Which Love in Law? Zenon Bańkowski and the Meaning of Love
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- Submited: December 21, 2018
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Published: December 21, 2018
Abstract
Zenon Bańkowski has challenged the popular view that law and love are opposites. Instead he has argued that they are ‘entangled’, ‘necessary’, and even ‘dependent’ on each other. Together they form the ‘unity’ that is required for us to live a lawful life. He argues that to see them as opposites is not only inaccurate, but also constitutes a ‘moral and cognitive failure’. If he is right, and we are to see love and law as connected to one another, the question arises of what he means when he talks of love. This inquiry will show that Bańkowski relies on ideas of love that spring from the Classical (eros), the Christian (agape) and the romantic traditions; however I will argue that a conception of love that also fits his argument is friendship love (philia).
References
1 For some studies in thinking about emotions see the following; JM Barbalet, Emotion Social Theory and Social Structure: A Macrosociological Approach (Cambridge University Press, 1998); Cheshire Calhoun and Robert Solomon (eds), What is an Emotion? Classical Readings in Philosophical Psychology (Oxford University Press, 1984); Keith Oatley and Jennifer M Jenkins, Understanding Emotions (Blackwell Publishers, 1996); Keith Oatley, Best Laid Schemes: the Psychology of Emotions (Cambridge University Press, 1992); Robert Solomon (ed), Thinking About Emotions: Contemporary Philosophers on Emotions (Oxford University Press, 2004); Peter A French and Howard K Wettstein (eds), The Philosophy of Emotion, Midwest Studies in Philosophy XXII (University of Notre Dame, 1999).
2 Zenon Bańkowski, Living Lawfully: Love in Law and Law in Love (Kluwer Academic Publishers, 2001) 41.
3 Ibid, 142.
4 Bańkowski relies on Luhmann for this point. Luhmann claims that Love is spontaneous, in the present, uncoupled from external relations, contingent and a matter of fate, not interested in the future, not bound by duty or obligation, consumes everything, thematises everything. Marriage, on the other hand, is interested in the future or the eternal, as something that reduces spontaneity, calms passion, routinises love, stabilises love. Niklas Luhmann, Love As Passion: The Codification of Passion (Jeremy Gaines and Doris Jones trans, Stanford University Press, 1982).
5 Bańkowski, above n 2, 211.
6 Zenon Bańkowski, ‘Law, Love and Computers’ (1996) Edinburgh Law Review 40.
7 Bańkowski, above n 6, 40.
8 Ibid.
9 Bańkowski, above n 2, 113.
10 Ibid, 114.
11 Ibid, 101.
12 Ibid.
13 Judith Shklar, Legalism (Harvard University Press, 1964). Relying on this text Bańkowski makes a distinction between legality that includes love, and legalism which constitutes a blind obedience to rules: Ibid, 42.
14 Plato, Symposium (WRM Lamb trans, Loeb Classical Library Harvard University Press, 1975).
15 Simon May, Love a History (Yale University Press, 2011) 40.
16 Plato, above n 14, 141.
17 Ibid, 173-211.
18 Christopher Cordner, ‘Two conceptions of love in philosophical thought’ (2001) 50(3) Sophia: International Journal of Philosophy and Traditions 315.
19 Merger is considered particularly problematic for women. See Marilyn Freedman, ‘Romantic Love and Personal Autonomy’ in Peter A French and Howard K Wettstein (eds), Midwest Studies in Philosophy, Vol XXII (Wiley, 1998) 162-181.
20 Robert Solomon, About Love Reinventing Romance for Our Times (Little Field Quality Paperbacks, 1994) 57.
21 Matthew 22.
22 1 Corinthians 13.
23 1 John 4.
24 May, above n 15, 87.
25 Ibid, 86.
26 Anders Nygren quoted in Irving Singer, The Nature of Love, Volume 1 (University of Chicago Press, 1966) 275.
27 Ibid.
28 See Andreas Capellanus, The Art of Courtly Love (JJ Parry trans, Frederick Ungar Publishing, 1941) and Irving Singer, The Nature of Love, Volume 1 (University of Chicago Press, 1966).
29 A typical story of courtly love can be told by Tristan and Iseult. Sir Tristan is a knight who is sent by his King to negotiate for the hand of a neighbouring princess and bring her home to him to be his queen. On the return journey they fall in love. The rest of the story is about their affair and how they try to keep their love and fulfil their respective duties to the King: Bérol, Tristan and Iseult a Twelfth Century Poem (Janet H Caulkins and Guy R Mermier trans, H Champion, 1967).
30 Irving Singer, The Nature of Love, Volume 2 (Chicago University Press, 1984).
31 Irving Singer, The Nature of Love, Volume 3 (Chicago University Press, 1987) 18.
32 Solomon, above n 20, 45.
33 Susan Hendrick and Clyde Hendrick, Romantic Love (Sage Publications, 1992) 39.
34 The idea that romantic love is radical, liberating and modern has spread beyond western societies. It finds expression for example in challenges to common (mis)perceptions of arranged marriages in India, and in the Red Love context, it is equated with the shattering of capitalism. The revolutionary nature of romantic love is also a theme in communist countries where romantic love is equated with revolutionary ideas such as Marxism. See the concept of Red Love which originated from the novel by the same name by Alexandra Kollontai. Red Love appears to be used to signify the coincidence of romantic love with Marxism, and at least for some implies free love. See Teresa L Ebert, Alexandra Kollontai and Red Love (accessible on 11 January 2016). For the idea of romantic love in India see Rochona Majumdar, Marriage and Modernity: Family Values in Colonial Bengal (Duke University Press Books, 2009) 7. See also Ratna Kapur, Erotic Justice: Law and the New Politics of Postcolonialism (Glasshouse Press, 2005) 157-158.
35 Ulrich Beck and Elizabeth Beck-Gernsheim, The Normal Chaos of Love (Polity, 1994) 193-194.
36 Eva Illouz, Why Love Hurts: a Sociological Explanation (Polity, 2012) 120.
37 Eva Illouz, Consuming the Romantic Utopia (University of California Press, 1997) 2.
38 Pascal Bruckner, The Paradox of Love (Princeton University Press, 2012).
39 May, above n 15, 1.
40 Ibid, 2.
41 Bruckner, above n 38, 75.
42 Ibid, 218.
43 May, above n 15, 6.
44 Ibid, 10.
45 Illouz, above n 36, 120.
46 Illouz, above n 37, 28.
47 Beck and Beck-Gernsheim, above n 35.
48 Ibid, 193.
49 Anthony Giddens, The Transformation of Intimacy: Sexuality Love and Eroticism in Modern Societies (Polity Press, 1992) 2.
50 Ibid, 58.
51 Ibid, 15.
52 Ibid, 63.
53 Lynne Jamieson, ‘Intimacy Transformed? A Critical Look at the Pure Relationship’ (1993) 33 Sociology 477.
54 Giddens, above n 49, 58.
55 Zenon Bańkowski, ‘Law, Love and Legality’ (2001) 14(2) International Journal for the Semiotics of Law 199.
56 Ibid, 201.
57 Onazi Oche, ‘What’s Love got to do with Development?’ in Maksymilian Del Mar and Claudio Michelon (eds), The Anxiety of the Jurist – Legality, Exchange and Judgement (Ashgate, 2013) 231.
58 Francisco Saffie ‘Fulfilling the Law by Breaking it? Formalism within Legality’ in Del Mar and Michelon, ibid, 156-170.
59 Oche, above n 57, 231.
60 The connection of this with natural law theory and therefore Christianity is obvious.
61 George A Panichas (ed), The Simone Weil Reader (David McKay co, 1981) 359.
62 Ibid.
63 Raimond Gaita, A Common Humanity Thinking About Love and Truth and Justice (Text Publishing, 1999) 5.
64 There are some strong critiques of romantic love. The feminist critique centers around the idea that through love women become locked into patriarchy, family, motherhood and domesticity. For example, see Wendy Langford, Revolutions of the Heart: Gender, Power and the Delusions of Love (Routledge, 1999) and Mary Evans, Love an Unromantic Discussion (Polity, 2002). Queer critique has also argued against romantic love on the ground that it is heteronormative. For example, see Cheshire Calhoun, Feminism, the Family, and the Politics of the Closet: Lesbian and Gay Displacement, (Oxford University Press, 2000); Cheshire Calhoun, ‘Sexuality Injustice’ (1995) 9 Notre Dame Journal of Law Ethics & Public Policy 241; Cheshire Calhoun, ‘Making Up Emotional People the Case of Romantic Love’ in Susan A Bandes (ed), The Passions of Law (NYU Press, 2001) 217-240; and Cheshire Calhoun, ‘Family’s Outlaws: Rethinking the Connections Between Feminism, Lesbianism and the Family’ in Hilde Lindermann Nelson (ed), Feminism and Families (Routledge, 1997) 131-150.
65 Gaita, above n 63, 27.
66 Shin Chiba, ‘Hannah Arendt on Love and the Political: Love, Friendship and Citizenship’ (1995) 57 The Review of Politics 506.
67 Aristotle, The Nicomachean Ethics (H Rackman trans, Harvard University Press, 1982) 457-471.
68 Singer, above n 26, 89.
69 Ibid, 95.
70 Marcus Tullius Cicero, Cicero’s Offices: Essays and Select Letters (Dent, 1920).
71 AC Grayling, Friendship (Vices and Virtues) (Yale University Press, 2013) 48.
72 Cicero de Amicitia quoted in ibid, 49.
73 May, above n 15, 67.
74 Harry Blatterer, Everyday Friendships: Intimacy as Freedom in a Complex World (Palgrave, 2014) 5.
75 Grayling, above n 71, 189.
76 Blatterer, above n 74, 191.
77 Hannah Arendt quoted in Shin Chiba, ‘Hannah Arendt on Love and the Political: Love, Friendship and Citizenship’ (1995) 57 The Review of Politics 522.
78 Chiba, above n 66.
79 Ibid, 519.
2 Zenon Bańkowski, Living Lawfully: Love in Law and Law in Love (Kluwer Academic Publishers, 2001) 41.
3 Ibid, 142.
4 Bańkowski relies on Luhmann for this point. Luhmann claims that Love is spontaneous, in the present, uncoupled from external relations, contingent and a matter of fate, not interested in the future, not bound by duty or obligation, consumes everything, thematises everything. Marriage, on the other hand, is interested in the future or the eternal, as something that reduces spontaneity, calms passion, routinises love, stabilises love. Niklas Luhmann, Love As Passion: The Codification of Passion (Jeremy Gaines and Doris Jones trans, Stanford University Press, 1982).
5 Bańkowski, above n 2, 211.
6 Zenon Bańkowski, ‘Law, Love and Computers’ (1996) Edinburgh Law Review 40.
7 Bańkowski, above n 6, 40.
8 Ibid.
9 Bańkowski, above n 2, 113.
10 Ibid, 114.
11 Ibid, 101.
12 Ibid.
13 Judith Shklar, Legalism (Harvard University Press, 1964). Relying on this text Bańkowski makes a distinction between legality that includes love, and legalism which constitutes a blind obedience to rules: Ibid, 42.
14 Plato, Symposium (WRM Lamb trans, Loeb Classical Library Harvard University Press, 1975).
15 Simon May, Love a History (Yale University Press, 2011) 40.
16 Plato, above n 14, 141.
17 Ibid, 173-211.
18 Christopher Cordner, ‘Two conceptions of love in philosophical thought’ (2001) 50(3) Sophia: International Journal of Philosophy and Traditions 315.
19 Merger is considered particularly problematic for women. See Marilyn Freedman, ‘Romantic Love and Personal Autonomy’ in Peter A French and Howard K Wettstein (eds), Midwest Studies in Philosophy, Vol XXII (Wiley, 1998) 162-181.
20 Robert Solomon, About Love Reinventing Romance for Our Times (Little Field Quality Paperbacks, 1994) 57.
21 Matthew 22
22 1 Corinthians 13
23 1 John 4
24 May, above n 15, 87.
25 Ibid, 86.
26 Anders Nygren quoted in Irving Singer, The Nature of Love, Volume 1 (University of Chicago Press, 1966) 275.
27 Ibid.
28 See Andreas Capellanus, The Art of Courtly Love (JJ Parry trans, Frederick Ungar Publishing, 1941) and Irving Singer, The Nature of Love, Volume 1 (University of Chicago Press, 1966).
29 A typical story of courtly love can be told by Tristan and Iseult. Sir Tristan is a knight who is sent by his King to negotiate for the hand of a neighbouring princess and bring her home to him to be his queen. On the return journey they fall in love. The rest of the story is about their affair and how they try to keep their love and fulfil their respective duties to the King: Bérol, Tristan and Iseult a Twelfth Century Poem (Janet H Caulkins and Guy R Mermier trans, H Champion, 1967).
30 Irving Singer, The Nature of Love, Volume 2 (Chicago University Press, 1984).
31 Irving Singer, The Nature of Love, Volume 3 (Chicago University Press, 1987) 18.
32 Solomon, above n 20, 45.
33 Susan Hendrick and Clyde Hendrick, Romantic Love (Sage Publications, 1992) 39.
34 The idea that romantic love is radical, liberating and modern has spread beyond western societies. It finds expression for example in challenges to common (mis)perceptions of arranged marriages in India, and in the Red Love context, it is equated with the shattering of capitalism. The revolutionary nature of romantic love is also a theme in communist countries where romantic love is equated with revolutionary ideas such as Marxism. See the concept of Red Love which originated from the novel by the same name by Alexandra Kollontai. Red Love appears to be used to signify the coincidence of romantic love with Marxism, and at least for some implies free love. See Teresa L Ebert, Alexandra Kollontai and Red Love
35 Ulrich Beck and Elizabeth Beck-Gernsheim, The Normal Chaos of Love (Polity, 1994) 193-194.
36 Eva Illouz, Why Love Hurts: a Sociological Explanation (Polity, 2012) 120.
37 Eva Illouz, Consuming the Romantic Utopia (University of California Press, 1997) 2.
38 Pascal Bruckner, The Paradox of Love (Princeton University Press, 2012).
39 May, above n 15, 1.
40 Ibid, 2.
41 Bruckner, above n 38, 75.
42 Ibid, 218.
43 May, above n 15, 6.
44 Ibid, 10.
45 Illouz, above n 36, 120.
46 Illouz, above n 37, 28.
47 Beck and Beck-Gernsheim, above n 35.
48 Ibid, 193.
49 Anthony Giddens, The Transformation of Intimacy: Sexuality Love and Eroticism in Modern Societies (Polity Press, 1992) 2.
50 Ibid, 58.
51 Ibid, 15.
52 Ibid, 63.
53 Lynne Jamieson, ‘Intimacy Transformed? A Critical Look at the Pure Relationship’ (1993) 33 Sociology 477.
54 Giddens, above n 49, 58.
55 Zenon Bańkowski, ‘Law, Love and Legality’ (2001) 14(2) International Journal for the Semiotics of Law 199.
56 Ibid, 201.
57 Onazi Oche, ‘What’s Love got to do with Development?’ in Maksymilian Del Mar and Claudio Michelon (eds), The Anxiety of the Jurist – Legality, Exchange and Judgement (Ashgate, 2013) 231.
58 Francisco Saffie ‘Fulfilling the Law by Breaking it? Formalism within Legality’ in Del Mar and Michelon, ibid, 156-170.
59 Oche, above n 57, 231.
60 The connection of this with natural law theory and therefore Christianity is obvious.
61 George A Panichas (ed), The Simone Weil Reader (David McKay co, 1981) 359.
62 Ibid.
63 Raimond Gaita, A Common Humanity Thinking About Love and Truth and Justice (Text Publishing, 1999) 5.
64 There are some strong critiques of romantic love. The feminist critique centers around the idea that through love women become locked into patriarchy, family, motherhood and domesticity. For example, see Wendy Langford, Revolutions of the Heart: Gender, Power and the Delusions of Love (Routledge, 1999) and Mary Evans, Love an Unromantic Discussion (Polity, 2002). Queer critique has also argued against romantic love on the ground that it is heteronormative. For example, see Cheshire Calhoun, Feminism, the Family, and the Politics of the Closet: Lesbian and Gay Displacement, (Oxford University Press, 2000); Cheshire Calhoun, ‘Sexuality Injustice’ (1995) 9 Notre Dame Journal of Law Ethics & Public Policy 241; Cheshire Calhoun, ‘Making Up Emotional People the Case of Romantic Love’ in Susan A Bandes (ed), The Passions of Law (NYU Press, 2001) 217-240; and Cheshire Calhoun, ‘Family’s Outlaws: Rethinking the Connections Between Feminism, Lesbianism and the Family’ in Hilde Lindermann Nelson (ed), Feminism and Families (Routledge, 1997) 131-150.
65 Gaita, above n 63, 27.
66 Shin Chiba, ‘Hannah Arendt on Love and the Political: Love, Friendship and Citizenship’ (1995) 57 The Review of Politics 506.
67 Aristotle, The Nicomachean Ethics (H Rackman trans, Harvard University Press, 1982) 457-471.
68 Singer, above n 26, 89.
69 Ibid, 95.
70 Marcus Tullius Cicero, Cicero’s Offices: Essays and Select Letters (Dent, 1920).
71 AC Grayling, Friendship (Vices and Virtues) (Yale University Press, 2013) 48.
72 Cicero de Amicitia quoted in ibid, 49.
73 May, above n 15, 67.
74 Harry Blatterer, Everyday Friendships: Intimacy as Freedom in a Complex World (Palgrave, 2014) 5.
75 Grayling, above n 71, 189.
76 Blatterer, above n 74, 191.
77 Hannah Arendt quoted in Shin Chiba, ‘Hannah Arendt on Love and the Political: Love, Friendship and Citizenship’ (1995) 57 The Review of Politics 522.
78 Chiba, above n 66.
79 Ibid, 519.
How to Cite
1.
Grossi R. Which Love in Law? Zenon Bańkowski and the Meaning of Love. LiC [Internet]. 2018Dec.21 [cited 2023Oct.1];34(1). Available from: https://journals.latrobe.edu.au/index.php/law-in-context/article/view/47