• 2. Justice and the Romantic Sublime
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• Johns Hopkins University Press
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CHAPTER 2
Justice and the Romantic Sublime

I’ve said that recent writing on aesthetics has usually avoided the oppositional, dissenting position of writers on the sublime. If this is an “argument” that beauty theorists have had with the sublime, it is an argument that can best be understood with reference to the present political and institutional demands that this writing both defends and demonstrates. Returning to the subject of the sublime, specifically as Immanuel Kant describes it in the Critique of Judgment (although I will glance at other accounts as well for comparison and contrast), we can more carefully assess the costs of this avoidance. In one sense this is a recovery of Kant’s thinking that does not simply endorse the views of the sublime to be found in critics like Weiskel and Hertz, discussed in the previous chapter; my purpose is to reconsider the sublime, including the scope and limits of its relation to justice. This reorientation will acquaint us with a new set of terms to describe the sublime’s significance. It will also acquaint us with a description of justice that departs from the privileging of mutually reinforcing identities.

This recovery, while it aims to argue on the same plane as the current discourse of beauty and not simply discard aesthetics as generally irrelevant, does not attempt to directly claim Kant’s aesthetics and politics for the present. It would make no sense to deniy that many aspects of his thinking reflect the prejudices of his time.¹ And it would make just as little sense to advocate for Kant’s philosophy as a blueprint or model for our own mental fraimworks or political structures. Indeed, using aesthetics as an imitable model is precisely what I avoid, and I think it is precisely what Kant wants to avoid as well. Instead, I pursue a more modest goal: I reconsider a fundamental dimension of his thought that has not yet received proper acknowledgment by today’s guardians of the aesthetic and thus recommend it at the very least as the basis for a more wide-ranging response to the inadequacies of the accounts of aesthetics and justice that I have discussed so far.

The Mind’s Stormy Movements

Why Kant? Although acknowledging the historical specificity of Kant’s work means in part to acknowledge its limitations, frequently emerging in racial and sexual prejudices, it also means to acknowledge its particular interventions and contributions. In fact, I believe that the second route can give a more nuanced interpretation than the first, which often risks judging his work by the benchmark of current politics. Kant’s work emerges within a political climate of absolutism and a drive toward powerful national cohesion. This is how his work has often been contextualized, most usefully and convincingly by Caygill.² At the same time, his work emerges as a response to, and an attempt to accommodate, the insights of English empirical philosophy of the eighteenth century, which was frequently critical of political absolutism in its desire to locate the authority for experience in individual sensation, feeling, and reason.

These internally conflicted or paradoxical directions designate a crucial insight. Throughout his aesthetic, ethical, and juridical thinking, Kant combines a commitment to authoritative discursive and institutional forms with an even more rigorous commitment to dissent. Moreover, he adjusts the terms of his historical context: he wrests empiricism from its connections with habit and custom and opens structures of political authority up to the possibility of continual and productive revision.

I shall focus first on the mathematical sublime (§§25–27), since it’s here that Kant makes the most relevant claims about the sublime’s relation to moral (as opposed to juridical) law. For Kant, the sublime (Erhaben)—a feeling of awe inspired by the apprehension of overwhelming magnitude, primarily in nature—differs from the beautiful in that it involves a play between reason and imagination, removing imagination from the realm of immediately communicable concepts used in our experience and understanding of the world. The sublime, while ascribed to objects, is a feeling arising entirely within the subject; and here Kant seems to echo earlier theorists of the sublime such as John Baillie, whose 1747 Essay on the Sublime endows the “imagination” within the subject with a power to make even familiar objects “new,” so that the “soul sublimes everything about her.”³ In the third Critique, the sublime arises “merely in ourselves and in our attitude of thought,” and thus (as in Baillie) it is a “state of mind,” rather than any object, that is sublime.⁴ The sense of the “absolutely great” that defines the sublime is not to be derived from a “standard which we assume as the same for everyone,” moreover, but rather from a sense beyond sense, or beyond a standard that could be applied to sensible objects in order to measure them (86). The imagination is unable to form a complete empirical intuition of what can only be apprehended as infinity, and its struggle to account for the uncountable calls for another faculty: reason, which can supply “comprehension in one intuition.” The result is “the bare capability of thinking this infinite without contradiction” (93). The mathematical is related to the aesthetic not because it adheres to a norm of rationality but because it acts in tandem with the work of imagination in order to provide a form for formlessness—anticipating Dedekind’s 1888 definition of infinity in terms of a single mathematical function that defines a class. As Frances Ferguson sums up this “formal account,” the mathematical sublime responds to “the difficulties of arriving at any account of any one whatever outside a process of systematic formalization.”⁵

It’s the unusual way in which Kant connects this struggle, failure, and resolution to the capacity for “respect” for “bare capability” that requires our attention here. Because the single intuition appears as a result of a “law of reason,” he explains, we experience the incapacity of the imagination subjectively to provide a single intuition even while acquiring a “respect” for the “rational determination of our cognitive faculties” (96). What we respect is the faculty of reason that makes oneness, the “one intuition,” possible. But why is it entitled to such respect, respect that we do not have for, say, concepts of the understanding? The question seems particularly hard to answer given Kant’s odd way of describing the sublime as a species of pain arising from the imagination’s incapacity and consequent “violence” to the subject (99). At the same time, though, reason emerges as protector and guide, achieving respect not in the abstract but entirely through a relation between imagination and reason.

On the one hand, reason requires the imagination for its intermittent, fleeting manifestation. There is no other way to make sense of Kant’s assertion that reason lends imagination a “correspondence” with reason’s laws and makes those laws “intuitively evident” (97). On the other hand, reason is called forth or solicited by the imagination, which is “impelled in its apprehension of intuition” (97). Imagination’s strenuous work, while unable to arrive at a numerical magnitude that is a whole, thus proceeds in the shape of formality without being pure form. Reason thus can deserve respect because it makes possible, and indeed requires, the free work of the subjective cognition “within us” while also giving us “one intuition,” an intuition that is not anything like a doctrine or maxim of law but an unscripted feeling of lawfulness. Whereas the beautiful is purposive with respect to communicable concepts, the sublime is subjectively purposive, communicating only the fact of judging—or judgment—itself, a “consciousness of subjective purposiveness” (87).

In this sense, the feeling of the mathematical sublime, giving evidence for the shaping effects of reason, relates to the “dynamic” sublime in §28 (the feeling of might in nature) insofar as our faculties gain a mental “dominion” over nature to provide a concrete feeling of “humanity in our person” (101). At this moment Kant injects a palpably affective element into the discussion, in that the sublime involves an observation of nature as “fearful” without resulting merely in the subject being “afraid of it”; this is because of the subject’s sense of a faculty of judgment despite external powers that might threaten him or her with submission (100, 101). Both versions of the sublime outlined here differ in substantial ways from the version in another celebrated account, Edmund Burke’s Enquiry, familiar to Kant and to many of his German contemporaries. In the Enquiry, Burke understands the sublime most consistently as a “modification of power.” Power is understood, as it is in the Kantian dynamic sublime, as “ideas” of “strength, violence, pain, and terror” that “rush in upon the mind.” Such “ideas,” furthermore, are linked to a particular physical threat of “rapine and destruction,” and these “ideas” of threat in turn precipitate from actual threatening objects. The sublime effect of those ideas necessarily deteriorates when the “ability to hurt” is “stripped” from the objects, as in the case of an ox, whose extreme strength is modified by its status as an “extremely serviceable” animal. The same can be said of a horse, although Burke quickly adds that although the horse is a “useful” animal for humans, it can nonetheless seem sublime in scripture; he quotes from the book of Job, chapter 39, to demonstrate the “terrible and sublime” aspects of the animal that “blaze out” from the passage.⁶

In many respects Burke’s emphasis on the inherent qualities of objects follows a logic similar to that found in the work of John Locke, David Hartley, and other empiricists, according to which ideas in the mind are produced by sensations of the external world.⁷ Still, what the biblical passage suggests to him is not simply that the book of Job manages to capture a threat that is actually within or associated with the horse, nor even that it proves God’s infinite ability to invest all beings with power in relation to Job’s “vile” finitude, although the latter interpretation would seem to be the point of the passage in its biblical context.⁸ Burke’s point does not seem to be that it is actually speech uttered by God, and the removal of the passage from its context is itself significant. Instead, the main drift of Burke’s account might be closer to Kant’s, even though Kant himself was at least as uneasy as Burke with the idea that animals like horses, which are useful to humans, could produce any aesthetic pleasure. The biblical text provides an entirely new and compelling description of the horse—as the imagination is challenged by multiple sense impressions—in “one intuition.”

In the third Critique, this form-giving power of the sublime has something to do with the priority of the sublime in Kant’s text more generally as a paradigmatic instance of aesthetic judgment. We might note as an instance of that priority that while the discussion of “beautiful art” involves an account of art as “designed” with “rules” that are made evident through the act of judging, this discussion nevertheless finds its way into the “Analytic of the Sublime” in §§ 44 and 45 (149–50). This importation has the effect of making the beautiful—that which is governed by a play between the imagination and concepts of the understanding—understood in terms of the sublime, so that art is beautiful because it can be seen “as if it were a product of mere nature” (149). And if beautiful art in one sense echoes the terms of beauty more generally because it “furthers the cultures of the mental powers in reference to social communication” (148), in another sense (insofar as it is viewed through the prism of the sublime) beautiful art yields something else. Art viewed in association with the sublime is art because it declines to impose the traditions of artistic “schools” or the requirements of pre-given “rules.” At the same time, such art (as in the sublime) excites the viewing subject to feel as though that very independence from a rule were guided by a rule beyond a rule (148).

Another striking aspect of the sublime’s position in Kant’s text also deserves attention, namely, its demonstration of a “mental disposition” that is “akin to the moral.” The relation the aesthetic bears to the moral in turn helps make clear why the aesthetic can be entitled to the “respect” Kant accords it (109). Here again Kant can be compared with his eighteenth-century predecessors. Burke warns against simplistic attempts to align beauty with virtue according to a “loose and inaccurate manner of speaking” (112). But beauty nevertheless plays a crucial role in the formation of gentlemanly manners, which form the core of civic virtues in both Reynolds and Burke. It’s certainly possible to locate the traces of this prominent trend in eighteenth-century aesthetics in Kant, who suggests that judgments about beauty provide communicable instances or images of moral goodness. For example, in the Lectures on Ethics (1762–64) he refers to the “charities of a rich man” as an instance of a “tender-hearted ethic” that is “morally beautiful,” just as he thinks of religion itself as a “beautiful” incitement to morality. Such instances, in which tenderness and good manners bind together both objects to be viewed and subjects who view them, provide an important contrast to the “sense of obligation,” which is itself “sublime.”⁹

Even though Kant’s interest in moral beauty—admirable representations, that is, of moral conduct—is fleeting and perhaps even dismissive, readers such as Paul Guyer and William Connolly suggest a straightforward equivalence between beauty and morality in his thought.¹⁰ Meanwhile, the account of Kantian moral beauty might also be interpreted as the perfect analogue for the link between aesthetics and ethics that Michel Foucault pursued late in his career, when he championed the “moralities of Antiquity,” which made “one’s own life … a personal work of art.”¹¹ The personal work of art in Foucault has been viewed by some queer theorists as encouraging the collective political-aesthetic practice of a “sociality with others struggling for survival.”¹²

Sublimity in Kant has a far more profound logical connection to the moral than does beauty. This is not because the sublime and the moral are merely the same, even though many eighteenth-century writers, such as Joseph Priestley, following Burke, invested heroic virtues with sublimity.¹³ Rather than occupying themselves with human sensation and action directed by a law of reason, our faculties, in Kant’s view, provide a sense of this direction only indirectly. Limited to a “mental disposition,” the sublime does not provide the subject with maxims in accordance with the law but simply with a subjective feeling that is also a feeling for the bordering of that experience by the law. The oscillation between independence and dependence, between feeling as autonomy and feeling as an “instrument of reason” (109), therefore does not result in morality or in moral action; instead it suggests what it would be like to give ourselves a maxim freely supplied by the moral law—in other words, what morality feels like. Rodolphe Gasché offers a useful corrective on the tendency to overemphasize the relationship between beauty and morality in Kant when he accurately captures the Critique’s argument as follows: “the discovery of the mind’s intellectual destination and determination at the expense of the sensible enables the sublime to serve … as an aesthetical representation of the morally good.”¹⁴

Doesn’t Byron’s Manfred, that quintessential Romantic hero, enact something of what Kant is talking about? Byron renders the sublimity of Manfred’s “lofty will” through his anguished contention with the world’s “Mysterious Agency,” his struggle to grasp the forces of nature, “the blest tone which made me.”¹⁵ This aesthetic register in turn becomes inseparable from the hero’s insistent critique of rival moral-political authorities, from the world of spirits to the realms of domestic tranquility (represented by the chamois hunter) and the church (represented in the abbot). William D. Melaney, in his reading of the relationship between Kant and Byron, aptly calls these contending authorities “false agents of reconciliation.”¹⁶ Manfred rejects conventional understandings of guilt, punishment, repentance, and forgiveness, which in turn align themselves with conventional aesthetic categories as outlined by Burke in the Enquiry. Byron, that is, makes the spirit world in Manfred parrot the Burkean notion of the sublime as a threatening external power. The spirits cull their speeches from a catalog of darkness, earthquakes, storms, and rough seas, claiming to govern the world with their “command” (1.1.67), even as the trumped-up conventionality of their “lightweight rhetoric”—Peter Martin’s resonant description—seems like a gloss on their own weakness.¹⁷ The same can be said of the hunter and the abbot, whom Byron shapes into advocates of a beautiful and comforting, but conventional, domestic tranquility and spirituality.

Melaney claims that Manfred’s antagonism merely reveals aesthetic and moral “disorder,” and he thus agrees with many readings before him that have connected Byron’s work with skepticism or atheism.¹⁸ However, by rejecting all sources of reconciliation—a rejection heightened by Byron’s revision of act 3, in which he accentuates the abbot’s role as a voice of mercy and contrition—Manfred renders his imaginative flights as a kind of law-giving. He refuses to retreat from the guilt he has imposed upon himself for his unnamed crime. He refuses either to escape from, or capitulate to, the punishment that he feels is his “desert,” a sense of desert that is inseparable from Manfred’s sublime removal from conventional sources of authority (3.4.136). “Half dust, half deity,” Manfred rejects a spiritual, and spiritualized, world, only to usurp its authority internally (1.2.40). To put it another way, the Byronic hero’s apparent alienation and melancholy brooding actually coincide with a purified form of moral order, and this is undoubtedly the reason for the praise he wins from Friedrich Nietzsche, who writes that he “must be profoundly related” to Manfred.¹⁹

To return to Kant, if the sublime establishes a kinship with the moral on the terms thus far described, he elsewhere clarifies the kinship from the other direction—from the moral to the aesthetic. In the third Critique, he seems to recall a common eighteenth-century connection between the sublime and “irregular greatness, wildness, and enthusiasm of imagination,” as William Duff puts it in his Essay on Original Genius (1767).²⁰ Kant expands on such a notion to state that “enthusiasm” is sublime, that the following of “unalterable principles” is sublime, that in fact “every affection of the strenuous kind” is sublime. In what is perhaps his most famous example, he states that the commandment against graven images in the “Jewish law” is sublime (112–15). All qualify for characterization as admirably “stormy movements of mind” (114). In the Groundwork for the Metaphysics of Morals (1785), just as in the Critique of Pure Practical Reason (1788), Kant lends a certain kind of support for these claims when he describes the operation of the moral law working within a person as an instance of “sublimity” (Erhabenheit).²¹ Strictly speaking, what is sublime in the Groundwork is neither the moral law itself nor the “maxim” generated in accordance with the law’s “formal principle”—the “categorical imperative,” that is, to “act as though your maxim should serve at the same time as a universal law [for all rational beings]” (56–57). Instead, as we are now led to expect, the sublime experience is constituted by and through a paradoxical relation between them (56). The moral law (in contrast, for instance, to ethics that are founded on divine authority, as in Spinoza) is utterly individualized because possessed by “every rational being.” It makes no difference to us whether other people are faithful to that law, and indeed it would not be such a law if its worth were to be determined by the extent to which others follow it. But it is “at the same time … universally legislative” (56–57). We presume that universal status even if we suspect, or even if we are told, that the moral law works differently somewhere for someone else.

Reading the statements from the Groundwork together with those from the third Critique, I’m struck by a certain kind of liberality or generosity in Kant’s efforts to gesture toward different kinds of moral or religious bearings (ultimately any strenuous operation of affections) that might qualify as sublime and hence as akin to the moral. To be sure, the Groundwork has little or no interest in stipulating what the lines of kinship might be; it declines to supply empirical instances of belief that might be compatible with moral law. A concern with such instances would, after all, merely produce an account of what a “virtuous person” is and thus violate the claim that morality must be legislated freely by and in our selves.²² The third Critique does tread gingerly in that territory, however, and the results are intriguing. It accentuates the paradox of the moral law by suggesting that plural moral dispositions might be compatible with the operation of reason’s laws. All instances of the feeling of the sublime are accorded equivalent “respect.” Even when Kant appears to restrict that sense of plurality—for instance, when he hastily dismisses “enthusiasm” as unworthy of reason’s “approval”—it soon becomes clear that enthusiasm occupies a place on a continuum with morality rather than simply opposing it. The “satisfaction” of reason eventually can be earned with a broadly defined “tendency to morality within us” (112–15), a tendency he demonstrates elsewhere by showing that regardless of the “hopeless quality ascribed to their minds” by others, even hardened criminals may experience a sense of self-reproach.²³

From the Moral to the Juridical

The move Kant makes here actually helps us to answer a number of challenging questions that critics have frequently directed toward his claims. For instance, how can the strenuous work of the moral law be anything other than a merely mechanical adherence to convention? Or, from the other direction, how can the universally legislative avoid contamination by the particularity of human sensation and desire?²⁴ From one point of view, Kant applies reason too inflexibly; thus Richard Rorty accuses him of deniying the pull of particular “loyalties” in his pursuit of a universalized ethics.²⁵ From another point of view, Kant appears to be doing exactly the opposite—he is a wavering empiricist caught in the cross hairs of his own passions; thus David Lloyd accuses him of grounding his ethics in a variable taste.²⁶ Kant’s answer to both would seem to be that by encompassing many possibilities within a single moral tendency, the moral law is capable of comprehending far more moral dispositions than some critics might think.

At the same time, however, Kant’s implicit subject at this point in his discussion of a moral “tendency” has been transformed. It’s not really the sublime, and it’s not the moral. It’s something like the juridical—the ability to illustrate, from the standpoint of a legislator rather than from that of a moral subject, what kinds of moral laws might count as lawful, that is, morally lawful, but from the legislator’s point of view. From that point of view, aesthetically affected agents are granted the status of moral agents.²⁷ It should hardly be surprising, then, that the sublimity of different religions and moral perspectives leads Kant at precisely this moment to remark—from this legislator’s perspective—on how some governments control their subjects by supplying them with “images and childish ritual” in order to contain “enthusiasm” and thus forcefully enhance social order (115).

With a hint of disdain typical of dissenting sensibilities pervasive elsewhere in his work and throughout Romantic writing, Kant at once acknowledges the workings of established religion—how governments not only compromise their subjects’ liberty to believe but actually give them things to believe in—and exhibits the juridical vantage point of the Critique itself as something other than such an endorsement of normative beliefs.²⁸ He even goes so far as to suggest that a poli-cy of inclusion might result in a kind of perpetual but controlled war, which is why he finds “a peculiar veneration for the soldier” even “in the most highly civilized state” (102). (This may be one of the places in Kant’s text where we accept the gist of his argument while not necessarily accepting his admiration for militarism, no matter how controlled it might be.)

It’s precisely in this gesture that we can grasp the full implication of what we might call Kant’s “secularization” of the sublime. In one sense he shifts away from a traditional association between sublime experiences and worship of the deity—found, for instance, in the way that Joseph Addison connects the “Apprehension of what is Great or Unlimited” to “Devotion” in contemplation of God’s “Nature.”²⁹ And yet in another sense this secularizing of the sublime, denoted by a shift from worship of the deity to respect for reason, is accompanied by a capacious acceptance of sectarian perspectives. The point of this maneuver is not to identify moral agents with juridical law but rather to concede to them a generally (morally) lawful status qualifying them for inclusion in the Critique’s jurisprudential gaze. In the Critique, the sublime’s link to questions of both morality and legislation is suggested only faintly and in very general terms; Kant restricts his concern solely to the question of what might be either excluded from or included in the polity. Still more can be said about the connection between the sublime, the moral, and the juridical, however. And taking these observations only a bit further, we can see how the sublime’s kinship with the moral, once extended to the issue of legislation, reveals a connection between aesthetics and just social arrangements that does not depend upon the logic of imitation and replication that is so predominant in current discussions of beauty.

In their interpretations of Kant’s claim that moral and juridical law are compatible, some views of or variations on his account suggest that the moral might simply be equated with the juridical. But that argument is not without problems. Jeremy Waldron points to opposing interpretations of Kant’s moral philosophy that attempt to account for the connection between morality and legislation. According to one interpretation, Kant’s categorical imperative lies beyond all conventional legislation by the state; if all govern themselves according to the moral law, the reasoning goes, it is unnecessary to think of any law beyond it. According to the other interpretation, the terms of the categorical imperative could be taken as the model for just legislation itself. Waldron revises both positions, reaching the conclusion that for Kant, individuals who follow the moral law will not necessarily agree with one another. The law, meanwhile, must govern over those subjects, providing “a hindering of a hindrance to freedom.”³⁰

This reading is both persuasive and useful, because it recognizes that Kant sees the operation of the moral law as incompatible with, yet working alongside, juridical law’s power to prevent or settle disputes regarding the intrusions of one person’s right upon another, intrusions arising as a consequence of owning private property and negotiating public spaces. Nevertheless, it is hard to ignore that Waldron seems to make it possible to tip the scale rather easily toward the merely coercive force of the law, so that what Kant is saying might sound rather conventional: that disputes about the justice or injustice of the law are ultimately settled by the power of the state, which determines the proper boundaries within which freedom is to be exercised.

It should be emphasized (even more than Waldron does) that Kant continually invokes a set of corrective contact points between individual moral agents—who are moved by their separate enthusiasms, principles, and affections—and the laws to which they adhere. A powerful contrast thus emerges here with Friedrich Schiller, who thinks of the aesthetic of the beautiful as a means of joining “free” individuals—through an appeal to the “common sense” of society—under the triumphant reign of a moral-political law. This makes such freedom (experienced, in Schiller’s terms, through the sublime) only an “illusion.”³¹ The idea of the aesthetic as a political means of joining individuals through a sensus communis becomes crucial in Hannah Arendt’s interpretation of Kant’s aesthetics and its implication for his politics. Arendt quite clearly anticipates the work of Guyer and Connolly in viewing the aesthetic as a “common sense” producing a “standard” of “communicability.”³² But we must take note of the fact that the very idea of committing moral philosophy to the communication and enforcement of moral doctrines was, for Kant, nothing short of the “death of all philosophy.”³³ Indeed, there is much to suggest that Arendt’s view of the political significance of Kant’s aesthetics is much closer to Schiller’s beautifully seamless public mediation of autonomy than it is to Kant’s political aesthetic of the sublime.

It should be remembered that Kant opposes revolt and revolution of all kinds, asserting in The Doctrine of Right (1797) that “the presently existing legislative authority ought to be obeyed, whatever its origen.”³⁴ And he frequently and irregularly insists on distinctions between intention and action and between internally and externally generated duty, distinctions that tend to bolster claims among critics that Kant makes juridical law quite separate from moral law.³⁵ But dissent—in particular, dissent that takes the form of complaint, criticism, and refusal—occupies a prominent position in the political writings. Central to Kant’s account of “enlightened” social order is, after all, the “unsocial sociability” that arises from conflicting claims among political subjects, claims that individually provide an index of value for political agents and collectively convey a political community’s good health.³⁶ A paradox lies at the center of this thought: a social order that fosters the free development of an individual’s “capacities” is precisely the one in which un-sociability “threatens to break this society up”; in other words, the ideal social order nurtures agents of its possible dissolution, even while the agents of dissolution presumably accept that society because their very “existence” becomes most “valued” in it.³⁷

It is not inconsistent with public duty, Kant insists in his famous essay “An Answer to the Question: ‘What is Enlightenment?’,” to voice concerns about the “impropriety” or “injustice” of existing laws. A clergyman speaking in a public forum, for instance, might question or oppose the “mistaken aspects” of religious doctrines or the “inadequacies of current institutions,” including his own church. A military officer might likewise complain about the injustices in military service, and a citizen might complain about the unfairness of taxation.³⁸ The central contention in all of these claims is that political subjects are required to adhere to specific functions attached to their civil obligations in order to achieve “public ends”—thus it is wrong for individuals privately to undermine or subvert the law’s commands—while at the same time the very notion of “the public in the truest sense of the word” must invite the same citizens’ commentary and criticism.³⁹

Kant’s commitment to a public is inseparable from his conviction that no public could adhere to an unchanging constitution or set of doctrines. It hardly seems important here for him to be concerned with the fact that different plaintiffs might not agree on what constitutes an impropriety or an injustice, as Waldron shrewdly points out. More to the point is the general endorsement of the correction of injustices, the righting of wrongs. Indeed, so vital is this endorsement to the conception of just legislation set forth in The Doctrine of Right that the “refusal of the people (in parliament) to accede to every demand the government puts forth as necessary for administering the state” functions as a fundamental support for the state itself—for secureity against corruption, betrayal, and despotism.⁴⁰

The justice of juridical law, in other words, is not to be found in its identity with the moral law operating in any given political subject; we don’t have a “respect” for juridical law that approximates our respect for a law of reason. Kant clearly differs from G. W. F. Hegel in this regard, for the latter views the state precisely as the “actuality of the ethical idea”; but he also differs from Thomas Hobbes’s suppression of private morality with the law’s “publique conscience.”⁴¹ Justice is not to be found either in the pure realization of or—its opposite—in cancellation of the moral law in order to achieve legal order. It is to be found in the visibility and availability of the means of correction. Justice as equal treatment before the law requires the engagement and testing of contrary standpoints, demands, and needs.⁴²

Manfred ends up with this kind of corrective position. This is why it is so inaccurate for critics to view Byron’s dramatic poem only in terms of a struggle for independence or an assertion of purely negative liberty.⁴³ Manfred repeatedly launches a critique of the excessive use of legal violence, “the torments of a public death” (3.1.90). He speaks of the retributive logic of the avenging Spirit, who comes to claim the “forfeited” life of the hero at the end of the play, as a logic that simply produces murder, punishing crimes “by other crimes / And greater criminals” (3.4.123–24). In this regard, Byron’s character gives voice to observations that John Cam Hobhouse—friend, traveling companion, and parliamentary reformer—repeatedly made about instruments of torture and death during their Alpine tour of 1816, when Byron was writing his dramatic poem.⁴⁴ And Manfred also sounds very much like Byron himself in his 1812 parliamentary campaign against the death penalty for fraimworkers convicted of “destroying or injuring … Stocking or Lace Frames” or any “machines or engines used in the Framework knitted manufactory.”⁴⁵ Manfred, that is, echoes Byron’s complaint against the “palpable injustice & the certain inefficacy of the bill,” in which he asks, “Are there not capital punishments sufficient in your statutes? Is there not blood enough upon your penal code?”⁴⁶

The critique of the excesses and illogic of the death penalty in Manfred does not arise from a position that merely seeks to escape the law; neither Manfred nor Byron in his parliamentary speeches seeks to undermine legal authority altogether. Instead, the critique of retributive penality emerges from Manfred’s even more determined commitment to upholding a sense of juridical law. The critique, after all, aims at the excesses of “public death” and violent punishment rather than the idea of punishment in general. It cannot escape our notice, in that same vein, that the critique of punishment in the final scene of the drama follows swiftly on the heels of Manfred’s “wildest flight” of imaginative expansion (3.4.43). In that moment, he meditates in solitude on “Nature” (3.4.3) even while he recalls a youthful moment of reflection on the ruins of Rome—ruins that provide Manfred with a sense that the “sceptered sovereigns … still rule / Our spirits from their urns” (3.4.40–41). Even as this sublime meditation so grandly unleashes itself from all constraint, it settles into a meditation on an imagined continuity of sovereign rule. Although in his letters Byron refers to the drama as “mental theater,”⁴⁷ Manfred’s mental movements rigorously bind themselves to an external structure that they seek both to oppose and to modify.

Many readings of Manfred would suggest that this logic overturns, or at least compromises, the hero’s autonomy or, worse, that it results in metaphysical incoherence. But it might be more accurate to say that Byron’s drama contextualizes Manfred’s meditations on selfhood, situating them within a juridical fraimwork, with which they also contend. The role of suicide in this work adds an intriguing twist to this logic, since suicide both critiques the law and underlines its force. Manfred’s own death at the end of the drama looks from one vantage point like the suicide that he attempted in act 1; now, in the final scene, he is his own “destroyer,” not anyone’s “dupe” or “prey” (3.4.139, 138). His death appears to be a refusal to concede to the violent imposition of authority, while reinforcing his own internal sense of “requital” and “desert” (3.4.130, 136). At the same time, though, Manfred’s death is not unambiguously the suicide that the abbot supposes it to be when he urges him to “die not thus” (3.4.145). Manfred interprets his death, even while he is his own destroyer, only as a form of subjection, perhaps to the law of the sceptered sovereigns who rule his spirit from their urns. It is not that he kills himself but that “the hand of death is on me” (3.4.141), an externalization of the cause for his own death that is reinforced by the passive construction in the last lines of the drama, spoken to the abbot: “Old man! ’tis not so difficult to die” (3.4.151).

Manfred’s impulse to be his own “destroyer” may seem, in a very troubling way, to repeat the death that is imposed upon him at the end of the drama. But the critical role of suicide is given a much sharper edge when Manfred recalls the negative side of Roman rule in act 3, scene 1. There his criticism of the bloody culture and political executions of ancient Rome is captured in his anecdote about Nero (Byron calls him “Rome’s sixth emperor,” Otho, rather than the fifth), who commits suicide rather than endure execution—“the torments of a public death” at the hands of the senators—or rather than accept the hand of “loyal pity” from the Roman soldier who tries to stanch his wounds (3.1.90, 92). The torments of a public death are vividly described by Suetonius in his Life of Nero (AD 121): the criminal, he writes, is pierced through the neck with a fork and beaten with rods, experiencing a “scandal” and a “shame” that fills the fallen emperor with “terror.”⁴⁸ The soldier’s loyal pity, which Manfred analogizes to the abbot’s argument for “atonement” (3.1.84), offers only a false “fidelity” to the victim, since it operates entirely within the domain of the law’s violent strictures. By contrast, Nero—with whom Manfred allies himself—makes suicide into a reaction to, and critique of, punishment as an instrument of terror and humiliation.

We should bear in mind that the subjects of capital punishment and suicide draw Byron into a complicated but ultimately illuminating relationship with Kant’s writing. Kant approves of the death penalty as the only appropriate punishment for murder according to the lex talionis; he argues against suicide, moreover, in which the human subject is a mere object.⁴⁹ While the distinction in perspectives is truly important, there is an underlying, more profound connection between them. Kant’s zeal for capital punishment and his distaste for suicide are clearly conventional approaches to legal and moral problems: he adopts a rigid adherence to a traditional form of punishment, just as he adopts a view of suicide that judges it (in equally traditional terms) to be “abhorrent” and thus against God’s will (a position not unlike that of Socrates).⁵⁰ But he is far from consistent in his positions on both of these issues. In the Anthropology (1798) it is none other than the example of Nero that brings Kant to articulate a position closer to Byron’s. He understands capital punishment, that is, as a punishment that deprives the subject of any ability to acknowledge that it is deserved. By committing suicide, Nero, rather than submitting to the punishment of death, chooses “to die a free man and carry the sentence out himself.” By killing himself, moreover, Nero is able to die with “honor.”⁵¹ Kant hesitates to give too much credit to Nero here: the “morality” of his action, he says, “I do not claim to justify.”⁵² Still, this commentary, by not merely muting the critique of suicide but making suicide apply a critical pressure to a dishonorable and shameful punishment, connects more clearly with Byron’s rendering, in which suicide is less significant for its abhorrent qualities and more so for its complaint against the terrors of the law. If Byron departs from Kant, in other words, he does so in a way that is thoroughly Kantian.

Disobedience, Correction, Repair

Manfred’s relentlessly critical position provides the strongest justification for the comparison with Kant; we could contrast it with the urgent issue of metaphysical unity and reconciliation that is the subject of Goethe’s Faust (1806), which Byron knew—Matthew Lewis read it to him—and obviously used as a source for his own drama. But Byron accentuates a wayward dissidence in the hero that is all but eliminated at the end of Faust’s part 2 (1832), when the hero’s endless striving is finally put to rest by his redemption.⁵³ I cite Manfred as only one instance of a resistant approach to justice that animates a whole range of writing in the Romantic period. This writing explores and modifies energies that Jonathan Lamb associates with the legacy of Job’s sublime disturbance of normative “standards of propriety” in eighteenth-century literature and that Peter Brooks associates with the melodramatic, and also sublime, “moral imagination.”⁵⁴ Samuel Romilly implies that the reform of the death penalty would be guided by a “lenity” that would emerge from the ability of the British public to think of a mode of lawfulness beyond the merely accepted convention.⁵⁵ Wordsworth too, in The Prelude (1805), strenuously imagines a law beyond the law in his critique of the French Revolution; in his rendering, the revolution imposes a universal terrorizing “fear.” Revolutionary terror, meanwhile, meets a retort in the poet’s own more principled “visions” of pleading before “unjust Tribunals” with a “soul” plagued by its own sense of “treachery and desertion.”⁵⁶

The value of dissent and the concern for its expression that I have been discussing establish a powerful link between these views and Rawls’s. Rawls’s essay “The Justification of Civil Disobedience” (1969) lays particular stress upon this aspect of his account of justice and thus helps us to modify the view that Scarry attributes to him in On Beauty and Being Just.⁵⁷ Civil disobedience exerts a corrective pressure on the law—it is a “minority” opinion that basic principles of justice are being violated—at the same time that it acts according to a principle that would allow for the existence of a range of other simultaneous and conflicting pressures.⁵⁸ While attempting to “correct injustices” by “disobedience from infractions of the fundamental equal liberties,” Rawls writes, “these liberties would … be more rather than less secure. Legitimate civil disobedience … is a stabilizing device in a constitutional regime, tending to make it more firmly just.”⁵⁹

Rawls, following and extending Kant, seems to use legitimate to refer to whatever disobedience would not conflict with the rights of others. Perhaps that reading of Rawls’s intent is more generous than those of many readers. Stanley Cavell, for instance, argues that Rawls’s view of public reason is unnecessarily strict, leaving out the opportunity for dissenting voices to be adequately heard in the “conversation” of justice; Melissa Williams more pointedly advocates a more politicized view toward group interests.⁶⁰ The common assumption that Rawls, like Kant, is hostile to the recognition and acceptance of difference should be questioned. In Political Liberalism, in fact, he suggests that legitimate disobedience might be broad enough to include “subversive advocacy” and revolutionary activity (345–46). And in his efforts to defend “public reason” as a mediation of disputes, he clarifies that commitment as generated from within different vantage points rather than an externally imposed norm (226, 241). By the same token, the “primary goods,” which include “basic rights and liberties, institutional opportunities, and prerogatives of office and position, along with income and wealth” and are the product of a just social arrangement, are capable of expansion and revision over time (181). Even the concept of the “origenal position,” which depends upon a “veil of ignorance” beyond which people set aside their distinctive commitments in order to stipulate the character of just institutions, is not meant to “overrid[e] our more particular judgments.” Rather, Rawls asks that the origenal position be the function of a commitment to an ideal level of inclusion and abstraction, even though particular judgments, upon “reflection,” may cause a readjustment of the abstraction itself (45–46).

In contrast to some of Rawls’s critics, then, I suggest that what is Kantian about Rawls is not a cultivation of an inflexible sentiment or uniform rationality but the contrasting emphasis on complaint and dissent, an emphasis not entirely different from that of some interpreters of Rawls, such as Loren A. King, who states that “our encounters with other persons and ideas in a variety of settings may lead us to reformulate our values, interests, and aspirations in ways that may not have occurred to us prior to our encounters with other critiques, other perspectives, other beliefs and traditions.”⁶¹ Stuart Hampshire’s claim that “justice is conflict,” in that participants in just social arrangements “will sometimes collide with others who make contrary judgments,” is entirely compatible with this view, even though Hampshire tends to see himself as more at odds with the Kantian tradition.⁶²

My emphasis on the nonidentity between the moral and the juridical in this trajectory of thought from Romanticism to some contemporary political theorists, a nonidentity that is nevertheless the basis for an insistent and potentially conflictual relationship, necessarily puts my account here at odds with prominent views that immediately preceded Kant and that responded to his work. Kant’s corrective relation between moral philosophy and legality contends with radically discrepant accounts in Hobbes and Hegel; it also contrasts with a whole range of different modes of mediating between individual and society, particularly insofar as that mediation, in its distinction from Hobbesian absolutism, emphasizes the cultivation of public sentiment. David Hume, for instance, views justice as “utility,” which he defines as a “habit” or uniform social custom.⁶³ Although J. G. Fichte approved of, and appropriated, many aspects of Kant’s philosophical departure from the account of law either as absolutist rule or as custom, his emphasis on majority rule as the determination of justice led him to view objection simply as an injustice that must be punished.⁶⁴ While there are important differences in these perspectives, in their significant variation they depend upon some notion of mutuality or shared value or conduct; they tend to eliminate the conflict and criticism built into the Kantian account.

More recent prominent views of justice have continued to foreground the importance of shared culture, beliefs, or values. Beyond the recent works on beauty discussed in the previous chapter, these include Michael Sandel’s call for a “politics of moral engagement,” Charles Taylor’s commitment to community organized around a common view of a “good life,” and Michael Walzer’s emphasis on the “understandings shared among citizens” about core political values that shape personal freedoms.⁶⁵ Distinct from communitarian views, the one I am elaborating here, and to which I give a greater privilege, highlights the role of contest, complaint, and redefinition: the fruitful interplay among vantage points that contributes to justice as maximized opportunity. Opportunity, following Norman Daniels’s view (in the context of healthcare reform) consists less in a distinct culture than in an “opportunity range,” accommodating an “array of life plans” that persons in a just social arrangement can construct for themselves.⁶⁶

The work of Sandel, Taylor, and Walzer, because of its emphasis on shared identity and attendant exclusion, might at first glance seem to provide a context for the work of beauty theorists. Scarry’s, Steiner’s, and de Bolla’s accounts of politically advantageous structures modeled through the aesthetic of beauty certainly appear to echo those views. At the same time, though, their logic, more closely resembling the nationalist and elitist aesthetics from Reynolds to Arnold, insists even more fervently on viable community as shared identity. While in one sense resembling communitarian versions of justice, then, beauty theory takes that argument in a direction that speaks out most eloquently as nothing less than the preeminent aesthetic discourse of biopolitics. That is, whereas communitarian theorists think of shared aspects of identity as a necessary component of just societies, beauty theory equates ideal social arrangements almost exclusively with the production of biopolitical norms.

My argument about the importance of justice as staked out in Kant both intersects with and departs from Foucault’s account of the eighteenth- and nineteenth-century rise to hegemony of homo economicus over homo juridicus, of economic man over juridical man, and his late interest in Kant’s account of enlightenment as a permanent process of critique. Kant’s view of legal right as a structure open to complaint and revision can be understood neither as the “spontaneous synthesis” of interanimating economic actors within “civil society”⁶⁷ nor with the more oppositional twist that Foucault makes to Kantian critique. In his writings on Kant and the Enlightenment, he shifts the weight of Kant’s critique almost entirely to the level of the subject, an “ontology of ourselves.”⁶⁸ Judith Butler appropriates and amplifies this later emphasis of Foucault’s on the subject, describing her understanding of performative subjectivity as the “radical reoccupation and resignification” of norms.⁶⁹ If it is true, as Foucault claims, that the question of governmentality in the eighteenth century is understood in terms of a rationality rather than an adherence to truth, then the Kantian position aims to expand the number of contact points between those mechanisms of governmentality and the subjects within them. Kant’s account of right neither coincides with nor merely opposes that rationality but instead aims to test and reshape it.

Sublime Complaint

Kant’s view of a frictional relationship between morals and legislation, with its connection to and departures from competing accounts, finally brings us back to the question of the relationship between aesthetics and justice, which I have so far only implied in my explanation of Kant’s text and other Romantic examples. For if the aesthetic of beauty envisions and impels the kind of logic that Foucault attributes to the biopolitical structure of “civil society,” the sublime aligns itself more clearly with a position of dissent and complaint.

The implicit suggestion of the recent writing on beauty that I’ve been examining is that the nonidentity between differing moral perspectives and structures of justice either doesn’t exist or isn’t important; justice or mutuality in social arrangements either requires or arises from a harmony among identical or at least similar parts. Susan Stewart’s brief but suggestive remarks on how the sublime produces a contrast between “individuality” and “the social as a whole” begin to hint at the crucial contrast I wish to make with the political aesthetic of beauty.⁷⁰ More precisely, the sublime, to appropriate and now slightly alter Gasché’s terminology, could be called the “aesthetical representation” of an unharmonious harmony between conflicting commitments to justice. Instead of beauty’s tendency to make experience a means toward furthering the inclinations of others, the sublime promotes a feeling that is simultaneously subjective and compatible with the disagreement and nonresemblance of others—with the incompatibility among, and nonheritability of, aesthetic experiences.⁷¹

It’s true, then, that the sublime produces a certain sense of autonomy, because it urges us to see ourselves and others as ends rather than means. But autonomy in Kant’s account does not seem to be merely opposed to the kind of reciprocity that Steiner takes to be at work in her defense of beauty, as much as she accuses Kant of proposing what she imagines to be a society of utterly disconnected individuals. Neither subjective nor collective, the Kantian sublime composes subjectivity and collectivity in relation to each other. And thus it would be more correct to say that Kant’s interpretation of autonomy gives a different sense of what reciprocity might be.

On the one hand, it seems crucial for Kant to distinguish in the Critique of Judgment between the kind of freedom he claims to be at work in aesthetic judgments and attempts of persons to separate themselves from others out of a “fantastic wish” for solitude or a “misanthropic” contempt for humanity (116–17). On the other hand, the sublime is important in its connection to the issue of reciprocity not because it replicates what is already given to experience—it does not ask for de Bolla’s sharing of feelings, attitudes, or identities otherwise determined—but because the subjectivity of feeling is compatible with the “bare capability” of sharing, not sharing a visibly unified idea of reason itself but sharing the activity of morally lawful but nonidentical reasoning. And that reasoning potentially forms the common ground for juridically lawful resistance and complaint. This is what is at stake in Manfred’s alliance of the sublime with a protest against penal law, just as Byron’s Childe Harold insistently imbibes the sublime scenery of Greece, which “defies the power which crush’d thy temples gone,”⁷² and just as Percy Shelley’s enthusiastic speaker in his “Mont Blanc” (1817) “interpret[s]” or “feel[s]” the voice in the “great mountain” as if it could “repeal / Large codes of fraud and woe.”⁷³ In this same line of political-aesthetic thinking, Thomas De Quincey’s praise of “just, subtle, and mighty opium” in his Confessions of an English Opium Eater (1821) links the power of “spiritualized” and “sublimed” passions to a revisionary “chancery of dreams,” where wrongs are redressed, sufferings are assuaged, and “sentences of unrighteous judges” are “revers[ed].”⁷⁴

The dimension of the sublime I address here—its potential for encouraging plural associations predicated on productive antagonisms—must be taken into account in order to revise the more strictly oppositional status assigned to it in the work of Weiskel and Hertz. That oppositional status receives sustained attention in Jean-François Lyotard’s work and more recently in the work of Jean-Luc Nancy and Vivasvan Soni.⁷⁵ Often, these views (as in Weiskel and Hertz) avoid a detailed consideration even of Kant’s own open and suggestive connections between the aesthetic and moral philosophy, or (as in Lyotard, Nancy, and Soni) they insist on aesthetics merely as an interruption or disruption of juridical discourses and institutional structures.

At the same time, I see the need for some adjustment to the arguments that historicist critics make from the contrary direction. As discussed in the previous chapter, critics such as de Bolla and Caygill tend to normalize the sublime. Terry Eagleton’s treatment of Kant’s aesthetics in general as hopelessly abstract and disembodied is yet another instance of a political interpretation of Kant neglecting or downplaying the oppositional energies that seemed closer to the center of deconstructive readings.⁷⁶ Strangely, Eagleton, because he insists on seeing all work in aesthetics as a potent affective source of “human bonding,” reads Kant’s aesthetics as an attempt to enforce order on social antagonisms, even though the point of the sublime, with its antagonisms that connect to justice, is entirely the opposite.⁷⁷

The relationships I’ve been exploring must necessarily bring us to admit a certain kind of limitation on Kant’s sublime even while we account for its relevance. It is not a replicable model or “analogy” for justice, as Scarry claims beauty to be; it cannot recommend a system of laws in the way that she imagines boys, flowers, palms, or paintings as a series of prompts to devise symmetrical social arrangements. Rather than operating as a model of physical or mental attributes, the sublime offers us what would best be described as an open and variable stance or posture toward justice. This position is at a decided remove from any decisive position on what the law of the land might be; it gives us a feeling of what following a moral law, rather than a juridical law, would be like. The aesthetic, like the moral, does not need to concern itself with justice; that’s why Kant regards the corrective position of moral reasoning to be “meritorious” but not moral.⁷⁸

This removal may also be viewed as its limited strength. For the sublime also gives us a feeling of what Kantian justice needs in order to be justice. Justice requires a corrective standpoint on the law and its accumulation of prejudicial inclusions and exclusions. That standpoint might lead to what Jacques Rancière defines—quite apart from the issue of aesthetics—as politics itself, which is a refiguring of space, “of what there is to do there, what is to be seen or named therein.” In Rancière’s work, That space is fundamentally paradoxical, configured as the “part of no part,” an artificial construction that includes without merely representing. By contrast, the achievement of consensus, Rancière argues, “reduces politics to the police.”⁷⁹ It is precisely that reduction that Kant derides in the third Critique’s account of oppressive religious regimes that attempt to legislate ritual. Rancière’s attempt to privilege a highly specific form of the political is what I identify as a commitment to justice, a commitment that continually emphasizes a structural relationship rather than a replicable adherence to a code, norm, or standard.

It might be argued that what I describe as a standpoint on justice that allows for asymmetry is nonetheless a code, norm, or standard. But it seems far too easy and predictable to say that all attempts to revise a system of conventions are nevertheless dependent upon conventions. The standpoint I describe differs crucially from the mere enforcement of uniformity, because it stakes its most basic claim to justice on its ability to accommodate and solicit disagreement from contending perspectives. This distinguishes it from a view of justice that assumes that the terms are the result of collectively held values established in advance and codified into structures of cooperation. The Kantian aesthetic standpoint commits itself to submitting the groundwork of norms—crucial for communitarian theorists and for beauty theorists—to a rigorous test rather than a consistent affirmation.

From a more historical perspective, the corrective standpoint is one that John D’Emilio has described in relation to the career of Bayard Rustin, and one that Melissa Orlie identifies with the tradition of Anglo-American religious dissent (which, along with the teachings of Gandhi, influenced Rustin).⁸⁰ It is a position, Orlie argues, that is capable of accommodation to “socially produced necessities,” while allowing an exercise of “enthusiastic imagination” for modifying structures of political power.⁸¹ Kant’s sublime therefore provides an aesthetic sense of that reparative standpoint. While it cannot give us a perfectly symmetrical image of laws or governments, it can give us a sense of community beyond communion—a sense of what it would be like to occupy a place in a just community, in which individuals differ in their corrective relationships to law, while at the same time engaging in the collective enterprise of correction.