Proximity – The Law of Ethics and the Ethics of Law

Abstract

Emmanuel Levinas is one of the great writers on ethics of the 20th Century, but he is little known in law. His two main works, Totality and Infinity and Otherwise Than Being, or Beyond Essence, offer a reconstruction of human selfhood away from questions of identity and ego and towards an ‘ethics of the other’. His writing is passionate, mystical, and rational, at times erudite and elsewhere downright obtuse. But as reward for this struggle, Levinas offers a sustained meditation on the relationship of ethics, responsibility and law, and - remarkably - he does so using the language of the duty of care. Here then is a philosopher, largely unknown to legal theory, who at last speaks the language of torts. Central to Levinas’ meditations is an idea of ethics to which I will have recourse. For Levinas, and those who have been influenced by him, the word ethics implies a personal responsibility to another that is both involuntary and singular. The demand of ethics comes from the intimacy of an experienced encounter, and its contours cannot therefore be codified or predicted in advance. At least as opposed to the Kantian paradigm of morality as ‘a system of rules,’ ethics therefore speaks about inter-personal relationships and not about abstract principles. At least as opposed to most understandings of law, ethics insists on the necessity of our response to others, and the unique predicament of each such response, rather than attempting to reduce such responses to standard instances and norms of general application applicable to whole communities and capable of being settled in advance. Indeed, ethics constantly destabilizes and ruptures those rules and that settlement. Furthermore, ethics implies an unavoidable responsibility to another which Levinas exhorts as ‘first philosophy’: by this he means to indicate that without some such initial hospitality or openness to the vulnerability of another human being, neither language nor society nor law could ever have got going. At least as opposed to many understandings of justice, there is nothing logical or a priori inevitable about such an openness; except that without it, we would not be here to talk to one another. We cannot derive this ethics from rational first principles. Ethics is that first principle.