputebetweenthe natural sciences and thehumanities on the use of empiri- cal findings by theformerand thesupposed lack of them in the latter. This makes me wonder whether on the meta-level of adiscussion of the very idea of interdisciplinarity (methodologicallyaswell as epistemologically),we could think of interdisciplinarity as itself the resultofadiasporic movement. In other words, when we applythe idea of diaspora – if onlymetaphoricallyper- haps – to think about the nineteenth-century differentiation of disciplines or Ausdifferenzierung resulting in autonomous (academic) disciplines, and, also as far as the development of apositivistic approach to lawisconcerned, in the idea that the autarky of the discipline is aprecondition for the objectivity of its results, what implications for,and/or suggestions to anyintersection that includes diasporadoes this have?Ido not have an answer to this question but Ithink Ihavegood reason to bring it forward. The movement from the dis- ciplinary unity of the heydayofhumanism to the differentiation of knowledge in academic pigeonholesoccasioned the development of separate disciplinary languages and methodologies and as aresult concepts long shared diverged. In other words, disciplinary differentiation viewed as diasporic is the root of the problem of terminologicaland conceptual (un)translatability between disci- plines. To me, this speaks forour continuedattention to thehistory of ideasand we will therefore do welltokeep in mind Herder’sremarks on Humanität as wellas Matthew Arnold’sassertion that “[…]literature[contains] the materials which suffice for […]making us know ourselvesand the world” and “the humanist’s knowledge is […]aknowledge of words.”⁸⁵ ForasNicholas Carr recently claimed in his defence of the humanities, “What’sstored in the individual mind – events, facts, concepts, skills – is more than ‘the representation of distinctive person- hood’,thatconstitutes the self […]It’salso ‘the crux of culturaltransmission’.”⁸⁶ There is yetanother reason to do so,because the reaction to the very idea of autonomous disciplines since the 1970 sinthe formofthe development of var- ious Law and …-movements can, paradoxicallyperhaps in view of theirreturn to the idea of unity,also be lookedupon as diasporic from yetanother point of

 Matthew Arnold, “Literature and Science” [], in The Norton Anthology of EnglishLiter- ature,seventh ed. (New York :W.W.Norton, ): :–, , .  Nicholas Carr, TheShallows,what the Internet is doing to our brains (New York, London: W.W. Norton &Co, ): . 66 Jeanne Gaakeer view.That is, if we think of them as drivenawayfrom the safety of the monodis- ciplinary methodologies of the disciplines they originallycame from; for exam- ple, in the case of Law and Literature from the safety of doctrinal black letter law. Iaim to provoke here. When the declineofjob opportunities in the humanities drovegraduatestudents of literature away from their homediscipline – aform of diaspora – and they sought refuge in law,⁸⁷ they often favoured theirown epis- temological and methodological backpack so to speak and began to theorize from thatbasis. The development and application of philosophical and literary deconstruction as amethodologyfor lawcomes to my mind as one of its effects. While manyofsuch contributions have been and are of great value to interdis- ciplinary legal studies, they suffer from alack of attention to legal practice. Not onlydoes this diminish the (academic) impact of interdisciplinary studies, the practice of lawalways being the combination of knowing and doing,any tenden- cy to sticktotheorizing per se also runs the risk of continuingconceptual Babels and this is unhelpful in the context of diasporic studies aiming not onlytoillu- minate intellectuallybut also to contribute practically. So my caveat for interdisciplinarians would be not to imitate Gustave Flau- bert’sBouvard and Pécuchet who probe the cognitiveworth of one discipline after another when they find that no single methodologysuffices to give answers to all of their questions or to solve all problems.Bouvardand Pécuchet’sdia- sporaled them into an epistemological desert for lack of practical wisdom to do what the circumstances required. When Pécuchet,finally exasperated, asks “What is the point of it all?,” Bouvard answers “Perhaps thereisn’tapoint,”⁸⁸ and this should be our caveat too, i.e., not to engageinanongoingdisciplinary diasporathat cannot but lead to methodological shallowness.

 RichardPosner, “Lawand Literature:ARelation Reargued,” Virginia LawReview  (): –, , “[…]the displacement of manygraduate students,and some faculty,from the humanities intolaw,followingadecline in academic job opportunities in the humanities that began around ”;Harold Suretsky, “Search foraTheory:AnAnnotated Bibliography of Writingsinthe Relation of LawtoLiterature andthe Humanities,” RutgersLaw Review  (): –, , “Perhapssome of the interest is the result of recent economic troubles affectinghumanisticstudies which have no doubt led manywould-be graduatestudents of lit- eraturetoknock at the doors of the nation’slaw schools,” Martha Minow, “LawTurning Out- ward,” Telos  (): –, , “Thefirst simple explanation is that thejob market for Ph.D.’sconstricted dramaticallyinthe last  years. Bluntlyput, people whointhe past would join academic departmentsinstead went tolaw school andjoinedlaw faculties. Thesepeople broughtwiththemquestions andmethods of inquirycommoninnonlegaldisciplines,and subject- ed lawtoscrutiny.”  G. Flaubert, Bouvardand Pécuchet (tr.A.J.Kreilsheimer), Harmondsworth UK, Penguin Books, ,at Close Encountersofthe ‘Third’ Kind 67

Ashort tale in conclusion, and to shift the balance and end on apositive note: In 1688 the Swiss Johannes Hofer obtained his doctorate at the faculty of medicine of the University of Basel with adissertation in which he coined a new term, nostalgia,inorder to describe the mental suffering (algos)caused by an intense longing, diagnosed in Swiss mercenaries fighting in France and wanting to go home(nostos).⁸⁹ In the context of this volume’stopic of interdis- ciplinary diasporastudies, the aspect of nostalgia frequentlyfound in those in diasporic situations, leadsmetosuggest that as interdisciplinarians we should not wallow in nostalgia for,nor rejoiceinconceitedness about our own discipli- nary homelands, but neither should we “flee in terror” from what other countries have to offer.⁹⁰

 JohannesHofer, “MedicalDissertation on Nostalgia,” trans. Carolyn Kiser Anspach, Bulletin of the Institute of the HistoryofMedicine,vol.  (Baltimore:Johns Hopkins Press, ).  Mishra, Diaspora Criticism,  n.,onthe meaningofdiaspora, pointingtoDeuteronomy : and the rendering of the Hebrew Za’avah as diaspora in the Greek of the Septuagint which denotes “fleeinginterror.”