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Habermas for Law Professors

In Art, Arts & Letters, Communication, Creativity, Essays, Ethics, Habermas, Humanities, Information Design, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Legal Research & Writing, Literary Theory & Criticism, Literature, Pedagogy, Philosophy, Politics, Pragmatism, Rhetoric, Rhetoric & Communication, Teaching, Western Civilization, Western Philosophy, Writing on November 4, 2011 at 3:12 pm

Allen Mendenhall

This post is an adaptation of this printable, PDF document

This post is intended to assist law professors who wish to incorporate critical theory (in general) and Habermas (in particular) into their teaching.  This post addresses just one essay by Habermas that is representative of his thought.  It does not address other important areas of Habermasian theory such as the “public sphere” (a concept that the essay nevertheless implicates). 

This post should provide some basic insights into Habermas that could be incorporated into a law school classroom.  Contracts in particular would benefit from Habermasian analyses, which could just as constructively be applied to torts, evidence, constitutional law, or any course dealing with litigation and the courtroom.  This post provides basic information.  It does not tell law professors how to use the information.  The use will require creativity. 

 

Fundamental to the paradigm of mutual understanding is … the performative attitude of participants in interaction, who coordinate their plans for action by coming to an understanding about something in the world.  When ego carries out a speech act and alter takes up a position with regard to it, the two parties enter into an interpersonal relationship.  The latter is structured by the system of reciprocally interlocked perspectives among speakers, hearers, and non-participants who happen to be present at the time. 

        —Jürgen Habermas, “An Alternative Way Out of the Philosophy of the Subject”[1]

In a way, “An Alternative Way Out of the Philosophy of the Subject” is a response to Foucault’s theories of subjectivity that treat subjects as produced by forces of power.  Habermas seems to consider Foucault’s theories as so preoccupied with knowledge formation and structural preconditions for knowledge formation that they (the theories) become pseudoscience abstracted from practical realities.  A Foucaultian paradigm centers on subjectivity trained by mechanical forces whereas a Habermasian paradigm explores communicative reason in the context of discourse enabled by the ideations of individual subjects articulating their positions to one another in mutually intelligible utterances.       

Contra Foucault, Habermas submits that reason—articulated, assimilated, and mediated by language—must be understood as social.  For social interaction to be meaningful, its interlocutors must believe that their articulations are objectively “true” or sincere (I place “true” in quotations because the “pragmatically expanded theory of meaning overcomes [the] fixation on the fact-mirroring function of language”).  Speech must be governed by points of common understanding.  These points are reached when “ego carries out a speech act and alter takes up a position with regard to it.”  Ego, here, refers to a person’s conscious awareness that is capable of being conveyed in speech.  “Alter” does not refer to alter ego, but to some agent outside the subjective world of cognition, intention, and belief.  This “alter” is part of the external or objective world to which the ego can articulate feelings or thoughts, provided that ego and alter have in common a familiar discursive space (a lifeworld) for their subjective expressions.  By this reading, alter has an ego, and ego can be an alter.  The terms simply depend upon which subject is articulating his position in a given speech situation; the terms are merely descriptive.  

To claim that we can comprehend events or things in the world is to suggest that we can speak about them.  To speak about events or things in the world is to convey information about them from one party to another using shared vocabularies governed by rules that the parties accept unconditionally. The interpersonal relationship among or between parties, as Habermas suggests, is “structured by the system of reciprocally interlocked perspectives.”  The study of this relationship brings Habermas further away from the Foucaultian paradigms of subjectivity and towards the paradigm of mutual understanding that has come to mark Habermasian thought.  Read the rest of this entry »

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Allen Mendenhall Interviews Richard Miles

In Advocacy, Arts & Letters, Communication, Ethics, Law, News and Current Events, Politics, Prison, Rhetoric, Rhetoric & Communication, Teaching, Writing on September 14, 2011 at 9:23 am

Richard Miles spent years in prison after being wrongly convicted and sentenced to 80 years.  He lives in Texas and speaks about false imprisonment.

Richard, thanks for doing this interview.  You and I have gotten to know each other through email correspondence.  I believe you first contacted me after reading my review of Dorothy and Peyton Budd’s Tested: How Twelve Wrongly Imprisoned Men Held Onto Hope (Dallas, TX: Brown Books Publishing Group, 2010).  You are one of those twelve men.  Tell us how you became part of the book.  What do you think of the book, now that you’ve seen the final product?

The first time anyone heard of or read anything about Richard Ray Miles was in The Dallas Morning NewsI remember that morning as if it was yesterday.  To be arrested for murder and attempted murder, at the age of 19, was a horrific experience, but to wake up Monday morning and read that I was the shooter, in a murder I didn’t commit, tore out my insides.  Mr. Mendenhall, my fight for innocence was not just for me—I knew I was innocent—but for my mom and dad.  I didn’t want the story to be the last thing that my father—a minister in the neighborhood who had to hear accusations about his son—to read.  So, when the book Tested was completed, it was like a dream come true: now Dallas residents could read about MY INNOCENCE. 

You’ve been through a lot.  Would you mind telling us your story?  Start wherever you want to start.

I was born in Dallas to Thelma Malone and Richard Miles.  My parents split when I was young, but not long after my mom met William Lloyd and married him.  I was probably about five when that happened, so to say I was without a father is false.  My dad, William, became a minister when I was still young, so I grew up in a very strict, religious household.  Going to church every day was not out of the ordinary.  For the most part, my older sister, two younger brothers and I had a very good upbringing.

As far as schooling goes, I was very smart and interested in learning.  I went to an academy for middle school and then to Skyline High School, which was one of the most prestigious schools at the time.  When I made it to Skyline, I began to feel something different.  I felt that my parents were way too strict on me.  As young children do, I began to rebel—nothing too extreme, but rebellious nevertheless.  I was kicked out of Skyline at the end of 11th grade and was transferred to Kimball.  Kimball and Skyline were two totally different places to learn.  To be more precise, Kimball was a Hood School; its reputation preceded itself.

By the time I got into Kimball and got ready to take my senior exams, I got a reputation for coming to school drunk.  Mind you, I was not a drinker, so any little thing was not good.  The long and short is that I made it all the way to the 12th grade, but did not graduate.  I left home a little after that, never to be in the streets or in a gang because I was working at McDonalds, and I actually liked the idea of having a job.  All that changed when my friend came to pick me up from my parents’ house.  He asked me about selling drugs.  I had never been introduced to that, and by mere peer pressure, my entire life was turned around.

I struggled on the streets for probably one year, but that was enough to experience a life I will never return to.  On May 15th, I was walking home, not knowing there was a shooting miles away, and I got picked up for a murder and an attempted murder.  I have never shot a gun in my life, nor ever thought about stealing or tried to steal someone’s things by force.  So, I knew I would be going home soon. The whole interrogation lasted probably five or six hours.  Because my friend had driven me home and wasn’t with me when I was walking and got picked up, I gave the detective phone numbers of people who could identify my whereabouts.  My friend had gone to his girlfriend’s place.  That’s why I was walking by myself.  All in all, I gave the detective four phone numbers of people who could verify my whereabouts and confirm that I was not the shooter. The detective left and came back about an hour later.  He said, “Your story checked out, but you killed that man, and you’re going to prison.”  I was lost at that point.

I stayed in the county jail for 17 months before I went to trial.  I was given a court-appointed lawyer. In August 1995, I had a jury trial.  

There were ten witnesses, nine of whom said I was not the shooter.  No weapon was ever found, and the fingerprints that were retrieved were neither mine nor the victims’. One person who was shot testified that I did not look like the shooter, and my alibis came as well.  Nevertheless, I was found guilty of murder and attempted murder and sentenced to 80 years in prison. 

After I had sent out numerous letters and spent 14 years in prison, I was contacted by an organization out of Princeton, New Jersey, that picked up my case and found in the police record an anonymous phone record received before I went to trial.  This record mentioned the real shooter as well as other confidential information.  This stuff had never been turned in.  Based on that and other exculpatory evidence, I was released in October 2009; I was the first non-DNA release under District Attorney Craig Watkins

Now I’m awaiting full exoneration, even though the DA and my judge pronounced me innocent. Read the rest of this entry »

Friedrich Nietzsche’s On the Genealogy of Morals: A Critical Précis

In Art, Artist, Arts & Letters, Ethics, Humanities, Law, Philosophy, Rhetoric, Western Civilization, Writing on September 1, 2011 at 11:44 pm

Allen Mendenhall

We remain unknown to ourselves, we seekers after knowledge, even to ourselves: and with good reason.  We have never sought after ourselves—so how should we one day find ourselves?  It has rightly been said that: ‘Where your treasure is, there will your heart be also’; our treasure is to be found in the beehives of knowledge.  As spiritual bees from birth, this is our eternal destination, our hearts are set on one thing only—‘bringing something home.’

                                             —    Friedrich Nietzsche, On the Genealogy of Morals

Nietzsche employs an aphorism to open the third essay of On the Genealogy of Morals (GM).  That approach seems fitting for this critical précis, the aphoristic epigram to which quotes none other than Nietzsche himself.

The opening declarative here—“We remain unknown to ourselves”—signals the ancient Greek imperative: “Know thyself.”  That Nietzsche converts the imperative to a declarative is suggestive.  The imperative expresses a command: the emphatic utterance of an authoritative demand (“do this”).  The declarative is a descriptive assertion: the positive utterance of fact or opinion.  The imperative, if issued by the right person and not meant as merely advisory, presupposes the power to enforce or induce the substance of the command.  A speaker that commands another to know himself assumes that the other will act, can act, or ought to act in accordance with what he, the speaker, orders.  The speaker of a declarative statement, on the other hand, conveys information; the transmission of data from the speaker to the listener does not necessarily signify a desire that the listener act, or refrain from acting, in accordance with the data or the speaker’s wishes. 

Nietzsche uses the declarative to describe our epistemic state or to posit an idea about our epistemic state.  His articulation necessarily undermines the idea that we already have answered the call to know ourselves.  Either we have ignored the command to know ourselves (“We have never sought after ourselves”), or we have failed to comply with it—or both.  To the extent that Western philosophy could, at Nietzsche’s moment, be reduced to these two words—“know thyself”—Western philosophy had, if we believe Nietzsche’s declaration, failed or decayed.  What Nietzsche seeks to posit, in more assertive or, one might say, more declarative terms, is a radical rewriting and reinterpretation of knowledge itself.  To know ourselves, we must know what we know and how we know it, or know what we think we know and how to overcome it.  We have blurred the distinction between knowledge and morals; we have internalized weak epistemic truth claims across time; a genealogy of morals is necessary to trace and thereby illuminate our understanding of ourselves. Read the rest of this entry »

Thoughts on an Essay about Pragmatism

In American History, Arts & Letters, Communication, Essays, Ethics, Humanities, Literary Theory & Criticism, Literature, Nineteenth-Century America, Pragmatism, The Literary Table, Western Civilization on August 20, 2011 at 8:42 pm

Allen Mendenhall

The following post appeared here at The Literary Table.

Lately I’ve been reading a subject of interest to the lawyers, theologians, writers, and philosophers at the table: pragmatism.  (Pragmatism finds a way of encompassing any interest whatsoever.)  The following discussion is brief and does not do justice to the nuances of my subject: Ruth Anna Putnam’s essay “The Moral Impulse” (in The Revival of Pragmatism, Morris Dickstein, ed., Duke University Press, 1999).  Nevertheless, I proceed with eyes wide open. 

Putnam opens by referencing William James’s pragmatist metaphysics and its reliance upon feelings and the sensorial to get at the religious or moral.  This reference provides Putnam wide latitude to articulate her arresting point that people participate in moral value systems because they always retain agency even if their actions seem like products of habit.  People do not act in putatively moral ways simply because they are conditioned or determined to do so; they act in those ways because they want to do so.  The want is the moral impulse.  That one should act or think on an impulse does not evacuate that action or thought of all intelligence.  “It is not,” Putnam assures us, “to say that one does not have or has not given intellectually compelling reasons for that position” (63).  In fact, as James himself suggests, we may—notice he does not say ought to or must—entertain any moral impulses so long as they lead us toward critical currents of thought that have not been invalidated even if they have not been validated.  Using such Jamesian refrains as her starting-point and hesitating over the usefulness of a now catch-all signifier like “pragmatism,”[1] Putnam announces her intention to explore moral beliefs in the work of James and Dewey.  Her focus is on those moments of convergence and departure, with slightly more emphasis on the departure.  Without touching on all Putnam’s arguments about James and Dewey and their agreements and disagreements, I will here note one of Putnam’s more sustained and striking observations, which addresses the difference between James’s and Dewey’s moral values: the difference which, it turns out, is at the heart of her essay.

Having shown that James sees the question of free will in terms of determinacy and indeterminacy without essentializing that binary opposition, and having shown that Dewey rejects James’s position as a dualism that is fundamentally flawed, Putnam resorts to James’s position to lump Dewey into a determinist camp and James into a free will camp (which does not seem the same as an indeterminacy camp, but I will not get into that).  Putnam then resorts to Dewey’s position by implicitly allowing that these polarized categories will not do; for she suggests that Dewey questioned the amount of personal agency a person could achieve in a world that, in light of quantum physics, does not seem deterministic (64).  At any rate, her point in playfully adopting both a Jamesian and Deweyian perspective at once seems to be that despite the seeming differences between them, James and Dewey both “understand that morally significant choices express who we are and shape who we will be,” and that “this relation between character and conduct leaves room for choice, for moral growth or deterioration, even for dramatic reversals” (64).  The human mind makes deliberate choices based on evaluative criteria gained by experience in the tangible world.  That, I suspect, is a statement with which James and Dewey and I daresay even Putnam would agree. Read the rest of this entry »

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