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Posts Tagged ‘F. A. Hayek’

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The Conservative Mindset

In American History, Arts & Letters, Book Reviews, Books, Conservatism, Emerson, History, Humanities, Literary Theory & Criticism, Literature, Politics, Scholarship, Western Civilization, Western Philosophy on July 20, 2016 at 6:45 am

Allen 2

The following review first appeared here in the Los Angeles Review of Books.  Some of the references, such as those to the presidential primary season, may be dated now, but they were timely on the date of original publication.

The presidential primaries are at last upon us. The leading Republican candidates, including frontrunners Donald Trump and Ted Cruz, have resorted to showmanship and grandstanding to make their case for the party nomination. Their harsh, uncouth rhetoric stands in marked contrast to the writings of Russell Amos Kirk, a founding father of modern American conservatism.

Books on Kirk exist, but they’re few. Fellow conservatives, many of them friends or colleagues of Kirk’s — like T. S. Eliot, William F. Buckley, Barry Goldwater, F. A. Hayek, Eric Voegelin, and Leo Strauss — have received more attention. In this regard, Kirk is the victim of his virtues: he was less polarizing, celebrated by followers and detractors alike for his measured temperament and learned judgments. He did earn numerous adversaries, including Hayek and Frank Meyer, who in retrospect appear more like ambivalent friends, but the staying power of Kirk’s congeniality seems to have softened objections to his most resolute opinions.

Bradley J. Birzer, a professor at Hillsdale College who holds a chair named for Kirk, fills a need with his lucid and ambitious biography. Birzer is the first researcher to have been granted full access to Kirk’s letters, diaries, and draft manuscripts. He has avoided — as others haven’t — defining Kirk by his list of accomplishments and has pieced together a comprehensive, complex account of Kirk’s personality, motivations, and influences.

Birzer offers five themes in Kirk’s work, and less so his private life, which Birzer only touches on: his intellectual heritage, his ideas of the transcendent, his Christian humanism, his fiction, and the reach and implications of his conservatism. Kirk isn’t a dull subject. One need not identify as a conservative to appreciate his polished charm and idiosyncrasies. A plump, bespectacled gentleman who feigned disdain for technology, Kirk was something of a spiritualist with a penchant for the weird. He considered himself a Stoic before he had converted to Catholicism, a regeneration that makes sense in light of the relation of Stoic to Pauline thought.

As a young man Kirk spent four years in the military. His feelings about this experience were conflicted. He suffered from a blend of ennui and disenchantment but occupied his free time with reading, writing, and studying. He was horrified by the use of atomic bombs in Hiroshima and Nagasaki, where the United States had decimated the most flourishing Western cultural and religious centers in the Japanese Empire, just as he was by the internment of Japanese Americans.

The tremendous violence of the 20th century, occasioned by the rise of Nazism, communism, and fascism, impressed upon Kirk a sense of tragedy and fatalism. He came to despise totalitarianism, bureaucracy, radicalism, and “ideology” as leveling systems that stamped out the dignity and individuality of the human person. Hard to place along the left-right spectrum, he was as critical of big corporations and the military as he was of big government and labor.

When Kirk inserted himself into political debates he supported Republican politicians, becoming temporarily more interventionist in his foreign policy before returning to a form of Taftian isolationism, but he always remained more worried about reawakening the moral imagination than in having the right candidates elected to office. His was a long view of society, one without a fixed teleology or secular eschatology, and skeptical of utopian thought. Kirk advocated a “republic of letters,” a community of high-minded and profoundly sensitive thinkers devoted to rearticulating perennial truths (such as the need to pacify human violence, temper human urges for power, and cultivate human longing for the transcendent or divine) and preserving humanist institutions.

Kirk’s politics were shaped by imaginative literature and characterized by a rich poetic vision and vast cultural literacy. Fascinated by such disparate figures as Edmund Burke, Irving Babbitt, Paul Elmer More, T. S. Eliot, Sir Walter Scott, George Santayana, and most of the American Founders, Kirk was also versed in the libertarianism of Albert Jay Nock and Isabel Paterson, whose ideas he admired as a young man but vehemently rejected throughout his mature years. Burke and Babbitt, more than any other men, shaped his political philosophy. And his irreducible imagination made room for mysticism and a curious interest in ghosts.

Kirk’s debt to Burke cannot be overstated. “Like the nineteenth-century liberals,” Birzer says, “Kirk focused on the older Burke, but he countered their dismissal of Burke’s ideas as reactionary and exaggerated.” Kirk also downplayed Burke the Whig, who championed the cause of the American Revolution, which Kirk considered to be not a revolution but a conservative restoration of ancient English liberties. Kirk was wary about the Enlightenment, as was Burke, because the scientism of that period tended to oversimplify inherently complex human nature and behavior. Kirk also thought the Enlightenment philosophes had broken too readily from the tested traditions of the past that shaped human experience.

Kirk appealed to American patriotism — which he distinguished from reckless nationalism — in The American Cause (1957) (which he later renounced as a “child’s book”), The Roots of American Order (1974), and America’s British Culture (1993), drawing attention to what he saw as the enduring customs and mores that guard against utopian conjecture. Yet American patriotism was, in Kirk’s mind, heir to the patrimony of Athens, Jerusalem, Rome, and London. From the mistakes and successes of these symbolic cities Americans could learn to avoid “foreign aid” and “military violence,” as well as grandiose attempts to “struggle for the Americanization of the world.”

Disillusioned with academia after his graduate work at Duke, Kirk was offered a position, which he turned down, at the University of Chicago. Kirk fell in love with the University of St. Andrews, however, where he took his doctorate and wrote a lengthy dissertation on Edmund Burke that would later become his magnum opus, The Conservative Mind. Kirk revised The Conservative Mind throughout his life, adding new permutations and nuances in an attempt to ensure the continued resonance of his cultural mapping.

The almost instant success of The Conservative Mind made Kirk an unlikely celebrity. The book featured sharply etched portraits of men Kirk considered to be representatives of the conservative tradition. Regrettably, and perhaps tellingly, Kirk tended to ignore the contributions of women, passing over such apposite figures as Julian of Norwich or Margery Kempe, with whom he, as a mystic Catholic anglophile, had much in common. Kirk shared more with these women, in fact, than he did with Coleridge or Thomas Babington Macaulay, who appear in The Conservative Mind.

Kirk was also woefully uneducated about American pragmatism. He overlooked Burke’s influence on, and compatibility with, pragmatism. (As Seth Vannatta ably demonstrates in Conservatism and Pragmatism (2014), Burke “is a model precursor of pragmatism because he chose to deal with circumstances rather than abstractions.”) Kirk failed to see the pragmatic elements of Santayana, whom he adored, and he seemed generally unaware of the work of C.S. Peirce. Kirk’s breezy dismissal of William James, Santayana’s teacher and later colleague, suggests he hadn’t read much of James’s oeuvre, for Kirk lumped the very different James and Dewey together in a manner that proved that Kirk himself was susceptible to the simplification and reduction he decried in others.

Conservatism, for Kirk, consisted of an attitude or mindset, not an explicit or detailed political program. Enumerating vague “canons” of conservatism that Kirk tweaked from edition to edition, The Conservative Mind was a “hagiographic litany,” a genealogy of the high-minded heroes of ordered liberty and convention. Kirk didn’t intend the book to be model scholarship. It was something more — an aestheticized bricolage cannibalized from Burke and Eliot and others, with inspirational and ritualistic value. It has never gone out of print.

Kirk is sometimes accused of being contradictory, holding simultaneously incompatible positions, in part because he lauded apparent antagonists such as John C. Calhoun and Abraham Lincoln. “Kirk found something to like in each man,” Birzer says of Calhoun and Lincoln, “for each, from [Kirk’s] perspective, embodied some timeless truth made sacramentally incarnate.” Tension between rivaling conservative visions is reconciled in Kirk’s desire never “to create an ideology out of conservatism, a theology at the quick and the ready with which one could easily beat one’s opponents into submission.” Ideology, Kirk believed, was a symptom of totalitarianism, and as such was the common denominator of fascism and communism. Kirk believed his own philosophy was not an ideology, because he, like Burke, preferred “a principled defense of justice and prudence” to any specific faction or agenda. He recognized that change was necessary, but thought it should be guided by prudence and historical sensitivity.

For a history buff, Kirk could be positively ahistorical and uncritical, ignoring the nuances and particularities of events that shaped the lives of his heroes. He ignored Calhoun’s commitment to the peculiar institution, and with a quick wave of the hand erased slavery from Calhoun’s political calculus, adding without qualification that “Calhoun defended the rights of minorities.” Kirk made clumsy caricatures out of his assumed enemies, calling men like Emerson “the most influential of all American radicals.” Emerson had met Coleridge, whose Romanticism partially inspired Emerson’s transcendentalism. Yet Kirk loathed Emerson and praised Coleridge and saw no inconsistency in doing so.

Kirk was not alone during the 1950s. The decade witnessed a renaissance of conservatism, exemplified by the publication of not only Kirk’s The Conservative Mind, but also Robert Nisbet’s The Quest for Community, Strauss’s Natural Right and History, Ray Bradbury’s Fahrenheit 451, Eliot’s The Confidential Clerk, Voegelin’s New Science of Politics, Gabriel Marcel’s Man against Mass Society, Christopher Dawkins’s Understanding Europe, C.S. Lewis’s Mere Christianity, Whittaker Chambers’s Witness, and Buckley’s God and Man at Yale. It was The Conservative Mind, however, that “gave one voice to a number of isolated and atomized voices.” It also lent intellectual substance and credibility to the activist groundswell surrounding such politicians as Goldwater a decade later.

When Kirk joined Buckley’s National Review, the manner of his writing changed. Previously he had contributed to literary and scholarly journals, but, as Birzer points out, his “contributions to the National Review slowly but surely crowded out his output to other periodicals.” Working for National Review also drew Kirk into personality conflicts that passed as theoretical disagreements. Kirk sided with Buckley, for instance, in banishing from the pages of National Review any writers associated with the John Birch Society. Kirk despised the egoism of Ayn Rand, scorned the label neoconservative, and did not take kindly to the doctrines of Irving Kristol. Yet Kirk held Leo Strauss in high regard, in no small part because of Strauss’s scholarship on Burke and natural rights.

Strauss is sometimes treated as the fount of neoconservativism, given that his students include, among others, Allan Bloom, Harry Jaffa, and Paul Wolfowitz. But Kirk never would have considered the esoteric and conscientious Strauss to be in a league with neoconservative provocateurs like Midge Decter and Norman Podhoretz, who indicted Kirk for anti-Semitism after Kirk, in a speech before the Heritage Foundation, stated that some neoconservatives had mistaken Tel Aviv for the capital of the United States — a tactless comment that was blown out of proportion.

“Kirk never sought conformity with those around him,” Birzer argues, “because he never wanted to create a sect or a religion or a cult of personality.” Kirk labored for the sake of posterity, not self-promotion. “The idea of creating ‘Kirkians,’” as there are Straussians, Misesians, Randians, and Rothbardians, “would have horrified [Kirk] at every level of his being”; Birzer insists that Kirk “desired only to inspire and to leaven with the gifts given him,” adding that “[h]e did well.” “I hope,” Birzer concludes, “I have done at least half as well” in writing Kirk’s biography.

Bringing Kirk into renewed focus during a contentious election season, as the term conservatism is bandied about, contested, and abused by commentators as varied as David Brooks and Phyllis Schlafly, Megyn Kelly and Rush Limbaugh, Karl Rove and Michael Savage, Birzer reminds us that conservatism, properly understood, is a “means, a mood, an attitude to conserve, to preserve, and to pass on to future generations the best of the humane tradition rather than to advocate a particular political philosophy, party, or agenda.”

One wonders, watching the campaign stops and debate spectacles, the ominous political advertisements and alarmist fundraising operations, what’s left of this humane tradition in our current political discourse. When our politicians lack a responsible and meaningful awareness of the residual wisdom of the ages, we get the leadership and politics we deserve. Would that we had more Russell Kirks around to remind us of the enduring things that, in times like these, are hard to find and difficult to believe in.

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The Moral Case for Property Rights

In Arts & Letters, Books, Conservatism, Economics, Ethics, History, Humane Economy, Humanities, Jurisprudence, Law, Liberalism, Philosophy, Property, Scholarship, Western Civilization, Western Philosophy on March 9, 2016 at 8:45 am

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This review originally appeared here at the Library of Law and Liberty.

The James Madison Program in American Ideals and Institutions at Princeton University has become a hub of conservative constitutionalism and natural law theory, a forum where mostly likeminded scholars and public intellectuals can come together for constructive dialogue and critique. Directed by Robert P. George, the McCormick Professor of Jurisprudence at Princeton, the program has hosted established and emerging scholars alike. Adam MacLeod is one of the latter—a figure to watch, a fresh and tempered voice in the increasingly ideological field of jurisprudence and legal theory. During his James Madison fellowship, with the support and advice of his colleagues, MacLeod wrote Property and Practical Reason, his first book.

MacLeod frames his normative claims and pleas within the common law context. And he gives us his thesis in his crisp opening sentence: “This book makes a moral case for private property.” He adds that “institutions of private ownership are justified.”

That institutions of private ownership are now jeopardized is upsetting. Before the 18th century, it was simply taken for granted in most Western societies that private property rights incentivized both work and custodianship and served moral ends. Leaders of advanced nations understood that the opportunity to own land or goods motivated people to work; that work, in turn, contributed to the aggregate health of the community; and that once ownership was attained, owners preserved the fruits of their labor and likewise respected the fruits of others’ labor as having been dutifully earned. There were, of course, violations of these principles in Western societies, which is why the law protected and promoted private ownership.

Even absolute monarchs across Europe centuries ago understood the instinctual drive for personal ownership and, consequently, allowed their subjects to obtain at least qualified possession of land and real property. During the Enlightenment, however, philosophers such as John Locke awakened the Western intellect to the stark reality that private property rights were routinely violated or compromised by monarchs and sovereigns at the expense of morality and at odds with the natural law. Because humans own their bodies, Locke maintained, any object or land they removed or procured from nature, which God had provided humanity in common, was joined to those people, who, so long as no one else had a legitimate claim to such object or land, could freely enjoy a right of possession exclusive of the common rights of others.

It’s surprising that Locke isn’t mentioned in MacLeod’s defense of reason and private property, since Locke more than any other figure in the Western tradition—let alone the British tradition in which the common law emerged—made the reason-based case for the morality of private property ownership. “God,” Locke said, “who hath given the world to men in common, hath also given them reason to make use of it to the best advantage of life and convenience.” On this score MacLeod echoes Locke without giving him attention.

MacLeod advocates the type of mediated dominion of private ownership that, he says, existed at common law. Under the common law, he argues, dominion was mediated because it was restrained by the normative guides of “practical reasonableness.” He does not fully delineate what unmediated dominion looks like. But presumably it has something to do with “many contemporary accounts” that, he claims, “view property as an individual right” and facilitate an “atomization of private property” that’s “unnecessary and unhelpful.” An example might have polished off this point, since in the opening chapters it’s not always obvious to which property arrangement mediated dominion is allegedly superior.

He does, however, supply helpful examples of mediating private institutions under the common law: families and family businesses, religious associations such as churches or synagogues, civic associations, and other such cooperative forms that exercise modest control or otherwise influence a person’s claim to outright ownership. For instance, one’s community may reasonably insist that my absolute ownership of a weapon does not permit one’s use of that weapon to threaten or injure another except in self-defense. It may likewise restrict the profligate use of scarce resources, or the reckless use of intrinsically dangerous resources to the manifest detriment of one’s immediate neighbors.

The author submits that, under the common law, which illustrates constructive administration of property rights, private ownership is never total or unqualified but always subject to reasonable restraint as prescribed by custom and community. He intimates that one thing that makes private ownership reasonable is its promotion of reasonable behavior; the very reasonableness of private property is self-perpetuating. The owner of property who’s confident his ownership is legally honored and enforced will pursue future gain; as the number of such owners multiplies, the corporate prosperity of society increases.

MacLeod rejects consequentialist arguments for private property and seeks to justify private ownership on the basis of morality. He shows that private ownership is not just optimal by utilitarian standards but is practically reasonable and morally good.

In so arguing, he navigates around two anticipated criticisms: first that his defense of private property and promotion of common law standards and conditions are remedies in search of an illness, and second that beneath his proposed remedy is the sickness he wants to cure.

By discussing the work of Pierre-Joseph Proudhon, Jeremy Waldron, J. E. Penner, and Larissa Katz, among others, MacLeod proves he’s not remonstrating against straw men but engaging actual thinkers with real influence on our working perceptions of property rights. The problems he confronts are palpable: regulatory takings, trespass, taxation, riparian-right disputes, adverse possession, and waste, among others.

In depicting mediated dominion as a form of voluntary “plural ownership” that excludes state coercion, moreover, he reassures readers that a common law property regime does not contravene private ordering, despite the fact that the common law dates back to periods when English monarchs retained total and ultimate control of the land within their jurisdiction under the Doctrine of the Crown; forced owners to hold property rights in socage; confiscated property from rivals and dissidents; redistributed property in exchange for loyalty and political favors; and permitted and at times approved of slavery and villainy.

These unreasonable elements of the common law tradition do not square with the case that MacLeod makes for practical reasonableness; yet the common law tradition he invokes is sufficiently flexible and adaptive to modify or eradicate rules that perpetuate unreasonable practices and behaviors. He reminds us, too, that “slavery was for a long time unknown at common law, and its rise in positive law derogated common law rights and duties.” In other words, the rise of the English slave trade “is a story of lawmakers first departing from, then returning to, common law norms.”

Following if not synthesizing John Finnis and Joseph Raz, MacLeod recommends in the property-law context something akin to perfectionist liberalism and value pluralism. The pluralism championed by MacLeod involves multiplying the options for deliberating agents: the more room there is for rational choice, the more diverse and numerous are the opportunities to exercise human reason. These opportunities may be circumscribed by the morality of the community that is inherent in the rules that reflect basic values. The law is by nature coercive, but it is good to the extent it enables practical reason and restricts bad behavior, as determined by the net, collaborative efforts of non-state actors. MacLeod calls these combined actors members of “intermediary communities.”

The trope of individualism and community is for MacLeod a framing device for advocating mediated dominion as an incentivizing force for moral action. He skillfully and meticulously affirms that private ownership, which is conditional on the reasonable limitations established by collective norms, is reasonable not only for instrumental purposes (because it works well and facilitates constructive social relations) but also because it is good in itself. Summoning the commentary of Thomas Aquinas, William Blackstone, James Madison, Alexis de Tocqueville, Joseph Story, Georg Friedrich Hegel, F.A. Hayek, Neil MacCormick, Ronald Dworkin, Richard Epstein, and Robert P. George, MacLeod also manages to work in unexpected references to writers who do not immediately spring to mind as jurisprudents: Richard Weaver, Wendell Berry, Charles Murray, John Tomasi, and Milton Friedman. This range demonstrates the importance of property law across disciplines and in broad contexts.

To profit from this book you must, I think, hold in abeyance any assumptions or readymade generalizations you have about the nature and function of private property. You’d benefit as well from a prior familiarity with the field and discourse of property jurisprudence, not to mention the new natural law theories. I make this observation as an outsider myself. If you can’t immediately define terms like “usufruct,” either because you’ve never heard of them or because it’s been too long since you studied for a bar examination, you’ll likely need Black’s Law Dictionary and other resources close at hand as you piece through MacLeod’s rationale. Readers in other disciplines might find that the chapters presuppose an awareness of, say, the essentialist debate over whether exclusion or use defines property norms, or might question the meaning and import of “personalist” approaches to private property that emphasize the doctrines of positive liberty and personal autonomy.

Such disciplinary specificity isn’t a bad thing. One hopes, in fact, that it would motivate curious readers to undertake further study and inquiry. Yet specialization limits what a book can accomplish.

MacLeod exhibits a disposition to be philosophical rather than sociological, adopting as he does a neutral, academic tone free of animus and personal pique, arguing from logical deduction rather than concrete data or statistics. Whether this approach redounds to his advantage depends on what he wants to achieve. If he’s writing only for an academic audience of philosophers and political theorists, he’s succeeded admirably, but if his goal is to reach beyond the narrow confines of the academy, spreading his influence as widely as possible, he has fallen short. The prose is accessible to scholars and advanced graduate students, but the average lawyer will find no practical instruction in the book and might even question the at times challenging syntax and vocabulary that can obscure basic points. If economists ignore the book for its rejection of consequentialist arguments, however, it’s to their disadvantage.

No common reader, I’m afraid, will read this book from cover to cover, and that’s a pity because the subject is important, especially given the spread of eminent-domain abuse and the general embrace of egalitarianism, redistributivism, and Rawlsian notions of social justice by Americans today. The desire for private ownership is a primordial fact. We need more books and treatises that examine at a fundamental level how and why we alienate, possess, and exchange property. At around $100, Property and Practical Reason is prohibitively expensive for curious undergraduates, and also for courses in graduate studies. Moreover, the law schools may well ignore it due to its focus on abstract jurisprudence.

All that said, this book should be read—and will be, by the people who know about and are sympathetic to the work of the James Madison Program. Unfortunately, that’s not many people. Not enough, anyway. There’s no cottage industry for the philosophy of practical reasonableness. Yet there ought to be, and the reception of MacLeod’s work might tell us whether there can be. Those of a philosophical bent will delight not just in the conclusions MacLeod reaches, but in the way he reaches them: framing and reframing his sinuous arguments until his central theses become refrains. This reviewer found it a delightfully industrious, hard-won defense of private property, and well worth the high sticker price.

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Review of Damon Root’s “Overruled: The Long War for Control of the U.S. Supreme Court”

In American History, Arts & Letters, Book Reviews, Books, Judicial Activism, Judicial Restraint, Jurisprudence, Libertarianism on January 28, 2015 at 8:45 am

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This review originally appeared here in the American Spectator.

The sounds coming from the echo chamber suggest that Damon Root’s new book Overruled: The Long War for Control of the U.S. Supreme Court has been an uncheckered success. On the book’s cover Randy Barnett declares it

a riveting account of the raging debate over the future of our Constitution between those who contend that judges must ‘defer’ to legislatures and those who view the judiciary as an equal branch of government whose mandate is to secure the rights and liberties of the people by holding government to its just powers.

Writing for the Volokh Conspiracy blog at the Washington Post, Ilya Somin praises the book as the “most thorough account of the libertarian-conservative debate over judicial review so far.”

In the Wall Street Journal Michael Greve critiques the obvious weaknesses in Root’s narrative — its oversimplification — with which, Greve says, “legal historians may quarrel.” But Greve accepts Root’s negative portrayal of Justices Oliver Wendell Holmes, Jr., Louis Brandeis, and Felix Frankfurter, notable expositors of the doctrine of judicial restraint. The trio, Greve claims, “had not the foggiest notion of the Constitution,” which they “loathed… as inimical to their vision of government by experts.”

Here’s a contrary opinion from a libertarian student of the law: Root’s book suffers from caricature. His approach pits essentialized binaries (what he calls “two competing visions”) against one another in a fight for the good that one binary allegedly represents. History is rich and complex and not simply or without consequence pressed into two-sided struggles. Root would have benefited from a more concerted effort to understand the range of perspectives and heuristics embraced by jurists across a spectrum of backgrounds and beliefs.

Root purports to tell a story “which stretches from the Civil War period to the present,” but the key players are just three people: Holmes, Robert Bork, and Justice Stephen Field. The first two represent the doctrine of judicial restraint that might send “the whole country straight to the devil”; the third man represents an “aggressive legal approach” that Root attributes to libertarianism. Root seeks to show how conservatives over the course of the twentieth century adopted a jurisprudence of restraint that was once the darling of progressives. The subtext is twofold: that today’s conservatives need to be told their legal theory derives from the left, and that current libertarian jurisprudents are part of a more dependable school of thought.

The problem is that the divide between libertarians and conservatives is not so clear in the legal context. In fact, many of both adhere to the basic tenets of originalism and textualism, although within those operative paradigms they may disagree. It’s also difficult to discern whether a judge is conservative or libertarian, since his job is to analyze constitutional provisions and statutes and prior decisions to determine what the law is, not what he wants it to be. A judge may be forced to rule against his political interests if the statutory authority is both unambiguous and constitutional; in such moments the judge has no power to overturn the will of the voters as manifest in legislation or to alter the Constitution.

The most devastating shortcoming of Overruled is its tendency to reduce complicated cases and figures to artless political categories. Root’s Holmes is a fictional type, a stock character, not the actual jurist of history. Look no further than Thomas Sowell for a libertarian — or someone often categorized as a libertarian — who champions Holmes’s jurisprudence rather than considering him an enemy. The real Holmes had much in common with F.A. Hayek, as Richard Posner has revealed in law review articles and in his book Law, Pragmatism, and Democracy.

Before Hayek, Holmes formulated his own version of “the knowledge problem,” maintaining that no one judge or group of judges should presume to understand the facts on the ground well enough to direct the goings on in local communities with disparate values and conflicting objectives. We learn the diverse preferences of citizens through the feedback mechanisms of the market and should not have them prescribed for us through the commands of judges and justices. That’s why Holmes deferred to state legislatures to, in his words, “prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several states.”

Root advocates an inversion of Holmes’s jurisprudence, for something loosely akin to rule by Platonic Guardians: put wise activist philosophers on the bench, he seems to say, and they can waive their magic wands to perform libertarian miracles. With such power and leeway, couldn’t they also do the opposite? Couldn’t they impose on us a scheme of “rights” — to subsistence or a basic income — that’s antithetical to the free market? Scholars on the left such as Erwin Chemerinsky, Charles Black, Peter Edelman, and Frank Michelman champion the same expansive approach that Root celebrates. Their goal, however, is to empower the judiciary to impose a statist agenda by regulating business and eradicating economic liberties.

If Root’s claim is true that libertarian jurisprudents are “the sworn enemies” of Holmes, then why has Posner — who’s no dummy — declared Holmes to be “liberal only in the nineteenth-century libertarian sense, the sense of John Stuart Mill and, even more, because more laissez-faire, of Herbert Spencer”? Posner goes further, suggesting that Holmes “made laissez-faire his economic philosophy.”

Holmes was influenced by Spencer and versed in Mill. It isn’t accurate to assert, as Root does:

Spencer was regarded as the late nineteenth century’s leading proponent of full-throated laissez-faire. That’s why Holmes cast him as a villain in his Lochner dissent.

For starters, Holmes did not cast Spencer as a villain; he simply stated that Spencer’s views on economics were irrelevant to the Fourteenth Amendment, which secured federal citizenship for former slaves and prohibited the states from abridging the privileges or immunities of that citizenship. In reality, Holmes’s assessments of Spencer were mixed, and the justice’s letters are sprinkled with references to him. He cited Spencer while developing a theory of torts. He read Spencer’s autobiography. He criticized Spencer less for his philosophy than for his style and idealism, saying, for instance, “He is dull. He writes an ugly uncharming style, his ideals are those of a lower middle class British Philistine.”

Louis Menand has written that Holmes’s “personal sympathies were entirely with the capitalists.” That seems right: he once jested that “if they could make a case for putting Rockefeller in prison I should do my part; but if they left it to me I should put up a bronze statue of him.” Nevertheless, Holmes was no libertarian. What libertarian would proclaim, “Taxes are what we pay for civilized society”? Just because he wasn’t a libertarian, however, doesn’t mean he offered no good insights.

Holmes read Adam Smith shortly before writing his dissent in Abrams v. U.S., in which he trumpeted that “the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” This dissent has been dubbed “libertarian” by so many commentators that listing them all would take up the space of this entire review. Surprisingly, Root mentions Holmes’s affirmance of the conviction of Eugene Debs under the Espionage Act of 1917 but fails to address this more famous dissent, which doesn’t square with Debs’s case.

It’s possible to attack Holmes shrewdly, without raw polemics that skip over inconvenient facts. David Bernstein’s Rehabilitating Lochner does that, condemning the ideas and not the man who held them. Only the cartoonish cover of Bernstein’s book, which depicts Holmes being punched out by Justice Wheeler Peckham in a boxing ring, is unfair to Holmes.

Whether Bork can be easily lumped together with Holmes is another matter. Bork called Holmes’s dissent in Lochner “flawed,” even though he agreed with most of it. He decried Holmes’s marketplace metaphor in Abrams as “foolish and dangerous.”

Root’s book may appeal to already-within-the-pale libertarian readers but won’t interest many beyond that audience. That’s probably a good thing. The truth is that judicial restraint and judicial activism are not palpably partisan creeds that can be readily summarized or easily illustrated. Labeling them “conservative” or “libertarian” is not conclusive as to their substance. Judges with wildly divergent worldviews have pushed the limits of their authority to reach their desired result in certain cases.

In the book’s opening pages, Root asserts that Elena Kagan, who claimed in her confirmation hearings that the political branch, not the judiciary, was the proper mechanism for dispensing with bad laws, “had placed herself squarely within a long and venerable legal tradition that seeks to give the government wide control over regulatory affairs while simultaneously preventing most interference from the courts.” This is missing the point. The courts, which Root wishes to vest with wider control over regulatory affairs, are not necessarily an outside check on our problematically powerful government; they are part of our problematically powerful government.

The federal judiciary is an arm of the state, plain and simple, peopled by unelected judges and justices who aren’t accountable to the people. It’s thus strange to see Root cast the judiciary as the people’s branch. If a member of Congress isn’t representing the people’s interest, the people can, excuse me, throw the rat out. Federal judges, on the other hand, must be impeached.

Root’s recommendation for a more robust judiciary makes sense only if most judges are libertarians. Most aren’t. Therein lies the case for judicial restraint.

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What Crisis? Law as the Marriage of Science and the Humanities

In Academia, Arts & Letters, Humanities, Jurisprudence, Law, Law-and-Literature, Legal Education & Pedagogy, News and Current Events, Oliver Wendell Holmes Jr., Philosophy, Scholarship, The Academy on March 12, 2014 at 8:45 am

Allen 2

This week the Association for the Study of Law, Culture & the Humanities convened to consider this question: “How will law and humanities scholarship fare against the pressure of the science and technology paradigm that has now permeated the institutional frameworks of academia?”  The question implies an adversarial relationship between science and the humanities, or law-and-humanities.  The division between science and the humanities as academic disciplines, however, is not yet 150 years old; it is misguided to pit “law-and-humanities” (a signifier that did not exist a few decades ago) against the “science and technology paradigm that has now permeated the institutional frameworks of academia” (another quotation from the conference program).  We do not have to go back to Plato or Aristotle or Galileo or Descartes or Spinoza or Da Vinci or Locke or Hume or Rousseau or Kant or Newton or Adam Smith or Benjamin Franklin or Thomas Jefferson or Thoreau to see that what we call the humanities has not, traditionally, been divorced from the sciences—that, in fact, the humanities and the sciences are mutually illuminating, not mutually exclusive.

In America, more recently, the classical pragmatists—in particular C.S. Peirce and William James—sought to make philosophy more scientific, and in this endeavor they were mimicking the logical positivists in Britain.  Some of the most famous minds of the 20th century worked at the intersection of the humanities and science: Freud, Einstein, Michael Polanyi, Karl Popper, Jacques Lacan, F. A. Hayek, and Noam Chomsky, to name a few.  Lately we have seen scientific thinkers as wide-ranging as Steven Pinker, E. O. Wilson, Jared Diamond, and Leon Kass celebrate or draw from the humanities.

A review of the conference abstracts suggests that most presenters will be considering this question from the political left, but their concerns are shared by many on the right, such as Roger Scruton, who recently took to the pages of The New Atlantis to address this topic in his article “Scientism in the Arts and Humanities.”  Nevertheless, forcing the separation of science and the humanities does not strike me as prudent.

By encouraging the humanities to recognize its scientific heritage and to recover its scientific methodologies, the academy would be correcting decades of wandering.  Science is indispensable to the humanities, and vice versa; the two work in concert.  The findings in one influence the findings in the other.  Evidence of this reciprocity in the context of legal studies is especially striking in America during the late 19th and early 20th century, when the law often was associated with scientific disciplines rather than with the humanities.  At this time, the theories of Charles Darwin and his progeny helped to explain the common law tradition while influencing the way that law was taught in law schools and examined by judges and most notably by Oliver Wendell Holmes, Jr.

The scientific paradigms in vogue among legal thinkers at the turn of that century were neither uniform nor monolithic.  For instance, Christopher Columbus Langdell’s push to make legal education more scientific was different from Holmes’s use of Darwinism to describe the common law.  Rather than teasing out the distinctions between various scientific approaches to the law during the late 19th and early 20th century America, however, I would look at these scientific approaches as part of the same general project and as a reminder of how the humanities and the sciences can participate to bring about theoretical and practical insights.  It might be that, of all disciplines, law is the most revealing of the participatory nature of science and the humanities and, therefore, provides the best justification for instrumental and scientific approaches to humane studies.

There are groups within the humanities that resent the scientific disciplines for the funding and privilege those disciplines enjoy in the academic marketplace, but at least part of this resentment is misplaced.  The fault lies partially with the scientists who mistake merit for value: it is not that the sciences enjoy more funding and privilege because they have more merit—the academy is not a meritocracy—but it is that they have more value to consumers and the public writ large.  It may well be that the humanities have more merit, but unless consumers begin to value merit, the meritorious will not necessarily prevail in the market.  

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Book Review: Paul Cantor and Stephen Cox’s Literature and the Economics of Liberty

In Arts & Letters, Austrian Economics, Book Reviews, Communism, Conservatism, Economics, Essays, Fiction, History, Humane Economy, Humanities, Law-and-Literature, Liberalism, Libertarianism, Literary Theory & Criticism, Literature, Novels, Philosophy, Politics, Western Civilization, Western Philosophy on January 23, 2012 at 4:53 am

Allen Mendenhall

The following book review originally appeared here in the Fall 2010 issue of The Independent Review.

Humans are not automated and predictable, but beautifully complex and spontaneous. History is not linear. Progress is not inevitable. Our world is strangely intertextual and multivocal. It is irreducible to trite summaries and easy answers, despite what our semiliterate politicians would have us believe. Thinking in terms of free-market economics allows us to appreciate the complicated dynamics of human behavior while making sense of the ambiguities leading to and following from that behavior. With these realities in mind, I applaud Paul Cantor and Stephen Cox for compiling the timely collection Literature and the Economics of Liberty, which places imaginative literature in conversation with Austrian economic theory.

Cantor and Cox celebrate the manifold intricacies of the market, which, contrary to popular opinion, is neither perfect nor evil, but a proven catalyst for social happiness and well-being. They do not recycle tired attacks on Marxist approaches to literature: they reject the “return to aesthetics” slogans of critics such as Allan Bloom, Harold Bloom, and John M. Ellis, and they adopt the principles, insights, and paradigms of the Austrian school of economics. Nor do Cantor and Cox merely invert the privilege of the terms Marxist and capitalist (please excuse my resort to Derridean vocabulary), although they do suggest that one might easily turn “the tables on Marxism” by applying “its technique of ideology critique to socialist authors, questioning whether they have dubious motives for attacking capitalism.” Cantor and Cox are surprisingly the first critics to look to Austrian economics for literary purposes, and their groundbreaking efforts are sure to ruffle a few feathers—but also to reach audiences who otherwise might not have heard of Austrian economics.

Cantor and Cox submit that the Austrian school offers “the most humane form of economics we know, and the most philosophically informed.” They acknowledge that this school is heterodox and wide ranging, which, they say, are good things. By turning to economics in general, the various contributors to this book—five in all—suggest that literature is not created in a vacuum but rather informs and is informed by the so-called real world. By turning to Austrian economics in particular, the contributors seek to secure a place for freedom and liberty in the understanding of culture. The trouble with contemporary literary theory, for them, lies not with economic approaches, but with bad economic approaches. An economic methodology of literary theory is useful and incisive so long as it pivots on sound philosophies and not on obsolete or destructive ideologies. Austrian economics appreciates the complexity and nuance of human behavior. It avoids classifying individuals as cookiecutter caricatures. It champions a humane-economy counter to mechanistic massproduction, central planning, and collectivism. Marxism, in contrast, is collectivist, predictable, monolithic, impersonal, linear, reductive–in short, wholly inadequate as an instrument for good in an age in which, quite frankly, we know better than to reduce the variety of human experience to simplistic formulae. A person’s creative and intellectual energies are never completely products of culture or otherwise culturally underwritten. People are rational agents who choose between different courses of action based on their reason, knowledge, and experience. A person’s choices, for better or worse, affect lives, circumstances, and communities. (“Ideas have consequences,” as Richard Weaver famously remarked.) And communities themselves consist of multiplicities that defy simple labels. It is not insignificant, in light of these principles, that Michel Foucault late in his career instructed his students to read the collected works of Ludwig von Mises and F. A. Hayek. Read the rest of this entry »