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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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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 »

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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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Anamnesis Journal and Debates Over the New Natural Law

In Arts & Letters, Conservatism, Essays, History, Humanities, Jurisprudence, Law, Liberalism, News and Current Events, News Release, Politics, Religion, Rhetoric, Western Civilization on August 12, 2011 at 4:19 pm

Allen Mendenhall

Over at the web-essay section of Anamnesis: A Journal for the Study of Tradition, Place, and ‘Things Divine,’ Professors R. J. Snell and Thaddeus J. Kozinski have weighed in on debates over the New Natural Law theory.

Here is Snell’s thesis:

Despite differences in particular religious commitments, a significant number of theists share reservations about the natural law. Natural law theory overlooks the Fall, arrogates the domain of revelation, attempts obligation without divine command, and treats God in the generic and thus in terms alien to the believer—just some of the many objections.In this short essay I offer a broad defense against these charges, particularly claiming that understanding natural law through human subjectivity recognizes how humans actually know and so consequently preserves the uniqueness and transcendence of God.

Appealing to authorities within the religious tradition may go some distance in answering objections, for theology and sacred text tends to vindicate the natural lawyers, especially if the religion has a doctrine of creation. But the charges may have particular traction against the so-called New Natural Law Theory (NNL), with its first-person perspective. As Christopher O. Tollefsen explains, the NNL takes seriously “considerations concerning the nature of human action,” particularly intentions as “agent-centered, or first-personal … from the point of view of the agent as seeking some good.” It is, he continues, “only by adopting the perspective of the acting person that an agent’s action can be best understood.”

Here is Kozinski’s thesis:

I commend R.J. Snell for his excellent essay “God, Religion, and the New Natural Law.” His thesis: “understanding natural law through human subjectivity recognizes how humans actually know and so consequently preserves the uniqueness and transcendence of God” is defended rigorously, and is, to my mind, true. However, in allying his argument with those of the New Natural Law school, I think he does himself a disservice.There is nothing in his thesis in terms of data, premises, argumentation, and conclusions that requires such an alliance, for everything he claims about the indispensable role and even primacy of subjectivity, experience, understanding, and judgment in ethical inquiry and practice rings true on its own and is clearly in accordance with the philosophia perennis in general and Thomistic ethical philosophy in particular. Whereas, the major claim of the New Natural Theory, that is, the adequacy of practical reason alone to ground and explain ethical theory and practice, does not ring true and is in, at least prima facie, contradiction with traditional Catholic and Thomistic moral philosophy and theology.

Though I agree with Dr. Snell that the modern and postmodern “turn to the subject” is the most appropriate beginning to inquiry about the natural law, and maybe the most effective motivation for obeying it, in our present public milieu of deep worldview pluralism, it is only a beginning. Moreover, even a sound, systematic Thomistic defense of the relative self-sufficiency of practical reason for knowing and living out the natural law can be misleading if it neglects to include a discussion of these four realities:  1) the mutually dependent relation of speculative and practical reason; 2) the subjectivity-shaping role of social practices; 3) the tradition-constituted-and-constitutive character of practical rationality; and 4) the indispensability of divine revelation in ethical inquiry and practice.

These essays are good introductions to the New Natural Law Theory.  For more about this branch of jurisprudence, see the following web-based essays and articles (some of them approving of natural law and some of them critical):

Joseph W. Koterski, S.J.  “On the New Natural Law Theory.”  Modern Age (2000: 415-418).

Phillip E. Johnson.  “In Defense of Natural Law.”  First Things (1999).

Christopher Tollefsen.  “The New Natural Law Theory.”  LYCEUM, Vol. X, No. 1 (2008).

David Gordon’s review of Robert P. George’s In Defense of Natural Law.  Review title: “New But Not Improved.”  The Mises Review.  Vol. 5, No. 4 (1999).

Larry Arnhart.  “Darwinian Conservatism as the New Natural Law.”  The Good Society, Vol. 12, No. 3 (2003).

The Daily Dish.  “The ‘New’ Natural Law.”  The Atlantic (Dec. 23, 2009).

David D. Kirkpatrick.  “The Conservative-Christian Big Thinker.”  The New York Times Magazine (Dec. 16, 2009).

“The Gospel of Life: A Symposium.”  First Things (1995). 

This list is hardly exhaustive.  It shows only a few scholarly and popular pieces.  No discussion of natural law theory should fail to mention John Finnis and Robert P. George, whose books and articles are well-known and oft-discussed.  Anamnesis, edited by Peter Haworth, is sure to come out with more compelling pieces related to topics discussed here at The Literary Lawyer.  Please read Anamnesis and, if you feel so inclined, leave a comment in the “comments” section of the web-based fora.

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The Place of Miscegenation Laws within Historical Scholarship about Slavery

In American History, Arts & Letters, Book Reviews, Communication, Economics, History, Law, Laws of Slavery, Legal Education & Pedagogy, Nineteenth-Century America, Politics, Slavery, The Literary Table, Thomas Jefferson, Western Civilization on May 17, 2011 at 8:28 am

Allen Mendenhall

The following post appeared at The Literary Table.

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Miscegenation laws, also known as anti-miscegenation laws, increasingly have attracted the attention of scholars of slavery over the last half-century.  Scholarship on slavery first achieved eminence with the publication of such texts as Eric Williams’s Capitalism and Slavery (1944), Frank Tannenbaum’s Slave and Citizen (1946), Kenneth Stampp’s The Peculiar Institution (1956), Stanley Elkins’s Slavery: A Problem in American Institutional and Intellectual Life (1959), and Leon F. Litwack’s North of Slavery (1961).  When Winthrop D. Jordan published his landmark study White Over Black in 1968, miscegenation statutes during the era of American slavery were just beginning to fall within historians’ critical purview.  The Loving v. Virginia case, initiated in 1959 and resolved by the U.S. Supreme Court in 1967, no doubt played an important role in activating scholarship on this issue, especially in light of the Civil Rights movement that called attention to various areas of understudied black history. 

In Loving, the Supreme Court struck down Virginia’s miscegenation statutes forbidding marriage between whites and non-whites and ruled that the racial classifications of the statutes restricted the freedom to marry and therefore violated the Equal Protection Clause and Due Process Clause of the Fourteenth Amendment.  In the wake of Loving, scholarship on miscegenation laws gained traction, although miscegenation laws during the era of American slavery have yet to receive extensive critical treatment.  Several articles and essays have considered miscegenation laws and interracial sex during the era of American slavery, but only a few book-length analyses are devoted to these issues, and of these analyses, most deal with interracial sex and miscegenation laws in the nineteenth-century antebellum period, or from the period of Reconstruction up through the twentieth-century.  This historiographical essay explores interracial sex and miscegenation laws in the corpus of historical writing about slavery.  It does so by contextualizing interracial sex and miscegenation laws within broader trends in the study of slavery.  Placing various historical texts in conversation with one another, this essay speculates about how and why, over time, historians treated interracial sex and miscegenation laws differently and with varying degrees of detail.  By no means exhaustive, this essay merely seeks to point out one area of slavery studies that stands for notice, interrogation, and reconsideration.  The colonies did not always have miscegenation laws; indeed, miscegenation laws did not spring up in America until the late seventeenth-century, and they remained in effect in various times and regions until just forty-four years ago.  The longevity and severity of these laws make them worthy our continued attention, for to understand miscegenation laws is to understand more fully the logic and formal expression of racism. Read the rest of this entry »