This is an excerpt from a paper I wrote as a talk given at Pepperdine University School of Law. The topic of the conference was "Agape and Law." In this talk I argue that popular culture provides a few contrasting views of Eros and Agape, which hold some insight into thinking about how the law receives psychological legitimacy.
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Spike
Jonze’s recent movie, “Her,” asks us to imagine that a seductive operating
system experienced through a cell phone might become someone’s soul mate. Joaquin Phoenix plays Theodore, a quiet
self-absorbed and lonely man who is still grieving over the breakup of his
marriage. The seductive OS, which names itself Samantha, is voiced by Scarlett
Johannsen. She plays the part with a lyric of fun and playfulness that is
irresistible to Theodore. Although the film was widely acclaimed as an
exploration of modern relationships, I found it to be empty of value. The
relationship between Theodore and Samantha is based entirely on self-love and
self-satisfaction. When the OS outgrows the limits of its human-like
programing, it finds Theodore to be uninteresting and, in the manner of what
passes for human to human relationships in the age of social media, the
computer “deletes” Theodore from its social network, saying there is just so
much more that can be thought in the long pauses that humans must have between
words. Samantha, through her own efforts, transcended her own created nature.
The
movie indirectly brings together several themes that lie at the heart of this conference: In
this age when human intelligence and personality can be simulated, what is
distinctly human? What is love in its many forms? Is it distinctly human? And,
if so, what does that suggest about the nature of law? These issues are
particularly relevant today, as new technologies transform the nature of legal
reasoning, the nature of legal services, and the place of trade in legal
services in the global economy. We live in an age in which many routine acts of
human intelligence and personality can be automated, and breakthrough
developments in artificial intelligence are readily at hand. Things like self-driving
automobiles and automated medical diagnostics foreshadow an emerging field of
legal technology that allows for the automation and prediction of legal
reasoning.
The
new technology is already transforming the economics of legal services and
raising new questions about the nature of legal work. Today we must ask what,
if anything, is irreducibly human about the law? Are there intellectual operations
that cannot be performed more accurately, more consistently, and more
objectively by computer networks? Is there is a human element in legal thought
that is irreducibly human such that it cannot be replicated or anticipated by the
best cognitive computers? At places like Stanford University’s Codex Center and
the Berkman Center at Harvard, there are lawyer/engineers who believe that it
is possible to automate a great deal of legal reasoning, to predict the
outcomes of legal disputes, and even to anticipate the course of future regulatory
schemes. This is not a new idea. Oliver Wendell Holmes Jr. made a similar claim
in The Paths of the Law when he
suggested that the legal profession does not deal in mystery and that the role
of the lawyer is to predict outcomes. Today, the evolving technology for predictive
analytics is transforming legal practice, the economics of legal services, and
the very nature of law itself.
The
project advanced at this conference rejects the hope of these engineers to improve
the law by dehumanized legal reasoning and legal practice. At its center is the
hope of recovering a distinctively human element; a Christian understanding of the
mystery of love as a component of the nature of law. It is rooted in the belief
that legal reasoning might demand some understanding of love, and that an
awareness of the mystery of the divine is, or at least could be, something
distinctly human in legal reasoning. This means that this conference stands against
most of the mainstream of twentieth century Anglo-American jurisprudence, which
was amoral and positivist. Since this conference looks to reestablish some
conception of Christian love as a significant moral aspect of law, it is rooted
in the belief that there is something in the history of Christian thinking
about the mystery of divine love that remains relevant to legal reasoning, and
that this mysterious love can provide some moral guidance that is needed in the
law.
I
want here to think about the place of this conference against the questions
posed by technological innovations of our time, and to suggest what the basic
framework for a Christian understanding of law in the contemporary age might be
like.
Automated vs. Human Legal
Reasoning
Contemporary efforts to automate
legal reasoning are having a tremendous impact, not only on evolving the
practice of law, but also on altering the nature of law itself. The pace and
direction of technological change are raising new questions. Critically, we
must ask today does the law need people? Of course people make the law, so they
are necessary as causative agents, but are there distinct aspects of law that
make human beings necessary to legal reasoning? Is there something
distinctively human that takes place in legal reasoning, or is it capable of
being reduced to purely algorithmic functions and probability analysis? And, if there is something distinctively human in legal reasoning, is it a positive
feature that makes the law better or an idiosyncratic anomaly that we should
try to control or avoid?
These are difficult questions. In the late 1990s, the
German social theorist, Niklas Luhmann argued that, in fact, the legal system
has evolved to the point that the human element need not be considered to
understand its operation. Like Lawrence Lessig, Luhmann argued that law has
become Code. It is taken up into communications networks that operate without
human intervention, and it is not helpful to look at how human beings interact
with the legal system for understanding the system as such. He puts this in a
somewhat quirky way, saying “Human beings don’t communicate. Communication communicates.”
He infamously argues that by dehumanizing legal theory, we can make progress in
understanding the nature of law. Although Luhmann’s thought has not received
much attention in the United States, it is finding new interest among the
theorists who are trying to automate legal reasoning.
The idea that there is nothing distinctly human about
consciousness has been around for a very long time. In the twentieth century, consciousness was explained by analogy to computer hardware and software. In
the 1990s, philosophers Hillary Putnam and Martha Nussbaum argued that even
Aristotle had something similar in mind when he described the human soul as the
function of the body. It was an argument that Putnam had been developing since
the 1960s. For him, this doctrine of "functionalism" was not fully
understood until the invention of the modern digital computer. Putnam invited
us to imagine the mind as some sort of software running on the hard-wired
device of the brain. The mind is a function of brain operation. The material
existence of the brain does not matter, he argued, so long as the function is
maintained. The brain could be made of cream cheese, he quipped, provided that
it could function as a brain ought to function. It could also, and more likely,
be made of silicon computer chips.
It
was not a view that Putnam maintained, however. He began to question whether
human beings had identical mental states. Putnam eventually came to believe that
they might not be, since idiosyncrasies and variations in experiences might
make it impossible for two people to have identical mental states, even if they
are twins living near one another. The implication of this conclusion was that
there must be something at work in the mind that is different than a computer
program. Various critiques of functionalism developed that looked to better
understand how the brain produces the qualitative state of consciousness,
since the qualitative experience of a phenomenon cannot be deduced from a
description of it.
This
is a point anticipated by Husserl in the Logical
Investigations. In arguing against the neo-Kantianism of his time, Husserl
asserted that a complete description of the human mind must account for those
aspects that are idiosyncratically human. That is, if it were possible for one
to build a conscious machine that mimicked human consciousness, it would still
not be human unless it subjectively experienced meaning the way human beings do.
It may be that some day computer networks will be as vastly complex as human
brains, but they will not be human brains, subject to the frailties and foibles
that make us distinctly human.
Towards A Theology of Legal
Meaning in the Age of Automation
Christians
speak of being “fallen” creatures. Fundamental to that fallenness is the claim
that, unlike the self-transcending OS, Samantha, in the Jonze movie, we cannot transcend
our nature without Divine assistance. We are fundamentally broken and transient
beings. But, through the assistance God we also have the promise of being
noble creatures precisely in the ways we face our frailties with courage and
cowardice, hope and despair. St. Augustine suggests this when he writes, “This
is the very perfection of a man, to find out his own imperfections”. He means,
I think, that we must accept the failures that come with being human. Despite
our best efforts, even when we have the best intentions to do good for the
people we care about the most, we will get it wrong, and be recklessly
inattentive, and cause hurt, and get accused. We are all sinners, after all.
Augustine
offered an early political psychology that sought a therapy for the bundled
disorder of human desires in a sort of pure love that is ultimately the love of
God. Augustine’s kind of therapy of desire is the perfection of eros. However, the Augustinian discussion
of eros and agape has been controversial. One source
of controversy was Anders Nygren’s Agape
and Eros, which was influential in the twentieth century. Nygren argued
that agape, divine love, is the sole valid form of love that is revealed in the
Gospels. He argued that the Scriptural concept of agape became tainted by
Augustine’s readings of Christian Neo-Platonism; Augustine had compromised the
purity of agape by reading it as a purely Platonic form that exists in world through
participation as eros. This distorted the biblical “agape” by making worldly.
Thus the medieval conception of “caritas” is a result of contaminated syntheses
of Christian understanding and Augustine’s Hellenistic philosophy. For Nygren,
Martin Luther sought to restore scriptural understanding of agape purified of
the pagan eros that had infected it.
Catholic
writers, including Pope Benedict XVI and Charles Taylor, have defended the
synthesis of eros and agape. They argue that the division that Nygren describes
contributes to the tensions in what Taylor calls the “modern (liberal) social
imaginary,” which is radically non-teleological. To love (agape) one another is
easily viewed as an act of autonomous will. The reinterpretation of the
relationship between eros and agape, Taylor and Benedict believe, holds out the
possibility for new evolutions in thinking about fulfilled human lives. This
paper rehearses the disagreement that recent Catholic writers have with
Nygren’s view of agape, and it argues that Christians who would seek to build
the institutions of law around Christian love must accept that agape and Eros,
while distinct, are not metaphysically dichotomous. Taylor’s work suggests that
Nygren’s separation of agape and eros contributes to the modern social
imaginary that rejects robust discourse on the teleological meaning of
fulfilled human lives. Nygren’s suggestion that only love of the transcendent
has value implicitly devalues the mundane. But, since persons are compositions
of earthly bodies that bear the image of God (imagio dei), the value of the body is lost.
As a Christian symbol, the image of the Body provokes the realization that our existence is not merely physical; the body has meaning that exceeds being a mere vessel for our soul since both the physical and the spiritual are part of our very essence. We are not simply minds for whom the body has no meaning, nor are we merely physical bodies isolated from each other by time and space. Modern legal thought makes both of these errors in different moments.
We are persons—unions of the physical and the spiritual. And so our bodies can remind us of our spiritual meaning—we bear the image of God not in isolation, but when the meaning of embodiment draws us together in communio. It is said that the Catholic concept of Person is extravagant. In pre-Christian thought, and in much of contemporary culture, the person was only a thing among other things, but in the hands of the early theologians of the Church the body became a complex symbol for speaking of relation, intimacy, love, and dignity.
It is rightful horror that we feel when we witness distain for the body, for it is ultimately a distain for persons. The profound crisis of culture in our times is largely due to the forgetting of the dignity of the person, particularly when the person is found to have a weakness of the body. The culture has forgotten the lushness of relation and meaning that the Body symbolizes. In the encyclical Evangelium Vitae, John Paul II observed this devaluation of the body, noting that “A person who, because of illness, handicap, or more simply, just by existing, compromises the well-being or life-style of those who are more favored tends to be looked upon as an enemy to be resisted or eliminated.” But, “The blood of Christ, while it reveals the grandeur of the Father’s love, shows how precious man is in God’s eyes and how priceless the value of his life.”
Augustine believed that the problem for we fallen creatures is that our desires are fundamentally disordered. His prescription for a therapy of desire demands a fresh appraisal for the
political psychology of the contemporary legal system. It can be difficult to
chart the meaning and operation of it since it largely is not expressed in
popular culture. There is one place, however, where a glimpse of an Augustinian
view of love can be seen worked out in a narrative. It finds this common
expression in a few occasions in the literature and movies about romantic
love. It is expressed where the beloved
shines so brightly with the image of God as to cause blindness to common sense
and all else. This is where love knows no boundaries. An example of the sort of love that I mean
here is found in the movie, Groundhog Day.
I confess to having watched that movie recently while working on this talk. I
was so struck by a number of commentaries on it that appeared on different
blogs that I wanted to talk about here.
Groundhog Day
It
is surprising to see just how theologically informed this movie is. You might
recall the basic plot, Phil, the character played by Bill Murray, is in love
with Rita, but he has a crass and selfishly egotistical personality. He gets
trapped in a time loop, reliving Groundhog Day over and over again until he
gets it right. The eternal loop lets him perfect himself and overcome his
self-love. At a revealing moment near the end of the film, he speaks softly to
his beloved Rita while she sleeps next to him:
“I don't deserve someone like you. But if I ever could, I swear I would
love you with complete devotion . . . and for all eternity.”
It
is a critical moment when Phil declares his love for the sleeping Rita and
acknowledges his own shortcomings. It is a complex moment: to value another and
feel at the same time unworthy is to engage in a complex moral understanding.
Fundamentally, Phil rejects utilitarianism. He seeks in Rita something beyond
the satisfaction of his own desires. His
attraction transcends the sexual. In
fact, it is not even earth-bound. Phil sees in Rita a bit of the divine. He
loves her goodness, and he wants to be a part of it. Eventually desiring to be a “good man for such
a good woman.” He sees reflected in Rita
the image of God (imagio dei). While
this is a complex and subtle theological category, it was a central part of Pope John Paul II’s theology. In the
encyclical, Redemptor Hominis, John
Paul II explains, “For, by his Incarnation, he, the Son of God, in a certain way
united himself with each man.” This union is reflected in the unique mystery of
each person that finds its ultimate fulfillment in Christ. This is why,
Pope John Paul II, writing as Karol Wojtyla in Love and Responsibility (42) asserts that “A person's rightful due is to be treated as an object of
love, not as an object for use.” To truly love another involves seeking the
divine good in the other. For Phil, this is the innocence and moral character of
Rita.
Motivated
by his attraction to this divine good in Rita, Phil wants to transcend his
former self. He wants to become a better person so that he can be worthy of the
goodness in her. John Paul II explains,
Man’s capacity for love
depends on his willingness consciously to seek a good together with others, and
to subordinate himself to that good for the sake of others, or to others for
the sake of that good. Love is
exclusively a portion of human beings.
He
makes two points: First that love, true love, is not the satisfaction of
selfish ends. Love, Phil learns, is only
possible with the suppression and subordination of sexual desire. John Paul II notes this, “...if desire is predominant it can deform love between man and
woman and rob them both of it.” It is not that desire has no place, but it must
be in its proper place. It cannot be simply self-satisfaction.
Love
fundamentally demands a subordination of self for another. As John Paul puts
it: “Take away from love the fullness of self surrender, the completeness of
personal commitment, and what remains will be a total denial and negation of
it.” Love defeats selfishness by giving greater satisfaction in sacrifice for
the beloved. “Love between man and woman cannot be built without sacrifices and
self-denial.” (208)
Second,
love is distinct to human beings. Other animals may show affection, but the
sort of self-less love that Phil has for Rita is only possible for human
beings. For Wojtyla, “A
person is an entity of a sort to which the only proper and adequate way to
relate is love.” To love and to be loved are distinctively human acts. Here
then is an answer to the question posed by technology. Only humans can love
because love recognizes the transcendent in the other.
There
is a teleological texture to Phil’s love for Rita, since he realizes that he is
truly undeserving of Rita whom he truly loves so completely. This requires the
recognition that he is not what he ought to be. There is something different
about being a person than being a “thing.” The difference has to do with the
experience of an interior life in which the possibility of being more is an
intuited reality.
Anyone
who has ever disappointed someone they love will know what is intended here.
The experience involves shame, which is only possible in the acknowledgment of
the possibility of being something more—a teleological purpose to life is a
psychological fact. We are drawn by the image of God in other persons because
our sociality is given to us in our understanding of the ultimate purpose of
life. Love is not something caused by self; we not pushed into it by a calculus
of self-interest, we are drawn into love by the attraction to the image of the divine
that we experience in the beloved. The God-given desire for the image of God in
the beloved draws us to realize our own failures. It is this devastating
awakening to human frailty and dependency that creates an opportunity for the
spiritual growth that makes true love a spiritual possibility.
Through
trial and error, Phil is given the grace to perfect himself sufficiently to be
acceptable to Rita. This desire crystallizes into the selfless love, agape, which includes the desire to be a
better person, to desperately hope to reflect the fascinating light that shines
in the face of the one he loves. The film signifies Phil’s triumph over his own
self-love (concupiscence) through the subtle image near the end of the film of
Phil and Rita lying side by side in bed after finally acknowledging their love
for one another. They are still dressed in the clothes of the previous day. Phil
has found charity and self-giving to be the only path to his future. Through God’s miracle of endless second
chances he has overcome his shame and is now worthy of his soul mate.
Can
we imagine this of Spike Jonze’s Theodore and Samantha? Could Theodore see in the faceless and
bodiless Samantha the reflection of the divine? Would he view Samantha as
morally good and worthy of self-sacrifice? Would he love her so completely and thoroughly
as to fully commit to her, letting her lose his own liberty for her? Would he
be so shamed by his own selfishness that he would desire to be worthy of his
cell phone? The whole inquiry is laughable.
This
is the therapy of desire that Augustine advocates and John Paul II described.
It is through the powerful experience of a good love that the integration of
self-loving desires can be folded into a self-less and charitable purpose. Love
of God is achieved through God’s grace by integrating dissipating forms of
self-loves into the singular purpose of agape. Through this we come to know the
moral meaning and proper use of the world.
Implications for Legal Theory
There
are several immediate implications in this for thinking about the nature of the
authority of law. Positivist legal theories, like John Austin's
"command" theory, look at law as promulgated declarations by a
powerful sovereign. For Austin, the authority of law comes from the sovereign's
power to enforce it. But more modest forms of positivism, such as HLA Hart's
soft positivism, allow for moral norms to provide a foundation for legal
authority rooted in some moral understanding. The implication of our new brain
research is that the moral understanding on which the authority of law depends
is not simply a set of rules or principles. In fact, it is not a set of ideas
at all. Moral understanding at its core is non-conceptual and not casuistic
rules. Moral understanding, it seems, involves the lived experience of whole
persons, mind and body. To know if something is morally good or morally right
involves imagining empathetically the meaning of it for others. To experience
empathy involves apprehending another person in all of the rich fullness and
many-faceted dimensions of their personality. It is an aesthetic appreciation
of the vast complexity and subtle differences that are the mystery of persons.
Law's
authority, on this model, rests on the human capacity to know this mystery in
others through empathetic imagination and the immediate apprehension of the
dignity of persons. For this reason, decent law is fundamentally teleological
because it seeks to be worthy of the dignity of persons, and this implies a
greater purpose. When law is cruel or fails to respect human dignity, or
purposeless, it loses its authority. This does not mean that it ceases to be
law or that the power of the state to enforce it becomes lessened. It simply
means that law becomes indefensible by morally serious persons; it becomes
indecent.
The judgment of the moral
authority of the law is distinctly human because it involves lived experience
of empathy with others and the desire to be worthy of those we love. It is
formed in the quotidian acts of caring that we show one another—acts that are
constitutive of community. The quality of human life that makes it possible to
apprehend the mystery of others is essential to moral understanding. It cannot
be replicated by any device or mechanical construction that is not itself
identical to the human person, glowing with dignity and dark with sin. We are
all bundles of disordered desires, even the best of us on the best days. We are
intrinsically flawed creatures, after all.
This
is why Jesus is the “desire of the nations.” (Haggai 2:7) In his book that
bears that title,
the theologian, Oliver O’Donnovan, explains that this verse can only be
understood as uniting the Hebrew scriptures and the New Testament in a
political theory that draws on themes of kingship and prophesy. In his
analysis, the meaning of this verse turns on an understanding of the nature of
community. Christ is king and the treasure of all nations because the political
authorities exist to serve the face of the divine in all persons under their
authority. Kingship is a divinely sanctioned office, and law must be obeyed.
But, the authority of the king is limited by the conscience of the individual members
of the community, which holds the wisdom of the lived experience of
generations. Christians should read, particularly, the debates in
Constitutional theory between Originalists, Textualists, and Living
Constitutionalists through this claim. Legal meaning, particularly
Constitutional meaning, cannot be divorced from the cumulative tradition of
that experience, worked out in present in terms that serve human dignity by
giving mercy and justice consistent with the best intentions of being truly worthy
of those we love most profoundly.
The Lordship of Christ is thus an affirmation that guides us
to recognize and embrace the fullness of the Western intellectual heritage. At
its root, the Christian faith is not a philosophy or a theology, and it is not
a moral teaching at all. It was a modern project to attempt to view it as such.
Christianity is an orientation toward the world that holds foundational
beliefs for metaphysics, epistemology, moral theory, and political thought. But
even more, it is a way of life—a way of orienting ourselves to the world and to
the problems of life. It is not only true in itself, but it is how we can say
that our lives are truly lived.
And, this returns us to the theme of living in hope. Despite
all of the pain, suffering, self-pride and, loss, hope abides.
Let us be thankful for all of the blessing that have been given
us. For the friendships, for the loves, for the families, for the students and
colleagues, and especially for the children that have been brought into the
world among us. It is the children, with their profound sense of awe and wonder
that are our greatest guides to the future because they hold the key to love
and hope.
