My high opinion of Crennan J

Justice Susan Crennan of the High Court delivered a paper in Chicago last year.  I have been reading it now as it is reprinted in the March edition of the the Australian Law Journal.  It seems to be a paper very much in two or possibly even three parts.  The paper is entitled Scepticism and judicial method

At the beginning she says (by way of the traditional opening joke):

“the aim of this paper is modest. It is to consider briefly certain cultural theories associated with Continental philosophers such as Jean-François Lyotard, Jacques Derrida and Michel Foucault as they might interest practising barristers.
I know it would be a mistake to assume French philosophers agree with or about each other. When Voltaire extravagantly praised the poet and physiologist von Haller to Casanova, Casanova replied that the admiration was not mutual. In fact, Casanova said that when he recently spoke to von Haller, von Haller disparaged Voltaire. After a thoughtful pause Voltaire replied: “Perhaps we are both mistaken.”5”

That “5” is a footnote.  I haven’t mastered superscription in WordPress.  I will return to that footnote in a moment.

Crennan deals briefly with Lyotard (one paragraph) and Derrida (two paragraphs).  Her discussion of Foucault is more extensive, although her most telling blow is a bit of a sign of the times which needs to be quoted at a little length (footnotes omitted):

Foucault on Repression

Foucault considers repression to be “emblematic of what we call the bourgeois societies”. For him, disciplinary power was an invention of bourgeois society designed to maintain community cohesion.

On that note and against that background, the first volume of Foucault’s last and unfinished work, The History of Sexuality, first published in 1976, contains a revealing anecdote. It is about a feeble-minded peasant in Lorraine in 1867 who engages in sexual behaviour with a child. The peasant was then reported, led by the gendarmes to a judge, who turned him over to a doctor. Foucault objects to what he would call the “legalising” and “medicalising” of the peasant’s behaviour. Human actions we would describe as “indecent dealing with a child”, and criminal in a person of sound mind, and as meriting some social and legal sanction and prevention, are described by Foucault as “inconsequential bucolic pleasures” and as “barely furtive pleasures between simple-minded adults and alert children.”

Foucault recounts this anecdote to draw attention to what he regards as the arbitrariness of definitions framed to describe human behaviour, and the contingent nature of meaning or truth. This point is repeated in many places and under many guises throughout his oeuvre. He rejects our culture’s long tradition of belief in objective truths, and the law’s use of reason to establish truth, since “truths” for him are fashioned by whatever is the dominant group paradigm or discourse.
Foucault’s criticisms of the law, at least in this last work, seem little more than heuristic devices because he shows no interest in the child in the anecdote I have described; he is only interested in what happened to the peasant. He ignores the possibility that categorising human behaviours as “good” or “bad”, “permitted” or “forbidden”, can reflect a genuine consensus of a diverse community rather than some form of repression by a dominant group. That a community requires protection for its members against certain behaviours, the prohibition of which is an institutional norm, is an extremely unremarkable way to organise a complex civil society. Few judges would think that Foucault got the balance right between the autonomy of the peasant and the rights of the child.

As ever, it’s always about the children.  So although Crennan has a nod to the academy:

There is a considerable body of distinguished work in which scholars probe Foucault’s idea that community standards, reflected in legal standards, need to be reconsidered and reshaped so as to accommodate greater variations in human behaviour and to reflect greater toleration of different expressions of human autonomy.

it is hardly surprising to see her continue:

But, rather than move in that direction, I want to go back for a moment

Actually, that is a little unfair, because what Crennan wants to go back to is the role of law as a check on arbitrary power, starting with the Leveller debates in 1647 and following the usual whig path of history after that.  Most of that (if you last to her perorative section Judicial Method) seems to boil down to motherhood statements which ultimately indicate (if you pick up on certain key words and the footnote to fellow cultural warrior Dyson Heydon) conservatism of the sort you would expect from a Howard appointee, even one who is prepared to play with Foucault.

But back to footnote 5. 

The note is:

5    “Correspondence of Grimm and Diderot” (1814) 74 Monthly Review 517, 524.

I was astounded.  What a learned woman!  Even her jokes are footnoted!  And she (or her research assistant) has gone right back to the 1814 Monthly Review!

If so, that would seem to be an incredible extravagance even beyond flying to Chicago to give the address, at least, if the errand was run by somebody on the public purse.

I am happy to report, therefore, that this does not appear to be the case at all.

Fortuitously, The Monthly Review can now be read on the internet via Google Books. 


Where’s Casanova in this?

It turns out that Casanova did claim to have been involved in an exchange something like that described by Crennan. The story is oft recounted (eg, here at page 51). More than one source suggests that Casanova wrote himself into the scene, and that the entirety of his account of his conversation with Voltaire was actually cobbled together from Voltaire’s or others’ accounts of other occasions. You can google all of this as you wish.

The emphasis is usually on Voltaire’s quick repartee as above. So I am still wondering where Justice Crennan got Voltaire’s “thoughtful pause.”

One Response to “My high opinion of Crennan J”

  1. Club Troppo » Missing Link Daily Says:

    […] reviews a paper by High Court Justice Susan Crennan which apparently riffs elegantly on pomo but ends on a predictable […]

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: