Filed under: Justice | Tags: Acts of Literature, Fundamental Principles of the Metaphysics of Morals, Immanuel Kant, Jacques Derrida, Marjane, Marjane Satrapi, Martha Nussbaum, Niqab, Norris Weisman, Poetic Justcie: the Literary Imagination and Public Life, The Truth About Stories, The Veil, Thomas King, Walt Whitman
He judges not as the judge judges but as the sun falling round a helpless thing…
He sees eternity in men and women, he does not see men and women as dreams or dots.
In October, Ontario Justice Norris Weisman ordered that a Muslim woman, the complainant in a sexual assault case, must testify without the veil of her niqab in open court. Aside from the fact that the media is using this story to stoke the very popular ‘reasonable accommodation’ debate that has helped right-wing politicians stir up xenophobia and anti-Islam sentiment in Quebec and the rest of Canada, it has also laid claims to questions of law and justice. Indeed, the headline of the cited article in the Star is: ‘Order to take off niqab pits law against religion’. Does it? And are law and religion really such polar opposites?
As Kafka knew more than anyone, the law is always before us. We are dropped into it without even realizing it. It precedes us, inhabits us and colonizes us. We wear it like a birthday suit: we don’t even know we’ve got it on.
It was this problem that prompted Kant to posit a symbolic definition of ethics in his Metaphysic of Morals (1785). That is, if we cannot establish an objective, a priori principle on which to found our law, we must live according to examples of moral law, or in Jacques Derrida’s helpful gloss in Acts of Literature (1992), a ‘typology’ rather than a ‘schematic’. So Kant advises us to follow subjective principles of action that progress towards the universal principle. He famously states: ‘Act as if the maxim of thy action were to become by thy will a Universal Law of Nature‘.
The problem here, Derrida states (as he would), is that damned ‘as if’:
This ‘as if’ enables us to reconcile practical reason with an historical teleology and with the possibility of unlimited progress…it almost introduces narrativity and fiction into the very core of legal thought, at the moment when the latter begins to speak and to question the moral subject.
Or perhaps it is not a problem at all. As much as perhaps Kant himself would like to deny it, law is essentially oral history. Case law is a narrative of humanity’s struggle to define the just and the righteous. Indeed, without narration and fiction, how can we possibly determine the actions of a ‘reasonable man (sic)’ that features in so many court rulings?
In Poetic Justice: the Literary Imagination and Public Life (1995), Martha Nussbaum argues that the ‘literary imagination’ should play an important role in deciding questions of judgement.
the literary judge has good reasons for eschewing skeptical detatchment and for preferring to quasi-scientific models an evaluative humanistic form of practical reasoning; these reasons are deeply rooted in the common-law tradition. She does pursue neutrality, but in a manner…requiring, rather than forbidding, sympathetic knowledge of value-laden human facts.
What is the difference between a ‘literary judge’ and one who is simply sympathetic to mores of social justice? Like the poet or ‘equable man’ Whitman describes above, the judge armed with a literary imagination ‘sees eternity in men and women’, placing them in their narrative juxtaposed with the stories of others—in their whole history, with a critical but compassionate eye.
So what does this say about the Muslim woman prohibited from wearing her veil as she faces the man she has accused of raping her? It means heeding her explanation for preferring to be veiled:
“It’s a respect issue, one of modesty and one of … in Islam, we call honour,” she replied. “It’s also about the religious reason is to not show your face to men that you are able to marry. … I would feel a lot more comfortable if I didn’t have to, you know, reveal my face.”
It means situating this case and Canada’s hysterical obsession with the veil within our illegal occupation and colonization of Afghanistan and the ongoing war on Islam effected by the West in general. It means understanding that religion, too, is a birthday suit, and coincident with, not opposed to the law. It means listening to progressive Muslim women like Marjane Satrapi who do not wear the hijab nonetheless defend its use by her sisters. It means understanding that a vast majority of rape cases are not reported, and those that are have a sickeningly low conviction rate (5.7% in the United Kingdom). It means that the genesis of the phrase ‘facing your accuser in open court’ should be read democratically rather than literally. It does not mean removing the right of the accused to a fair trial and competent defence, but it does mean acknowledging that the system is failing and that removing the niqab from a rape victim is emphatically the wrong direction.
It means listening to people like Thomas King when he points out, in his brilliant Massey lectures, ‘The Truth about Stories’, that listening is always a better path to understanding.
In Genesis, we begin with a perfect world, but after the Fall, while we gain knowledge, we lose the harmony and safety of the garden and are forced into a chaotic world of harsh landscapes and dangerous shadows.
In our Native story, we begin with water and mud, and, through the good offices of Charm, her twins, and the animals, move by degrees and adjustments from a formless, featureless world to a world that is rich in its diversity, a world that is complex and complete.
Finally, in Genesis, the post-garden world we inherit is decidedly martial in nature, a world at war-God vs. the Devil, humans vs. the elements. Or to put things into corporate parlance, competitive. In our Native story, the world is at peace, and the pivotal concern is not with the ascendancy of good over evil but with the issue of balance.
So here are our choices: a world in which creation is a solitary, individual act or a world in which creation is a shared activity; a world that begins in harmony and slides toward chaos or a world that begins in chaos and moves toward harmony; a world marked by competition or a world determined by co-operation.
And there’s the problem.