J.H.H. Weiler is the Editorial Director of the International Journal of Constitutional Law.
My “ten”* is not a list of those which I think are the most important in the various disciplines that constitute my professional realm. After all, if I were to consult the Chicago or Columbia lists of works, from Plato to NATO, that constitute their famous core courses (and eliminate their gestures to political correctness), I would surely find myself agreeing with most of their choices. It would also risk being a very boring list.
Mine, then, is the list of the ten who were intellectually most influential, as far as I can discern, in shaping my professional persona, in stimulating certain sensibilities, in pushing me to acquire certain skills, and in nurturing any creativity I may possess. I have, of course, included only those authors from whose work I believe all readers would gain considerable intellectual profit and pleasure even today. I have also been careful to include authors not only from the period of my personal formation as a young man but throughout my professional life.
The first two choices are the works most important in shaping my intellectual self-understanding and professional persona. What is my professional persona? Lawyer? That would be like calling a sculptor a stonecutter? Jurist? A bit better. “Nomist,” a neologism perhaps, is my preferred self-appellation: a confirmed anti-antinomian, a lifelong student of Nomos, law with a heart and soul. The other eight have one shared characteristic—a recollection of huge, transformative impact and my abiding conviction about the greatness of work and authors.
In reviewing my list I was surprised by two features: I would not have anticipated (and am slightly embarrassed by) the number of twentieth-century authors, and I had not previously realized the importance of French civilization to my intellectual persona.
Maimonides, “Introduction to Helek,” from Maimonides’ Commentary on the Mishnah
Maimonides has been and remains the most influential and continuous influence on my self-understanding as a Jew, as an (always imperfect) religious person, but also as a lawyer– a “Nomist.”
Here is someone who, on the one hand, is the author of one of the greatest achievements in legal history: the systematic and still hugely authoritative codification of Jewish law. Those not familiar with the Talmud, the primary source of the codification, will find it difficult to understand the stupor that those of us who are familiar experience when we contemplate Maimonides’ monumental achievement in his Mishna Torah, the fourteen-part codification. If you read one page a day, as some do ritualistically, you would finish the Talmud in seven years. If you take the time necessary to truly comprehend the page you are reading, it is the work of a lifetime. And yet this young prodigy was able to extract from that most prolix of intellectual records a systematic legal code, written with ease, demystifying, accessible—the prose of poetry and the poetry of prose.
That is but one dimension of Maimonides’ work. For he is the author, too, of that other pillar of his teaching, The Guide to the Perplexed, a multilayered work of philosophy that is hopelessly reduced when described as a reconciliation of Judaism with Aristotelian thinking. Nomos must include, is, can be understood only from both pillars: The Mishna Torah and the Guide. This is the challenge of any serious engagement with the law.
The “Introduction to Helek”—Helek being a part of the Talmudic tractate of Sanhedrin dealing with those who will have a share in the world to come—was the first primary text by Maimonides I studied in depth and represents in my view, alongside his Eight Chapters, the most accessible entry point into the oeuvre of this giant. In it, one may trace one of Maimonides’ hugely profound achievements: A statement of and commitment to the purest form of transcendental monotheism springing from and rooted in the matrix of law. As a profound study of ends and means, of telos and ethos, and as a rejection of the antinomian paradigm of spirituality, the “Introduction to Helek,” in its economy of text and clarity of exposition, is second to none in the world of letters.
One should not, of course, blithely equate (as some American legal philosophers have sought to do) our secular legal system with the matrix of Nomos, informed, as it is, by a different worldview. Nor should one set Nomos as a normative ideal type for our legal system—an enterprise both laughable and blasphemous. But understanding the horizons of Nomos—and Maimonides stretches those horizons farther than anyone else—reshapes the very understanding of what law is, what the study of law can be.
That I should have on my list a selection from the Bible is predictable and inevitable. It might surprise some readers that this selection is placed after Maimonides and not before him. Biographically, I imbibed the stories of Genesis and became perplexed long before I discovered Maimonides’ Guide. And surely the living word of God is to come first even if of Maimonides (Moses son of Maimon) it is said that from Moses to Moses there has been no one as Moses.
It is one of the great epiphanous moments in the maturing of the legal consciousness, an indispensible moment, when one discovers the self-referential character of the law. It is Nomos that defines the actual contours, the methods (legitimate or otherwise), and the sensibility with which the text, on which Nomos bases its very authority and seeks to elucidate, is to be read. One reads Genesis through a sensibility and within parameters conditioned by Maimonides and the tradition he represents, a sensibility and parameters that, in turn, have been shaped by this very text. It is neither blasphemous nor relativist to understand, thus, the subtle interactions between text and its interpretation, the manner in which the text defines the sensibility of its interpreter which, in turn, defines the contours of the text.
This point is made by the famous (and oft-abused) Agadic story of Moses eavesdropping on a discussion of the Rabbis debating a subtle point of law and very quickly finding himself completely out of his depth—only to be startled to hear one of the protagonists in the debate grounding his argument in the very authority of Moses himself! Or by the equally famous (and oft-abused) story of the Rabbis debating a point of law and, eventually, a voice from heaven announcing that when it comes to authoritative interpretation, it is reasoning, not the supernatural, which must always prevail. It is, thus, as a first-year law student in England that I studied with derision the implausible claims emanating from the Anglo-American tradition of “neutral adjudication” and, from their Continental counterparts of “legal science.” Some years later, I experienced the same derision toward the equally implausible claims in America of total subjectivity, of law as indistinct from politics, and the like. The entire debate struck me as shallow and outdated by reference to that which came before it. Maybe Mishna Torah and the Guide should become required texts in first-year law courses.
And why Genesis and not, say, a more explicit legal text such as Leviticus or the more explicitly philosophical and cerebral books such as Job or Ecclesiastes? In their ability to mimic the most profound dilemmas and conflicts of the human condition, the stories of Genesis are as compelling as any of their Greek mythological counterparts. (They are, in a mind shaped by Maimonides, superior in that these dilemmas and conflicts are shaped by our confrontation with the transcendental Creator and not with a capricious fate.) Law is but dust and ashes when it is not part of the matrix of lived lives, when it is not understood, tested, and applied in the crucible of real hearts and minds. Hence, Genesis—with the First Transgression of Eve and Adam, with the First Crime and Punishment of Able and Cain, with the fear and trembling in the face of Superior Orders in the story of the Binding—becomes easily my Biblical text of choice.
Albert Camus, The Plague, and The Outsider
These two masterpieces are not included because of their novelistic qualities—great as they are. The Outsider is a triumph of literary achievement equal to Kafka at his greatest. The Plague has a very different style and lacks the stunning literary polish and lapidary style of its slimmer companion. Both must, however, in the context of intellectual sensibility, be read as part of a dialogue. The Outsider poses the question. The Plague is Camus's answer. I include Camus for two reasons: first, my self-understanding and self-definition as teacher and only secondarily as scholar. And second, as a substitute for my failure—a sign of my own intellectual limitation—to select a contribution explicitly in the realm of moral philosophy. I put in my hours with Plato and Kant and profited immensely from latter-day moral philosophers, notably Bernard Williams. But I cannot consciously discern their impact on my own intellectual outlook.
Legal studies and the law so easily slip into the realm of social science and outside the realm of humanities. And the word “Justice” becomes a banished word in the halls of legal learning. At the critical moment, it is not deciding what the correct moral choice is nor the reason one should pursue it (the main preoccupation of those concerned with practical reason) that is central in one's life and in one's life as a teacher. Outside the classroom, we rarely find ourselves on a railway track having to decide whether to send a hurtling train down one siding on which eight persons are tied or down another on which ten are tied. Moral choices are usually clear. But will we pursue them? This is the great lesson we need to impart to our students. In this respect, Camus is second to none.
Part of The Outsider's literary power is manifest in the shock one experiences when one realizes the failure to be truly shocked by its protagonist's shocking act on the beach. The unwilling impregnation of moral meaninglessness in one's own soul leaves the reader agitated and confounded. Camus, too, antedates much subsequent heavy breathing concerning moral relativism and the like. For him, there is no abstract, philosophical moral relativism. It is the dilemma of the lived life, the immoral act committed without immoral motive, the confounding of our notion of evil and, hence, of good. The magnification of this meaninglessness onto the social realm is hoary. This is, of course, one of the greatest challenges not only to our very individual and social self-understanding but to any intellectual reflection in the field of the humanities.
The Plague does not proceed from a different premise. The existential choice is present. But in an altogether quiet, antiheroic, inarticulate, seemingly “meaningless” manner, the moral option is decisively, and fatefully, chosen and, ultimately—as a reply to the challenge—may be demanded and expected. If, indeed, in most life situations our dilemma is not “what to do” but whether we will have to the fortitude to do that which we know ought to be done, the quiet lesson of The Plague beckons.
Erich Auerbach, Mimesis: The Representation of Reality in Western Literature
Mimesis by Auerbach is, biographically, an act of intellectual heroism. Living in exile in Istanbul, removed from his scholarly ambience and sources amidst a world in which civilization seemed to be coming to an end, he created a landmark in the history of European ideas.
The book does not fall easily into any discipline. In a glance to the premodern, it is not consciously self-reflective but presents tout court a series of studies on Homer and the Bible and the New Testament and Dante and so forth. The breadth is monumental. The depth still astonishes today. Is it literary criticism? Philosophy? History? All of the above. It is about the study of life itself and, critically, its representation.
There is, of course, an abiding contribution in Auerbach's substantive insights into the changing conception of the individual and, always in parallel, the changing conception of the representation of the individual and society. As a book of intellectual endeavor, its ambition is intriguing and illuminating and set at the highest level possible: understanding the human condition itself. Is that not, in their own more limited way, the ambition of the social sciences and the humanities? However, Auerbach is once removed; his is about the understanding of the understanding of the human condition. The way reality is “translated,” represented, mediated, into artistic form with one of those blinding insights that appear obvious once stated that historical condition does not only shape differing human self-understanding but also shapes differing artistic modes of representing such self-understanding—a key to any attempt at deciphering. Note: Art, after Mimesis by Auerbach, is not, ultimately, our best prism through which to understand the (evolving) human condition. That would be art as medium. The evolving means of mimetic refraction of art itself becomes one of the facets of the very human condition that art represents. The way, say, the Bible, as distinct from Homer, or the New Testament, as distinct from the Bible, represent the human condition (oftentimes the very same matrix of human activity) is both the key to understanding reality and, indeed, is itself an integral part of that reality.
“The medium is the message” is a latter-day poor man's reduction of Auerbach's much broader and deeper insight. To the intellectual and scholar, in any part of the humanities and social sciences, Auerbach is simply indispensable. He antedates today's cultural studies; and long before the … yes, the heavy breathing of today, he already broke down the clear distinction between subject and object, between reality and perception of reality, between Mimesis and its object.
For the legal scholar the lesson is more important than any other: one is forever transformed when one thinks of legal materials not only in their policy instrumentality, in their moral normativity, but also in Auerbachian terms—forms of mimetic representation of reality.
Raymond Aron, The Opium of the Intellectuals
It is a hard choice which of Aron's books I should have included: my first encounter was with the more didactic, less passionate Main Currents in Sociological Thought. I am glad I read on… . But it was not a hard choice to include Aron in my choice of ten, for his effect is profound and no more so than in Opium. The irony of the title, and its sheer courage in the stifling intellectual milieu in which he swam against the prevailing current, remain, even today, hugely admirable.
Despite the security of tenure that professors enjoy, the temptations of treason to one's truth are huge. Camus shaped the teacher in me; Aron is a reminder that, even in scholarship and ensconced in the ivory tower, courage is in great need and short supply.
Of all the books I have chosen, this is the one that has dated most. Indeed, one rereads with disbelief some of the constructs Aron had to debunk. (When was the last time you saw anyone writing seriously about the “proletariat”?) Its abiding value to me, a constant in my mind, rests on three features of the book: first, its steadfast commitment to the finest virtues of liberalism in the face of its ever-changing but ever-present critics. In this respect, Aron is in the same band as, say, Isaiah Berlin (or their latter-day disciples in defending liberalism, each in their own way, like the Americans Peter Berkowitz, Stephen Holmes, or Don Herzog) though more compelling because of the directness of his political and social reflections spanning all facets of political action including international relations.
And second, its profound reflection on the intellectual endeavor, on the responsibility of the academy, on the pitfalls of knowledge and ideology, a reflection which ultimately displays an enviable courage, a moving humility, and deep humanity. Finally, it is an important reminder that to oppose some of the stifling dogmas of the Left, as Aron did in his time, does not require an adoption of dogmas of the right.
Stendhal, Le Rouge et le Noir, and La Chartreuse de Parme
I selected Camus as a stand-in for a work of moral philosophy without which this list would be incomplete. My second choice of a novel (indeed, a brace of French novels) is not dictated, this time, by my own confessed self-limitation. It is dictated by what I consider a disciplinary limitation. What is on our minds, even we who toil in the fields of intellectual endeavor, most of the time? Our work, our career, our successes, our failures? Maybe the Truth? I am not sure. Engage in a chronological inventory of your consciousness and mental preoccupations. Does not our affective life, love, desire, jealousy, attraction and its discontents, human beauty, the abiding, ever-present, compelling life of the heart, and passion of the loins contend, in their ubiquity, in their grip on our emotional life and spiritual and mental well-being, with everything else? There is no narcissistic self-exposure in this affirmation. It is, I believe, true for most.
Think simply how, alone against all other human activity, it is the life of love that may simultaneously occupy all our senses, which is ever-present in both the brightest and darkest moments of life. Is there anything that occupies a greater portion of the human condition? Would it not be odd, then, if such a central dimension of our existence did not figure in our reflection and, hence, in the works which shape our reflection? So now, you, the reader: stop and conjure up in your mind, which work would you insert here? Mind you, not a great romantic work, but a work that induced profound reflection on this dimension of life? Freud? With his hopeless reductionism? Pity on you. Roland Barthes, with an even more hopeless reductionism? Shame on you.
It is not in the field of what the Italians call Sagistica that one will find an answer, not even in Stendhal's famous if rather unsuccessful “Essay on Love.” The most profound intellectual discourse on friendship cannot teach you as much as having one good friend. Enter, then, the “Novel as essay.”
Le Rouge et le Noir must always be read accompanied by Chartreuse de Parme. Le Rouge et le Noir should not be read simply as an essay on state and church, king and bishop, secular and sacred, and other such explanations. Le Rouge et le Noir is an essay on, in the eyes of its author, the manner of French love, and Chartreuse (a somewhat lesser novel, especially the ending) is an essay on the superior manner (in the eyes of Stendhal) of Italian love. Together they are the most profound and influential (in my eyes) essays on the ends and means of desire and the love of the sexes. They are rife with insight—such as the banal but not always obvious observation that in the manner of love, as in, for example, the manner of cuisine, culture is a hugely determining factor. There is, too, in these novels huge insight into the relationship of love and money, of love and power and the vicissitudes of the heart. There are insights on gender differences—it is surprising to note how relatively lightly Stendhal has suffered at the hands of feminist critique.
Who can remain unmoved by the mutual seduction of Sorrel and Madame de Renal in the opening chapters of Le Rouge et le Noir—a masterpiece of eroticism, with not an inch of flesh bared, and then the subject of profound meditation through the book? The power of Stendhal's art coupled with the power of his reflection combine both types of knowledge—cognitive and experiential—and give the book that wonderful quality: it is like reading about friendship and having a friend all at the same time.
John Paul II, Centesimus Annus, Redemptoris Missio, and Veritatis Splendor
One of the towering moral and intellectual figures of the twentieth century, Wojtyła has had a major impact not only on the course of the Catholic Church and Christianity as a whole, but on the course of world history, notably in the collapse of communism. The importance of his official papal writings—encyclicals, papal bulls, apostolic letters, et cetera—transcend the community of Catholic faithful.
The three encyclicals selected are as profound a reflection on the current human circumstance as any with which I am familiar. The subtext of all three is the challenge of modernity and postmodernity. Modernity as reflected in the confrontation with reality: market and globalization, new structures of public power, anonymity and fragmentation of social life. Postmodernity as reflected in moral relativism and epistemic skepticism. The power and importance of this writing is not simply in its recognition of the current human condition but in a response that goes deeper than even such thoughtful and influential scholars as Anthony Giddens or Jürgen Habermas. It goes deeper because it appreciates, more explicitly, the spiritual dimension and cravings of the social and individual psyche.
Centesimus Annus embraces liberal democracy and the market both as givens and as a desideratum without falling victim to triumphalism and with a sober acknowledgment of the dark side of those two moons. It is particularly brilliant not simply in its insistence on social justice and political subsidiarity but in articulating an understanding that, even at their best, what these forms of social organization may deliver is a very partial portion of human potentiality. The three encyclicals are imbued with an ethos of duty and giving rather than of rights and taking which characterize our prevailing culture. Redemptoris Missio can be read as a militant Catholic manifesto, an internal call to arms to bring the truth to all those others who refuse to see it. It is that. But it is much more, too. It is one of, nay, the most profound statement on self-respect as the only status from which true respect for the Other can emanate. It is, as well, a stunning statement of the meaning of tolerance in a multicultural world, a tolerance that does not implicate moral or epistemic compromise. Veritatis Splendor explores afresh the relationship between truth and liberty and gives a compelling spin on the theme of rational liberty and the fallacies and dangers of unbounded freedom.
The overall power of this work, and its worth for Christians and non-Christians, religious and secular alike, is in its deep penetration of the soul, its comprehensive understanding of the present-day material, of moral and spiritual circumstance, and in its strategy, unlike some previous teachings of the Church, of facing understanding and embracing central elements of modernity while articulating its inherent dangers and serenely rejecting the sirens of certain postmodern moral and epistemic capitulation. It is a notable feature of our current civilization to observe the Catholic Church, historically a bastion of establishment conformism, representing, under the guidance of John Paul II, a radical moral and intellectual countercultural option.
William I. Miller, Humiliation, and Other Essays on Honor, Social Discomfort and Violence, The Anatomy of Disgust, and The Mystery of Courage
It is said that one cannot be a prophet in one's own city. The city occupied by William Miller is not the Midwest university town Ann Arbor, nor even the world of law (he is a professor at the University of Michigan Law School) or Icelandic sagas (of which he is an acknowledged grandmaster). Widely translated and commented on in journals of general interest, his city is, no less, the universe of contemporary social sciences at whose gate, uninvited, often overlooked, he stands. Miller's work has no clearly defined discipline though it is erudite and disciplined. Its subject matter, though not self-evidently so, is, in fact, conventional. He looks at the principal institutions of social organization both domestic and international. He looks both at the social and the individual and covers, thereby, the traditional concerns of sociology and psychology. His style is less conventional in that it is often overly self-referential bordering on the narcissistic—though this, too, is rapidly becoming an (unwelcome) convention.
Where Miller is original, stunning and hugely important, is in his utter contempt (a word he would favor) for the twin paradigmatic explanations of contemporary social science for most human affairs: the political and the economic, vis power and money.
These three books boldly assert that concerns with and yearning for honor (Humiliation), beauty and propriety (Anatomy of Disgust), and courage (The Mystery of Courage) have a central part in explaining not only our quotidian life but major social institutions and historical events. What might seem obvious to the unsuspecting member of the public represents a major challenge to many of our intellectual critical habits. We habitually reject surface explanations as naïve or self-serving or both and dig for “deeper reasons for human action which are not naïve or self-serving and hence always have a tinge or a taint of the ignoble. To be critical is almost perfectly captured by the process of “unmasking.” “Real” reality is, thus, typically exploitative (the critical unmasking heritage of Marx), darkly erotic (the critical unmasking heritage of Freud), and spiritually empty (the critical unmasking heritage of Durkheim). Paradoxically, or perhaps not, we also construct a world in which asserting moral responsibility, holding people accountable, acknowledging evil, is compromised by a different unmasking of personal circumstances, abuse, or other forms of victimhood that explain and then become surrogate for full moral agency. Ultimately, contemporary social science robs us of our dignity.
Miller is neither sentimental nor romantic and certainly not optimistic. To read him is continuously to cringe in the face of his own unsparing unmasking of our daily self-deceptions. But his sneering is full of empathy for its human subjects; he recognizes the fullness and richness of human motive and, in an uncomplicated and countercultural manner, acknowledges the validity and centrality of virtue: honor, moral propriety, duty, bravery, sacrifice. In the world he analyzes, humans are not only scoundrels in disguise. There are heroes aplenty. And our actions are not just driven by a self-deceiving grasping at power and pleasure but have the potential to be, and often are, in pursuit of the noble, the just, the virtuous. There is an irony in calling a book that celebrates honor Humiliation, or a book that deals with propriety and beauty Disgust. But in focusing on our capacity for indignity, Miller ultimately acknowledges and celebrates human dignity at its fullest and provides an indispensable and oft-missing dimension to all our intellectual reflection on human affairs.
Peter L. Berger, Invitation to Sociology: A Humanistic Perspective
To explain human affairs is to be, willy-nilly, concerned with sociology.
If I had to state whose sociological work I considered most important (and influential on my own sociological outlook), there could be but two obvious answers. Ultimately, I would opt for Émile Durkheim rather than Max Weber. But I have to recognize that my entire sociological outlook was blessedly shaped in my youth by Berger's Invitation and reconfirmed by his The Social Construction of Reality in later years. It is through this prism that I have read all other sociology—and could appreciate Durkheim and Weber and Veblen and Parsons and Giddens and Ralf Dahrendorf and S. N. Eisenstadt and endless others in that unquenchable thirst for giving an account of the social. The greatness of Berger in these books (and others) is not in synthesis—capsule understanding of the sociological theories of others—but in his explanations of the sociological enterprise as such. His ability to articulate the epistemic dilemma of situated observation, conditioning our very perception of reality, and, in a similar vein, the vertiginous circularity of how the “social” defines our very perception of our surrounding (social) reality, is nothing less than masterful. It antedates much subsequent postmodern reflection and hones a critical outlook that is not definitionally Skeptical (rather than skeptical), cynical, or tied to a particular social ideology or critique.
Wedded to this approach, and most important to those, like myself, who are not professional sociologists, is the manner in which the individual, Berger's very reader, becomes a protagonist of the sociological enterprise. Of course, the psychological has always been part of the sociological. (Or vice versa, as is evident in Freud's social writings.) However, Berger's virtue is of a different sort. Through him the critical outlook becomes second nature, a living habit, not a tool to pick up after breakfast when one turns to work and breadwinning. Closely linked to this, in the substantive rather than methodological dimension of his work, is one of the most successful articulations of modernity expressed through the move from fate to choice—the liberating but almost crushing burden of modern man and woman. The humanist, humane perspective shines through.
Rémi Brague, Europe, La Voie Romaine
It would be odd if my list did not include at least one work in the direct area of my lifelong pursuit—the deciphering of the contemporary process of European integration. It would be just as odd to have a list such as this without at least one book which may formally be thought of as “history.” A history of what? And by whom? The choice is impossible since, even more than sociology, history is the river into which all other streams of knowledge eventually find their way. So let me cheat. I have picked a book that I cannot claim had a formative influence on my thinking. It is a recent encounter, which I wish had come earlier.
Brague's is the type of history I like most, the sort of historian I would most like to be. Profound historical erudition coupled with historiographical sophistication serves up a history of civilization, the history of a self-consciousness, the history of an idea. It is a compelling, surprising, and delightfully humble account of that which is unique in Europe—its power of appropriation. Athens and Jerusalem play their role alongside the synthesizing and transformative “Voie Romaine.” It is not only the lucid and precise style that one finds attractive but the singular accomplishment of making an account of ideas as engaging as an account of war and peace, of the blood, sweat, and tears that one finds in normal histories.
It is also an interesting antidote to the seduction of “Paradigm Shifts” as the definition of originality. Transformative accretions are part of the Brague intellectual apparatus and, as such, can be a metaphor for the scholarly life itself. The book leaves tantalizingly open whether the Europe of today represents a continuation or a rupture with its historical foundation.