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The hero at the bar ofeternity: the BakhtinCircle's juridical theoryof the novelCraig Brandist

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To cite this article: Craig Brandist (2001): The hero at the bar ofeternity: the Bakhtin Circle's juridical theory of the novel, Economy andSociety, 30:2, 208-228

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The hero at the bar ofeternity: the BakhtinCircle’s juridical theory ofthe novel

Craig Brandist

Abstract

The work of the Bakhtin Circle has juridical foundations that derive from neo-Kantian philosophy. The work of Hermann Cohen, Max Scheler and Georg Simmelare of special importance. An examination of this intellectual tradition leads to anexamination of some of the works of Voloshinov, Bakhtin, Pumpianskii and Kagan,highlighting the centrality of the juridical person and the structures of judgement inthe now famous and in� uential Bakhtinian theory of the novel. Bakhtinian theory alsohas implications for social theory more widely, as recent work has shown. An analy-sis of the juridical foundations of the theory is important for understanding the natureof the theory and assessing its usefulness for contemporary theory.

Keywords: jurisprudence; novel; culture; democracy; neo-Kantianism;phenomenology.

Responsibility is perhaps the key category in the work of the Bakhtin Circlethat has made it an important point of reference for social as well as culturaltheory. The concept takes many forms, from the focus of the early Bakhtin’smoral philosophy through Voloshinov’s insistence on the centrality of theresponsible word to the mature Bakhtin’s account of the rise of the responsiblehero in the modern novel. While many commentators have discussed the

Copyright © 2001 Taylor & Francis LtdISSN 0308-5147 print/ISSN 1469-5766 onlineDOI: 10.1080/03085140120042280

Economy and Society Volume 30 Number 2 May 2001: 208–228

Craig Brandist, School of Modern Languages and Linguistics, Department of Russian andSlavonic Studies, University of Sheffield, Arts Tower, Western Bank, Sheffield S10 2TN.E-mail: C.S.Brandist@Sheffield.ac.u k

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importance of the concept of responsibility (otvetstvennost ’) in Bakhtin’s work,it has too often been viewed as simply an early form of the later and undoubt-edly related notion of dialogism, which has been encouraged by the translationof the term as answerability .1 While sociological categories are of crucialimportance, however, they never replace the notion of responsibility located inthe person. The need to impute personal responsibility for deeds, discursive orotherwise, is, of course, a central concern of jurisprudence and Bakhtin oftensuggests that his theory of the novel has juridical overtones, at one pointarguing that ‘the idea of trying a hero and his discourse is perhaps the mostfundamental organizing idea of the novel’ (Bakhtin 1975: 200, 1981: 388).However, the ‘proceedings’ which the novel inaugurates are inquisitorial ratherthan accusatorial: the author, as judge, ‘compels the witnesses [heroes – CB] toanswer questions which he himself has formulated’ according to his or her ownplan (Rose 1984: 12). The novel becomes a critical tribunal in which the ‘wellgrounded claims’ of human knowledge are secured and ‘all baseless assump-tions and pretensions’ are pronounced against according to ‘its own eternal andunchangeable laws’ (Kant 1934: 3). However, it is not only human knowledgethat is at stake in this tribunal, but the freedom of the hero to act as a moralagent, since Bakhtin follows Hermann Cohen in fusing moral law and the syn-thesis of appearances.

Analysis of the juridical elements of this theory has perhaps been curtailedby Bakhtin’s own cursory and dismissive comments on law and law-like moral-ity, but recent research into the sources of Bakhtin’s ideas suggests that, what-ever Bakhtin’s reservations about law, his perspective is crucially reliant on thecategory of the juridical individual. Thus, while, as Ken Hirschkop (1998: 593)notes, Bakhtin sought to overcome the ‘legal/juridical concept of responsi-bility’, he did this precisely by casting social theory in legal/juridical terms.Society now becomes the sphere of interaction between juridical individualswith the effect that ethical life (Sittlichkeit ) generates its own immanent legal-ity: dialogism. An analysis of this feature of Bakhtin’s work reveals manyimportant features of the work of the Circle as a whole and alerts us to crucialproblems that need to be overcome if this work is to prove fruitful for contem-porary social theory. An examination of this question requires a brief look atthe tradition of neo-Kantian writings on ethics and law of which Bakhtiniantheory was a specific development. This begins with an examination of thework of the leader of the Marburg School, Hermann Cohen, and the formaltheory of law developed by Rudolf Stammler. We shall then examine the influ-ential critiques of formalism in the work of Georg Simmel and Max Schelerbefore moving on to the work of Ernst Cassirer, whose central work presentsan attempt to transcend the logicism of the Marburg School and the Simmelian‘tragedy of culture’ through a rapprochement of neo-Kantian and neo-Hegelian philosophies in a philosophy of dialectically unfolding symbolicforms. This provides the crucial philosophical basis for understandingBakhtin’s theory of the novel.2

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The Marburg School

The Marburg School attitude towards ethics and law was based on Kant’semphasis on the priority of practical reason or subjective freedom over theor-etical reason or necessity. As Hegel (1975: 71–4) showed, since the two realmsare absolutely different, freedom for both Kant and Fichte could only signifyfreedom from necessity and the Marburg School sought to carry through theKantian separation to its logical conclusion. As Ernst Cassirer put it:

The primacy of activity over possibility, of the independent-spiritual over thesensible-thinglike, should be carried through purely and completely. Anyappeal to a merely given should fall aside; in place of every supposed foun-dation in things there should enter the pure foundations of thinking, ofwilling, of artistic and religious consciousness. In this way, Cohen’s logicbecame the logic of the origin.

(Habermas 1983: 26)

Thought does not unify a given plurality (manifold) as Kant had thought, forunity and plurality are themselves preconditions of thought that must arise froman ‘origin’ (Ursprung) of thought prior to the distinction between thought andbeing. In Cohen’s later work the foundation of ‘primary origin’ is legality (Geset-zlichkeit), it is God’s revelation to which man responds. The primacy of practi-cal over theoretical reason now became the primacy of the ethical Ought over thephenomenal is so that freedom becomes the capacity for developing ethical prin-ciples. The task of ethics is for the subject to become a rational self-legislatingperson and the Kantian categorical imperative becomes the social imperative,the law of the self-legislating society. The moral law has the dual character of‘the idea of humanity and the idea of socialism’, the task of the moral will. Social-ism is a postulate of practical reason through which the discrepancy betweensubstantial freedom (men as ends in themselves) and legal subjectivity (thephenomenal state-of-laws at a given moment) can be overcome.

For Cohen, the state is the self-legislating unity of individuals, the ethicalfoundations of which rest on the science of legal concepts: jurisprudence.Jurisprudence is assumed to be ‘the mathematics of the “Geisteswissenschaften ” ’(Cohen 1981: vii) because it is a ‘fact’ of scienti� c thinking with an ideal pre-cision that transcends the opposition between consciousness and its object. Sucha move is ideally suited to this brand of neo-Kantianism because, like Cohen’stransformation of the oppositions of Kantian critical philosophy into ‘produc-tive unities, established by reference to the certain fact of mathematical think-ing’, doctrinal legal discourse is a dogmatic discourse in the philosophical senseof a discourse whose premises are known a priori or laid down by authority (Rose1984: 41–4; Kerruish 1991: 122). The legal person (Rechtssubjekt), exclusively abeing with the capacity to be a bearer of rights (Rechte) and obligations (P� ichten)(Fisher 1996: 32), is for Cohen a ‘� ction’ in the Marburg sense of a rational,heuristic prescription which guides the human sciences (Cohen 1981: 243).Ethical self-consciousness, the uni� ed will (der Wille, the morally legislative will,

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not Willkür, the naturally determined will) is realized in the juridical personwhich can apply ‘naturally’ to the biological individual or ‘arti� cially’ to an‘association’ (Genossenschaft). The state is the juridical person that embodies theidea of moral humanity, it is a cosmopolitan idea which bears the universal prin-ciples of humanity. Socialism establishes a bond between the people and thestate, and the state upholds the law equitably without favouring any ‘community’(Gemeinschaft), be it a class, race, group or the like. Political democracy makesthe state a union of free wills and the will of that state guarantees the equal useof power; when such democracy is compromised the state departs from legality(Gesetzlichkeit) and thus ceases to be the source of law (Gesetz). A particularcommunity is correlated with the universal (society) and when ‘it claims to com-pletely represent universality . . . substitutes universality . . . does not take theneed for universality as its guiding concept and corrective’ it should be ‘drasti-cally contested’. A community becomes immoral when it loses the ‘guarantee ofuniversality’, that is the ‘common centre of universality’ (Poma 1997: 123;Willey 1978: 112–16).

In Cohen’s socialist vision the centre for the unity of humanity is the prin-ciple of justice (die Gerechtigkeit), the ‘task of the eternal’. The realm of ends(Zwecke) is the practical equivalent of the theoretical realm of validity, whichstands beyond being as holiness, God’s task for man. Man co-responds to revel-ation (origin) by continuing creation in the world and ethical reason in man since‘creation and revelation take effect only through reason’ (Cohen 1972: 88).History obscures justice, resulting in a discrepancy between true freedom andlegal personality, and this is especially clear in the existence of poverty, ‘thequalitative evidence of the low level of culture’. This social suffering gives riseto feelings of sympathy (Mitleid), which implicates the whole consciousness ofculture, and thus to a cognition of ‘the Other’ as the ‘fellowman’ (Mitmensch).This fellowship, based on justice as the criterion of the unity of humanity, is aprecondition of individuality. The science of right, jurisprudence, serves to pitexperience against original unity and ultimate goal to guide the ordering ofhuman and social life in the process of becoming. Jurisprudence thus becomesthe science of ‘ethical life’ (Sittlichkeit), the customary life of a people (Rose1984: 44–5, 1993), and it is in this form that it is adopted by Bakhtin.

The early Bakhtin welcomes the neo-Kantian transformation of ethics into a‘logic of the social sciences’ but is intent on developing a new form of ethics,which is based on the ‘theoretically thinking, aesthetically contemplating andethically acting’ subject in the ‘once-occurrent event of being’ (Bakhtin 1994a:31–2, 1993: 27–8).3 Rather than distancing himself from Cohen, Bakhtin is prob-ably here responding to the formalist development of the Marburg philosophy oflaw by Rudolf Stammler and Hans Kelsen. To Cohen’s disquiet, Stammler hadresponded to the former’s call for positive law to be distilled into its systematicand rational principles by drawing a strict ‘contrast between morality as internaland legality as external’. Law regulates conduct by de� ning norms ‘independentof a person’s inclination to follow them’, while ethical theory is concerned withthe ‘content of a man’s own will’ (Stammler 1925: 40–1).4 In the ‘Author and

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hero’ study Bakhtin similarly notes that ‘law and law-like morality cannot extendits demands to the inner emotional-volitional reactions and they demand onlyde� nite outer actions that are performed in relation to oneself and must be per-formed for the other’. Furthermore, ‘I cannot directly experience within myselfwhat constitutes me as a legal person, for legal person is nothing other than theguaranteed surety of my being recognized by other people, which I experience astheir obligation towards me’ (Bakhtin 1994b: 126, 1990: 48–9).5

Stammler sought to establish a universally valid method or ‘right law’ whichcan isolate what is objectively valid in any historical instance of law. It is the‘unity of the methodological adjustment of individual purposes in accordancewith the one � nal purpose of the community’, and that purpose is a ‘communityof men willing freely’. Law is not to be seen as a wall that encloses a community,protecting it from outside and yet con� ning and interfering in its otherwise freefunctioning; rather, the true relationship is between ‘condition and thing con-ditioned’. Legal regulation is the precondition of a concept of society and thisalso extends to the economy, which ‘can exist only as legally regulated workingin common’ (Stammler 1925: 153, 177, 186). The state is thus not the creator oflaw but is logically preceded by law just as law is given in social life and its con-ditions. Similarly law validates customs and mores, giving them autonomy andpermanence and this is a precondition for society as such. The result was a Mar-burgian philosophy of law aimed at � nding ‘a universally valid formal method,by means of which the necessarily changing empirical conditioned legal rulesmay be so worked out, judged, and determined that it shall have the quality ofobjective justice’ (Stammler 1925: 89–90).

The critique of formalism

One of the � rst critical responses to this formalist neo-Kantianism was by GeorgSimmel in 1896. Stammler’s notion of society as ‘a communal life of humanbeings that is governed by externally binding laws’ was unpalatable to Simmelsince in his eyes it elevates a ‘secondary phenomenon’ to ‘the positive life-principle of society’. For Simmel, sociation must take priority over ‘externalregulation’, which is ‘merely the precondition for an already existing group tocontinue, not the formative condition of its emergence’. The precondition ofboth society and regulation must lie elsewhere, in the interaction of the indi-vidual elements that make up a society, ‘the fact that these interactions . . . resultin the form of regulation . . . does not signify the essence but merely an attributeof sociation’. Contra Stammler, there is no ‘ultimate goal of social life’ but adiversity of ‘social ideals each of which forms an ultimate instance’; we shouldtake what is objective in knowledge and action to be a ‘relational concept’ ratherthan an absolute ideal (Frisby 1981: 46–50). Sociology, for Simmel, is the iso-lation of form from the heterogeneous associations between society’s individualmembers: interaction in life is the precondition of forms of regulation and of therealm of values and validity (culture generally).

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In his Sociology (1908) and ‘The individual law’ (1913, expanded 1918),Simmel argues that, since forms arise from interaction, both morality and lawderive from a common basis in custom. As in much of Simmel’s analysis, thenumber of individuals involved crucially affects the form of norms:

Morality develops in the individual through a second subject that confrontshim in himself. By means of the same split through which the ego says tohimself ‘I am’ – confronting itself, as a knowing subject, with itself as a knownobject – it also says to itself ‘I ought to’. The relation of two subjects thatappears as an imperative is repeated within the individual himself by virtueof the capacity of our mind to place itself in contrast to itself, and to view andtreat itself as if it were somebody else.

(Simmel 1950: 99)

Once the forms have received de� nite contents, however, they become detachedfrom their ‘social vehicles’ and attain an ‘ideal’ autonomy as an ‘ought to be’ sothat the social nature of the contents is supplemented by an objective validity,an imperative. At its farthest extreme, when an objective norm is crystallized ina large group, this becomes law. Private morality and law thus form polesbetween which one � nds custom. The former knows no other law than thatwhich the individual gives to him or herself and knows no other executive powerthan his or her own conscience, while in the code of law and through its organsa group requires of an individual what it must require unconditionally. In devel-oped societies, custom supplements these orders when legal coercion is imper-missible and individual morality unreliable; it belongs to smaller groups and thisis what links it with primitive groups. Moral and legal norms are, however,higher above and deeply embedded within the individual:

Law and custom seize the will externally and in its realization; they anticipateand threaten; and, in order to be effective without fear, they usually, thoughnot always, must become part of personal morality. It is personal moralitywhich is at the root of action. It also transforms the innermost aspect of theindividual that he automatically does the right deed without the help of therelatively external forces of law and custom. Yet society is not interested inhis purely moral perfection. Individual morality is important to society andis bred by it only insofar as it guarantees as much as possible that the indi-vidual act in a socially efficient manner.

(Simmel 1950: 99–104)

Law becomes an element of ever-growing objective culture and the morality ofindividual culture, which become increasingly disjunct. Using the terminologyof Marx’s theory of commodity fetishism, Simmel argued that ‘the real culturalmalaise of modern man’ is the result of a ‘discrepancy between the objective sub-stance of culture, both concrete and abstract’ and ‘the subjective culture of indi-viduals who feel this objective culture to be something alien, which does violenceto them and with which they cannot keep pace’ (Simmel 1997: 101–2).6 It is theneed to overcome this confrontation between objective culture and life that is

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the impetus for Bakhtin’s Philosophy of the Act (1994a: 11–12, 1993: 2). Simmel’s‘individual law’ that obliges the subject through conscience is what, for Bakhtin,makes the individual truly responsible, while law and law-like morality reallyoblige no one.

A kindred critique of the notion of responsibility deriving from a formal ethicswas developed by Max Scheler, for whom ‘moral responsibility’ is rooted in‘one’s immediately knowing that he is the author of his deed and its moral valuerelevance ... the experience of “self-responsibility” as an absolute experience is thepresupposition of all responsibility “before” someone (man, God)’ (Scheler1973: 487). Scheler was, however, critical of Simmel’s residual subjectivism andpursued a phenomenological agenda based on the intuition of a priori valueessences in inter-subjective interaction (Scheler 1973: 489–90). Values are hier-archically ordered and are given to us in feeling through our a priori ‘order’ or‘logic’ of the heart. Moral actions are those that serve to actualize the higherrather than lower-order values. Unlike Simmel, Scheler sees the ordering ofvalues pre-existing social interaction and a knowledge of this depending uponthe eidetic knowledge that has been previously acquired and handed down bytradition and the section of being that is accessible from a particular spatio-tem-poral position. Schutz summarizes the consequences of this well:

It follows, � rst, that at no time of its historical existence can any individual orgroup have a total knowledge of the realm of essences; second, that each per-spective in which this realm is disclosed to each subject at any moment of itshistory is unique and irreplaceable; third, that only the cooperation ofmankind, as a whole, of all coexisting individuals and groups and also of allsucceeding ones which are uni� ed by a common tradition, guarantees thegrowth of aprioristic eidetic knowledge.

(Schutz 1970: 171–2)

Though Bakhtin adopts much of Scheler’s typology of inter-subjective relations,the necessity of maintaining a phenomenological distance from the other (out-sideness), the contention that every perspective is unique and irreplaceable,concentration on the cognitive quality of feelings and account of the emergenceof the individual I from the stream of otherness, he does not accept the notionof material value essences. Scheler’s subtle working through the modalities ofsympathy is understood by the early Bakhtin in the sense de� ned by Cohen,whose aesthetics was based on the notion of ‘pure feeling’.

Aesthetics and symbolic forms

In Cohen’s Aesthetics of Pure Feeling Kant’s concept of ‘genius’ is recast as legal-ity, the method of pure, rational production:

It is legality, not law that makes the artist a genius. It is from legality that lawsprings, from which law comes out in that relativity from which even the work

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of art of the highest value cannot be entirely freed. The law of the work of artcan preserve its historical weaknesses, but systematic legality is revealed in theauthentic genius.

As with ethics, a speci� c instance of law may be de� cient but legality itself ispure; ‘the genius of art [is] the legislator of art’, the method of producing theaesthetic object, even if a speci� c instance of art is � awed. A work of art is so tothe extent that it is governed by legality and compromised to the extent that itis not, just as a state is ethical to the extent that it is governed by legality andrepressive to the extent that it is not. Thus, in art as in ethics, the science of rightpits experience against original unity and ultimate goal with a method that mustbe valid for all of culture: ‘a unitary law can and must be discovered in it, on thebasis of a unitary method’ (Poma 1997: 132–5).

In the work of Cohen’s pupil Ernst Cassirer this ‘legality’ was transformedinto the ‘legality’ that underlies all symbolic forms as they emerge from the‘common matrix of myth’ (Cassirer 1946: 44). In The Philosophy of SymbolicForms Cassirer combined Cohen’s notion of legality with Hegel’s dialectics toargue that, while the truth is whole, it must be ‘unfolded progressively bythought in its own autonomous movement and rhythm. It is this unfoldingwhich constitutes the being and essence of science’ (Cassirer 1957: xiv). LikeHegel, Cassirer combined an account of the dialectical unfolding of symbolicforms in history with an ideal history in and through which the essence of sym-bolic forms (legality) appears. Through the development of these forms, thejuridical person with individual responsibility emerges from mythical thought.Myth in the ethical sphere is manifested by the taboo system where ‘there is nota shadow of any individual responsibility . . . if a man commits a crime it is nothe himself who is marked off – his family, his friends, his whole tribe bears thesame mark’. Individual responsibility becomes proportional to the developmentof symbolic forms, for human culture is ‘the process of man’s self liberation.Language, art, religion, science are various phases in this process. In all of themman discovers and proves a new power – the power to build up a world of hisown, an “ideal” world’ (Cassirer 1944: 137–8, 286). These forms are the various‘image worlds’ that humans create, the only world they can know, but each is anirreducible part of a fundamental unity governed by the ‘law’ of symbolization.Individual responsibility is thus proportional to the extent to which humanityconsciously creates its ‘image world’ in accordance with essential legality andkeeps the goal of genuinely humanistic culture in mind. Responsibility is nowinseparable from Bildung (formation, education).

The development of juridical literary theory

It is only in the 1930s that Bakhtin fully engages with Cassirer’s work. In theearly work, the static Marburg logicism and Scheler’s phenomenology are soft-ened only by a Simmelian caution towards the notion of objective culture in

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opposition to the dynamism of life. The ‘Author and hero’ study shows Scheler’stypology of interpersonal relations being applied to the modality of author-to-hero relations that more closely resemble God-to-man relations. However, inter-personal (inter-hero) relations in the novel assume the presence of an authorwhose detachment and ‘excess of seeing’ is reminiscent of Cohen’s monotheisticGod to which man responds. For the hero, the world is viewed as a horizon,objects appear as that which stands over and against the hero in the cognitive-ethical and thus intentional openness of living a life. For the author, however,the objects of the world are viewed as the hero’s surroundings, his environment.The hero is seen amid other objects. Similarly, the hero does not experience hisown life as a whole: his birth and death, for example, do not exist for the herobut only for other heroes and for the author. The hero does not exist for him orherself as a complete life within certain surroundings plotted out against a storyline, but as an open event of being. Aesthetic completion is therefore possibleonly from the point of view of the author. Only from this perspective does theportrayed life become something that is determined, that is ‘liberated’ from theopen ‘yet-to-be’ of the future and thereby becomes open to any � nal evaluation.Lived experience, argues Bakhtin, is ‘a trace of meaning [smysl] in being’, it is atrace of culture in life, of validity in existence, which becomes ‘aesthetically con-solidated’ by being cleansed of all that gives it meaning as a yet-to-be-achievedtask. It is ‘individualized’ by being concentrated and combined in an individualunity, a soul, i.e. an aesthetically valid and completed hero. Meaning becomesembodied in the determinate and, indeed, determined life of the hero by virtueof the enclosing view of the author (Bakhtin 1994b: 180–1, 1990: 115–16). Whatis an ethical problem for the hero is dependent on his or her freedom to act inthe ‘open event of being’. For the author, however, who views the hero in his orher environment, as determined and enclosed in a strictly circumscribed eventwhose outcome is known in advance, the hero engages in an aesthetic act. Thehero acts ethically in his or her own world, experiencing all boundaries asimpediments and striving to overcome those boundaries. The author, however,is able to achieve aesthetic judgement by bestowing boundaries and it is thisaesthetic judgement that the reader as external spectator co-creates. The authorand reader thereby adopt a position akin to Kant’s theoretical reason, sitting injudgement.

We thus arrive at the initial juridical model of narrative literature that is oneof the cornerstones of Bakhtin’s later theory of the novel. However, we shouldalso note that, since jurisprudence has been transformed into a general methodo-logical ‘mathematics’, terms with a juridical resonance also reverberate with amore general signi� cance. Thus ‘judgement’ is a general term of Kantian sig-ni� cance, but, in accordance with Marburg School thinking, it refers to the pro-duction of the object of knowledge: the judgement of being. Similarly, as themathematics of ethics, jurisprudential judgement has a much more broadlyethical signi� cance, but again this is based on a jurisprudential logic, as we sawin the case of Cohen. Finally, and perhaps most importantly in the early texts,is the religious-theological signi� cance of judgement and trial, with important

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links to the Last Judgement and the trial of Christ, as before Dostoevsky’s‘Grand Inquisitor’ in The Brothers Karamazov. There is no doubting the in� u-ence of Christian ethics in Bakhtin’s thought (Mihailovic 1997; Coates 1998).This metaphorical richness that is characteristic of Bakhtin’s language andwhich contributes in equal measure to the fascinating and confusing nature ofhis work should not be neglected. However, this should not continue to obscurethe underlying juridical logic. We should also acknowledge the signi� cantdevelopments in the conception of the novel in the later works of the Circle,which also adhere to the juridical model. In the ‘Author and hero’ essay, the � rm,external position of the author-judge is valued as a precondition of successfulliterature and any compromise of this ‘outsideness’ is seen as a pathology of agiven moment of history. This evaluation appears to be a common one in theCircle in the 1920s. In an article of 1926, Voloshinov admiringly cites Cohen’sanalogy of the structure of Greek tragedy with legal proceedings in his Ästheticdes reinen Gefühls (Voloshinov 1995a: 82, 1983: 25), but it is in the work of LevPumpianskii that the juridical model of the novel is most clearly stated. In a dis-cussion of Turgenev’s novels from 1929, Pumpianskii notes that ‘Judgement isinseparable from literature’ and this is especially the case in the novel:

In the heroic novel there is an uninterrupted passing of judgement (sud) onthe character – not on deeds but on the character, so that deeds have only asymptomatic character. The issue is not the quality of separate actions but thegeneral social quality of the hero. . . . The method [of the heroic novel] is thetrial of the powers of contending sides in a well-considered social courtthrough the construction of the walk of life, scenes of a life, accompanied bythe uninterrupted interpretation of the author. . . . The hero in the laudablesense of the word is the person who victoriously endures the court (sud) oflife; the hero in the technical sense of the word is he who in general subjectshimself to the uncertainty of this court.

(Pumpianskii 1929: 9, 11)

A similar perspective is presented in Bakhtin’s Dostoevsky book of the sameyear, though there is a signi� cant development. Like Turgenev in Pumpianskii’scharacterization, Dostoevsky uses plot to expose and provoke the hero, makinghim collide and con� ict with others (Bakhtin 1994c: 78, 1984a: 276–7), and thisis reinforced in the 1934 ‘Discourse in the novel’ article where the Dostoevskiannovel is explicitly characterized as a ‘novel of ordeal’, a genre with the idea oftrial at the heart of its structure (Bakhtin 1975: 203, 1981: 391–2). However, inthe Dostoevsky book, the focus shifts from an identi� able authorial voice passingjudgement (the representative of theoretical reason) to the hero’s self-revelation(practical reason), for ‘it is only in the form of a confessional self-utterance that,according to Dostoevsky, the � nal word about a person, truly adequate to him,can be given’ (Bakhtin 1994c: 55, 1984a: 55–6) In the second edition of the book(1963), this is linked to the devices of syncresis (juxtaposition of point of view)and anacrisis (compelling a speaker to voice his views thoroughly) in the Socratic

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dialogue with the aim of exposing falsity (1994d: 319, 1984a: 110). The heroesare no longer subordinated to a concrete individual voice, but to an abstract,general authorial presence that is present in the ‘legality’ of the novelistic formitself. The hero as it were appeals directly to the judge of the Supreme Courtand the narrator is unable and unwilling to stand in for that judge. Those nar-rators or leading characters who do ‘sit’ in such circumstances are guilty of theultimate presumption.

Dostoevsky’s novel thus becomes an aesthetic version of the court of inquirythat one might � nd in Cohen’s ideal democratic state. All consciousnesses have‘equal rights’ and are correlated with that of the author whose presence is in theperspective on the whole from without. The polyphonic novel is a cosmopolitanidea (Dostoevsky’s ‘form-shaping ideology’) that bears the universal principlesof humanity. The hero’s consciousness does not become a mere object of anauthoritative and identi� able authorial voice but stands alongside other voices asan Other, a ‘fellowman’. It is against this universal idea of justice (the Ought)that judgement can be made, not against the objective context of a depictedsociety (the is). Within the unity of a unique and unrepeatable ‘event’, theoreti-cal gives way to practical reason:

All the hero’s stable, objective qualities, his social position, his sociological andcharacterological typicality, his habitus, his spiritual pro� le and even his veryphysical appearance – i.e. everything that usually serves the author for thecreation of a hard and fast image of the hero – ‘who he is’ – becomes, inDostoevsky, an object [ob’’ekt] of the hero’s own re� ection, the object[predmet] of his self-consciousness; the object of the author’s vision and rep-resentation turns out to be the very function of this self-consciousness.

(Bakhtin 1994c: 46, 1984a: 48)

The consequences are signi� cant:

Therefore in Dostoevsky’s novel there is no causality, no genesis, there is noexplanation drawn from the past, from the in� uence of surroundings,upbringing and so on. Every act of a hero is completely in the present and inthis regard is not predetermined, it is thought of and represented by theauthor as free.

(Bakhtin 1994c: 40; 1984a: 29)

This truly is the juridical individual, completely responsible for his or her owndeeds, in discourse or otherwise. There are no alibis. As in jurisprudence, we arepresented with rationally formed intentions, and questions of how these inten-tions are formed; ‘their motives and their motives’ context’ are systematicallyexcluded. In such novels as Crime and Punishment Dostoevsky ‘decontextualizesactions and intentions’, abstracting them from their formative history, and, as inthe discourse of criminal justice, does so in order to attribute responsibility toindividuals (Norrie 1986: 221). Dostoevsky is the juridical author par excellenceand his forebear is Dante whose Divine Comedy culminates in the � nal judgement.

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Bildung and inquest

For all his infectious enthusiasm about the Russian novelist, even in 1929Bakhtin is equivocal about Dostoevsky’s ‘method’, for, while it makes himacutely aware of simultaneity, it leaves him blind to biographical factors (Bakhtin1994c: 41, 1984a: 30). By 1934, however, the historicizing in� uence of Cassireris clearly apparent. Bakhtin now argues that the idea of trial alone is unable todeal with the ‘becoming’ and ‘formation’ of a person since it deals with analready formed person who is tried in the light of an already formed ideal. Inthe history of the novel there is, however, a gradual integration of the novel oftrial with the novel of becoming, the Bildungsroman :

Life and its events, now illuminated by the idea of becoming, is revealed asthe hero’s experience, school, environment, that � rst moulds and forms thehero’s character and worldview. The idea of becoming and upbringing makesit possible to organize the material around the hero in a new way and touncover completely new sides in this material.

(Bakhtin 1975: 204, 1981: 393)

Ultimately trial and Bildung form an ‘organic unity’ in the modern novel wherewe are shown ‘being in the process of becoming’, that is, an open-ended historyin which the hero has a unique and unrepeatable place:

He becomes together with the world, re� ecting in himself the historicalbecoming of the world itself. He is no longer within an epoch, but on theborder of two epochs, at the transition point from one to the other. This trans-formation is carried out in and through him. He is compelled to become anew, still unprecedented type of person.

(Bakhtin 1979: 203, 1986: 23)

As Ken Hirschkop has noted (1997: 588), the hero’s responsibility is pro-portional to the historicity of his or her world, in which the future is open andset as an ethical task. If all is open the individual is obliged to act, to make aunique and irreplaceable contribution to the ongoing formation, the Bildung, ofthe world.

This perspective is heavily reliant on Cassirer. The ‘world’ in question is the‘image world’ of culture, with its own legality (jurisprudence) and goal: dieBildung der Humanität. Cassirer’s account of the emergence of the modern,responsible individual in and through a dialectic of mythical and critical sym-bolic forms is transformed into a dialectic of poetic (monologic) and novelistic(dialogic) forms of literature. Both dialectics presume Cohen’s practical realmof ends (Endzwecke) that are beyond history, in eternity, and an originary legal-ity. It is only from this perspective that history as a whole can be said to have anethical meaning and can thus be judged. Cassirer linked this to natural law,which is ‘founded in the sphere . . . of pure reason’ as ‘that which originallyarranges things’ in a text that Bakhtin explicitly plagiarized in his Bildungsro-man essay (Cassirer 1951: 239–40).7 Once again we have the idea of a logistic a

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priori jurisprudence as the mathematics of ethics and, by extension, of thehuman sciences in general. Cassirer’s ‘legality’ of symbolization Bakhtin trans-forms into dialogism, the logic of relations between juridical persons in thenever-ending task of the co-creation of the shared image world.

Pace Cohen, Bakhtin’s novelist qua novelist reveals a systematic legality, he orshe constructs an image world in accordance with jurisprudential ‘mathemat-ics’, but the modern novelist, pace Cassirer, shows the legality of the formationof the world and the hero as a part of that:

If we approach spiritual life, not as the static contemplation of being, but asfunctions and energies of formation, we shall � nd certain common and typicalprinciples of formation, diverse and dissimilar as the forms may be. If thephilosophy of culture succeeds in apprehending and elucidating such basicprinciples, it will have ful� lled, in a new sense, its task of demonstrating theunity of the spirit as opposed to the multiplicity of its manifestations – for theclearest evidence of this unity is precisely that the diversity of the products ofthe human spirit does not impair the unity of its productive process, butrather sustains and con� rms it.

(Cassirer 1955: 114)

Bakhtin’s novelist is thus a philosopher of culture in the midst of spiritual activitywho reveals the truth lying in the relations between rather than within discourses.The trial of the hero and his or her discourse is a judgement of the relationsbetween discourses against the dialogic legality of the novel form itself. Thenovelist ceases to believe in the possibility of an adequate image of a world inde-pendent of consciousness and seeks to provide an image of the imaging processitself, the logic of the co-creation of the world of culture. Every individual has aunique part to play in the construction of this universal world and is personallyresponsible for doing so, but when the individual claims a socio-speci� c per-spective represents the whole, losing the universal as its guiding concept and cor-rective, it becomes immoral and deserves to be contested. As we shall see, this isthe function of carnival and the parodic, inverted and de� ationary tactics of ‘thepeople’ in opposition to the official, objective culture. Bakhtin repeatedly stressesthe ‘universality’ of laughter and its link to a popular (vsenarodnyi/obshchenaro-dnyi) utopia of equality on the public square and in the marketplace.

The world according to jurisprudence

Despite his phenomenological excursions, Bakhtin remains a neo-Kantian forwhom the a priori ‘produces’ the cognized world rather than being somethingdiscovered within the empirical world itself (Reinach 1969). Jurisprudence is oneof what Bakhtin’s friend Matvei Kagan (1922: 114), following Cohen, called‘undoubted facts of actuality’, that is the ‘spheres of objects and problems of sep-arate scienti� c and cultural disciplines’ into which ‘actuality is broken up’. Whenit is given the status of ‘mathematics’, there can be no independent standard of

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value to justify jurisprudence, its validity must be assumed. The type of socialtheory that results is inherently self-justifying. As Valerie Kerruish puts it:

Jurisprudence justi� es legal practices in terms of values constructed by legalpractices. The ascription of rights to free and equal legal subjects is justi� edeither by arguing that this process is an actualisation of an independentlyexisting reality of entitlements or by arguing that it is a � ction or conventionwhich must be maintained for the good of individuals. . . . Law is alreadyjusti� ed as necessary to social life through the individualist social theorywhich it helps to construct, and since law involves the ascription of rights inboth theory and practice, there is no logical space left for scepticism as to thevalue of rights. Jurisprudence contributes to and conceals rights fetishism bydenying the self-referential character of legal justi� cations and so arguingtheir independence.

(Kerruish 1991: 6)

General rules that are used within legal practices to regulate and adjudicatecertain enterprises and disputes � oat off to become a sort of semi-platonic realm,which, once instituted, becomes inescapable. Simmel, for example, was especi-ally sensitive to this formation of an ‘objective culture’ from interaction, but hetoo remained within the neo-Kantian problematic of objective validity with theeffect that law is still taken on its own terms. Thus, for Simmel, the formationof a rei� ed law is but a moment of the formation of objective culture which isthe inevitable result of the growth of societies; law is taken as the impersonallyabstracted form of interaction between individuals. The claim of law, or ratherlegality, to be the embodiment of formal rationality is accepted by both Simmeland Bakhtin; the objection is that formal rationality obliges no one, but must beinternalized once more into conscience through a recognition of one’s uniqueplace in being. Like Simmel, Bakhtin seeks to counter the juridical notion ofresponsibility from within a jurisprudential paradigm itself, bringing it back tothe interaction from which it derives. But that interaction is considered jurispru-dentially, from the point of relations between juridical persons. There is nological space left for scepticism and thus critique.

While decrying the legal abstraction of intentional acts from their uniqueinter-subjective contexts and personal biography, Bakhtin still treats social inter-action as the intersection of rights and obligations that are the legal conse-quences (Rechtsfolgen) arising from a legal provision (Rechtssatz) laid down insome a priori statute (Cohen’s Gesetzlichkeit). Acts are necessarily abstractedfrom the material structures that motivate, limit and enable their performance,and a social relationship becomes what German law calls a Rechtverhältnis (legalrelationship between legal subjects or between subjects and legal objects). WhileBakhtin’s analyses become less obviously individualistic in the 1930s, socialgroups are still treated exclusively as juridical persons, i.e. as entities withfreedom, reason and the identity of the rights they hold by virtue of their pos-itions as ‘a priest, a knight, a merchant, a peasant, a jurist and so on’. Bakhtinstill begins with legal personality itself and ends with a quasi-legal description

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of society. Thus language is ‘always’ strati� ed according to different legal per-sonalities, and their discourse is thus always biased: ‘every discourse has itsmercenary and partial proprietor’ (Bakhtin 1975: 212, 1981: 401).

Here we can begin to see the importance of the marketplace for Bakhtin.Where in a hierarchical, feudal society property is held to be immobile and cannotbecome an object of mutual guarantees, in the marketplace owners meet exclu-sively as equal ‘proprietors’ exchanging their wares. The market provides theconditions for equity (Gerechtigkeit). While each makes biased claims for thevalue of their ‘goods’, they are equal precisely as commodity owners and mustrecognize each other as such. So too with discursive ‘proprietors’, the value and‘ownership’ of certain discourses are no longer held to be immobile, but all aresubject to exchange: courtly, priestly, vulgar or obscene. To put it simply: themarketplace is where people meet precisely as legal subjects; they are free to actand have the right to enter into exchange. In the time of Rabelais, we are told(Bakhtin 1965, 1984b), the marketplace was a vital and unofficial ‘second world’within a monolithically serious and ossi� ed hierarchical society. Here unre-strained familiar exchange between buyers and sellers, unrestrained ‘sociation’,took place and the stable hierarchy was suspended. The derivation of objectiveculture from relations of exchange abstracted from the institutions that underliethose forms strongly resembles Simmel’s argument in The Philosophy of Money.Here exchange is a ‘form of life’ in which ‘objects express their value recipro-cally’ and in so doing transcend their purely subjective value and attain objectivevalue. Simmel repeatedly argues that economic value is only a subdivision ofvalue in general and that ‘most relationships between people can be interpretedas forms of exchange. Exchange is the purest and most developed kind of inter-action, which shapes human life when it seeks to acquire substance and content’(Simmel 1990: 79–90).8 Thus, from the unrestrained exchange of discoursesarises a relational logic, dialogism, which on the one hand is descriptive, but onthe other is the standard of judgement: it is a new form of Cohen’s legality, butone that arises from what Simmel called ‘sociation’. This almost Adam Smith-like immanent ‘logic’ of the marketplace becomes the immanent legality of thenovel. There is no concrete individual who passes judgement on the heroes ofthe novel, but some abstract, general person. Where each hero is an egoist, allparticipants are presided over by the authority of an ‘objective impartial norm’.The introduction of the fool, clown and rogue, who are nothing apart from theirabstract right not to understand the rules of the hierarchical world, are agents ofthe inquisition. They are ‘dialogic categories’ that ‘organize heteroglossia’through their ‘justi� ed deception’ (Bakhtin 1975: 216–17, 1981: 406–7). What isto be assessed is the extent to which mutual recognition and equal rights are oper-ative within the world, and, where this is lacking, the ‘corrective’ of de� ationarylaughter, parody and ridicule are to be deployed against those who offend.

From Bakhtin’s work as a whole it is clear that the juridical-ethical model thathe proposes is not to be restricted to the novel. Where the author plays the roleof the assumed but unheard ‘superaddressee’ who, like Kant’s theoretical reason,sits in judgement, outside the literary work, the presence of such a judge is

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simply assumed as a structural requisite of dialogue. This is the ‘third’ the‘absolutely just responsive understanding of whom is presupposed either at ametaphysical distance or in distant historical time’ (Bakhtin 1996b: 333, 337).

Judging Bakhtinian theory

From the above it should be clear that jurisprudence underlies Bakhtiniantheory, and this will shape all its applications within the social sciences, whichare certainly on the increase (Bell and Gardiner 1998; Hirschkop 1999).However, such applications have hitherto largely ignored the fact that the socialobject domain delineated in Bakhtinian theory is based on a pre-constitutedjuridical schema rather than the domain being constituted as a description of thesocial world. The shift from a philosophy of culture to social theory, however,raises the question of the preconditions behind the Kantian con� ict betweenpractical reason and form in general, autonomy and heteronomy, morality andlegality. As we have seen, this was absorbed into the ‘mathematics’ of a socio-logical jurisprudence by Cohen and Stammler, where it was displaced but notresolved. The ‘repressed’ returned forcefully in the work of Simmel and thenBakhtin, where the production of new contexts becomes mysterious once more.Hirschkop revises Bakhtin in a Habermasian direction, reinstating the insti-tutional factors which Bakhtin studiously avoided and drawing out the politicalrami� cations of the latter’s work on forms of the novel and of discursive inter-action so that it becomes an impressive ‘aesthetic for democracy’. However,Hirschkop follows Habermas in treating society exclusively as what the latter(1976: 117) calls a ‘moral reality’. This is not without its problems. While ques-tions of democracy and responsibility are indeed closely linked within histori-cally emergent modes of political rule, these are inseparable from, and indeedexistentially presuppose, wider socio-economic structures that are themselveslinked to the given natural structures of the world.9

An alternative perspective on the same convergence of concerns helps to illus-trate what is at stake here. Elaborating a general theory of law from Marx’s scat-tered comments on the question, the early Soviet jurist Evgenyi Pashukanis(1980) argued that the very form of law derives from bourgeois forms of privateproperty and formal equality: the generalized exchange of commodities. In themarketplace responsible, rational actors conscious of their rights and obligationsare abstracted from social relations – they are free and equal in the abstractrelationship between buyer and seller. For Pashukanis, however, this is only partof the picture. In actual life each actor is tied to each other by relationships ofmutual dependence (proletarian and capitalist, retailer and wholesaler, peasantand landlord and the like); the juridical form thus corresponds to the sphere ofexchange taken in isolation from relations of production. Similarly, the separationof economics from politics, public law (öffentliches Recht) from private law (Pri-vatrecht) is a historically speci� c juridical structure which grounds and guaran-tees property through the ‘� ctions’ of subjects and objects of law (Rechtsubjekte

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und Rechtobjekte), rights and obligations (Rechte und P� ichten). In actuality, therelationship of capitalist to proletarian, on which the social structure rests, is oneof free subject to subjected object (Hegel’s master and slave), and this is internal-ized by the individual, as is dramatized by Bakhtin’s Dostoevskian hero. Bakhtin,however, considers only discursive exchange relationships, for his discursivesubject is precisely the legal subject and the ‘primal’ marketplace in the square iswhere he � nds full expression.

Productive applications of the partial insights of the Bakhtin Circle in socialscience need to step outside the jurisprudential paradigm while remaining inclose contact with it. To paraphrase Alan Norrie (1996: 392), we need to engagein an ‘internal’ presentation of the legal concepts developed in Bakhtin’s work,coupled with ‘an historical and deconstructive exposure of the limits of such anapproach’. The ‘internal’ presentation has ‘external’ socio-historical precondi-tions that need to be identi� ed. Law is not a mathematical schema for the pro-duction of the social world, but is generated within and expressive of a web ofsocial and political relations. Law is but a moment of social life, not its source.When one element in a social relation that is compounded at a ‘molecular’ levelis hypostatized that element will inevitably be misrepresented.

Thus, while Bakhtin is, I think, justi� ed in insisting on individual autonomyin the face of contemporary structuralist attempts to dissolve the agent, there isa serious problem in the way that agency is conceived in these works that derivesfrom his neo-Kantian presuppositions. The ‘merely given’ in Bakhtin’s work‘falls away’ all too completely, as Cassirer recommended. Despite Bakhtin’sinsistence on ‘embodiment’ in opposition to ‘theoretism’, the physical structuresand biological requirements that impose inescapably given parameters on andwhich act as forces within social life are absent from all consideration. ForBakhtin, subjective agency does not negotiate given natural and social, objectivecontexts so much as inter-subjectively produce the context itself as a quasi-juridi-cal ‘image world’. This means that Bakhtin can only ask who is responsible andnot what is responsible for an action.

Responsibility is, surely, always conjunctural. Every event is a speci� c inter-section of structures and thus requires different levels of analysis woven into adialectical meta-analysis. However, Bakhtin’s quasi-juridical theory of societyrequires him to bracket out all considerations of how an agent’s relations to givensocial structures connect with his or her beliefs and desires and from here moti-vate his or her actions. In short, all considerations of the interests of agents thatlink objective structures to conscious experience must be ruled out of court.10

Like Kant, Bakhtin seems to argue that people act autonomously and ethicallyto the extent that they are guided not by their interests but by internalized objec-tively valid moral principles (legality). These principles of the law of freedombecome obligating through a phenomenological recognition of one’s uniqueplace in being. Acting in accordance with one’s interests is to act in accordancewith necessity. We thus return to our starting point: Hegel’s critique of theimpasse of Kantian ethics. The crux of the problem is the notion that freedomis always freedom from necessity, the fundamental antinomy which, as Rose

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(1993: 27) notes, led to the development of social theory from the breakdown ofclassical German philosophy. To make Bakhtin’s illuminating but � awed workon inter-subjectivity and literature productive for social theory requires a radicalrevision that replaces juridical personality with social agency and which intro-duces a theory of reference to given but transformable structures into hisaccount of discursive interaction.

Acknowledgements

This article is based on research funded by the Arts and Humanities ResearchBoard (AHRB). Thanks to Galin Tihanov for his comments on an earlier versionof this paper.

Notes

1 Citations from the works of the Bakhtin Circle will be my own translations accom-panied by reference to the Russian and (where available) existing English translations.Existing English translations are often seriously � awed and are inconsistent in renderingkey terms. On this problem see Brandist and Shepherd (1998).2 On the importance of Cohen’s system for Bakhtin, see Duvakin (1996: 35–6, 39–40)and, for the Circle generally, see Kagan (1922: 110–24). On the in� uence of Cassirer, seeDuvakin (1996: 42), Brandist (1997), Poole (1998) and, on the Circle in general, seeVoloshinov (1995b: 87–8). On the in� uence of Scheler, see Poole (forthcoming). On theimportance of Simmel for the Circle, see Tihanov (1998, 2000).3 See also Bakhtin’s explicit designation of jurisprudence as the logic of ethics(Pumpianskii 1992: 235).4 The title of the translation is misleading; the original (1902) title is The Doctrine ofthe Right Law (Die Lehre von dem Richtigen Rechte).5 Note Stammler’s comment that ‘the meaning of law is exhausted in volition whichenjoins other persons’ (1925: 40).6 Simmel (1990: 441–3) explicitly links this to the development of law.7 On Bakhtin’s plagiarism, see Poole (1995). Cassirer’s commitment to natural law wasde� nitively stated in Cassirer (1932).8 Note Bakhtin’s 1953 remarks: ‘The study of the form of the utterance on the basisthat every utterance . . . participates in the exchange of thoughts, is a unit of this exchange,is de� ned by this exchange that is dialogic in itself ’ (Bakhtin 1996a: 230).9 Exemplary in this regard is Ellen Wood’s seminal study of the social foundations ofAthenian democracy (1989).10 Hirschkop (1999: 91–3) notes that Bakhtin treats interests only as ‘stable passions’which, if followed, lead to ‘uncultured’ behaviour. Such an approach hopelessly confusesinterests and desires, on which see Giddens (1979: 188–90).

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Craig Brandist: The hero at the bar of eternity 225

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