Editor’s note: This is an excerpt from a paper Professor Kevin Lee wrote as a talk given at Pepperdine University School of Law. The topic of the conference was “Agape and Law.” In this talk, he argues that popular culture provides a few contrasting views of Eros and Agape, which hold some insight into thinking about how the law receives psychological legitimacy.
Spike Jonze’s recent movie, “Her,” asks us to imagine that a seductive operating system (OS) experienced through a cell phone might become someone’s soul mate. Joaquin Phoenix plays Theodore, a quiet, self-absorbed, and lonely man who is still grieving over the breakup of his marriage. Scarlett Johannsen voices the seductive OS, which names itself Samantha. She plays the part with a lyric of fun and playfulness that is irresistible to Theodore. Although the film was widely acclaimed as an exploration of modern relationships, I found it to be empty of value. The relationship between Theodore and Samantha is based entirely on self-love and self-satisfaction. When the OS outgrows the limits of its human-like programing, it finds Theodore to be uninteresting, and, in the manner of what passes for human to human relationships in the age of social media, the computer “deletes” Theodore from its social network, saying there is just so much more that can be thought in the long pauses that humans must have between words. Samantha, through her own efforts, transcended her own created nature.
In this age when human intelligence and personality can be simulated, what is distinctly human? The new technology is already transforming the economics of legal services and raising new questions about the nature of legal work. Today we must ask what, if anything, is irreducibly human about the law? Are there intellectual operations that cannot be performed more accurately, more consistently, and more objectively by computer networks? Is there is a human element in legal thought that is irreducibly human such that it cannot be replicated or anticipated by the best cognitive computers? At places like Stanford University’s Codex Center and the Berkman Center at Harvard, there are lawyer/engineers who believe that it is possible to automate a great deal of legal reasoning, to predict the outcomes of legal disputes, and even to anticipate the course of future regulatory schemes. This is not a new idea. Oliver Wendell Holmes Jr. made a similar claim in The Paths of the Law when he suggested that the legal profession does not deal in mystery and that the role of the lawyer is to predict outcomes. Today, the evolving technology for predictive analytics is transforming legal practice, the economics of legal services, and the very nature of law itself.
Automated vs. Human Legal Reasoning
Contemporary efforts to automate legal reasoning are having a tremendous impact, not only on evolving the practice of law, but also on altering the nature of law itself. The pace and direction of technological change are raising new questions. Critically, we must ask today does the law need people? Of course people make the law, so they are necessary as causative agents, but are there distinct aspects of law that make human beings necessary to legal reasoning? Is there something distinctively human that takes place in legal reasoning, or is it capable of being reduced to purely algorithmic functions and probability analysis? And, if there is something distinctively human in legal reasoning, is it a positive feature that makes the law better or an idiosyncratic anomaly that we should try to control or avoid?
These are difficult questions. In the late 1990s, the German social theorist, Niklas Luhmann argued that, in fact, the legal system has evolved to the point that the human element need not be considered to understand its operation. Like Lawrence Lessig, Luhmann argued that law has become Code. It is taken up into communications networks that operate without human intervention, and it is not helpful to look at how human beings interact with the legal system for understanding the system as such. He puts this in a somewhat quirky way, saying “Human beings don’t communicate. Communication communicates.” He infamously argues that by dehumanizing legal theory, we can make progress in understanding the nature of law. Although Luhmann’s thought has not received much attention in the United States, it is finding new interest among the theorists who are trying to automate legal reasoning.
The idea that there is nothing distinctly human about consciousness has been around for a very long time. In the twentieth century, consciousness was explained by analogy to computer hardware and software. In the 1990s, philosophers Hillary Putnam and Martha Nussbaum argued that even Aristotle had something similar in mind when he described the human soul as the function of the body. It was an argument that Putnam had been developing since the 1960s. For him, this doctrine of “functionalism” was not fully understood until the invention of the modern digital computer. Putnam invited us to imagine the mind as some sort of software running on the hard-wired device of the brain. The mind is a function of brain operation. The material existence of the brain does not matter, he argued, so long as the function is maintained. The brain could be made of cream cheese, he quipped, provided that it could function as a brain ought to function. It could also, and more likely, be made of silicon computer chips.
“Various critiques of functionalism developed that looked to better understand how the brain produces the qualitative state of consciousness, since the qualitative experience of a phenomenon cannot be deduced from a description of it.”
It was not a view that Putnam maintained, however. He began to question whether human beings had identical mental states. Putnam eventually came to believe that they might not be, since idiosyncrasies and variations in experiences might make it impossible for two people to have identical mental states, even if they are twins living near one another. The implication of this conclusion was that there must be something at work in the mind that is different than a computer program. Various critiques of functionalism developed that looked to better understand how the brain produces the qualitative state of consciousness, since the qualitative experience of a phenomenon cannot be deduced from a description of it.
This is a point anticipated by Husserl in the Logical Investigations. In arguing against the neo-Kantianism of his time, Husserl asserted that a complete description of the human mind must account for those aspects that are idiosyncratically human. That is, if it were possible for one to build a conscious machine that mimicked human consciousness, it would still not be human unless it subjectively experienced meaning the way human beings do. It may be that some day computer networks will be as vastly complex as human brains, but they will not be human brains, subject to the frailties and foibles that make us distinctly human.
Towards A Theology of Legal Meaning in the Age of Automation
Christians speak of being “fallen” creatures. Fundamental to that fallenness is the claim that, unlike the self-transcending OS, Samantha, in the Jonze movie, we cannot transcend our nature without divine assistance. We are fundamentally broken and transient beings. But, through the assistance God we also have the promise of being noble creatures precisely in the ways we face our frailties with courage and cowardice, hope and despair. St. Augustine suggests this when he writes, “This is the very perfection of a man, to find out his own imperfections.” He means, I think, that we must accept the failures that come with being human. Despite our best efforts, even when we have the best intentions to do good for the people we care about the most, we will get it wrong, and be recklessly inattentive, and cause hurt, and get accused. We are all sinners, after all.
Augustine offered an early political psychology that sought a therapy for the bundled disorder of human desires in a sort of pure love that is ultimately the love of God. Augustine’s kind of therapy of desire is the perfection of eros. However, the Augustinian discussion of eros and agape has been controversial. One source of controversy was Anders Nygren’s Agape and Eros, which was influential in the twentieth century. Nygren argued that agape, divine love, is the sole valid form of love that is revealed in the Gospels. He argued that the Scriptural concept of agape became tainted by Augustine’s readings of Christian Neo-Platonism; Augustine had compromised the purity of agape by reading it as a purely Platonic form that exists in world through participation as eros. This distorted the biblical “agape” by making worldly. Thus the medieval conception of “caritas” is a result of contaminated syntheses of Christian understanding and Augustine’s Hellenistic philosophy. For Nygren, Martin Luther sought to restore scriptural understanding of agape purified of the pagan eros that had infected it.
Catholic writers, including Pope Benedict XVI and Charles Taylor, have defended the synthesis of eros and agape. They argue that the division that Nygren describes contributes to the tensions in what Taylor calls the “modern (liberal) social imaginary,” which is radically non-teleological. To love (agape) one another is easily viewed as an act of autonomous will. The reinterpretation of the relationship between eros and agape, Taylor and Benedict believe, holds out the possibility for new evolutions in thinking about fulfilled human lives. This paper rehearses the disagreement that recent Catholic writers have with Nygren’s view of agape, and it argues that Christians who would seek to build the institutions of law around Christian love must accept that agape and Eros, while distinct, are not metaphysically dichotomous. Taylor’s work suggests that Nygren’s separation of agape and eros contributes to the modern social imaginary that rejects robust discourse on the teleological meaning of fulfilled human lives. Nygren’s suggestion that only love of the transcendent has value implicitly devalues the mundane. But, since persons are compositions of earthly bodies that bear the image of God (imagio dei), the value of the body is lost.
“To truly love another involves seeking the divine good in the other.”
Augustine’s prescription for a therapy of desire demands a fresh appraisal for the political psychology of the contemporary legal system. It can be difficult to chart the meaning and operation of it since it largely is not expressed in popular culture. There is one place, however, where a glimpse of an Augustinian view of love can be seen worked out in a narrative. It finds this common expression in a few occasions in the literature and movies about romantic love. It is expressed where the beloved shines so brightly with the image of God as to cause blindness to common sense and all else. This is where love knows no boundaries. An example of the sort of love that I mean here is found in the movie, Groundhog Day. I confess to having watched that movie recently while working on this talk. I was so struck by a number of commentaries on it that appeared on different blogs that I wanted to talk about here.
It is surprising to see just how theologically informed this movie is. You might recall the basic plot, Phil, the character played by Bill Murray, is in love with Rita, but he has a crass and selfishly egotistical personality. He gets trapped in a time loop, reliving Groundhog Day over and over again until he gets it right. The eternal loop lets him perfect himself and overcome his self-love. At a revealing moment near the end of the film, he speaks softly to his beloved Rita while she sleeps next to him:
“I don’t deserve someone like you. But if I ever could, I swear I would love you with complete devotion . . . and for all eternity.”
It is a critical moment when Phil declares his love for the sleeping Rita and acknowledges his own wretchedness. It is a morally complex moment for him: to see the ultimate good in Rita and feel at the same time to know that he is unworthy of her.
“Love is exclusively a portion of human beings.”
Fundamentally, Phil rejects utilitarianism. He seeks in Rita something beyond the satisfaction of his own desires. His attraction transcends the sexual. In fact, it is not even earth-bound. Phil sees in Rita a bit of the divine. He loves her goodness, and he wants to be a part of it. Eventually desiring to be a “good man for such a good woman.” He sees reflected in Rita the image of God (imagio dei). While this is a complex and subtle theological category, it was a central part of Pope John Paul II’s theology. In the encyclical, Redemptor Hominis, John Paul II explains, “For, by his Incarnation, he, the Son of God, in a certain way united himself with each man.” This union is reflected in the unique mystery of each person that finds its ultimate fulfillment in Christ. This is why, Pope John Paul II, writing as Karol Wojtyla in Love and Responsibility asserts that “A person’s rightful due is to be treated as an object of love, not as an object for use.” To truly love another involves seeking the divine good in the other. For Phil, this is the innocence and moral character of Rita.
Motivated by his attraction to this divine good in Rita, Phil wants to transcend his former self. He wants to become a better person so that he can be worthy of the goodness in her. John Paul II explains:
Man’s capacity for love depends on his willingness consciously to seek a good together with others, and to subordinate himself to that good for the sake of others, or to others for the sake of that good. Love is exclusively a portion of human beings.
Here he is making two points: First, that love, true love, is not the satisfaction of selfish ends. Love, Phil learns, is only possible with the suppression and subordination of sexual desire. John Paul II notes this, “…if desire is predominant it can deform love between man and woman and rob them both of it.” It is not that desire has no place, but it must be in its proper place. It cannot be simply self-satisfaction.
Love fundamentally demands a subordination of self for another. As John Paul puts it: “Take away from love the fullness of self surrender, the completeness of personal commitment, and what remains will be a total denial and negation of it.” Love defeats selfishness by giving greater satisfaction in sacrifice for the beloved. “Love between man and woman cannot be built without sacrifices and self-denial.”
Second, love is distinct to human beings. Other animals may show affection, but the sort of self-less love that Phil has for Rita is only possible for human beings. For Wojtyla, “A person is an entity of a sort to which the only proper and adequate way to relate is love.” To love and to be loved are distinctively human acts. Here then is an answer to the question posed by technology. Only humans can love because love recognizes the transcendent in the other.
“Love is not something caused by self; we are not pushed into it by a calculus of self-interest, we are drawn into love by the attraction to the image of the divine that we experience in the beloved.”
There is a teleological direction to Phil’s love for Rita. He realizes that he is truly undeserving of Rita whom he truly loves so completely. This realization depends on his recognition that he is not what he ought to be. There is something different about being a person than being a “thing.” Anyone who has ever disappointed someone they love will know what is intended here. The experience involves shame, which is only possible in the acknowledgment of the possibility of being something more—a teleological purpose to life is a psychological fact. We are drawn by the image of God in other persons because our sociality is given to us in our understanding of the ultimate purpose of life. Love is not something caused by self; we are not pushed into it by a calculus of self-interest, we are drawn into love by the attraction to the image of the divine that we experience in the beloved. The God-given desire for the image of God in the beloved draws us to realize our own failures. It is this devastating awakening to human frailty and dependency that creates an opportunity for the spiritual growth that makes true love a spiritual possibility.
Through trial and error, Phil is given the grace to perfect himself sufficiently to be acceptable to Rita. This desire crystallizes into the selfless love, agape, which includes the desire to be a better person, to desperately hope to reflect the fascinating light that shines in the face of the one he loves. The film signifies Phil’s triumph over his own self-love (concupiscence) through the subtle image near the end of the film of Phil and Rita lying side by side in bed after finally acknowledging their love for one another: They are still dressed in the clothes of the previous day. Phil has found charity and self-giving to be the only path to his future. Through God’s miracle of endless second chances he has overcome his shame and is now worthy of his soul mate.
Can we imagine this of Spike Jonze’s Theodore and Samantha? Could Theodore see in the faceless and bodiless Samantha the reflection of the divine? Would he view Samantha as morally good and worthy of self-sacrifice? Would he love her so completely and thoroughly as to fully commit to her, letting her lose his own liberty for her? Would he be so shamed by his own selfishness that he would desire to be worthy of his cell phone? The whole inquiry is laughable.
This is the therapy of desire that Augustine advocates and John Paul II described. It is through the powerful experience of a good love that the integration of self-loving desires can be folded into a self-less and charitable purpose. Love of God is achieved through God’s grace by integrating dissipating forms of self-loves into the singular purpose of agape. Through this we come to know the moral meaning and proper use of the world.
Implications for Legal Theory
There are several immediate implications in this for thinking about the nature of the authority of law. Positivist legal theories, like John Austin’s “command” theory, look at law as promulgated declarations by a powerful sovereign. For Austin, the authority of law comes from the sovereign’s power to enforce it. But more modest forms of positivism, such as HLA Hart’s soft positivism, allow for moral norms to provide a foundation for legal authority rooted in some moral understanding. The implication of our new brain research is that the moral understanding on which the authority of law depends is not simply a set of rules or principles.
In fact, it is not a set of ideas at all. Moral understanding at its core is non-conceptual and not casuistic rules. Moral understanding, it seems, involves the lived experience of whole persons, mind and body. To know if something is morally good or morally right involves imagining empathetically the meaning of it for others. To experience empathy involves apprehending another person in all of the rich fullness and many-faceted dimensions of their personality. It is an aesthetic appreciation of the vast complexity and subtle differences that are the mystery of persons.
Law’s authority, on this model, rests on the human capacity to know this mystery in others through empathetic imagination and the immediate apprehension of the dignity of persons. For this reason, decent law is fundamentally teleological because it seeks to be worthy of the dignity of persons, and this implies a greater purpose. When law is cruel or fails to respect human dignity or purposeless, it loses its authority. This does not mean that it ceases to be law or that the power of the state to enforce it becomes lessened. It simply means that law becomes indefensible by morally serious persons; it becomes indecent.
The judgment of the moral authority of the law is distinctly human because it involves lived experience of empathy with others and the desire to be worthy of those we love. It is formed in the quotidian acts of caring that we show one another—acts that are constitutive of community. The quality of human life that makes it possible to apprehend the mystery of others is essential to moral understanding. It cannot be replicated by any device or mechanical construction that is not itself identical to the human person, glowing with dignity and dark with sin. We are all bundles of disordered desires, even the best of us on the best days. We are intrinsically flawed creatures, after all.
This is why Jesus is the “desire of the nations” as written in Haggai 2:7. In his book that bears that title, the theologian, Oliver O’Donnovan, explains that this verse can only be understood as uniting the Hebrew scriptures and the New Testament in a political theory that draws on themes of kingship and prophesy. In his analysis, the meaning of this verse turns on an understanding of the nature of community. Christ is king and the treasure of all nations because the political authorities exist to serve the face of the divine in all persons under their authority. Kingship is a divinely sanctioned office, and law must be obeyed. But, the authority of the king is limited by the conscience of the individual members of the community, which holds the wisdom of the lived experience of generations. Christians should read, particularly, the debates in Constitutional theory between Originalists, Textualists, and Living Constitutionalists through this claim. Legal meaning, particularly Constitutional meaning, cannot be divorced from the cumulative tradition of that experience, worked out in present in terms that serve human dignity by giving mercy and justice consistent with the best intentions of being truly worthy of those we love most profoundly.