I met Peter Gabel nearly forty years ago at the first meeting of the Conference on Critical Legal Studies. Warm and sympathetic, he was a special person then and is a special person now. We shared a commitment to existentialism and at the same time differed over what the otherness of the Other implied. At this time Peter found comfort in the Marxian concept of alienation and the possibility of overcoming alienation, of experiencing “intersubjective zap.” I found this merging of existentialism and Marxism wholly implausible, whatever Sartre might have believed.
Since then Peter has given up the Marxian language, though not its commitment to the marginalized in our society. He believes in “our inherent loving bond as humans,” derived from our “desire for mutual recognition, the desire to see and be seen by the other in a relation of true mutual presence,” the “recognition of each other’s transcendent and beautiful humanity.” I wish Peter were right, but I still doubt that it is possible to overcome the otherness of the Other, except briefly, randomly, undependably.
{title}By the rivers of Babylon{/title} by Gerhard Fugel. Wikimedia Commons.
My doubt is founded on an attraction to the Christianity of the catacombs and the mystery of divine grace—unknowable, unbidden, and undeserved. And so for me the truth of the myth of Sisyphus implies that the best that we humans can expect is that, when tired from endlessly rolling the rock back up the hill, we may gather together at the River Jordan and weep. Peter’s relative optimism seems to me to be founded on a more diffuse spirituality that is clearly infused with some aspects of Judaism, as is obvious from his attachment to the wondrous promise of Buber’s I and Thou. Still, Peter and I have never had trouble setting aside our differences. The Kierkegaardian leap of faith is an ancestral relative, however distant, of Peter’s faith in spirituality’s promise that action in the world directed toward realizing “our inherent bond and our longing for mutual recognition” will overcome liberal legalism’s individualistic bias.
Humans find themselves in the gap between the fundamental alterity of the Other and the possibility of a grace that would transcend it: this is the human condition. It is there, in that space, that the Sisyphean eventuality of human action plays out, and from there the leap of faith can be made. We see the possibilities for these leaps each and every day, and they blend in with Sisyphean routine—greeting someone on the street, introducing oneself to an attractive person, marrying, having children, starting a new job or a little business or a storefront church, buying a house, hiring a craftsman, organizing a community activity as small as a block party or as large as a protest march, uniting with it (especially from the back), joining The Resistance. In the end, though maybe not an individual’s own end, it is likely that these things will all fail, that the rock will roll down the hill. To be human is to recognize that likelihood, and yet act again and again and again before gathering at the River Jordan to weep together, perhaps to dance.
For these reasons, I have never had trouble supporting, indeed praising, activities such as the Georgia Justice Project, led by the Project for Integrating Spirituality, Law, and Politics, or any other attempts to move toward restorative, as opposed to punitive, justice in criminal law. My own modest efforts in similar directions have been to reform the structure and content of legal education, primarily in trying to emphasize the importance of teaching the law as we wish it to be as if it were already partially instantiated in the law that is, rather than endlessly critiquing the deficiencies of current law. For me this means teaching contract law as grounded in “good faith.” It also leads me to try to direct students away from legal doctrine and instead toward an understanding of the world in which that doctrine operates. For me this means teaching secured lending as rooted in banking practice.
My contribution in our distantly shared direction is far more modest than Peter’s; this I know. But I am pleased to learn that he recognizes the long time that it will take to accomplish the “evolutionary transformation of legal consciousness” that he hopes to engender. While he, and I in my more modest way, wait and work, I hope that he too will come gather by the River Jordan. No one there could possibly misunderstand his hope to dance while others weep.