The Echo of a Sentimental Jurisprudence

IAN WARD

THE ECHO OF A SENTIMENTAL JURISPRUDENCE

ABSTRACT. This article revisits what the poet Samuel Taylor Coleridge termed the‘rage of metaphysics’, the grand intellectual engagement that defined the late eighteenthand early nineteenth century Enlightenment. It does so in order to retrieve an alternativejurisprudence, one that described itself as much in terms of sentiment as of sense. It issuggested that one of the most striking expressions of this jurisprudence can be found inAdam Smith’s Theory of Moral Sentiments. This attempt to retrieve a sentimental jurispru-dence chimes with a wider intellectual movement, headed by the likes of Richard Rorty andMartha Nussbaum, which seeks to reinvest a ‘new’ humanism in both domestic and trans-national legal and political order. It speaks more particularly to recent debates surroundingthe nature of human and civil rights, and enjoys an added resonance in the context of recentattempts to fashion a jurisprudence of ‘reconciliation’ in South Africa and elsewhere.

KEY WORDS: Adam Smith, human rights, new humanism, sentimental jurisprudence,Truth and Reconciliation Commission

A WARMER LOVE

In July 1798, William Wordsworth sat on a hill overlooking Tintern Abbey.Later that evening he began drafting one of his most compelling poems,one that is often cited as the pivotal poem in the Lyrical Ballads, certainlythe one that most strikingly evinced his own conversion from politicalideology to a renewed concern with the idea of humanity and compassion.The poem was his Lines Composed a Few Miles Above Tintern Abbey.1

Recalling his earlier flirtation with ideals of the French revolution, withliberty, equality and fraternity, Wordsworth made the collective confessionof a disillusioned generation:

In hours of weariness, sensations sweet,Felt in blood, and felt along the heart;And passing even into my purer mind,With tranquil restoration: – feelings tooOf unremembered pleasure: such, perhaps,As have no slight or trivial influence

1 For a discussion of ‘Tintern Abbey’ and its composition, see K. Johnston, The HiddenWordsworth: Poet, Lover, Rebel, Spy (New York: Norton, 1988), 397–400, 588–591.

Law and Critique 13: 107–125, 2002.© 2002 Kluwer Law International. Printed in the Netherlands.

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On that best portion of a good man’s life,His little nameless, unremembered, actsOf kindness and of love.2

It was here, in the appreciation of a ‘warmer love’, that Wordsworth wouldbe able to hear once again:

The still, sad music of humanity,Nor harsh nor grating, though of ample powerTo chasten and subdue.3

Of course, as the Preface to the Lyrical Ballads affirmed, the abjurationof ideology did not describe a rejection of politics. It merely signaled adetermination to prescribe a different politics, a ‘plainer’ politics indeed.4

As his co-contributor to the Ballads, Samuel Taylor Coleridge, recognised,Wordsworth was ‘great, a true Poet’, a visionary, someone who couldimagine, and restore, a decaying faith in humanity.5

Someone else who felt this way about Wordsworth, but who also feltjust as strongly about Coleridge, was John Stuart Mill. In 1838, Millpublished an essay on Jeremy Bentham in the London and WestminsterReview. Two years later he published a complementary essay on SamuelTaylor Coleridge. According to Mill, they were ‘the two great seminalminds of England in their age’. There was, he further hazarded, ‘hardlyto be found in England an individual of any importance in the world ofmind’, who ‘did not first learn to think from one of these two.’6 But theholistic implication of Mill’s tribute masked a deeper anxiety. For whilstthere was ‘hardly’ a mind that had not learnt from one or the other, therewere very few minds that had been nurtured by both.

This troubled Mill hugely. He feared that political and legal sciencemight become rather too wedded to Benthamism, to the idea that law wasan instrument of utility, a matter of rules, indeed, and rather too detachedfrom the counter-vailing appreciation that justice is as much a matterof compassion and humanity. Thus, whilst he admired the iconoclast inBentham, he feared the ‘interminable classification’ in his jurisprudence,the determination to reduce everything to a ‘science’, the apparent absence

2 In W. Wordsworth, Complete Poetical Works (Oxford: Oxford University Press,1936), ll.27–35.

3 Wordsworth, ibid., ll.91–3.4 Supra n. 2, at 734.5 For a commentary on the respective roles of Wordsworth and Coleridge in

the composition of the Ballads and their Preface, see W. Hazlitt, Selected Writings(Harmondsworth: Penguin, 1982), 62–63.

6 In J. Mill and J. Bentham, eds., Utilitarianism and Other Essays (Harmondsworth:Penguin, 1987), 132.

THE ECHO OF A SENTIMENTAL JURISPRUDENCE 109

of a moral dimension, and the inability to account for ‘moral approbationor disapprobation’.7 Above all there was the ‘incompleteness of his ownmind as a representative of universal human nature’. Mill’s castigation ofthis sorry deficiency was uncompromising:

In many of the most natural and strongest feelings of human nature he had no sympathy;from many of its graver experiences he was altogether cut off; and the faculty by whichone mind understands a mind different from itself, and throws itself into feelings of thatother mind, was denied him by his deficiency of Imagination.8

Bentham, in short, lacked the essential and defining capacity of theemotionally literate, the ‘power by which one human being enters into themind and circumstances of another’.9

The extent of Mill’s venom can perhaps be understood when placed inthe context of his own particular self-doubts. In his Autobiography, Millrecalled the torments caused by his early introduction to Bentham, and thegrowing sense that analytical jurisprudence alone should not be permittedto chart the ‘destiny of mankind in general’. One of the things which mostserved to condemn Bentham was his dislike of poetry. Mill, in contrast,read vast quantities of poetry, particularly Wordsworth and Coleridge, asif in doing so he might be able to imbibe the spirit of humanism, andthereby somehow recreate an intellectual bridge between the dynamics ofutility and the sentiments of the Lyrical Ballads. It was Wordsworth, heacknowledged in his Autobiography, who ‘saved’ him.10

Yet, Mill’s support for the poetic mind was not unalloyed. In hisessay on Coleridge, he readily admitted that the great poet was an ‘arrantdriveller’ when it came to dealing with metaphysics and science. But, incomparison with Bentham, poets such as Coleridge and Wordsworth ‘sawso much farther into the complexities of the human intellect and feelings’,and it was for this reason that they could recognise, in such texts as thePreface to the Lyrical Ballads, and indeed in its constituent poems, theirreducible truth that political communities are cultural and emotional arte-facts, expressions of a ‘strong and active principle of cohesion’.11 In hisearlier essay, an Attack on Literature, Mill had already affirmed that, in thefinal analysis, the ‘progress’ of civilization is at least as dependent on the

7 Ibid., at 139, 152–153, 160–162.8 Ibid., at 148.9 Ibid., at 149, 173.

10 See J. Mill, Autobiography (Harmondsworth: Penguin, 1989), 111–113, 119–122. Fora general discussion of Mill’s relation with poetry, see R. Williams, Culture and Society(Harmondsworth: Penguin, 1963), 67–69.

11 In Mill, supra n. 6, at 178, 193–195.

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‘genius’ of men such as Coleridge and Wordsworth, as it is upon anythingthat science could divine.12

Mill was certainly not alone amongst mid-nineteenth century critics invoicing his particular affinity with the humanist urges of political roman-ticism. Nor was he alone in fearing that this urge has been lost. One of hisclosest intellectual associates, George Eliot, expressed similar anxietiesin a series of essays stridently arguing the case for a reinvested ‘religionof humanity’, one that recognised in the ‘idea of God’ an ‘extension andmultiplication of the effects produced by human sympathy’ and whichtriumphed the ‘love of the good and the beautiful’.13 Eliot was hugelyinfluenced by the German school of ‘Higher’ criticism, by men such asLudwig Feuerbach who, like Mill, desperately sought to align the facultiesof reason and sensibility. According to Feuerbach, ‘Love, which requiresmutuality, is the spring of poetry; and only where man communicates withman, only in speech, a social act, awakes reason’.14

According to Eliot, positive religion and positive law had conspiredto annihilate the natural sentiments of humanity, what she termed in acommentary on the poet Cowper, ‘that genuine love which cherishes thingsin proportion to their nearness, and feels its reverence grow in proportion tothe intimacy of its knowledge’.15 A revived sense of humanity and justicecould only be conveyed through an ‘extension of our sympathies, throughthe ‘picture of human life such as a great artist can give’, and it is thiswhich Eliot endeavoured to do in her own literature, in novels such asScenes from Clerical Life and Adam Bede.16

The later Mill became ever more committed to this idea of a reinvested‘religion of humanity’.17 By the time of his famous essay Utilitari-anism, published in 1861, Mill had recast the entire philosophy of utility,redefining it as irreducibly humanist:

The social state is at once so natural, so necessary, and so habitual to man, that, except insome unusual circumstances or by an effort of voluntary abstraction, he never conceives

12 In E. Alexander, ed., John Stuart Mill: Literary Studies (New York: Bobbs-Merrill,1967), 24–25.

13 In G. Eliot, ed., Selected Essays, Poems and Other Writings (Harmondsworth:Penguin, 1970), 462. For a general discussion of Eliot’s ‘religion of humanity’ and itsrelation to the Higher Critics, see E. Jay, The Religion of the Heart (Oxford: OxfordUniversity Press, 1979), 207–243.

14 Eliot, supra n. 13, at 462.15 Ibid., at 213.16 Ibid., at 110.17 Maurice Cowling suggests that it was the defining intellectual commitment of his life.

See M. Cowling, Mill and Liberalism (Cambridge: Cambridge University Press, 1990),77–93.


himself otherwise than as a member of a body; and this association is riveted more andmore, as mankind are further removed from the state of savage independence.

The interests of the individual and the society within which they livebecomes ‘inseparable’. The ‘collective interest’ becomes paramount:

Not only does all strengthening of social ties, and all healthy growth of society, give toeach individual a stronger personal interest in practically consulting the welfare of others;it also leads him to identify his feelings more and more with their good, or at least with anever greater degree of practical consideration for it. He comes, as though instinctively, tobe conscious of himself as a being who of course pays regard to others. The good of othersbecomes to him a thing naturally and necessarily to be attended to, like any of the physicalconditions of our existence.18

The very possibility of a ‘good society’ is dependent upon nurturing ‘thesmallest germs of the feeling’ which can then be ‘laid hold of and nour-ished by the contagion of sympathy’. In the final analysis the ‘completeweb of corroborative associations’ is ‘woven’ from this ultimately senti-mental jurisprudence.19

A JURISPRUDENCE OF SENTIMENT

Although Mill explicitly drew his inspiration for this sentimental jurispru-dence from the likes of Coleridge and Wordsworth, he was fully aware thatits intellectual genesis could be traced elsewhere, most obviously perhapsto the classical idea of the Aristotelian ‘good society’, to the invocationof political ‘friendship’ in the Nichomachean Ethics. As Aristotle hadaffirmed:

Between friends there is no need for justice, but people who are just still need the qualityof friendship; and indeed friendliness is considered to be justice in the fullest sense.20

Mill paid due obeisance to Aristotle. At the same time, he was equally wellaware of more recent attempts to recast an Aristotelian public philosophy,one that was as much described in terms of sympathy and compassion, asit was law and reason. One of the most influential of attempts to providethe groundwork for such a philosophy was Adam Smith’s Theory of MoralSentiments. As recent scholars of Smith have suggested, a closer look at theTheory reveals a jurist who was deeply committed to received ideas of the‘good society’, who betrayed a fundamental distrust of radical liberal ideasof untrammeled commerce, and who maintained a fixed adherence to the

18 In Mill, supra n. 6, 304.19 In Mill, supra n. 6, 305, 334–338. For a commentary on Mill’s instrumental idea of

justice, see Cowling, supra n. 17, 40–41, 82–83.20 Aristotle, Ethics (Harmondsworth: Penguin, 1976), 258–259.

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inherited humanist notion that the study of human relations is irreduciblyaesthetic.21

But what was Smith’s particular vision of humanity, and how did itunderpin his idea of a ‘general’ jurisprudence? The opening passages ofthe Theory are instructive:

How selfish soever man may be supposed, there are evidently some principles in his nature,which interest him in the fortune of others, and render their happiness necessary to him,though he derives nothing from it except the pleasure of seeing it. Of this kind is pity orcompassion, the emotion which we feel for the misery of others, when we either see it, orare made to conceive it in a lively manner.22

The rest of the Theory is devoted to both explaining, and also applauding,the extent to which a concern for others is not merely a voluntaristiccomplement, but an integral part of a philosophy of self-interest. It isfrom this driving, intensely human, desire to promote self-interest, thata concern for others is derived.

Following Aristotle, and more recently Hutcheson and Hume, forSmith, the ideal humanist remained the ‘prudent’ man, the man of ‘virtue’and ‘duty’ and ‘self-command’, and above all, of ‘balance’.23 Whilst thehero of The Wealth of Nations might be the rational economic actor, thehero of The Theory of Moral Sentiments is one who appreciates the properbalance of sense and sensibility.

Later in the first book, Smith can thus conclude:

And hence it is, that to feel much for others and little for ourselves, that to restrainour selfish, and to indulge our benevolent affections, constitutes the perfection of humannature; and can alone produce among mankind that harmony of sentiments and passionsin which consists their whole grace and propriety. As to love our neighbour as we love

21 See C. Griswold, Adam Smith and the Virtues of Enlightenment (Cambridge:Cambridge University Press, 1999), 19–24; H. Dwyer, “Virtue and Improvement: TheCivic World of Adam Smith”, in P. Jones and A. Skinner, eds., Adam Smith Reviewed,(Edinburgh: Edinburgh University Press, 1992); and K. Haakonssen, The Science of aLegislator: The Natural Jurisprudence of David Hume and Adam Smith (Oxford: OxfordUniversity Press, 1981), particularly 147–151. For a similar thesis, see also P. Werhane,Adam Smith and His Legacy for Modern Capitalism (Oxford: Oxford University Press,1991), particularly 7–17, 177–180. And for a particular discussion of the aesthetic nature ofSmith’s theory, see D. Marshall, “Adam Smith and the Theatricality of Moral Sentiments”,Critical Inquiry 10 (1984), 592–613.

22 A. Smith, The Theory of Moral Sentiments (Oxford: Oxford University Press, 1976),9.

23 For discussions of the ‘prudent’ man and for a more general discussion of Aristoteli-anism and Stoicism, see ibid., 212–217 and 237–239, and 267–272 and 287–297 respec-tively. For a commentary, see Griswold, supra n. 21, 179–184 and also A. Fitzgibbons,Adam Smith’s System of Liberty, Wealth and Virtue: The Moral and Political Foundationsof the Wealth of Nations (Oxford: Oxford University Press, 1995), 16–19, 46–52.


ourselves is the great law of Christianity, so it is the great precept of nature to love ourselvesonly as we love our neighbour, or what comes to the same thing, as our neighbour is capableof loving us.24

An interest in others is, thus, both a ‘precept of nature’ and a virtue. It iswhat defines the character of the ‘prudent’ man. As Smith says later, in thesecond book of the Theory, the ‘man of the most perfect virtue’ is ‘he whojoins, to the most perfect command of his own original and selfish feelings,the most exquisite sensitivity both to the original and sympathetic feelingsof others’.25

This idea of ‘sympathetic feeling’ represents Smith’s most originalcontribution to the inherited philosophy of classical humanism. Of course,it was not entirely original. In his Treatise of Human Nature, David Humehas already noted that

No quality of human nature is more remarkable, both in itself and in its consequences, thanthat propensity we have to sympathize with others, and to receive by communication theirinclinations and sentiments, however different from, or even contrary to our own.26

It was from Hume, that Smith inherited his central belief that jurispru-dence was ‘natural’ or general. In his Enquiry Concerning the Principlesof Morals, Hume had affirmed that the very ‘notion of morals implies somesentiment’ so ‘universal and comprehensive as to extend to all mankind’.27

It was also Hume who suggested that moral judgment is founded onreflective human perception, ultimately upon feelings and ‘sensations’.Indeed it was this that reinforced his assertion that ethics and jurisprudencewere ‘natural’ and general. ‘Men’, Hume suggested in his Treatise, ‘alwaysconsider the sentiments of others in their judgment of themselves’.28 All‘perceptions of the human mind’, Hume famously asserted, are ‘impres-sions’, forms of ‘resembling’. Sympathy, indeed, is ‘nothing but a livelyidea converted into an impression’. In this way human beings acquire a‘strong and lively sense’ of the condition of others, and, by reflection, ofthemselves. And the same, of course, is true of justice. More precisely, ‘tis

24 Supra n. 22, at 25.25 Supra n. 22, at 152. For similar comments, see 152–153.26 D. Hume, A Treatise of Human Nature (Oxford: Oxford University Press, 1978), 316.27 D. Hume, An Enquiry Concerning the Principles of Morals (London: Open Court,

1966), 110–111. For commentary on their common interest in forging an empiricallyfounded natural or general jurisprudence, see Haakonssen, supra n. 21, 36–39; and D.Raphael, “Hume and Adam Smith on Justice and Utility”, Proceedings of the AristotelianSociety 73 (1972/3), 87–89.

28 Supra n. 26, 295–296, 375. For a general discussion of Hume’s influence, see I. Ross,The Life of Adam Smith (Oxford: Oxford University Press), xxi, 161, and for a particularcommentary on their shared belief that actions are motivated by sentiment and passion, seeWerhane, supra n. 21, 25–27.

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only from the selfish and confin’d generosity of men’ that ‘justice derivesits origins’. Justice, in short, is founded on selfish passion. Furthermore,and this is another insight that clearly had a profound effect upon Smith, ‘intreating of the passions’ it is apparent ‘that men are mightily govern’d bythe imagination’. If justice is located in the ‘passions’, it is also describedby the ‘imagination’.29

In the Theory Smith duly affirms that the sensible human being cansympathize with others through the exercise of the ‘imagination’, byapplying their own experience of the same ‘feelings’ in similar, or evendissimilar, contexts to the particular context within which the other issituated.30 Once again, the influence of the ‘exceedingly ingenious’ Humecannot be underestimated.31

The importance of ‘sympathy’ in simple terms, is that it elevates theindividual above mere ‘self-interest’:

The man who, not from frivolous fancy, but from proper motives, has performed a generousaction, when he looks forward to those whom he has served, feels himself to be thenatural object of their love and gratitude, and, by sympathy with them, of the esteem andapprobation of mankind.

And it is the ‘thought’ of this ‘approbation’ which thus fills the mind with‘cheerfulness, serenity, and composure’.32 ‘Humanity’, as Smith affirmselsewhere, ‘does not desire to be great, but to be beloved’.33

In this sense, ‘sympathy’ determines our regard for others. We cravesympathetic treatment, and so we crave sympathetic relations. We need tobe loved, and so we are prepared to love others. In this way we learn tojudge sympathetically, and judiciously. This is the very essence of Smith’srenowned idea of the ‘impartial spectator’. ‘Every faculty in one man’,Smith asserts, ‘is the measure by which he judges of the like faculty inanother’. Accordingly, ‘I judge of your sight by my sight, of your ear bymy ear, of your reason by my reason, of your resentment by my resentment,of your love by my love’. There is no ‘other way of judging’.34

29 Supra n. 26, 1–11, 211–212, 319, 385–386, 495, 534. For similar comments onthe nature of judgment and justice, see Hume’s supra n. 27, 115–116. For a discussionof Smith’s treatment of the imagination, see Marshall, supra n. 21, 594–598, and for adiscussion of its relation with Hume’s comparable ideas, see Haakonssen, supra, n. 21, 8.

30 Supra n. 22, at 75.31 For Smith’s reference to Hume, see his Lectures on Jurisprudence (Oxford: Oxford

University Press, 1978), 507. For a strong and compelling argument aligning the two,suggesting that Smith’s career was dedicated to fleshing out Hume’s original enquiries,see Haakonssen, supra n. 21, particularly 1–2, 27–28, 45–49, 69–74.

32 Supra n. 22, at 85.33 Ibid., at 166.34 Ibid., at 19. For similar comments, see 110–116.


In this way we are intensely dependent on our reciprocal relation withothers, and we can conceive of neither morality nor politics outwith thiscondition. Indeed, a ‘good’ society is one in which the public ‘tran-quility’ is preserved by precisely this kind of sympathetic ‘conversation’.‘Nothing’, Smith affirms, is ‘more dreadful’ than ‘solitude’, and nothingmore likely to dissolve the human bonds of duty, respect and compassionthan silence. Politics, for Smith, is all about improving our capacity tojudge ourselves and others through the faculty of refined ‘conversation’.Throughout the Theory, Smith repeatedly affirms the extent to whichmutual ‘love’ and ‘respect’ are nurtured by the ‘happy commerce’ ofhuman interaction. Indeed, such ‘commerce’ is the mark of a ‘humaneand polished’ society. There is nothing more ‘joyous’ than the cultivationof ‘friendship’, and nothing more conducive to social ‘harmony’.35 Ashe confirms in the closing passages of the Theory, the ‘great pleasureof conversation and society arises’ from a ‘certain harmony of minds,which like so many musical instruments coincide and keep time with oneanother’.36

Of course, ‘justice’ is something quite distinct. It is the ‘last and greatestof the virtues’, and something that cannot be ‘left to the freedom of ourown wills’.37 It is for this reason that Smith makes the distinction, bothin the Theory and then again in greater depth in his Lectures on Juris-prudence, between law, which is merely an expression of politics andconversation, and justice which is constituted by ‘nature’. Sets of laws, orconstitutions, as Smith affirms in his discussion of ‘Utility’ in the Theory,‘are valued only in proportion as they tend to promote the happiness ofthose who live under them’. ‘This’, furthermore, ‘is their sole use andend’.38

Whilst justice is the ‘main pillar that upholds the edifice of society’,it cannot itself promote a benevolent or enlightened society.39 It merelyprotects it, and thus provides the necessary conditions within which loveand compassion can flourish. This, for Smith, describes the essentialbalance in an ‘enlightened’ public philosophy, between sense and sensi-

35 Ibid., at 23, 38–40, 46–47, 84–85, 153, 207. Once again, these statements clearlyowe their origins to Hume’s Treatise. See, for example, 352–353, 363. For a generalcommentary, see Griswold, supra n. 21, 106–111 and Haakonssen, supra n. 21, 49–52.

36 Supra n. 22, at 337. For a discussion of the idea that moral reflection is generated bya process of political conversation, see Griswold, supra n. 21, 191–193.

37 Supra n. 22, 79, 269–270.38 Ibid., at 185–187, 190.39 Ibid., at 81–82, 86. For a commentary, see Griswold, supra n. 21, 228–229;

Haakonssen, supra n. 21, 85–87, 99–104; and Werhane, supra n. 21, 49–50, 56–60, 75–78,81.

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bility, between justice and compassion. As he confirms in the final chapterof the Theory, ‘moral sense’ must be understood as the marriage of the onevirtue that can ‘properly be given’, namely justice, and the ‘sentiments ofthe heart’ which by their ‘nature’ deny sure definition.40

ANOTHER JUSTICE

They were kicking me across the face, they treated me like a donkey . . . After beingassaulted I was bleeding from my mouth and nose, but still I was hanged, left danglingfrom a tree . . . And then Tebogo, who was also very young, he raped me and cut mygenitals – he cut me through from number one to number two. And then he put me ina certain room, he tied my legs apart. He tied my neck and then poured Dettol over mygenitals.41

Antjie Krog’s harrowing account of South Africa’s attempt to come toterms with its past, Country of My Skull, chronicles dozens of such atroci-ties. In her own words, ‘Week after week; voice after voice; account afteraccount. It is like travelling on a rainy night behind a huge truck – imagesof devastation breaking in sheets on the windscreen’.42

Rather than simply remitting such gross acts of inhumanity to theordinary courts, or indeed establishing a particular court or tribunal,post-apartheid South Africa chose to employ a Truth and ReconciliationCommission (TRC). Such commissions had been ventured elsewhere. Butnone have made quite such an impression upon the wider political andjuristic world as the South African. The establishment of the TRC wasnot a rejection of the law as such. Rather it was an echo of Smith’s ideaof justice as sympathetic engagement, of Wordsworth’s invocation of the‘warmer love’ of humanity. In defining the ambit of the Commission, asone which sought to investigate ‘gross violations of human rights’, theenabling statute, the Promotion of National Unity and Reconciliation Act,recognised the conflation of humanity and rights. But in establishing atribunal that was directed as much to engaging sensibility as it was toasserting legal rights, the Act also maintained their conceptual and ethicaldistinction.43

It sought, in essence, to nurture a ‘culture’ of human rights. The estab-lishment of the Commission, of course, must be understood within aparticular context; the need, as spelled out in the interim constitution, Act

40 Supra n. 22, 328–329.41 In, A. Krog, ed., Country of My Skull (London: Vintage, 1999), 278–279.42 Ibid., 48.43 See J. Sarkin, “The Development of a Human Rights Culture in South Africa”, Human

Rights Quarterly 20 (1998), 628–665.


no. 200 of 1993, to achieve ‘reconciliation between the people of SouthAfrica and the reconstruction of society’. The postscript to the Act empha-sised that the redress for the gross violations of human rights experiencedunder apartheid ‘can now be addressed on the basis that there is a need forunderstanding not vengeance; on reparation, not for retaliation; a need forubuntu, not victimisation’.44

According to Archbishop Desmond Tutu, who chaired the TRC hear-ings, the idea of ubuntu in African jurisprudence seeks the ‘healing ofbreaches, the redressing of imbalances, the restoration of broken relation-ships’. It ‘speaks of the very essence of being human’.45 The very firsthearing of the TRC opened with Xhosa hymn ‘The forgiveness of sinsmakes a person whole’.46 Ubuntu enjoys a certain congruence with theidea of ‘restorative’ justice, something which, as Tutu emphasised, in turnresonates with Christian conceptions of confession and atonement. Butthis congruence evidences that there is no particular intellectual heritage.Confession and atonement, like compassion and forgiveness, are conceptsthat are common across cultures of various theological or secular tone.47

A willingness to contemplate ‘restorative’ justice opens up the possi-bility of promoting a very different ‘culture’ of human rights, one that isnot simply about establishing legal or political rights, and punishing trans-gressors, but one that focuses upon participating in the suffering of others.When asked as to who would be best equipped to serve as a Commissioner,Tutu replied ‘People who were once victims. The most forgiving people Ihave ever come across are people who have suffered – it is as if sufferinghas ripped them open in empathy’. Such people, he added, are ‘woundedhealers’.48

Justice becomes more than a matter of judging guilt or innocence. Itbecomes a matter of entering into the dramatic life of a community. It

44 For discussions, see J. de Lange, “The Historical Context, Legal Origins and Philo-sophical Foundation of the South African Truth and Reconciliation Commission”, andC. Villa-Vicencio, “Restorative Justice: Dealing with the Past Differently”, in C. Villa-Vicencio and W. Verwoerd, eds., Looking Back, Reaching Forward: Reflections on theTruth and Reconciliation Commission of South Africa (Cape Town: University of CapeTown Press, 2000), at 14–31 and 68–76 respectively, and also R. Rotberg, “TruthCommissions and the Provision of Truth, Justice, and Reconcilation”, in R. Rotberg andD. Thompson, eds., Truth vs Justice: The Morality of Truth Commissions (Princeton:Princeton University Press, 2000), 3–21.

45 D. Tutu, No Future Without Forgiveness (London: Ebury Press, 1999), 34–35, 51–52.46 Supra n. 41, 38–39.47 See supra n. 45, 74–75; supra n. 41, 165–169; and E. Moosa, “Truth and Recon-

ciliation as Performance: Spectres of Eucharistic Redemption”, in Villa-Vicencio andVerwoerd, supra n. 44, 113–122.

48 Supra n. 41, 24.

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thus becomes a necessarily democratic facility too. Law is no longer thepossession of judges and jurors, but the moral and political expression ofthat community of sympathetic ‘spectators’. Against the petrified formal-ism, which Arthur Chaskalson, the first President of the post-apartheidConstitutional Court, referred to as the ‘impoverished’ jurisprudence oflegal positivism, ‘restorative’ justice returns to the original principles oflegal humanism advanced by the likes of Smith, Wordsworth and Mill.49

It is this ability to marry justice and democracy that distinguishes‘restorative’ justice.50 In his opening ‘welcome’ to the Commission, Tutuemphasised that the ‘healing of a traumatised and wounded people’ couldonly be facilitated by the readiness of everyone to listen to ‘stories’ and totell them.51 Between 1996 and 1999, the three constituent committees ofthe TRC received 20,000 statements and conducted 2000 public hearings.In the context of the South African Commission, Martha Minnow hasemphasised the extent to which such bodies, in comparison with formalcourt structures, can focus more immediately on ‘the voices and lives ofreal people’, and thereby reinvest both individual and communal ‘sensibil-ities’.52 The same conclusion is reached by Antjie Krog; when it comes tochoosing between the truth and reconciliation, and the strictures of the law,then truth and reconciliation must win out every time, for without this thelaw is nothing more than tyranny.53

The need to open up conversation is critical. There must be a conversa-tion, not just about rights, but about what it means to be human. As RichardRorty acknowledges, human rights is as much about listening to ‘sad andsentimental stories’ as it is agonising about the meaning of enumeratedrights.54 It is this facility for telling stories which is so striking. It makesclaim, not just to a new and alternative idea of justice, but also to a new andalternative idea of democracy. Indeed, it describes a justice that is impres-sionistic precisely because it is democratic; in Krog’s words something

49 In D. Dyzenhaus, ed., Judging the Judges, Judging Ourselves: Truth, Reconciliationand the Apartheid Legal Order (Oxford: Hart, 1998), 81.

50 For a broad discussion of the relation between democracy and human rights, see J.Donnelly, “Human Rights, Democracy, and Development”, Human Rights Quarterly 21(1999), 608–632.

51 Supra n. 45, 86–87.52 M. Minow, “The Hope for Healing: What Can Truth Commissions Do?”, in Rotberg

and Thompson, supra n. 44, 238–245, 254.53 Supra n. 41, 35.54 R. Rorty, Contingency, Irony, and Solidarity, (Cambridge: Cambridge University

Press, 1989), 186. For a more explicit discussion of human rights in a postmodern context,see Rorty’s lecture, “Human Rights, Rationality, and Sentimentality”, in S. Shute and S.Hurley, eds., On Human Rights: The Oxford Amnesty Lectures 1993 (New York: BasicBooks, 1993), 175–202.


that is ‘quilted together from hundreds of stories’.55 In the words of onedeponent, the ‘process’ of the Commission ‘allows me to remember butalso to believe that we as human beings are all interdependent, that we canonly exist through our common humanity’, for ‘Everyone has a story totell’ and ‘People need to be given the opportunity to tell these stories, sincethere are different perceptions of the truth’.56 The ability to tell your story,to participate in the narrative construction of your society, is an essentialexpression of democracy.57

Criticisms of ‘restorative’ justice remain. Many, including those whopractised law, if not justice, during the apartheid regime, have beenconspicuous in their half-hearted contribution to the process of recon-ciliation and truth.58 Equally, for many of those who had suffered underapartheid, and who preferred more familiar concepts of retributive justice,it was wholly inadequate.59 Yet, once again, the particular context isimportant. And moreover, there are just as many who claim that onlyrestorative justice could heal their wounds, could give voice to theirsuffering and ultimately address the restoration of their individual dignityand humanity, as well as that of their community. The experience wassummed up in one particular, and often quoted, statement given to theCommission by a young man blinded by the police. He said that whathad ‘brought my sight back, my eyesight back, is to come here and tell thestory. I feel what has been making me sick all the time is the fact that Icouldn’t tell my story’. But now, he concluded, ‘it feels like I’ve got mysight back by coming here and telling you the story’.60

55 Supra n. 41, 259.56 See Y. Henry, “Where Healing Begins”, in Villa-Vicencio and Verwoerd, supra n. 44,

170, 173.57 For a discussion of this idea, within the South African context, see D. Crocker, “Truth

Commissions, Transitional Justice, and Civil Society”, in Rotberg and Thompson, supra n.44, 99–121.

58 Supra n. 49, particularly 136–183.59 For discussions of this opposition, see H. Corder, “The Law and Struggle: The Same,

but Different”, and N. Biko, “Amnesty and Denial”, both in Villa-Vicencio and Verwoerd,supra n. 44, at 99–106 and 193–198 respectively, and also A. Gutmann and D. Thompson,“The Moral Foundations of Truth Commissions”, in Rotberg and Thompson, supra n. 44,22–44.

60 Supra n. 41 45–46; supra n. 45, 127–129; and E. Kiss, “Moral Ambition Withinand Beyond Political Constraints”, in Rotberg and Thompson, supra n. 44, 72. For anexample, see G. Fourie, “A Personal Encounter with the Perpetrators”, in Villa-Vicencioand Verwoerd, supra n. 44, 230–238.

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REINVESTING HUMANITY

The greatest quality of narrative democracy and restorative justice is therelated capacity to nurture compassion and to reinvest individual andcorporate dignity. As Smith recognised, and as the Preface to the LyricalBallads affirmed, dignity comes from knowing that people are prepared toregard you, and to listen to you. It comes, indeed, from a preparednessto listen to the ‘still, sad music of humanity’ itself. As Tutu observed,‘Our humanity is caught up in that of all others. We are human becausewe belong. We are made for community, for togetherness, for family,to exist in a delicate network of interdependence’. We are made to be‘respected’, and we are made to be ‘compassionate’.61 To be dependent,to be respected, to be compassionate; it is what it means to be human, toappreciate that the individual is an ‘end’ rather than a ‘means’.62 It wasthe restoration of this facility which represented the greatest virtue of theTRC. As Krog concludes, ‘Against a flood crashing with the weight of abrutalizing past on to a new usurping politics, the Commission has keptalive the idea of a common humanity’.63

The idea that ‘dignity’ and humanity enjoy an intrinsic affinity is not, ofcourse, new. The UN Declaration enshrines the principle; and all compar-able ensuing human rights charters have made similar commitments. Forcommentators such as Jack Donnelly and Michael Freeman, the markof a philosophy of human rights, as opposed to mere legal statement, isthe appreciation that such rights are ‘needed not for life but for a lifeof dignity, that is, for a life worthy of a human being’.64 Moreover, theparticular concern with ‘dignity’ and democracy resonates with the presentdebate surrounding a ‘third wave’ in human rights; the idea that humanrights impose obligations of mutual respect on individuals, rather thanmerely governing the relationship between states and citizens. Accordingto Francesca Klug, the idea of human ‘dignity’ has replaced that of God asthe founding concept in contemporary human rights theory.65

61 Supra n. 45, 155.62 For similar conclusion, see Kiss, “Moral Ambition”, and A. du Toit, “The Moral

Foundations of the South African TRC: Truth as Acknowledgement and Justice asRecognition”, both in Rotberg and Thompson, supra n. 44, at 72–74 and 134–137.

63 Supra n. 41, 422.64 See M. Freeman, “The Philosophical Foundations of Human Rights”, Human Rights

Quarterly 16 (1994), 502–503. See also J. Donnelly, Universal Human Rights in Theoryand Practice (Ithaca: Cornell University Press, 1989), 16–19, 22–23.

65 See F. Klug, Values for a Godless Age: The Story of the United Kingdom’s New Billof Rights (Harmondsworth: Penguin 2000), 6–10, 98–101, and also 59–66, discussing the


Such a conception of ‘mutuality’ rights nurtures a sense of ‘solidarity’within political communities; something that is, of course, of particularvalue in those communities which have a recent history of fragmentationand violence.66 This conclusion has been advanced by Alan Gewirth, whohas advocated the idea of a ‘community of rights’ based on a principle of‘mutual sharing’. According to Gewirth:

The concept of human rights thus entails a mutualist and egalitarian universality; eachhuman must respect the rights of all others while having his rights respected by all others,so that there must be a mutual sharing of the benefits of rights and burdens of duties . . . Bythe effective recognition of the mutuality entailed by human rights the society becomes acommunity. So the antithesis between rights and community is bridged.67

Moreover, it must not be thought that human rights, or more particularlythe nurturing of a human rights culture, is only of immediate importance instates which have experienced acute political fragmentation and discord.Any political community that claims to be liberal, tolerant and humaneshould be able to evince such a culture. Ushering the UK Human RightsAct through Parliament, the Home Secretary, Jack Straw, suggested that itsdeeper purpose was indeed to ‘bring about the creation of a human rightsculture in Britain’, something which, he later added, should be founded onuniversal ‘considerations of common humanity’.68 A similar echo is heardin Sir Stephen Sedley’s observations, that we should come to appreciatethat the ultimate value of a human rights charter rests not in the mereenumeration of laws, but in the ability to nurture amongst both citizensand judiciary, a ‘common sense of equity, an ethic of kindness, a moralityof feeling’, ultimately an appreciation that the realisation of justice is verydifferent indeed from the enforcement of law.69

Of course, such rhetoric can appear to be a little allusive, particularlywhen it is articulated on political platforms. But there is a consonancebetween the ‘third wave’ of human rights, of rights of ‘mutuality’ identi-fied by the likes of Francesca Klug, and the idea of restorative justice asrealised in South Africa.70 For both speak to an idea of human rights thatis as much about sentiment as it is about sense, to a ‘culture’ of human

attempt of certain ‘third way’ commentators and politicians to align themselves with thisapproach.

66 See C. Wellman, “Solidarity, the Individual and Human Rights”, Human RightsQuarterly 22 (2000), 639.

67 A. Gewirth, The Community of Rights (Chicago: University of Chicago Press, 1996),6.

68 Klug, supra n. 65, 7, 49, 66.69 See S. Sedley, “Human Rights: A Twenty-First Century Agenda”, Public Law (1995),

386, 391, and also supra n. 65, 194.70 Supra n. 65, 166.

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rights that is describes more than a mere legal instrument, that attachesto fundamental conceptions of human inter-relationship, to the kind ofsympathetic engagement described by Smith and Wordsworth.

It is for this reason that the likes of Richard Rorty argue the casefor a reconception of human rights that re-asserts the role of sentimen-tality over the presumptions of pure reason. For in the final analysis, ashe affirms, ‘sentimentality may be the best weapon we have’.71 Rorty’scommitment to the idea that justice is a poetic expression of humanityis uncompromising. The heart of any liberal democracy is the ‘romanceof endless diversity’, a ‘metaphysic of the relation of man and his exper-ience of nature’. Rorty approves Walt Whitman’s idea of democracy as‘a poetic agon, in which jarring dialectical discords would be resolved inpreviously unheard harmonies.’72 There is, in turn, an immediate affinitybetween Whitman’s idea of democracy and that articulated in Alexisde Tocqueville’s Democracy in America, of the ‘spirit’ of a democratic‘culture’, something that is described in terms of ‘feelings and ideas’ bywhich the heart is ‘enlarged’ and by which its politics is rendered more‘compassionate’.73

The reinvestment of humanism, then, does not require any great intel-lectual leap in the dark. It is, as Rorty readily appreciates, a very familiarconception, something that resonates with the New Testament ‘messageof human fraternity’, and then with later Enlightenment perceptions ofcompassion and sentimentality.74 It is precisely in the writings of Smithand Wordsworth and Whitman that we can relocate an ‘ethics without prin-ciples’, a sense of ‘moral progress’ that is described in terms of ‘increasingsensitivity’ rather than the discovery of moral ‘truths’. Such an idea ofmoral progress, Rorty affirms, is a nothing more than a ‘matter of widerand wider sympathy’. Whilst we ‘cannot aim at moral perfection’, there isnothing to prevent us from adhering to the simple duty of political romanti-cism, to take ‘more people’s needs into account’ than we ‘did previously’.This, indeed, is the ‘ultimate romantic hope’.75

Another who has articulated this idea of humanity and poetic justice isMartha Nussbaum. In Love’s Knowledge, Nussbaum argued that literaturecan better secure the ‘good society’ than any number of laws, and the

71 Rorty, supra n. 54, 130.72 R. Rorty, Achieving Our Country: Leftist Thought in Twentieth-Century America

(Cambridge: Harvard University Press, 1999), 18.73 R. Rorty, Philosophy and Social Hope (Harmondsworth: Penguin, 1999), 96–97, 122.

For Tocqueville’s observations, see his Democracy in America (London: Fontana, 1994),310, 503–504, 515–517, 565.

74 Rorty, supra n. 73, 204–205.75 Ibid., at 77–87.


reason for this, quite simply, is the fact that literature taps our ‘narrativeemotions’. It nurtures the intensely human capacity to ‘love’. Moreover,it does this because it engages the reflective faculty which facilitatesour ability to judge the ‘particular’ situation of ourselves and others.76

A capacity for ‘narrative imagination’ is an integral part of ‘intelligent’liberal citizenship. ‘This means’, as she suggests in Cultivating Humanity,‘the ability to think what it might be like to be in the shoes of a persondifferent from oneself, to be an intelligent reader of that person’s story,and to understand the emotions and wishes and desires that someone soplaced might have’.77

The echoes of Smith, as Nussbaum recognises, are striking.78 In PoeticJustice, she specifically invokes the idea of the ‘judicious spectator’,in order to take on Whitman’s suggestion that good judges are thosewho appreciate the poetry of ordinary political life. Following Whitmanand indeed Wordsworth, Nussbaum argues that a good judge in a ‘goodsociety’ is one that is ‘capable of fancy and sympathy’, that can imaginepain and suffering, and understand what it means to be tortured, oppressed,excluded. Moreover, it is the ‘democratizing mission’, the particularresponsibility of the poet, to infuse politics with an ethics of compassion,of ‘imagination, inclusion, sympathy, and voice’. If we do indeed aspireto justice, and to a reinvested sense of humanity and human dignity, thenit is not the door to the law that we must go through, but the ‘doors ofsympathy’ that we must ‘open’ once again.79

The ideas of Rorty and Nussbaum, ideas which so clearly echo thoseof Smith and Wordsworth, and Mill and Eliot, find a further resonancein contemporary appeals for a radically revised jurisprudence of humanrights. It is to this idea of ‘sentiment’ that Costas Douzinas seeks recourse,when he speaks of the need to strengthen the position of ‘passion’ inour jurisprudence, to encourage the ‘bonding of human nature’ with aviable political conception of humanity.80 The idea of a distinctively post-modern conception of human rights rests with this invocation of acute,even passionate, subjectivity. If the idea of human rights is to blossomin the new millenium it must, as Stephen Toope has likewise observed,

76 M. Nussbaum, Love’s Knowledge: Essays on Philosophy and Literature (Oxford:Oxford University Press, 1990), 53, 75–76, 94–96, 165–166, 173, 184, 190–191.

77 M. Nussbaum, Cultivating Humanity: A Classical Defense of Reform in LiberalEducation (Cambridge: Harvard University Press, 1997), 10–11.

78 Supra n. 76 294–297, 338–345.79 M. Nussbaum, Poetic Justice: The Literary Imagination and Public Life (New York:

Beacon Press, 1995), 73–78, 90–91, 115–120.80 C. Douzinas, The End of Human Rights: Critical Legal Thought at the Turn of the

Century (Oxford: Hart 2000), 253, 259.

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be prepared to ‘listen to diverse voices’.81 No longer the fixed statementsof a particular cultural imperialism, rights become the true possessionsof humanity, fundamental statements of democratic empowerment, impas-sioned expressions of individual self-determination. And the key concepthere is very much that of expression; the human right to express, to tell astory, to reach out for sympathy.82

In a lecture entitled The Other’s Rights, Jean-Francois Lyotardeloquently argued the idea of human rights as a reciprocal preparednessto converse and to listen, to what he termed the ‘interlocutory capacity’which by ‘its association with the recursiveness and translatability ofhuman language’ cannot ‘help but bind all human speakers in a speechcommunity’:

If any human being can be an interlocutor for other human beings, he must be able to,that is, must be enabled or allowed to . . . Reciprocity respects not only the alterity ofinterlocution but the parity of the interlocutors. It thus guarantees their respective libertyand their equality before the word. These are the characteristics of justice itself.83

Half a century ago, as the formal institutions of international human rightslaw were being set up, Eleanor Roosevelt asked ‘Where, after all, dohuman rights begin?’ The answer she concluded, was ‘In small places,close to home’. She continued, ‘Unless these rights have meaning there,they have little meaning anywhere’, for ‘Without concerned citizen actionto uphold them closer to home, we shall look in vain for progress inthe larger world’.84 Human rights only have meaning within a particularsetting, one which can facilitate their democratic expression. For it is onlyin this setting, with this facility, that they can become a felt possession,something that seems to matter to people in their everyday lives, somethingindeed worth cherishing.

This is what Wordsworth realised as he sat musing above Tintern Abbeyin the summer of 1798. Wordsworth did not think in terms of human rights,or even democracy, but he did think in terms of feelings and sensibilities,in terms of those ‘little nameless, unremembered, acts/ Of kindness and oflove’, of the ‘warmer love’ that calibrates the ‘still, sad music of humanity’.To learn from Wordsworth, to approve his dismissal of abstract ideologiesof legalistic rights, does not mean that we have to abandon the very idea of

81 S. Toope, “Cultural Diversity and Human Rights”, McGill Law Journal 42 (1997),184.

82 See generally J. Slaughter, “A Question of Narration: The Voice in InternationalHuman Rights Law”, Human Rights Quarterly 19 (1997), 406.

83 J. Lyotard, “The Other’s Rights”, in Shute and Hurley, supra n. 54, 140.84 Quoted in M. Glendon, “Knowing the Universal Declaration of Human Rights”, Notre

Dame Law Review 73 (1998), at 1170.


humanity, or even that of human rights. But it does remind us that we mustembrace, once again, the deeper import of sensibility.

It is for this reason that what happened in South Africa between 1996and 1999 should serve to inspire us. At the end of the final session of theTRC, Archbishop Tutu observed, ‘We have survived the ordeal and we arerealising that we can indeed transcend the conflicts of the past, we canhold hands as we realise our common humanity’.85 This is the aspirationthat defines a sentimental, indeed a humanist, jurisprudence. It is the kindof aspiration that is so wonderfully described by Whitman in The MysticTrumpeter:

Now trumpeter for thy close,Vouchsafe a higher strain than any yet,Sing to my soul, renew its languishing faith and hope,Rouse up my slow belief, give me some vision of the future,Give me for once its prophesy and joy.86

It is for this reason that we should embrace the ‘end’ of human rights,for to contemplate such an ‘end’ is not to contemplate anarchy. Rather,it is to contemplate a jurisprudence that is no longer so suffocated byits obsession with the delusions of legal ‘truths’. Ultimately, it urges usto reinvest a jurisprudence that inclines to think rather more about thehuman, and worry rather less about what a ‘right’ is supposed to be. Itprescribes a public philosophy which, in Whitman’s words, encourages usto respect laws, but to ‘think lightly’ of them.87 As Antjie Krog notes, theidea of human rights which took possession of the TRC was not so muchconcerned with legal conceptualizations, as with the essential question,‘How is it possible that the person I loved so much lit no spark of humanityin you?’.88 This is the question that matters. Indeed, for a liberal humanistjurisprudence, it is the only question that really matters.

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85 Supra n. 54, at 91.86 Ll.60–4, in W. Whitman, The Complete Poems (Harmondsworth: Penguin, 1996).87 Song of the Broad-Axe, at l.115, in Poems.88 Supra n. 41, at 67.

The Echo of a Sentimental Jurisprudence

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