Shaun McVeigh

kangaroo-courts-and-the-rule-of-law-the-legacy-of-modernismThere is a lot to think with in Kangaroo Courts and the Rule of Law. On its surface it is a study of the ‘modernist’ moment of legal theory: it re-casts the canon and style of investigating legal and literary theory in order to address the modernist understanding of the nature of modernity, authority, justice, and law. Alongside this investigation runs a discrete commentary on the status and value of ‘law and literature’ scholarship. Both these concerns are timely and important. It is also a pleasure to read a book that is prepared to wager its understanding on the worth of three puns – the play of the Kangaroo in Kangaroo Courts; the search for the rule of law in a small town south of Sydney – Thirroul (or vice versa); and, the task of interpretation and authorship on the borders of a littoral reading of law.

A ‘Kangaroo Court’ is an Americanism said to name hasty trials set up during the gold rush of the 1840s to try claim jumpers. Those courts were noted for their lack of interest in either legality or justice. (Today, of course, we do not use Kangaroo courts for own asylum-seeking queue jumpers.) Kangaroo is also the name of a novel written by the English modernist writer David Herbert (D H) Lawrence published in 1923. The novel was written during, and reflects upon, a visit to Australia in 1922. A significant part of the novel is concerned with Lawrence’s profoundly ambivalent understanding of Australia and the conducts of life and affective attachments of authoritarian fascism and communism. Desmond Manderson’s wager is that there is still a lesson to be learnt from Kangaroo.

Kangaroo Courts and the Rule of Law is presented as a ‘thought experiment’ concerning the legacy of anglo-modernist literature and the German critical and jurisprudential traditions. The book’s main concern lies with the importance of modernist thought to law and how it might be inherited. If we can no longer hold to the myths of the rule of law and justice, or if we no longer create convincing foundational myths of law and justice, then it is the modernist inheritance – and particular the inheritance of the 1920s Europe – that can help us think through this situation. Aside from D.H. Lawrence, Manderson’s, and our, guides in this enterprise include Mikhail Bakhtin, Emmanuel Levinas, and Jacques Derrida.

Kangaroo Courts and the Rule of Law is a lightly written and densely argued text. As with Bill MacNeil’s Novel Judgements, it stakes its authorship on the power of law and literature scholarship to generate new forms of humanistic jurisprudence and to offer better accounts of the rule of law. For Desmond Manderson, law and literature writing seems destined to flip between a realist determinism of power and a romantic dream of transformation. Where Herbert Hart recommended personal restraint in resisting the dreams and nightmares of law and courage in recognising (English) authority, Desmond Manderson offers an account of critical awareness and responsibility. The rule of law is to be understood through the crisis and critiques of modernity and not left standing in opposition to such thought.

The primary vehicle of Desmond Manderson’s engagement with modernity is D.H. Lawrence’s Kangaroo. While Lawrence considered Kangaroo his most important book, even many admirers of Lawrence’s work read Kangaroo with intense ambivalence. It portrays, enacts, and resists almost all the virtues and vices of the romantic reception of Nietzsche. Although 1922 cannot have been the same for everyone, Desmond Manderson weaves Kangaroo through the jurisprudential and literary concerns of Carl Schmitt and Mikhail Bakhtin. In different ways these critics provide both a critical response to romanticism and strands of positivism. It is Bakhtin’s ‘ethic’ of the novel – of the demands of a dialogic imagination and perspective, of the need to address the contrast between myth and reality and above all, its resistance to transcendence – that provides Desmond Manderson’s therapeutic reading of Kangaroo and the rule of law.

The teaching of Kangaroo Courts and the Rule of Law might be briefly encapsulated in three slogans: “Animate life and law”, “Hold onto the plurality of (lawful) life”, and “Don’t give up on irony”. The first of these slogans, of course, comes from Lawrence, the second from Bahktin, and the third is drawn from a wide range of sources but takes its final form in the work of Derrida. Of the three injunctions, perhaps it is the injunction to “hold on to irony” – especially modernist irony – that is the most difficult to envisage today. Desmond Manderson’s response to the tensions of modernity is to accept them – and the rule of law – as a process. The lessons of passion, polyphony, polarity and irony, are not lessons that have been entirely lost to jurisprudence or the humanities. However, there is little room for complacency.

To conclude with a comment on Desmond Manderson’s play on the name and place that title Kangaroo Courts and the Rule of Law. The pun of the Kangaroo court seems clear enough – but the place of the Rule of Law in Thirroul or the way of living, today, in Thirroul, draws attention not only to the grounds of law but to the forms of association made possible through law. So while Kangaroo Courts and the Rule of Law celebrates a modernist tradition for its appreciation of rootlessness and exile, just as much as its criticism of bureaucracy and romanticism, it is not a book that seeks a return to one of the antimonies of the modern condition. Desmond Manderson opens Kangaroo Courts with an analysis of one of the failings of law and literature. He argues that, as a genre, it suffers from a tendency to make literature the site of the redemption of law. Instead he argues that we should interpret and address the rule of law as ‘based on the experience of literature’ and, it might be imagined, jurisprudence (p.182). The third pun that orientates this book is the movement in life and interpretation between the littoral and literal readings of law. The littoral is the merged space between land and sea. The littoral reading is one that is interested in ‘margins and contexts’ and in ‘fertile jurisgenesis and fluid responsiveness’ (p.182). To live and judge with these conditions is the lesson of the experience of modernist literature and the task of elaborating a rule of law.