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Abstract
With its demonstration of human frailty and finitude, avant-garde literature offers a more rigorous jurisprudence of rights than juridical or legal discourse is capable of offering itself. The paper takes as example the lowering of fault requirements in Canadian criminal law, which weakens common-law protection of the fundamental right to liberty through a fault standard that is “not concerned with what was in the accused’s mind, but with what should have been there.” Avant-garde literature, in opposition, demonstrates—and cannot help but demonstrate, in a mode unique to its discourse—the real limits of seeing and knowing, as shown through a reading of Claude Ollier’s La Mise-en- Scène.
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Notes
1 I am thinking here especially of Maurice Blanchot and Georges Bataille, both of whom deeply shaped Foucault’s understanding of literature. For Blanchot, literature is not the expression of the author or an idea because literature is composed of language, which comes to us fully formed and sovereign, not to reflect our thought but to bear on it from the outside. See Michel Foucault, “The Thought of the Outside,” in Essential Works of Foucault, Volume 2, ed. James D. Faubion, trans. Brian Massumi, (New York: The New Press, 1998), 147–69. Similarly, Bataille’s works constituted for Foucault a unique experience, beyond mere expression, of death, desire, and human limits—of the overwhelming and the unspeakable. See Michel Foucault, “A Preface to Transgression,” trans. Donald F. Bouchard and Sherry Simon, Essential Works of Foucault, Volume 2 (New York: The New Press, 1998), 69–87.
2 In repetition lies “the very power of illusion, the possibility for language (a single stringed instrument) to stand upright as a work. The reduplication of language, even if it is concealed, constitutes its being as a work.” Michel Foucault, “Language to Infinity,” in Essential Works of Foucault, Volume 2, ed. James D. Faubion, trans. Donald F. Bouchard and Sherry Simon (New York: The New Press, 1998), 92. For discussion of the central role of repetition in Foucault’s literary criticism, see Ryan Devitt, “Toward a Foucauldian Literary Criticism,” Poetics Today 42, no. 4 (2021): 487–89.
3 Michel Foucault, “The Father’s ‘No’,” in Essential Works of Foucault, Volume 2, ed. James D. Faubion, trans. Donald F. Bouchard and Sherry Simon (New York: The New Press, 1998), 19.
4 Michel Foucault, Death and the Labyrinth: The World of Raymond Roussel, trans. Charles Ruas (New York: Continuum, 2004), 41.
5 Repetition therefore highlights the way language functions as a “concept,” to use Nietzsche’s term: “Each word immediately becomes a concept, not by virtue of the fact that it is intended to serve as a memory (say) of the unique, utterly individualized, primary experience to which it owes its existence, but because at the same time it must fit countless other, more or less similar cases, i.e. cases which, strictly speaking, are never equivalent, and thus nothing other than non-equivalent cases. Every concept comes into being by making equivalent that which is non-equivalent.” Friedrich Nietzsche, “On Truth and Lying in a Non-Moral Sense,” in The Birth of Tragedy and Other Writings, eds. Raymond Geuss, Ronald Speirs, trans. Ronald Speirs (Cambridge: Cambridge University Press, 1999), 145.
6 Foucault, “Language to Infinity,” 5.
7 Foucault, “The Thought of the Outside,” 149–51.
8 For more on Foucault’s use of literature as a critique of our understanding of human finitude, see Devitt, “Toward a Foucauldian Literary Criticism,” 471–98.
9 Canada, like the United States and other former British colonies, follows the English common law, but the Canadian Constitution grants the federal government alone the ability to enact criminal law. Rulings of the Supreme Court of Canada on the interpretation of criminal law statutes (the vast majority of which are consolidated in the federal Criminal Code) are binding on all provincial and territorial courts. On the sources of Canadian criminal law and the organization of the Canadian criminal justice system, see Kent Roach, Criminal Law, 6th ed. (Toronto: Irwin Law Inc., 2015), Don Stuart, Canadian Criminal Law: A Treatise, 8th ed. (Toronto: Carswell, 2020), and Morris Manning and Peter J. Sankoff, Manning, Mewett & Sankoff – Criminal Law, 5th ed. (Toronto: LexisNexis Canada, 2015).
10 Roach, Criminal Law, 77.
11 Ibid., 74.
12 R v. DeSousa [1992] 2 S.C.R., 946; Roach, Criminal Law, 435.
13 In fact, the offence has been part of Canadian criminal law since at least the enactment of the first Criminal Code in 1892: “Homicide is culpable when it consists in the killing of any person, either by an unlawful act or by an omission.” The Criminal Code, S.C. 1892, c. 29, s. 220.
14 See Kent Roach, “Mind the Gap: Canada’s Different Criminal and Constitutional Standards of Fault,” The University of Toronto Law Journal 61, no. 4 (2011): 547; Patrick Healy, “The Creighton Quartet: Enigma Variations in a Lower Key,” Criminal Reports 23, 4th Series (1993): 266–67; Cassandra Steer, Translating Guilt: Identifying Leadership Liability for Mass Atrocity Crimes (The Hague: Asser Press, 2017), 151–53.
15 R v. Beatty [2008] 1 S.C.R., 57.
16 Roach, Criminal Law, 13–14.
17 Healy, “The Creighton Quartet,” 266–67.
18 For a review of the use of this maxim in Canadian criminal jurisprudence, see Justice Lamer in Re B.C. Motor Vehicle Act [1985] 2 S.C.R., 513–14:
It has from time immemorial been part of our system of laws that the innocent not be punished. This principle has long been recognized as an essential element of a system for the administration of justice which is founded upon a belief in the dignity and worth of the human person and on the rule of law. It is so old that its first enunciation was in Latin, actus non facit reum nisi mens sit rea…This view [that the court should not find an accused person guilty of an offence against the criminal law without proof of a guilty mind] has been adopted by this Court in unmistakable terms in many cases.
19 “7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” Canadian Charter of Rights and Freedoms, 1982, c.11, 55. The principles of fundamental justice are developed in the common law and must be “fundamental to the way the legal system ought fairly to operate.” Roach, Criminal Law, 64. With regard to the kinds of proof required before the state can fairly deprive an accused person of their liberty, Justice Lamer writes, “a law that has the potential to convict a person who has not really done anything wrong offends the principles of fundamental justice and, if imprisonment is available as a penalty, such a law then violates a person’s right to liberty under s. 7 of the Charter of Rights and Freedoms.” Re B.C. Motor Vehicle Act, 492. In his judgment, Lamer cites Justice Dickson writing for the Court in R. v. Sault Ste. Marie [1978] 2 S.C.R., 1,309–10:
Where the offence is criminal, the Crown must establish a mental element, namely, that the accused who committed the prohibited act did so intentionally or recklessly, with knowledge of the facts constituting the offence, or with wilful blindness toward them. Mere negligence is excluded from the concept of the mental element required for conviction. Within the context of a criminal prosecution a person who fails to make such enquiries as a reasonable and prudent person would make, or who fails to know facts he should have known, is innocent in the eyes of the law.
20 R v. Sansregret [1985] 1 S.C.R., 582.
21 Roach, Criminal Law, 435.
22 R v. Creighton, 58 (emphasis added).
23 Ibid., 66.
24 Ibid. 70.
25 Ibid., 60.
26 R v. Creighton, 70. Justice McLachlin here is quoting Vaughan v. Menlove [1837] 132 E.R. 490 (which is generally, though erroneously, cited as the case that introduced the “reasonable man” standard to English common law. See Daniel Pi et al., “Quantifying Reasonable Doubt,” Rutgers University Law Review 72, no. 2 (2020): 475–76). Vaughan v. Menlove is a civil case dealing with a tort or civil (that is, non-criminal) wrong. The standard of proof in tort law is much lower than that of criminal law, and torts do not carry the possibility of imprisonment, making Vaughan v. Menlove and its argument for a minimum standard of conduct inappropriate as precedent for Creighton—a case concerned with fault standards for indictable offences in the criminal law.
27 “He is not an extraordinary or unusual creature; he is not superhuman; he is not required to display the highest skill of which anyone is capable; he is not a genius who can perform uncommon feats, nor is he possessed of unusual powers of foresight. He is a person of normal intelligence who makes prudence a guide to his conduct. He does nothing that a prudent man would not do and does not omit to do anything a prudent man would do. He acts in accord with general and approved practice. His conduct is guided by considerations which ordinarily regulate the conduct of human affairs. His conduct is the standard adopted in the community by persons of ordinary intelligence and prudence.” Arland v. Taylor [1955] O.R. (O.C.A.), 142; qtd. in Stewart v. Pettie [1995] 1 S.C.R., 150.
28 R v. Creighton, 28.
29 R v. Perka, 271. This passage is favourably cited by the majority in R v. Creighton, 62.
30 Ibid.
31 Ibid., 64.
32 Ibid., 62.
33 Ibid., 66.
34 Günter Frankenberg, “Down by Law: Irony, Seriousness, and Reason,” Northwestern University Law Review 83, no. 1 & 2 (1988–89): 361.
35 Ibid., 360.
36 Michel Foucault, The Order of Things: An Archaeology of the Human Sciences, trans. Alan Sheridan (New York: Routledge, 2004), 130.
37 Foucault, “The Thought of the Outside,” 149–51.
38 Michel Foucault, Remarks on Marx: Conversations with Duccio Trombadori, trans. R. James Goldstein and James Cascaito (New York: Semiotext(e), 1991), 31.
39 Foucault, The Order of Things, 418–19.
40 Claude Ollier, La Mise-en-Scène, trans. Dominic Di Bernardi (Illinois: Dalkey Archive Press, 2000).
41 Renatto Poggioli, The Theory of the Avant-Garde, trans. Gerald Fitzgerald (Cambridge: Harvard University Press, 1968), 17, 30; qtd. in Adam Guy, The nouveau roman and Writing in Britain after Modernism (Oxford: Oxford University Press, 2019), 6–7.
42 Alain Robbe-Grillet, For a New Novel: Essays on Fiction, trans. Richard Howard (New York: Grove Press Inc, 1965), 9.
43 Ibid., 19.
44 Ollier, La Mise-en-Scène, 15.
45 Ibid., 27.
46 Ibid., 22.
47 Ibid., 115.
48 Ibid., 78.
49 Ibid., 111.
50 Ibid., 178.
51 Ibid., 179.
52 Ibid., 3–4 (repeated phrases and clauses in italics here and throughout).
53 Ibid., 101.
54 Ibid., 236–38.
55 R v. Perka, 271, qtd. in Creighton, 62.
56 Foucault, “A Preface to Transgression,” 71.
57 Ollier, La Mise-en-Scène, 17.
58 Ibid., 16–17.
59 Ibid., 74–5.
60 Ibid., 232.
61 Ibid., 58.
62 Ibid., 148–49.
63 Ibid., 79.
64 Ibid., 179.
65 Ibid., 82.
66 Ibid., 173.
67 Ibid., 111–12.
68 Ibid., 117.
69 As demonstrated by Elizabeth Loftus in her famous experiments on language and memory: “We store in memory not the environmental input itself, nor even a copy or a partial copy, but the interpretation that we gave to the input when we experienced it”—an interpretation that is composed and determined by language. Elizabeth Loftus, “Language and Memories in the Judicial System,” in Language Use and the Uses of Language, eds. Roger Shuy, Anna Shnukal (Washington: Georgetown University Press, 1980), 267.
70 Ollier, La Mise-en-Scène, 134–35.
71 R v. Creighton, 63.
72 Wherever the law assumes the kind of Kantian and Hegelian subject we see Creighton, with its universal rationality and autonomy, we will also find that law necessarily disregards actual human frailty. And while I limit my analysis here to criminal law (and implications for rights protected under constitutional law), other work—especially the vulnerability theory of Martha Fineman—demonstrates how human frailty is denied in a broader range of law to the detriment of fundamental rights. For Fineman’s critique of “the autonomous and independent subject asserted in the liberal tradition,” which denies human vulnerability in ways that undermine rights to equality and liberty, see Martha Fineman, “The Vulnerable Subject: Anchoring Equality in the Human Condition,” Yale Journal of Law and Feminism 20, no. 1 (2008): 1–24. For an overview of research that applies Fineman’s vulnerability theory to other branches of law (family law, disability law, tort law, administrative law), see Nina A. Kohn, “Vulnerability Theory and the Role of Government,” Yale Journal of Law and Feminism 26, no. 1 (2014), 3n9.
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Ryan Devitt
Dr. Ryan Devitt teaches courses in legal studies, writing, and literature at St. Jerome’s University in the University of Waterloo. He has written a dissertation and published an article on Foucault and literary criticism and is currently working on a book on Foucauldian poetics.