chapter  10
Responsibility and the metaphysics of justice
Pages 19

In this chapter, I consider the problems of guilt in connection with genocide discussed after the Second World War by Hannah Arendt, Karl Jaspers, Primo Levi and Jean Améry. I look at the different forms of guilt: of perpetrators, bystanders, victims who became perpetrators, and of collective guilt. The way in to understand the structure of guilt is to consider the idea of survivor guilt, and the chapter links this to an underlying metaphysics of guilt. It considers primarily Levi’s account of survivor and accomplice guilt, and the ‘grey zone’ where judgment becomes problematic. The aim is to consider the ethical structure that supports our understanding

of specific guilt categories, and this links Jaspers and Levi to Roy Bhaskar’s philosophy of metaReality.1 There he argues for a sense of metaphysical unity or identity that operates at a deeper level than the difference, conflict and change that occupy his dialectical critical realist philosophy. The philosophy of metaReality rounds out and deepens his thought, and I explore it for the first time in this chapter, arguing that it represents a key to understanding the philosophical thoughts and thoughtful experiences of Jaspers and Levi. The chapter considers the shape and structure of ethical enquiry, and what it is that makes ethical enquiry possible. From that point of view, it becomes possible to understand better our concepts of guilt and justice. With regard to critical realism, I wish to say something in the next section about

the work of Roy Bhaskar,2 its different levels, and how it is relevant to my own views on issues of guilt in the law and in moral thinking today. The three levels of

critical realism are critical realism in its basic form, dialectical critical realism and metaReality. Bhaskar always said that people should take what they wanted or needed from his thought, but that there was an immanent logic that led from one level to another. This chapter is in the spirit of that remark. My work has been particularly

influenced by dialectical critical realism, but recently I have started to address what I see as a resistance in legal studies to think metaphysically about law. Another way to put this would be to say that I see increasingly the need to think metaphysically about issues of justice and guilt in order to understand our contemporary juridical practices, and this takes me to the third level of Bhaskar’s philosophy on what he termed metaReality. Most work in law has a secular and non-metaphysical cast, and the idea of

overcoming resistance is significant. Bhaskar used to say that his clue as to how to proceed philosophically was to push against those points where he encountered most resistance to his argument. Broadly, we can say that his work tracks three such resistances in its different levels of development. In its first phase, the resistance was most obviously to arguing for ontology and depth realism in a world that was much more comfortable to talk of epistemology and empirical reality (Bhaskar 1975, 1979). In its second phase, it was the significance of absence or negativity that was key, and here the resistance was historical as well as modern (Bhaskar 1993, 1994).3 The third resistance was to what became the ‘spiritual turn’ in Bhaskar’s thought, in what he called metaReality. This is the thought that we can broadly identify as involving the significance of a metaphysical underpinning to the nature of reality (Bhaskar 2012a, 2012b). In speaking of identifying and addressing resistances, there is a parallel with the practice of psychotherapy, which also has a depth realist aspect. Bhaskar was keen to thematise his work around the idea of a ‘reality principle’ that is denied by modern thought in its epistemic and positivistic quality. For now, I make the simple point that there was courage in his willingness to follow ‘the line of most resistance’. In this chapter, I adopt a similar approach, in an area that is daunting even to

the uninhibited. I organise my thoughts around two linked discussions. First, I look briefly at Bhaskar’s work from critical realism to dialectical critical realism and on to metaReality. Second, I address issues of guilt and its judgment in the context of the aftermath of the Second World War. This starts with thinking about Hannah Arendt and Karl Jaspers, and their dialogue on the subject, and then moves on to consider Primo Levi’s thoughts in The Drowned and the Saved (Levi 2013) and then Jean Améry’s thoughts on collective responsibility in his At the Mind’s Limits (Améry 1980). My aim will be to link ideas from metaReality with a metaphysics of guilt, which I will draw from Jaspers and Levi, and then apply to concepts of perpetrator, accomplice, bystander and collective guilt.