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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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BOOK REVIEW | Autobiography of Mark Twain, Vol. 1: The Complete and Authoritative Edition

In American History, Arts & Letters, Book Reviews, Essays, Fiction, History, Humanities, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Novels, Politics, Rhetoric, Western Civilization, Writing on November 1, 2011 at 9:26 am

Allen Mendenhall

The following post originally appeared here at Prometheus Unbound: A Libertarian Review of Fiction and Literature.

Good things come to those who wait, the old adage goes, and the world has waited a century for Mark Twain’s autobiography, which, in Twain’s words, is a “complete and purposed jumble.”

This 760 page jumble is a good thing. And well worth the wait.

Twain, or Samuel L. Clemens, compiled this autobiography over the course of 35 years. The manuscript began in fits and starts. Twain, while establishing his legacy as a beloved humorist and man of letters, dashed off brief episodes here and there, assigning chapter numbers to some and simply shelving others. In 1906, he began making efforts to turn these cobbled-together passages into a coherent narrative. He met daily with a stenographer to dictate various reflections and then to compile them into a single, albeit muddled, document. The result was a 5,000 page, unedited stack of papers that, per Twain’s strict handwritten instructions, could not be published until 100 years after his death.

To say that we’ve waited a century to view this manuscript is only partially accurate because pieces of the manuscript appeared in 1924, 1940, and 1959. But this edition, handsomely bound by the University of California Press, and edited by Harriet Elinor Smith and others of the Mark Twain Project, is the first full, printed compilation of the autobiographical dictations and extracts. The editors, noting that “the goal of the present edition [is] to publish the complete text as nearly as possible in the way Mark Twain intended it to be published before his death,” explain that “no text of the Autobiography so far published is even remotely complete, much less completely authorial.” The contents of this much-awaited beast of a book, then, are virtually priceless; no doubt many of Twain’s previously unread or unconsidered passages will become part of the American literary canon.

Stark photographs of the manuscript drafts and of Twain and his subjects — including family members and residences — accompany this fragmentary work. The lively and at times comical prose is in keeping with the rambling style of this rambling man whom readers have come to know and appreciate for generations.  Read the rest of this entry »

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The Emersonian Oliver Wendell Holmes Jr.

In American History, Art, Arts & Letters, Emerson, History, Humanities, Jurisprudence, Law, Law-and-Literature, Literary Theory & Criticism, Literature, Nineteenth-Century America, Oliver Wendell Holmes Jr., Philosophy, Poetry, Pragmatism, Rhetoric, The Supreme Court, Western Civilization, Western Philosophy, Writing on October 26, 2011 at 9:16 am

Allen Mendenhall

Writers on Holmes have forgotten just how influential poetry and literature were to him, and how powerfully literary his Supreme Court dissents really are.  The son of the illustrious poet by the same name, young Holmes, or Wendell, fell in love with the heroic tales of Sir Walter Scott, and the “enthusiasm with which Holmes in boyhood lost himself in the world of Walter Scott did not diminish in maturity.”[1]  Wendell was able to marry his skepticism with his romanticism, and this marriage, however improbable, illuminated his appreciation for ideas past and present, old and new.  “His aesthetic judgment,” says Mark DeWolfe Howe, author of the most definitive biography of Holmes and one of Holmes’s former law clerks, “was responsive to older modes of expression and earlier moods of feeling than those which were dominant at the fin de siècle and later, yet his mind found its principle nourishment in the thought of his own times, and was generally impatient of those who believe that yesterday’s insight is adequate for the needs of today.”[2]  Holmes transformed and adapted the ideas of his predecessors while transforming and adapting—one might say troping—milestone antecedents of aestheticism, most notably the works of Emerson.  “[I]t is clear,” says Louis Menand, “that Holmes had adopted Emerson as his special inspiration.”[3]      

Classically educated at the best schools, Wendell was subject to his father’s elaborate discussions of aesthetics, which reinforced the “canons of taste with the heavier artillery of morals.”[4]  In addition to Scott, Wendell enjoyed reading Sylvanus Cobb, Charles Lamb’s Dramatic Poets, The Prometheus of Aeschylus,[5] and Plato’s Dialogues.[6]  Wendell expressed a lifelong interest in art, and his drawings as a young man exhibit a “considerable talent.”[7]  He declared in his Address to the Harvard Alumni Association Class of 1861 that life “is painting a picture, not doing a sum.”[8]  He would later use art to clarify his philosophy to a friend: “But all the use of life is in specific solutions—which cannot be reached through generalities any more than a picture can be painted by knowing some rules of method.  They are reached by insight, tact and specific knowledge.”[9]     

At Harvard College, Wendell began to apply his facility with language to oft-discussed publications in and around Cambridge.  In 1858, the same year that Dr. Oliver Wendell Holmes Sr. gifted five volumes of Emerson to Wendell,[10] Wendell published an essay called “Books” in the Harvard undergraduate literary journal.[11]  Wendell celebrated Emerson in the piece, saying that Emerson had “set him on fire.”  Menand calls this essay “an Emersonian tribute to Emerson.”[12] 

Holmes had always admired Emerson.  Legend has it that, when still a boy, Holmes ran into Emerson on the street and said, in no uncertain terms, “If I do anything, I shall owe a great deal to you.”  Holmes was more right than he probably knew. 

Holmes, who never gave himself over to ontological (or deontological) ideas about law as an existent, material, absolute, or discoverable phenomenon, bloomed and blossomed out of Emersonian thought, which sought to “unsettle all things”[13] and which offered a poetics of transition that was “not a set of ideas or concepts but rather a general attitude toward ideas and concepts.”[14]  Transition is not the same thing as transformation.  Transition signifies a move between two clear states whereas transformation covers a broader and more fluent way of thinking about change.  Holmes, although transitional, was also transformational.  He revised American jurisprudence until it became something it previously was not.  Feeding Holmes’s appetite for change was “dissatisfaction with all definite, definitive formulations, be they concepts, metaphors, or larger formal structures.”[15]  This dissatisfaction would seem to entail a rejection of truth, but Emerson and Holmes, unlike Rorty and the neopragmatists much later, did not explode “truth” as a meaningful category of discourse.  Read the rest of this entry »

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The Oft-Ignored Mr. Turton in E.M. Forster’s A Passage to India

In Arts & Letters, Austrian Economics, Book Reviews, Communication, E.M. Forster, Eastern Civilizaton, Emerson, Essays, Fiction, History, Humane Economy, Humanities, Jurisprudence, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Novels, Philosophy, Politics, Religion, Transnational Law, Western Civilization, Western Philosophy on October 17, 2011 at 11:55 am

Allen Mendenhall

The following post first appeared here at Prometheus Unbound: A Libertarian Review of Fiction and Literature.

A Passage to India, by E.M. Forster [trade paperback]; also made into an award-winning film.

Perhaps the most important task of all would be to undertake studies in contemporary alternatives to Orientalism, to ask how one can study other cultures and peoples from a libertarian, or a nonrepressive and nonmanipulative, perspective.

– Edward Said, Orientalism

When I asked Dr. Plauché what I should review for my first contribution to Prometheus Unbound, he suggested that I elaborate on my recent Libertarian Papers article: “The Oft-Ignored Mr. Turton: The Role of District Collector in A Passage to India.”  Would I, he asked, be willing to present a trimmed-down version of my argument about the role of district collectors in colonial India, a role both clarified and complicated by E.M. Forster’s portrayal of Mr. Turton, the want-to-please-all character and the district collector in Forster’s most famous novel, A Passage to India.  I agreed.  And happily.

For those who haven’t read the novel, here, briefly, is a spoiler-free rundown of the plot.  A young and not particularly attractive British lady, Adela Quested, travels to India with Mrs. Moore, whose son, Ronny, intends to marry Adela.  Not long into the trip, Mrs. Moore meets Dr. Aziz, a Muslim physician, in a mosque, and instantly the two hit it off.  Mr. Turton hosts a bridge party — a party meant to bridge relations between East and West — for Adela and Mrs. Moore.  At the party, Adela meets Mr. Fielding, the local schoolmaster and a stock character of the Good British Liberal.  Fielding invites Adela and Mrs. Moore to tea with him and Professor Godbole, a Brahman Hindu.  Dr. Aziz joins the tea party and there offers to show Adela and Mrs. Moore the famous Marabar Caves.

When Aziz and the women later set out to the caves — Fielding and Godbole are supposed to join, but they just miss the train — something goes terribly wrong.  Adela offends Aziz, who ducks into a cave only to discover that Adela has gone missing.  Aziz eventually sees Adela speaking to Fielding and another Englishwoman, both of whom have driven up together, but by the time he reaches Fielding the two women have left.  Aziz heads back to Chandrapore (the fictional city where the novel is set) with Fielding, but when he arrives, he is arrested for sexually assaulting Adela.  A trial ensues, and the novel becomes increasingly saturated with Brahman Hindu themes.  (Forster is not the only Western writer to be intrigued by Brahman Hinduism.  Ralph Waldo Emerson and William Blake, among many others, shared this fascination.)  The arrest and trial call attention to the double-standards and arbitrariness of the British legal system in India.

Rule of law was the ideological currency of the British Raj, and Forster attempts to undercut this ideology using Brahman Hindu scenes and signifiers.  Rule of law seeks to eliminate double-standards and arbitrariness, but it does the opposite in Chandrapore.  Some jurisprudents think of rule of law as a fiction.  John Hasnas calls rule of law a myth.  Whatever its designation, rule of law is not an absolute reality outside discourse.  Like everything, its meaning is constructed through language and cultural understanding.  Rule of law is a phrase that validates increased governmental control over phenomena that government and its agents describe as needing control.  When politicians and other officials lobby for consolidation or centralization of power, they often do so by invoking rule of law.  Rule of law means nothing if not compulsion and coercion.  It is merely an attractive packaging of those terms. 

British administrators in India, as well as British commentators on Indian matters, adhered in large numbers to utilitarianism.  Following in the footsteps of Jeremy Bentham, the founding father of utilitarianism, these administrators reduced legal and social policy to calculations about happiness and pleasure.  Utilitarianism holds, in short, that actions are good if they maximize utility, which enhances the general welfare.  Utilitarianism rejects first principles, most ethical schools, and natural law.  Rather than couch their policymaking in terms of happiness and pleasure, British administrators in India, among other interested parties such as the East India Company, invoked rule of law.  Rule of law manifested itself as a concerted British effort to discipline Indians into docile subjects accountable to a British sovereign and dependent upon a London-centered economy.  The logic underpinning rule of law was that Indians were backward and therefore needed civilizing.  The effects of rule of law were foreign occupation, increased bureaucratic networks across India, and imperial arrogance.

Murray Rothbard was highly critical of some utilitarians, but especially of Bentham (see here and here for Rothbard’s insights into the East India Company).  In Classical Economics, he criticized Bentham’s opinions about fiat currency, inflationism, usury, maximum price controls on bread, and ad hoc empiricism.  Bentham’s utilitarianism and rule of law mantras became justifications for British imperialism, and not just in India.  A detailed study of Hasnas’s critique of rule of law in conjunction with Rothbard’s critique of Bentham could, in the context of colonial India, lead to an engaging and insightful study of imperialism generally.  My article is not that ambitious.  My article focuses exclusively on A Passage to India while attempting to synthesize Hasnas with Rothbard.  Forster was no libertarian, but his motifs and metaphors seem to support the Hasnasian and Rothbardian take on rule of law rhetoric and utilitarianism, respectively.  These motifs and metaphors are steeped in Brahman Hindu themes and philosophy. Read the rest of this entry »

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Lyotard’s “Differend” and Torts

In Arts & Letters, History, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, Libertarianism, Literary Theory & Criticism, Philosophy, Politics, Rhetoric, Rhetoric & Communication, Western Civilization, Western Philosophy on October 13, 2011 at 12:53 pm

Allen Mendenhall

 

“I would like to call a differend [différend] the case where the plaintiff is divested of the means to argue and becomes for that reason a victim.  If the addressor, the addressee, and the sense of the testimony are neutralized, everything takes place as if there were no damages (No. 9).  A case of differend between two parties takes place when the ‘regulation’ of the conflict that opposes them is done in the idiom of one of the parties while the wrong suffered by the other is not signified in that idiom.”

                             —Jean-François Lyotard, from “The Differend”

Lyotard’s term “differend” does not refer to a concrete, tangible thing; it refers to a situation.  The situation is one where a plaintiff has lost the ability to state his case, or has had that ability taken from him.  He is therefore a victim.  If the plaintiff has no voice, he has no remedies because he cannot prove damages.  Just as one cannot prove something happened if the proof no longer exists, so one cannot prove something happened if the proof depends upon the approval of another person or party denying or erasing the proof, or having the power to deny or erase the proof.  Lyotard describes this situation in relation to power or authority.  Because of the nature and function of power or authority, a person or group possessing power or authority can divest the plaintiff of a voice.  This divestiture results in what Lyotard calls a “double bind” whereby the referent (“that about which one speaks”) is made invisible.  A plaintiff who is wronged by the power or authority cannot attain justice if he has to bring his case before the same power or authority.  As Lyotard explains, “It is in the nature of a victim not to be able to prove that one has been done a wrong.  A plaintiff is someone who has incurred damages and who disposes of the means to prove it.  One becomes a victim if one loses these means.  One loses them, for example, if the author of the damages turns out directly or indirectly to be one’s judge.”  Specifically, Lyotard uses the differend to describe the situation where victims of the Nazi gas chambers lack the voice to articulate their case in terms of proof because, among other things, the reality or referent is so traumatizing and tragic as to be ineffable. 

If Entity A harms me in some way, and Entity A also represents the arbiter or judge before whom I must appeal for justice, Entity A can (and probably will) neutralize my testimony.  That is why a State may tax its citizens.  In effect, a State has the power or authority to do something—take a person’s earnings against his will and punish or threaten to punish him, by force if necessary, when he fails or refuses to yield his earnings—that a private person or party cannot do.  When a private party demands money from a person, and threatens to use force against that person if he does not yield the money, the private party has committed theft.  The difference between theft (an unauthorized taking by one who intends to deprive the other of some property) and taxation (an authorized taking by an institution that intends to deprive the other of some property) is the capacity or ability to sanction.  The difference depends upon who controls the language: who has the power to privilege one form of signification over another and thus to define, determine, or obliterate the referent. 

“Sanction” is a double-edged term: it can mean either to approve or to punish.  Both significations apply to the State, which, in Lyotard’s words, “holds the monopoly on procedures for the establishment of reality.”  (Note: Lyotard is not referring to any State, but to the “learned State,” a term he borrows from François Châtelet.)  Sanction is implicated when a party is harmed, or alleges to have been harmed, whether by the State or by a private party.  The State then resolves whether the harm, or the act causing the harm, is “sanctionable”—whether, that is, it receives State approval or condemnation.  The State either validates [sanctions] the alleged harm (in which case the alleged harm officially is not a harm), or it condemns the alleged harm (in which case the alleged “harm” is officially constituted as a “harm”) and then punishes [sanctions] the one who caused the harm.  In any case, the State sanctions; it enjoys the power to decide what the referent ought or ought not to be.  Read the rest of this entry »

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Nietzsche on the Writer or Artist

In Art, Artist, Arts & Letters, Creativity, Humanities, Literary Theory & Criticism, Literature, Philosophy, Western Civilization, Western Philosophy, Writing on October 5, 2011 at 9:23 am

Allen Mendenhall

The following post first appeared here at The Literary Table.

 

“[O]ne does well to separate the artist from his work, which should be taken more seriously than he is.  Ultimately, he is no more than its pre-condition, the womb, the soil, possibly the manure and midden upon which, from which it grows—and thus, in most cases, something which must be forgotten before the work itself can be enjoyed.  Insight into the origin of a work is a matter for physiologists and vivisectors of the spirit: but never one for the aesthetic men, the artists!”

—Friedrich Nietzsche, On the Genealogy of Morals

It’s easy, reading Nietzsche, to fall into anachronism: to consider his comments about divorcing the author from the text as indicative of something akin to the New Criticism, a hermeneutic that isolated texts from externalities such as authorial intent and that treated the aesthetic object as self-contained and autonomous.  That is not at all what Nietzsche meant.  For Nietzsche, the text, or the aesthetic object, is not isolated from externalities, but merely removed from and, in a way, prior to the author; the text is plugged into externalities, shaped and molded by them, so much so that the author is but the incidental medium through which the text speaks.  The text, in other words, has its own authority apart from its creator, who, through the will, channels social and cultural energies to generate aesthetic output.  The writer or artist is “no more than its pre-condition, the womb, the soil, possibly the manure and midden upon which, from which it grows.”  Discourse impregnates the writer or artist, who, thus implanted with ideas and alphabets, carries vocabularies through their prenatal stages and into a rebirth—or new expression—in the form of art.  

According to Nietzsche, the objects and ambitions of the writer or artist as a thinking actor are not, or ought not to be, overstated because the writer or artist is the ultimate example of the effect of action and will.  For the writer or artist is not independent from discourse and ethos—indeed, he is constituted by them, and so, by extension, is his textual production: the aesthetic object.  We may forget the author; if anything, he or she only impedes the pleasure we derive from texts and aesthetics.  The author is “something which must be forgotten before the work itself can be enjoyed.”

Why does Nietzsche posit this view?  What is he after?  Among other things, he’s criticizing the writers and artists who would have us believe that they are above and beyond others, somehow able to divine the real and the eternal.  These writers and artists treat the ascetic ideal as part and parcel of aestheticism—i.e., they conflate the ascetic with the aesthetic to maximize their feeling of power.  Although writers and artists promote themselves in this way, as if they had privileged access to universal yet remote knowledge, they realize, Nietzsche says, that on some level their ascetic ideal is an unreality or falsity—what Baudrillard might have called a hyperreality or simulacrum.  The ascetic ideal is escapism: a fleeting respite from the reality of the will to power, the impulse that the writer or artist seeks to evade, suppress, and disguise.  The conflict of the writer or artist lies in the desire to escape both to and from asceticism; for the intoxicating powers of the ascetic ideal are sobered by the boredom and angst of knowing that the ideal is but therapy and relief.  That realization means that therapy and relief are themselves, paradoxically, the grounds for further escapism—for further therapy and relief. 

All of this suggests that ascetic ideals do not signify.  As Nietzsche says, ascetic ideals “mean absolutely nothing!”  What is so remarkable about these ideals is that they are contingent and contextual such that they amount to nothing and everything at once, and that we will, despite ourselves, and despite our longing for meaning, chase after nothing rather than not chase at all.  That, alas, is why the artist lacks independence in this world.  That, alas, is why no artist is disinterested.

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Foucault’s Nietzschean Genealogy

In Art, Arts & Letters, Historicism, History, Humanities, Literary Theory & Criticism, Philosophy, Politics, Rhetoric, Western Philosophy, Writing on September 17, 2011 at 10:02 am

Allen Mendenhall

“Genealogy […] requires patience and knowledge of details, and it depends on a vast accumulation of source material.  Its ‘cyclopean monuments’ are constructed from ‘discreet and apparently insignificant truths and according to a rigorous method’; they cannot be the product of ‘large and well-meaning errors.’  In short, genealogy demands relentless erudition.  Genealogy does not oppose itself to history as the lofty and profound gaze of the philosopher might compare to the molelike perspective of the scholar; on the contrary, it rejects the metahistorical deployment of ideal significations and indefinite teleologies.  It opposes itself to the search for ‘origins.’”

                                      —Michel Foucault, from “Nietzsche, Genealogy, History”

This brief passage by Foucault has three references to Nietzsche.  The essay from which the passage is drawn demonstrates Foucault’s immense debt to Nietzsche, citing as it does no other thinker but Nietzsche (save for a fleeting reference to Paul Ree, whose term “Ursprung,” or “origin,” Nietzsche adopts).  Of all Nietzsche’s ideas and practices, genealogy is the one that Foucault cultivates most impressively.  Genealogy is a methodology by and with which one documents or tracks the development of ideas and their relation to human organization.  In other words, genealogy traces knowledge to its systemic formations across various networks of discourse.  That is why genealogy “requires patience” and “depends on a vast accumulation of source material.”  It is a process, and processes take time to work out. 

Genealogy does not recover origins because origins are not recoverable.  Origins are fluid, not fixed; they are not, strictly speaking, origins at all—if, that is, “origins” is taken to mean single, absolute causes or definite, immutable sources.  Rather, for Foucault, “origins” is a term of convenience—perhaps strategically essentialized—referring to sets of beliefs and activities that constitute discursive structures mobilized by numerous truth claims.  That is why Foucault can employ the term “origins” in one sentence and then, in a subsequent sentence, seemingly reverse course by calling origins “chimeras.”  The point is not to define or explain origins; the point is to discredit the idea of origins as self-evident and immanently knowable. 

Origins themselves are inaccessible; the emergence and development of structures based on ideas, however, are not only accessible, but also edifying.  Foucault’s genealogy, therefore, seeks to collect data about numerous truth claims and then to explain how these data form and shape culture.  As Foucault says of genealogy, “It opposes itself to the search for ‘origins.’”  Note the quotation marks around “origins.”  Those marks suggest an intent to divest that term of its expressive purchase.  Origins are knowable only as points of loss or complication, only as intricate and multifaceted constructs that, when examined closely, signify multiple and heterogeneous phenomena and that thus enable and sustain further inquiry.     Read the rest of this entry »

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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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Excerpt from “Transnational Law: An Essay in Definition with a Polemic Conclusion”

In Arts & Letters, Austrian Economics, Conservatism, Humane Economy, Jurisprudence, Law, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Politics, Pragmatism, Transnational Law on August 3, 2011 at 11:18 am

Allen Mendenhall

A few months ago, the Libertarian Alliance, a London-based think tank, published my paper on transnational law.  Below is an excerpt from that paper.  The piece is available for download through SSRN by clicking here, or on the website of the Libertarian Alliance by clicking here.

In 1957, reviewing Philip Jessup’s Transnational Law, James N. Hyde wrote that “[t]ransnational law is not likely to become a term of art for a new body of law.”25  Mr. Hyde was wrong.  There has been a proliferation of relatively new law journals bearing “transnational law” in their titles: Transnational Law & Contemporary Problems: A Journal of the University of Iowa College of Law, Ashburn Institute Transnational Law Journal, Journal of Transnational Law & Policy, Vanderbilt Journal of Transnational Law, Transnational Law Review, and Columbia Journal of Transnational Law.  There are LLM programs in transnational law (such as the one I am in), and there are even institutes and think-tanks devoted to the study and development of transnational law.  Transnational law has in fact become the term of art for a new body of law, and here we will consider the nature and meaning of this term as well as the corpus of law it has created.  It is perhaps not coincidental that the emergence of transnational law coincided with transnational poetics26 and other transnational trends in literary criticism because the legal and literary fields always seem responsive to one another.

One of the earliest references, if not the earliest reference, to the concept of transnationalism comes from the pragmatist philosopher and student of John Dewey: Randolph Bourne.  Bourne’s use of the term “transnational” recalls William James’s notion of religious pluralism as non-absolute and non-monist.27  Bourne appears to have revised and extended James’s pragmatism to fit the political instead of the religious or philosophical context, although James himself came close to addressing the former context in “A Pluralistic Universe.”  Bourne’s essay “Trans-National America” regarded transnationalism as a cousin of cultural pluralism, the notion that differences in belief across cultures and communities may not be equally valid but can be at least equally practical.  Against essentialism, monism, and absolutism, Bourne posits a consequentialist system of polycentrism that regards multiplicity as positive and collectivism as dangerous.  Society can and should be multiple and heterogeneous, not single and homogeneous, for a one-size-fits-all polis can only materialize through the stamping out of minority views and through the erasing of distinct, regional cultures.  Put another way, Bourne transforms James’s varieties of religious experience28 into varieties of political experience.

Kenneth Burke, a literary critic, sometime student of pragmatism, and Marxist converted into a non-“ism” altogether, argued later in his life that ideology and fanaticism – by which he meant “the effort to impose one doctrine of motives abruptly upon a world composed of many different motivational situations”29 – were destructive missions incompatible with pluralism or democracy.  Burke, who remained naively critical of the free market, nevertheless refused ideologies as simplifying what cannot be simplified: human behavior.  What Burke did not realize is that free market theories, especially those of the Austrian variety, are not deterministic: they refuse to pigeonhole people or to reduce them to economic calculations; they treat humans as unpredictable and spontaneous and celebrate the sheer variety of human behavior.  My point in referencing Burke is not to systematically demolish his economic preferences but to suggest that his wide-ranging theories have positive implications for our understanding of transnationalism.  One could argue that Bourne and Burke were the earliest expositors of transnationalist theories tied to the practical world and that Jessup and others merely repackaged Bourne and Burke’s dicta.  Regardless of whether Jessup either read or credited Bourne and Burke, the theories emanating from these two literary critics would have been in circulation at Jessup’s moment in history.  Jessup, widely read as he was, probably would have encountered Bourne and Burke’s transnationalism directly or indirectly. Read the rest of this entry »

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Nicole N. Aljoe on Legal Discourse and Testimony in Early West Indian Slave Narratives

In Advocacy, American History, Arts & Letters, Civil Procedure, History, Humanities, Jurisprudence, Law, Law-and-Literature, Laws of Slavery, Literary Theory & Criticism, Nineteenth-Century America, Politics, Rhetoric, Slavery, The West Indies on July 5, 2011 at 7:21 pm

Allen Mendenhall

Nicole N. Aljoe has published an intriguing article in Volume 46 (issue no. 2) of Early American Literature (2011), which is published by the University of North Carolina Press.  The article is titled “‘Going to Law’: Legal Discourse and Testimony in Early West Indian Slave Narratives.”  It is available here on Project Muse.  The abstract is below:

Despite the fact that the courts had not proven consistently helpful in their quests for freedom, British West Indian slaves frequently consulted them in order to invoke the rule of law and pursue their rights. Several Caribbean historians have documented the ways in which slaves in the West Indies participated in formal legal arenas almost from the initial days of colonization and claimed the courts as one of their own forums for resolving disputes and asserting those few rights written into the various parliamentary acts intended to ameliorate the conditions of the enslaved and passed in England and its Caribbean colonies from 1788 onward. Indeed, slaves in the West Indies participated in the courts systems as plaintiffs as well as defendants more frequently than previously thought. And although the courts were certainly used by those in power to oppress slaves, women, children, and the poor, as well as to “legitimate [the] blatantly repressive regime” of slavery, they nevertheless provided a forum for those who did not write the laws in question to use the courts to ensure the legal protection of their “natural rights” (Lazarus-Black, “John Grant’s” 154). Thus, in another of the seemingly endless paradoxes inherent to the British imperial slave system, slaves—objects of property, yet human subjects—could, in certain situations, use the courts in the West Indies and in England on their own behalf, as legal agents to affirm their status as legal subjects deserving of the law’s unbiased protection, and judgment.