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Posts Tagged ‘William James’

Richard Posner is a Monster

In Academia, Arts & Letters, Book Reviews, Books, History, Humanities, Jurisprudence, Law, Legal Education & Pedagogy, liberal arts, Oliver Wendell Holmes Jr., Pragmatism, Scholarship, Writing on January 11, 2017 at 6:45 am

Allen Mendenhall

This review originally appeared here in the Los Angeles Review of Books.

William Domnarski is probably right when he writes that Richard Posner, like his hero Oliver Wendell Holmes Jr., “seemed destined for a literary life.” Holmes modeled himself on Emerson; he was the class poet at Harvard and earned his reputation as a thoughtful if controversial man of letters who could write with panache.

Posner, who majored in English at Yale, modeled himself on Holmes. “Holmes,” Posner declared in a missive, “is the greatest jurist, at least of modern times, because the sum of his ideas, metaphors, decisions, dissents, and other contributions exceeds the sum of contributions of any other jurist of modern times.” Posner’s writing similarly stands out for its flair and confidence.

Both men extended their influence beyond their legal opinions and have contributed to philosophy, becoming provocative historical figures in their own right. Posner has correctly invoked Holmes as a pragmatist, even if Holmes avoided the designation and referred to William James’s pragmatism as an “amusing humbug.” A member of the short-lived Cambridge Metaphysical Club that birthed pragmatism in the 1870s — and which also included James and C. S. Peirce — Holmes at least imbibed the pragmatism that was, so to speak, in the Boston air. Posner’s pragmatism, however, is only tangentially related to the thinking of Peirce and James, and so one hesitates to call it pragmatism at all.

In a move that must irritate University of Miami professor, Peirce supporter, and Richard Rorty critic Susan Haack, Posner distinguishes his variety of pragmatism — what he calls “everyday pragmatism” — from philosophical pragmatism. His thesis is most pronounced in his book Law, Pragmatism, and Democracy(2005). The quotidian pragmatism that inheres in the law is, in his view, practical and forward-looking and based on “reasonableness.”

It’s not always clear how this mode of pragmatism intersects with, or diverges from, the so-called traditional or classical pragmatism, though it differs markedly — and refreshingly — from what Haack labeled “vulgar Rortyism,” that Frenchified variety of structuralism that dispensed with truth as a meaningful category of discourse.


One suspects, given his outsized ego, that Posner delights in having placed his stamp on legal pragmatism, thereby forcing perplexed students in philosophy departments to come to terms with his ideas and square them with not only Peirce and James but also John Dewey, George Herbert Mead, and W. V. Quine.

Posner’s self-importance can be charming or off-putting. You might see him as an erudite, spirited dandy playing the part of flamboyant intellectual; or, more cruelly, as a bitter sophist bent on celebrating his own idiosyncratic views and maliciously dismissing his opponents with callous words and harsh indictments. Certainly his gratuitous rhetorical attacks on the late Antonin Scalia warrant this latter take.

And yet the man speaks with a high, soft voice; loves and spoils his cat; and spends most of his time reading and writing. It’s hard to condemn such things.

Posner is on record as having fancied himself as not just equal to, but more intelligent than, Learned Hand and Henry Friendly — two giants of American law — because he considered himself more informed about economics. This is surprising, chiefly because his self-assessment occurred before he became a judge.

As a judge, Domnarski tells us, “he could seek to persuade his new judicial colleagues to follow him, so as to further shape the law as he saw it — in his own image.” He continues to shape everything, it seems, in his own image, including, perhaps, Domnarski’s biography, which he read both in draft form and as a final manuscript.

One wonders how heavily he edited his own biography — how much latitude he enjoyed in fashioning his story. He sat for interviews and emailed with Domnarski, which wouldn’t be unusual or improper had he not been a primary source of his own legend, as he certainly appears to have been. As a young man, Posner exercised his authority as president of Harvard Law Review to include certain content over the objections of his peers. Might he have done this with his biographer?


Posner, an only child, is used to promoting himself, and his acquaintances at different stages of his life often note his arrogance. As early as high school, he would say “the Poze knows,” and called himself “the mighty one,” writing in yearbooks that he “welcomes you as a High Priest of Posner Worship.” You can write this off as playful, but you can’t write off the fact that he cites himself in cases more than any other judge — though not by name, Domnarski points out, as if to acquit him of unseemly motivations.

An editor of a peer-reviewed journal once complained that Posner had cited himself too often in a paper, to which Posner rejoined that self-citation was necessary because he had produced most of the relevant literature on the subject. “The Poze knows,” the footnotes might have read. Another time an exasperated Posner wrote to editors at Cambridge University Press, “Don’t you know who I am?” — the same remark that landed Henry Louis Gates Jr. in hot water under different circumstances.

Although Domnarski connected with over 200 people to piece together this book, Posner’s personal opinion of himself seems to control the narrative and crowd out contrary valuations that critics may have offered. It’s not that Posner’s accomplishments and reputation are unearned. He’s worked hard to become perhaps the best-known and most prolific federal circuit judge in our nation’s history, and his talents and learning are unquestionable and impressive. The person who emerges in these pages is exceptional at what he does, but difficult to like. He graduated first in his class at Harvard Law School but was not popular. He remains good with ideas — just not with people. He’d rather disseminate brilliant theories than keep them to himself, even when they’re in bad taste or poor form. Whether that’s a virtue or vice depends upon one’s priority for manners and decorum.


Posner’s most remarkable and admirable quality, it seems to me, is his ability — even willingness — to accept constructive criticism in stride. He doesn’t take evaluations of his work personally, and he invites opposition to fine-tune and improve his ideas. He instructs his clerks to criticize his draft opinions line by line so that he can perfect his rationale. “[W]e should want” and “insist upon,” he wrote to a colleague, “challenge and criticism; the rougher the better; for one of the great dangers of achieving eminence is that people are afraid to criticize you and then you end up inhabiting a fool’s paradise.”

Posner has referred to himself as a “monster,” a characterization he’s also reserved for Wagner, Tolstoy, Nietzsche, Wittgenstein, Proust, Kafka, and Michelangelo. The term thus seems like an odd form of self-approbation rather than regret or self-loathing. It accords with his grand notion that he is “a Promethean intellectual hero,” not just some federal judge who happens to be well read.

Posner remains “a writer first and a lawyer second.” He’s correct that, as he told one correspondent, “the modern practice of law does not offer a great deal of scope for the poetic imagination.” Law schools have divided faculty into fields and sub-fields, and specialists in different areas of practice are increasingly unable to speak to one another in a common idiom or with shared vocabularies. Posner studied at Yale under Cleanth Brooks, who directed Posner’s research on William Butler Yeats, so he knows a thing or two about the poetic imagination and memorable expression.

But maybe the law is not about poetic imagination. Maybe it requires a prosaic and mechanical mind that can dispassionately and without fanfare adjudge the soundness of legal arguments presented by the parties to a case. If so, Posner may have been better suited for a different profession, one he would have loved and within which he could have more appropriately flaunted his creativity. Being an English professor, though, would’ve been out of the question; he dismisses much of what English literature departments regard as scholarship as “bullshit.” He uses the same word to describe work in the legal professoriate, of which he was once a seminal figure. By age 30, in fact, he had achieved the rank of full professor at the University of Chicago Law School. He cultivated the image of an iconoclastic rabble-rouser willing to subject all human activity to cost-benefit analysis. He popularized the law-and-economics movement and eagerly imparted that economic efficiency supplied the right methodology for describing and delineating common-law judging, which involved practical resolutions to concrete problems. The doctrinaire Posner of this period drifted far from the Communist roots of his mother. More recently, though, he’s alleged that capitalism is a failure and moved decidedly to the left on key issues.

Perhaps because of his haughtiness, the law can seem boring and routine without him. There’s something to be said for the color and liveliness he brings to his office, and for his belief that “the law really is a very limited field for a person of literary bent.” Domnarski’s treatment may seem deferential, but it doesn’t cover up Posner’s naked, sometimes brutal honesty. Posner is willing to say what others aren’t, and able to say it more eloquently.

If, as Domnarski avers, Posner considers the average lawyer to be like Bartleby or Ivan Ilych — fancifully tragic figures — then he must disdain or pity those lawyers who come before him in the courtroom and submit their briefs for his relentless scrutiny. The 1987 Almanac of the Federal Judiciary states that lawyers who argued before Posner found him to be “arrogant, impatient, dogmatic,” and “opinionated,” and that he “dominates arguments” and “cross-examines lawyers as if they were 1-Ls in a Socratic exchange with a professor.” The man is important, no doubt, but never learned how to play nicely.

Ever the Darwinian, Posner has suggested that great books prove their merit over time in the competition of the marketplace; perhaps his reputation will too.

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 Americas 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.

Judges and Dons

In Academia, Arts & Letters, Book Reviews, Books, Humanities, Law, Legal Research & Writing, Pedagogy, Scholarship, Teaching, The Academy on April 27, 2016 at 6:45 am

Allen 2

This review originally appeared here in The University Bookman.

For a still-active judge on the U.S. Court of Appeals for the Seventh Circuit who “moonlights” as a law professor, Richard Posner is oddly and stunningly prolific. He not only contributes to scholarly discourse but also writes his own legal opinions. That places him in a small minority among federal judges. Posner is justifiably proud of his prolificacy and diligence, and he’s neither apprehensive nor ashamed about castigating his peers—another quality that sets him apart.

Over the years, Posner has tried to, in his words, “pull back the curtain” on his colleagues, our Oz-like federal judges, exposing their failures and inadequacies—what he calls, channeling Star Wars, the “dark side”—lurking behind the glow and aura and imprimatur of state power. Posner suggests that federal judges are not adept at preventing “hunch” or “ideology” from influencing their decisions. Because of their inadequate knowledge and limited training, he adds, federal judges too often resort to feeling and intuition—their “unconscious priors”—to resolve difficult facts and issues. He believes the legal academy should curb this judicial inadequacy, insofar as scholars could, in their teaching and writing, guide judges with clarifying direction. Yet he sees a troubling gulf between law schools and the bench, one that, he insists, “has been growing.”

Hence his latest book—Divergent Paths—which seeks to “explain and document” this gulf, “identify the areas in which federal judicial performance is deficient, and explain what the law schools can do to remedy, or more realistically to ameliorate, these deficiencies.” Posner is as hard on the professoriate as he is on the federal judiciary, indicting the former for its dislocation from the bench and the latter for its “stale” culture. To his credit, Posner criticizes only the federal judiciary and the elite law schools with which he is familiar. He does not purport to speak for, about, or against the state institutions and non-elite schools to which he has had little exposure, which lends his critique credibility.

Little else in the book, however, is modest. Posner is his typical boisterous self, and his characteristic crankiness is on grand display. Whether it bothers or delights readers depends, I suspect, on the extent to which they agree with him. If you’re in accord with Posner on this topic—the institutional and cultural barriers separating federal judges from legal scholars—you’ll find his frank attitude and no-holds-barred criticism to be entertaining. In equal measure, someone else might find them off-putting. The same goes for the book: whether you enjoy it will depend on your affinity for Posner.

Like Justice Oliver Wendell Holmes, his hero, Posner sees Darwinism—natural selection in particular—at work in all aspects of human experience. For example, the legal academy is “Darwinian” because “each species of professor must find an academic niche in which he can avoid destructive competition from other professors.” As a result, professors gather together in protective communities—an “academic ecology,” in Posner’s words—based on shared disciplinary interests. “Their need to communicate with persons outside their niche,” Posner opines, “like the need of a squirrel to learn to eat dandelions as well as nuts, is minimized.” This metaphor supposedly illustrates that the academy has become divorced from the judiciary. Although amusing as figurative language, it’s perhaps not borne out by facts or evidence, nor by the data Posner presents in tables in his introduction. At best, then, Posner’s complaint is anecdotal, not empirical, and that’s disappointing coming from this learned judge who earned his reputation as an empiricist.

“Increasingly law school faculties cultivate knowledge of fields outside of law but pertinent to it,” Posner says, “including economics, psychology, statistics, computer science, history, philosophy, biology, and literature.” The gradual incorporation of disparate disciplines in law schools has, Posner believes, developed in tandem with the growing academic neglect of judicial activity. Put simply, law schools no longer primarily study the behavior and methodology of judges as they once did. Moreover, as law professors have proliferated and law schools have increased in size and number, legal academicians have found ample audiences among faculty and scholars and thus have not suffered from their dislocation from judicial institutions or from the flesh-and-blood judges who decide concrete cases.

Posner decries, with Trump-like enthusiasm, the “refugees” from other, less lucrative disciplines who’ve sought asylum in law schools. He claims, with apparent disgust, that “many of these refugees have a natural inclination to base their legal teaching and writing on insights gleaned by them in the disciplines that were their first choice.” Yet he never adequately demonstrates that interdisciplinarity—and the concomitant diversification of perspectives and backgrounds among legal faculty—damages or thwarts legal education. In fact, what he seems to decry is the current curriculum of legal education, which, to his mind, should focus on judicial behavior and opinions rather than on other areas of the law. He stops short of proposing that administrators build a wall around law schools and make other departments pay for it, but he would, I sense, favor a moratorium on faculty immigration to law schools, and possibly mass deportations for the faculty he deems unworthy or unqualified.

But what Posner dubs “the Ph.Deification” of law faculties is not necessarily bad. Posner himself reveals the disadvantages of being a generalist, which is what law school prepare their students to be. His own understanding of pragmatism, or rather misunderstanding, is itself evidence that he would have benefited from deeper learning in that subject (say, more reading of Peirce and James and less of Dewey and Holmes) before adopting it as his personal methodology and proclaiming its virtues to the world. His literary criticism in Law and Literature betrays a sometimes embarrassing unfamiliarity with the trends and history of that discipline, and his early forays into the economic analysis of law have failed to influence the economics profession or to contribute anything of lasting value to professional economists. Indeed, it is perhaps because he knew more than untutored lawyers about economics—though substantially less than actual economists—that his “economic analysis of the law” for which he became famous was as influential as it was.

The legal community, and legal scholarship in particular, would benefit from welcoming qualified specialists and, in so doing, broaden the parameters of legal study and force lawyers out of their insularity. Professors of legal writing ought to be equipped with academic training in writing and the English language. Isn’t the systemic problem of bad legal writing self-perpetuating when legal writing professors are drawn, not from professional writers and teachers, but from lawyers? Moreover, professors of corporate law or finance ought to have academic training in those subjects—training that goes beyond the rudimentary glosses that find their way into judicial opinions written by non-expert judges. To read judicial opinions on a particular subject is not a fruitful way of learning that subject. A judge may have no experience in the insurance industry, for instance, when a difficult subrogation case arrives on his docket, yet he or she must handle the case and likely write an opinion on the facts and issues involved. The judge must rely on the evidence and briefing proffered by the parties to the case, not on personal expertise, which he or she lacks. Accordingly, the resulting opinion—inherently and intentionally limited to what it can accomplish—will not likely be sufficiently edifying or insightful to have staying power, that is, to teach future students and practitioners about the fundamentals of insurance.

Yet Posner is right to grumble about how the legal academy is populated by professors with little practical experience in law. In fact, law is the one discipline in which, counterintuitively, the more practical experience you have, the less marketable you are as a professor. He’s probably right, too, that there are too many law schools and too many law professors—and, hence, too many lawyers for the saturated legal market.

Targets of Posner’s ire include jargon, esoterica, obscurantism, and wordiness (“the fetishism of words”); the so-called Bluebook, which is a standard reference tool for lawyers concerning forms of citation to authorities (which is “maddening,” “superfluous,” “cancerous,” and “time-consuming”); student editing of law reviews (for which “neophytes” rather than peer reviewers make the critical editorial decisions); excessive, obtrusive, and needless footnoting in legal scholarship (due in part to the aforementioned neophytes); the culture of secrecy and mystery among federal judges; the decline in legal treatises; hyperspecialization among professors; the political nature of judicial appointments and confirmations (including an emphasis on biological diversity rather than diversity of backgrounds and experience); lifetime tenure for federal judges; legal formalism; the unintelligibility of legal opinions to non-lawyers—the list goes on. If you’re familiar with Posner and follow his writings, you’ve probably heard these grievances already. But they’re worth repeating if, in book form, they can reach larger audiences.

Still, one gets the sense that Posner rushed this book into his editors’ hands. A chunk of a paragraph on pages 225–26 reappears, verbatim, on page 271, thus undermining one of Posner’s central points: the importance of brevity in writing. Some of his accusations can’t be supported by evidence, such as “academic critics of judicial opinions feel superior to the opinions’ authors” (how could Posner divine this psychological insight?) or “the average law professor was a better law student than the average judge had been” (possibly true, but how does Posner know this?). Posner’s citations to Wikipedia, moreover, will raise eyebrows. Finally, it’s either dishonest or imperceptive for this one time opponent of same-sex marriage to now claim that bigotry alone explains the conservative and Christian position on that issue, which is barely relevant to Posner’s book and for which he offers little argument.

Posner is willing to depart from judicial norms and conventions. He believes that case precedent should not govern causes of action that entail novel issues and circumstances. Controversially, he encourages judges to look beyond the briefing and the record to ferret out the truth and context of matters inadequately illuminated by the parties to the case. Some of his suggestions will seem remote to the average reader and aimed at an elite (if not aloof) audience of politicians and federal judges. Whether federal judicial salaries account for regional cost-of-living differentials, for instance, matters little to most Americans. Nor do we care, quite frankly, whether judges lack collegiality; we just want them to rule the right way. One would hope personality conflicts wouldn’t influence the operative rules that shape human experience, but it turns out that judges can be petty.

Posner fittingly includes a question mark in the title to the final section of his book: “The Academy to the Rescue?” That punctuation mark reveals how skeptical—or at least tentative—Posner remains about the likelihood that his subjects will institute proper and constructive change. Most of his proposed solutions are sensibly plain: if student editing of law reviews is bad, do away with student editing of law reviews; if the law school curriculum is bad, change it; if judges write poorly, offer them training in writing through continuing legal education courses; if litigants and lawyers travel too far and at too great expense, allow them to videoconference.

Divergent Paths succeeds in demonstrating the need to refocus the legal curriculum on judicial behavior, if only by exposing judges’ decision-making to scrutiny (and ridicule) and demystifying the glorified processes of judicial deliberation. “Most judges evaluate cases in a holistic, intuitive manner,” Posner submits, “reaching a tentative conclusion that they then subject to technical legal analysis.” Their goal is to arrive at decisions that comport with prevailing notions of morality, justice, and common sense. Statutory idiosyncrasies or awkward case precedents will not, in Posner’s view, prevent these judges from reaching the result that people untrained in the law would likewise reach because of their ethical predispositions and basic sense of right and wrong. Judges are people too, and for the most part, they want to do what’s reasonable.

Humility has few friends among judges and law professors, so it is fun, one must admit, to watch Posner serve these cognoscenti a still-steaming pan of humble pie. But even sympathetic readers will grow weary of the relentless complaining after hundreds of pages of it. Perhaps Posner should have minded his own dictum: “If you want a flawless institution go visit a beehive or an anthill.” Then again, if Posner—who inhabits both the judiciary and the academy—doesn’t speak up, who will? Answers to these questions could determine how important Divergent Paths really is.

Was Oliver Wendell Holmes Jr. a Conservative?

In American History, Arts & Letters, Conservatism, History, Humanities, Judicial Restraint, Jurisprudence, Law, Oliver Wendell Holmes Jr., Philosophy, Politics, Pragmatism on November 4, 2015 at 8:45 am

Allen 2

Oliver Wendell Holmes Jr. can seem politically enigmatic in part because he was a jurist, not a legislator. He was no conservative, but he was no progressive, either. Misconstruing and mislabeling him only leads to the confusion and discrediting of certain views that conservatives and libertarians alike seriously ought to consider. One must not mistakenly assume that because Lochner-era Fourteenth Amendment due process jurisprudence favored business interests, Holmes stood against business interests when he rejected New York’s Fourteenth Amendment due process defense. (I have avoided the anachronistic term “substantive due process,” which gained currency decades after Lochner.)

Holmes resisted sprawling interpretations of words and principles—even if his hermeneutics brought about consequences he did not like—and he was open about his willingness to decide cases against his own interests. As he wrote to his cousin John T. Morse, “It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.”

All labels for Holmes miss the mark. Holmes defies categorization, which can be a lazy way of affixing a name to something in order to avoid considering the complexity and nuances, and even contradictions, inherent in that something. “Only the shallow,” said Justice Felix Frankfurter, “would attempt to put Mr. Justice Holmes in the shallow pigeonholes of classification.”

Holmes was not conservative but more like a pragmatist in the judicial sense. His position on judging is analogous to William James’s suggestion that a person is entitled to believe what he wants so long as the practice of his religious belief is verifiable in experience and does not infringe upon the opportunity of others to exercise their own legitimate religious practices. James exposited the idea of a “pluralistic world,” which he envisioned to be, in his words, “more like a federal republic than like an empire or a kingdom.” Holmes likewise contemplated the notion of a federal republic in his majority opinions and dissents.

The above text is adapted from an excerpt of my essay “Justice Holmes and Conservatism,” published in The Texas Review of Law & Politics, Vol. 17 (2013). To view the full essay, you may download it here at SSRN or visit the website of The Texas Review of Law & Politics.

Harold Bloom’s American Sublime

In Academia, America, American Literature, Art, Artist, Arts & Letters, Book Reviews, Books, Creativity, Emerson, Fiction, History, Humanities, Literary Theory & Criticism, Literature, Nineteenth-Century America, Novels, Philosophy, Poetry, Rhetoric, Scholarship, The Novel, Western Civilization, Western Philosophy, Writing on August 12, 2015 at 8:45 am

Allen 2

This review originally appeared here in the American Conservative.

What can be said about Harold Bloom that hasn’t been said already? The Yale professor is a controversial visionary, a polarizing seer who has been recycling and reformulating parallel theories of creativity and influence, with slightly different foci and inflections, for his entire career, never seeming tiresome or repetitive. He demonstrates what is manifestly true about the best literary critics: they are as much artists as the subjects they undertake.

Bloom’s criticism is characterized by sonorous, cadenced, almost haunting prose, by an exacting judgment and expansive imagination, and by a painful, sagacious sensitivity to the complexities of human behavior and psychology. He is a discerning Romantic in an age of banality and distraction, in a culture of proud illiteracy and historical unawareness. Bloom reminds us that to be faithful to tradition is to rework it, to keep it alive, and that tradition and innovation are yoked pairs, necessarily dependent on one another.

Bloom has been cultivating the image and reputation of a prophet or mystic for decades. His stalwart defense of the Western canon is well known but widely misunderstood. His descriptive account is that the canon is fluid, not fixed—open, not closed. It might be stable, but it’s not unchangeable. The literary canon is the product of evolution, a collection of the fittest works that have been selectively retained, surviving the onslaught of relentless competition.

Bloom’s prescriptive position is that, because human agency is a controllable factor in this agnostic filtering process, serious readers can and should ensure that masterpieces, those stirring products of original, even genius minds, are retained, and that the latest works are held to the highest aesthetic standards, which are themselves established and proven by revisionary struggle. The merit of a work is not found in the identity of its author—his or her race, gender, or sexuality—but in the text proper, in the forms and qualities of the work itself.

Bloom’s latest book, The Daemon Knows: Literary Greatness and the American Sublime, examines ambitious and representative American authors, its chapters organized by curious pairings: Whitman with Melville (the “Giant Forms” of American literature), Emerson with Dickinson (the Sage of Concord is Dickinson’s “closest imaginative father”), Hawthorne with Henry James (a relation “of direct influence”), Twain with Frost (“our only great masters with popular audiences”), Stevens with Eliot (“an intricate interlocking” developed through antithetical competition), and Faulkner with Crane (“each forces the American language to its limits”). This mostly male cast, a dozen progenitors of the American sublime, is not meant to constitute a national canon. For that, Bloom avers in his introduction, he envisions alternative selections, including more women: Edith Wharton, Willa Cather, Marianne Moore, and Flannery O’Connor. Bloom’s chosen 12 represent, instead, “our incessant effort to transcend the human without forsaking humanism.” These writers have in common a “receptivity to daemonic influx.” “What lies beyond the human for nearly all of these writers,” Bloom explains, “is the daemon.”

What is this daemon, you ask. As always, Bloom is short on definition, embracing the constructive obscurity—the aesthetic vagueness—that Richard Poirier celebrated in Emerson and William James and Robert Frost, Bloom’s predecessors. Bloom implies that calling the “daemon” an idea is too limiting; the word defies ready explanation or summation.

The daemon, as I read it, is an amorphous and spiritual source of quasi-divine inspiration and influence, the spark of transitional creative powers; it’s akin to shamanism, and endeavors to transcend, move beyond, and surpass. Its opposite is stasis, repose. “Daemons divide up divine power and are in perpetual movement from their supernal heights to us,” Bloom remarks in one of his more superlative moments. “They bring down messages,” he intones, “each day’s news of the metamorphic meanings of the division between our mundane shell and the upper world.”

What, you might ask in follow up, is the American sublime that it should stand in marked contrast to the European tradition, rupturing the great chain of influence, revealing troublesome textual discontinuities and making gaps of influence that even two poets can pass abreast? “Simplistically,” Bloom submits, “the sublime in literature has been associated with peak experiences that render a secular version of a theophany: a sense of something interfused that transforms a natural moment, landscape, action, or countenance.” This isn’t quite Edmund Burke’s definition, but it does evoke the numinous, what Bloom calls, following Burke, “an excursion into the psychological origins of aesthetic magnificence.”

The Daemon Knows is part memoir, a recounting of a lifetime spent with books. There are accounts of Robert Penn Warren, Leslie Fiedler, and Cleanth Brooks. Bloom’s former students and mentors also make brief appearances: Kenneth Burke, for instance, and Camille Paglia. And Bloom doesn’t just analyze, say, Moby Dick—he narrates about his first encounter with that book back in the summer of 1940. He later asserts, “I began reading Hart Crane in the library on my tenth birthday.” That he remembers these experiences at all speaks volumes to Melville’s and Crane’s bewitching facility and to Bloom’s remarkable receptivity.

Bloom has not shied away from his signature and grandiose ahistorical pronouncements, perhaps because they’re right. Melville, for instance, is “the most Shakespearean of our authors,” an “American High Romantic, a Shelleyan divided between head and heart, who held against Emerson the sage’s supposed deficiency in the region of the heart.” Or, “Emersonian idealism was rejected by Whitman in favor of Lucretian materialism, itself not compatible with Indian speculations.” Or, “Stevens received from Whitman the Emersonian conviction that poetry imparts wisdom as well as pleasure.” These generalizations would seem to service hagiography, but even if they’re overstatement, are they wrong?

My professors in graduate school, many of them anyway, chastised Bloom and dubbed him variously a reactionary, a racist, a misogynist, a bigot, or a simpleton; they discouraged his presence in my essays and papers, laughing him out of classroom conversation and dismissing his theories out-of-hand. Or else, stubbornly refusing to assess his theories on their own terms, they judged the theories in the light of their results: the theories were bad because certain authors, the allegedly privileged ones, came out on top, as they always have. This left little room for newcomers, for egalitarian fads and fashions, and discredited (or at least undermined) the supposedly noble project of literary affirmative action.

They will be forgotten, these dismissive pedants of the academy, having contributed nothing of lasting value to the economy of letters, while Bloom will live on, continuing to shock and upset his readers, forcing them to second-guess their judgments and tastes, their criteria for aesthetic value, challenging their received assumptions and thumping them over the head with inconvenient facts and radical common sense. The school of resentment and amateurish cultural studies, appropriate targets of Bloom’s learned animus, will die an inglorious death, as dogmatic political hermeneutics cannot withstand the test of time.

Bloom, on the other hand, like his subjects, taps his inner daemon, invokes it and rides it where it travels, struggles against the anxiety of influence and displays all of the rhetorical power and play of the strong poets he worships. Dr. Samuel Johnson and Northrop Frye reverberate throughout his capacious tome, and for that matter his entire oeuvre. Bloom’s psychic brooding becomes our own, if we read him pensively, and we are better off for it.

Those who view literary study as a profession requiring specialized and technical training, who chase tenure and peer approval, publishing in academic journals and gaining no wider audience than groveling colleagues, do not possess the originality, the foresight, or the brute imagination necessary to achieve enduring appeal. Reading, done right, is a profoundly personal activity, an exercise in solitary contemplation and possible revelation; writing, done right, is transference: the redirection of complex states of consciousness and knowing from one person to another. A few sentences of Bloom’s contemplative questioning, such as the following, are worth the weight of whole academic articles: “At eighty-four I wonder why poems in particular obsessed me from childhood onward. Because I had an overemotional sensibility, I tended to need more affection from my parents and sisters than even they could sustain. From the age of ten on, I sought from Moyshe-Leyb Halpern and Hart Crane, from Shakespeare and Shelley, the strong affect I seemed to need from answering voices.” Here Bloom invites Freudian investigation of himself, summoning the psychoanalytic models he uses on others.

Bloom is now 85. He claims to have another book left in him, making this one his penultimate. His awesome and dedicated engagement with the best that has been thought and known in the world appears to have left him unafraid of the finish, of what comes next, as though literary intimacy and understanding have prepared him, equipped him, for the ultimate. It seems fitting, then, to quote him on this score and to end with a musing on the end: “We are at least bequeathed to an earthly shore and seek memorial inscriptions, fragments heaped against our ruins: an interval and then we are gone. High literature endeavors to augment that span: My twelve authors center, for me, that proliferation of consciousness by which we go on living and finding our own sense of being.”

Holmes and the Pragmatic Common Law

In America, American History, Arts & Letters, History, Humanities, Jurisprudence, Law, Oliver Wendell Holmes Jr., Philosophy, Pragmatism, Scholarship, The Supreme Court on May 7, 2014 at 8:45 am

Allen 2

No summary could do justice to the wealth of literature about Oliver Wendell Holmes Jr.’s relationship to C.S. Peirce, William James, and John Dewey, but a few points of commonality are worth mentioning. First, Holmes was akin to Peirce in the embrace of fallibilism and the scientific method. Holmes disliked natural law thinkers because they purported to know the truth about the law by way of reason or moral teaching. In contrast, Holmes believed that the common law gradually filtered out the most workable, although not necessarily the most moral, theories; in fact, he felt that it was not the province, expertise, or training of the judge to explore issues of morality. He also believed that truth was best determined by a community of inquiring minds rather than by a judge ruling in isolation or by a justice with only eight colleagues to help work through his or her analysis. Therefore, he adhered to the doctrine of judicial restraint and deferred to statutes enacted by legislatures, which consisted of representatives elected by and accountable to the people.

Second, his notion of truth was like James’s: fluid but ultimately associated with the conglomerate views of a majority that have been tested and corroborated by concrete evidence. Holmes did not share James’s optimism, but he did share his literary sparkle. He also shared James’s meliorism and pluralism. The Common Law is a testament to the melioristic nature of the common law system. Holmes’s judicial restraint and deference to local legislatures, moreover, attest to his recognition of diverse local communities and associations that enable social cooperation and legal growth.

Third, Holmes’s celebration of the instrumentalism of the common law smacks of Dewey’s instrumentalism and its Darwinian complements. Like Dewey, Holmes moved pragmatism away from the science, logic, and mathematics that intrigued Peirce, away from the moral psychology and religious vibrancy that intrigued James, and towards the social and political considerations that intrigued Dewey. Holmes and Dewey were, to some degree, consequentialists; they cannot be made out as pure utilitarians—far from it—but their analyses do tend to focus on the importance of outcomes to the evaluation of human action. Finally, Holmes and Dewey emphasized the value of experiment and were majoritarian in that they maintained faith in the ability of distinct communities to arrive at unique solutions to pressing social issues and to memorialize those solutions in official legislation.

These three pragmatist influences enabled Holmes to create a theory of the common law unique to him that both accounted for and distanced itself from the legal positivism of John Austin and Hobbes, who traditionally have been thought of as adversaries of common law theory.

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

In Law-and-Literature, Jurisprudence, Arts & Letters, Legal Education & Pedagogy, News and Current Events, Law, Humanities, Philosophy, Oliver Wendell Holmes Jr., The Academy, Scholarship, Academia 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.  

Pragmatists Versus Agrarians?

In America, American History, Arts & Letters, Book Reviews, Books, Conservatism, Emerson, History, Humanities, Liberalism, Literary Theory & Criticism, Literature, Nineteenth-Century America, Philosophy, Politics, Pragmatism, Southern History, Southern Literature, Western Civilization, Western Philosophy, Writing on June 19, 2013 at 8:45 am

Allen Mendenhall

This review originally appeared here at The University Bookman.

John J. Langdale’s Superfluous Southerners paints a magnificent portrait of Southern conservatism and the Southern Agrarians, and it will become recognized as an outstanding contribution to the field of Southern Studies. It charts an accurate and compelling narrative regarding Southern, Agrarian conservatism during the twentieth century, but it erroneously conflates Northern liberalism with pragmatism, muddying an otherwise immaculate study.

Langdale sets up a false dichotomy as his foundational premise: progressive, Northern pragmatists versus traditionalist, Southern conservatives. From this premise, he draws several conclusions: that Southern conservatism offers a revealing context for examining the gradual demise of traditional humanism in America; that Northern pragmatism, which ushered in modernity in America, was an impediment to traditional humanism; that “pragmatic liberalism” (his term) was Gnostic insofar as it viewed humanity as perfectible; that the man of letters archetype finds support in Southern conservatism; that Southern conservatives eschewed ideology while Northern liberals used it to present society as constantly ameliorating; that Southern conservatives celebrated “superfluity” in order to preserve canons and traditions; that allegedly superfluous ways of living were, in the minds of Southern conservatives, essential to cultural stability; that Agrarianism arose as a response to the New Humanism; and that superfluous Southerners, so deemed, refined and revised established values for new generations.

In short, his argument is that Southern conservatives believed their errand was to defend and reanimate a disintegrating past. This belief is expressed in discussion of the work of six prominent Southern men of letters spanning two generations: John Crowe Ransom, Donald Davidson, Allen Tate, Cleanth Brooks, Richard Weaver, and M. E. Bradford.

Langdale ably demonstrates how the Southern Agrarians mounted an effective and tireless rhetorical battle against organized counterforces, worried that scientific and industrial progress would replace traditional faith in the unknown and mysterious, and fused poetry and politics to summon forth an ethos of Romanticism and chivalry. He sketches the lines of thought connecting the earliest Agrarians to such later Southerners as Weaver and Bradford. He is so meticulous in his treatment of Southern conservatives that it is surprising the degree to which he neglects the constructive and decent aspects of pragmatism.

Careful to show that “Agrarianism, far from a monolithic movement, had always been as varied as the men who devised it,” he does not exercise the same fastidiousness and impartiality towards the pragmatists, who are branded with derogatory labels throughout the book even though their ideas are never explained in detail. The result is a series of avoidable errors.

First, what Langdale treats as a monolithic antithesis to Southern conservatism is actually a multifaceted philosophy marked by only occasional agreement among its practitioners. C. S. Peirce was the founder of pragmatism, followed by William James, yet Peirce considered James’s pragmatism so distinct from his own that he renamed his philosophy “pragmaticism.” John Dewey reworked James’s pragmatism until his own version retained few similarities with James’s or Peirce’s. Oliver Wendell Holmes Jr. never identified himself as a pragmatist, and his jurisprudence is readily distinguishable from the philosophy of Peirce, James, and Dewey. Each of these men had nuanced interpretations of pragmatism that are difficult to harmonize with each other, let alone view as a bloc against Southern, traditionalist conservatism.

Second, the Southern Agrarians espoused ideas that were generally widespread among Southerners, embedded in Southern culture, and reflective of Southern attitudes. By contrast, pragmatism was an academic enterprise rejected by most Northern intellectuals and completely out of the purview of the average Northern citizen. Pragmatism was nowhere near representative of Northern thinking, especially not in the political or economic realm, and it is hyperbolic to suggest, as Langdale does, that pragmatism influenced the intellectual climate in the North to the extent that traditionalist conservatism influenced the intellectual climate in the South.

Third, the pragmatism of Peirce and James is not about sociopolitical or socioeconomic advancement. It is a methodology, a process of scientific inquiry. It does not address conservatism per se or liberalism per se. It can lead one to either conservative or liberal outcomes, although the earliest pragmatists rarely applied it to politics as such. It is, accordingly, a vehicle to an end, not an end itself. Peirce and James viewed it as a technique to ferret out the truth of an idea by subjecting concrete data to rigorous analysis based on statistical probability, sustained experimentation, and trial and error. Although James occasionally undertook to discuss political subjects, he did not treat pragmatism as the realization of political fantasy. Pragmatism, properly understood, can be used to validate a political idea, but does not comprise one.

The Southern Agrarians may have privileged poetic supernaturalism over scientific inquiry; it does not follow, however, that pragmatists like Peirce and James evinced theories with overt or intended political consequences aimed at Southerners or traditionalists or, for that matter, Northern liberals. Rather than regional conflict or identity, the pragmatists were concerned with fine-tuning what they believed to be loose methods of science and epistemology and metaphysics. They identified with epistemic traditions of Western philosophy but wanted to distill them to their core, knowing full well that humans could not perfect philosophy, only tweak it to become comprehensible and meaningful for a given moment. On the other hand, the Southern Agrarians were also concerned with epistemology and metaphysics, but their concern was invariably colored by regional associations, their rhetoric inflected with political overtones. Both Southern Agrarians and pragmatists attempted to conserve the most profitable and essential elements of Western philosophy; opinions about what those elements were differed from thinker to thinker.

Fourth, Langdale’s caricature (for that is what it is) of pragmatism at times resembles a mode of thought that is alien to pragmatism. For instance, he claims that “pragmatism is a distinctly American incarnation of the historical compulsion to the utopian and of what philosopher Eric Voegelin described as the ancient tradition of ‘gnosticism.’” Nothing, however, is more fundamental to pragmatism than the rejection of utopianism or Gnosticism. That rejection is so widely recognized that even Merriam-Webster lists “pragmatism” as an antonym for “utopian.”

Pragmatism is against teleology and dogma; it takes as its starting point observable realities rather than intangible, impractical abstractions and ideals. What Langdale describes is more like Marxism: a messianic ideology with a sprawling, utopian teleology regarding the supposedly inevitable progress of humankind.

Given that pragmatism is central to his thesis, it is telling that Langdale never takes the time to define it, explain the numerous differences between leading pragmatists, or analyze any landmark pragmatist texts. The effect is disappointing.

Landgale’s approach to “superfluity” makes Superfluous Southerners the inverse of Richard Poirier’s 1992 Poetry and Pragmatism: whereas Langdale relates “superfluity” to Southern men of letters who conserve what the modern era has ticketed as superfluous, Poirier relates “superfluity” to Emerson and his literary posterity in Robert Frost, Gertrude Stein, Wallace Stevens, T. S. Eliot, William Carlos Williams, and Ezra Pound. Both notions of superfluity contemplate the preservation of perennial virtues and literary forms; one, however, condemns pragmatism while the other applauds it.

For both Langdale and Poirier, “superfluity” is good. It is not a term of denunciation as it is usually taken to be. Langdale cites Hungarian sociologist Karl Mannheim to link “superfluity” to traditionalists who transform and adapt ideas to “the new stage of social and mental development,” thus keeping “alive a ‘strand’ of social development which would otherwise have become extinct.”

Poirier also links superfluity to an effort to maintain past ideas. His notion of “superfluity,” though, refers to the rhetorical excesses and exaggerated style that Emerson flaunted to draw attention to precedents that have proven wise and important. By reenergizing old ideas with creative and exhilarating language, Emerson secured their significance for a new era. In this respect, Emerson is, in Poirier’s words, “radically conservative.”

Who is right? Langdale or Poirier? Langdale seeks to reserve superfluity for the province of Southern, traditionalist conservatives. Does this mean that Poirier is wrong? And if Poirier is right, does not Langdale’s binary opposition collapse into itself?

These questions notwithstanding, it is strange that Langdale would accuse the Emersonian pragmatic tradition of opposing that which, according to Poirier, it represents. Although it would be wrong to call Emerson a political conservative, he cannot be said to lack a reverence for history. A better, more conservative criticism of Emerson—which Langdale mentions in his introduction—would involve Emerson’s transcendentalism that promoted a belief in innate human goodness. Such idealism flies in the face of Southern traditionalism, which generally abides by the Augustinian doctrine of innate human depravity and the political postures appertaining thereto.

What Langdale attributes to pragmatism is in fact a bane to most pragmatists. A basic tenet of pragmatism, for instance, is human fallibilism, which is in keeping with the doctrine of innate human depravity and which Peirce numbers as among his reasons for supporting the scientific method. Peirce’s position is that one human mind is imperfect and cannot by itself reach trustworthy conclusions; therefore, all ideas must be filtered through the logic and experimentation of a community of thinkers; a lasting and uniform consensus is necessary to verify the validity of any given hypothesis. This is, of course, anathema to the transcendentalist’s conviction that society corrupts the inherent power and goodness of the individual genius.

Langdale’s restricted view of pragmatism might have to do with unreliable secondary sources. He cites, of all people, Herbert Croly for the proposition that, in Croly’s words, “democracy cannot be disentangled from an aspiration toward human perfectibility.” The connection between Croly and pragmatism seems to be that Croly was a student of James, but so was the politically and methodologically conservative C. I. Lewis. And let us not forget that the inimitable Jacques Barzun, who excoriated James’s disciples for exploiting and misreading pragmatism, wrote an entire book—A Stroll with William James—which he tagged as “the record of an intellectual debt.”

Pragmatism is a chronic target for conservatives who haven’t read much pragmatism. Frank Purcell has written in Taki’s Magazine about “conservatives who break into hives at the mere mention of pragmatism.” Classical pragmatists are denominated as forerunners of progressivism despite having little in common with progressives. The chief reason for this is the legacy of John Dewey and Richard Rorty, both proud progressives and, nominally at least, pragmatists.

Dewey, behind James, is arguably the most recognizable pragmatist, and it is his reputation, as championed by Rorty, that has done the most to generate negative stereotypes and misplaced generalizations about pragmatism. Conservatives are right to disapprove of Dewey’s theories of educational reform and social democracy, yet he is just one pragmatist among many, and there are important differences between his ideas and the ideas of other pragmatists.

In fact, the classical pragmatists have much to offer conservatives, and conservatives—even the Southern Agrarians—have supported ideas that are compatible with pragmatism, if not outright pragmatic. Burkean instrumentalism, committed to gradualism and wary of ideological extremes, is itself a precursor to social forms of pragmatism, although it bears repeating that social theories do not necessarily entail political action.

Russell Kirk’s The Conservative Mind traces philosophical continuities and thus provides clarifying substance to the pragmatist notion that ideas evolve over time and in response to changing technologies and social circumstances, while always retaining what is focal or fundamental to their composition. The original subtitle of that book was “From Burke to Santayana,” and it is remarkable, is it not, that both Burke and Santayana are pragmatists in their own way? Santayana was plugged into the pragmatist network, having worked alongside James and Josiah Royce, and he authored one of the liveliest expressions of pragmatism ever written: The Life of Reason. Although Santayana snubbed the label, general consensus maintains that he was a pragmatist. It is also striking that Kirk places John Randolph of Roanoke and John C. Calhoun, both Southern conservatives, between these pragmatists on his map of conservative thought. There is, in that respect, an implication that pragmatism complements traditionalism.

Langdale relies on Menand’s outline of pragmatism and appears to mimic Menand’s approach to intellectual history. It is as though Langdale had hoped to write the conservative, Southern companion to The Metaphysical Club. He does not succeed because his representation of pragmatism is indelibly stamped by the ideas of Rorty, who repackaged pragmatism in postmodern lexica. Moreover, Langdale’s failure or refusal to describe standing differences between the classical pragmatists and neo-pragmatists means that his book is subject to the same critique that Susan Haack brought against Menand.

Haack lambasted Menand for sullying the reputation of the classical pragmatists by associating pragmatism with nascent Rortyianism—“vulgar Rortyianism,” in her words. Langdale seems guilty of this same supposition. By pitting pragmatism against Southern conservatism, he implies that Southern conservatism rejects, among other features, the application of mathematics to the scientific method, the analysis of probabilities derived from data sampling and experimentation, and the prediction of outcomes in light of statistical inferences. The problem is that the Agrarians did not oppose these things, although their focus on preserving the literary and cultural traditions of the South led them to express their views through poetry and story rather than as philosophy. But there is nothing in these methods of pragmatism (as opposed to the uses some later pragmatists may have put to them) that is antithetical to Southern Agrarianism.

Superfluous Southerners is at its best when it sticks to its Southern subjects and does not undertake comparative analyses of intellectual schools. It is at its worst when it resorts to incorrect and provocative phrases about “the gnostic hubris of pragmatists” or “the gnostic spirit of American pragmatic liberalism.” Most of its chapters do a remarkable job teasing out distinctions between its Southern conservative subjects and narrating history about the Southern Agrarians’ relationship to modernity, commitment to language and literature, and role as custodians of a fading heritage. Unfortunately, his book confounds the already ramified philosophy known as pragmatism, and at the expense of the Southern traditionalism that he and I admire.

The Enduring Importance of Justice Holmes: A Brief Note

In America, American History, Arts & Letters, Conservatism, History, Humanities, Jurisprudence, Law, Liberalism, Oliver Wendell Holmes Jr., Philosophy, Politics, Pragmatism on December 19, 2012 at 9:00 am

Allen Mendenhall

There is an argument to be made that Oliver Wendell Holmes Jr. matters more today than he did in his own lifetime, even if he is, with a few exceptions, less understood.  He continues to be the most cited Supreme Court justice in United States history, and his pithy phrases, hard-hitting prose, and axiomatic opinions and dissents continue to obtain as law; even when they do not obtain as law, they almost always remain valid candidates for becoming law.

Holmes wrote his ambitious tome The Common Law to outline the history of the development of Anglo-American jurisprudence as it played out in the complex interactions among people down through the centuries.  In so doing, he showed that law is a meliorative process of applying and organizing—with mixed purposes and results—general principles in different ages.  Holmes’s attention to precedent as both a corrective heuristic and a systematic hermeneutic grounded in case patterns and practices demonstrates how common law systems work.  In recent Supreme Court cases, justices on both the putative “left” and “right” wing of the court have cited Holmes to authorize certain viewpoints, and Holmes’s writings are recycled so often by judges that they appear to have been central to ensuring the validity and viability of the very organism—the common law—that they sought to improve and describe.

Holmes was, and is, known for his deference to local legislatures; he did not think that unelected judges should be able to impose their viewpoints upon distinct, regional cultures and communities.  He resisted sprawling interpretations of words and principles, even if his hermeneutics brought about consequences he did not like.  He was open about his willingness to decide cases against his own interests.  As he wrote to his cousin John T. Morse, “It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.”

Louis Menand, in The Metaphysical Club, asserts that “one thing that can be said with certainty about Holmes as a judge is that he almost never cared, in the cases he decided, about outcomes,” because he was “utterly, sometimes fantastically, indifferent to the real-world effects of his decisions.”  In other words, Holmes did not reach his decisions because they would produce results that he could applaud; he reached them because he thought they were conclusions he had to arrive at in light of facts, circumstances, precedents, and rules.  A common mistake is to take Holmes’s deference to the mores and traditions of states and localities as evidence of his shared belief in those mores and traditions.  For instance, David Bernstein’s Rehabilitating Lochner (University of Chicago Press, 2011) tickets Holmes’s dissent in Lochner v. New York as a denunciation of business interests, but that was not the case.  Holmes did not have to agree with states and localities to say that federal judges and Supreme Court justices should not inject their worldview (economic or otherwise) into the life of a community with an opposing worldview.  As Frankfurter said of Holmes, “He has ever been keenly conscious of the delicacy involved in reviewing other men’s judgment not as to its wisdom but as to their right to entertain the reasonableness of its wisdom.”

In this respect, Holmes is a pragmatic pluralist in the manner of William James, and his judicial outlook seems to enact a more political version of James’s religious masterpiece “Varieties of Religious Experience.”  Holmes’s jurisprudence might even be dubbed “Varieties of Political Experience.”  Holmes’s position on judging is analogous to James’s suggestion in “Varieties of Religious Experience” that a person is entitled to believe what he wants so long as the practice of his religious belief is verifiable in experience and does not infringe upon the opportunity of others to exercise their own legitimate religious practices.  James put forth the idea of a “pluralistic universe,” which he envisioned to be, in his words, “more like a federal republic than an empire or a kingdom.”  Holmes likewise contemplated the notion of a federal republic in his opinions and dissents, especially in his deference to the states and their legislatures.  Although countless biographers and historians have noted the relationship between Holmes and James, I have yet to see an article-length treatment of this federalist aspect of their commonalities.

Holmes is often harnessed in the service of some conservative or liberal position—the most polemical on this score is Albert W. Alschuler’s Law Without Values: The Life, Work, and Legacy of Justice Holmes (University of Chicago Press, 2001)—but it is a mistake to treat his writings as an endorsement of the politics they enabled.  The most recent article published on Holmes, “The House that Built Holmes” by Brad Snyder (Vol. 30 of the Law & History Review, 2012), argues that Holmes’s reputation is largely a product of the iconic status to which young progressives elevated him, even though, ironically, Holmes disagreed with their politics.  In fact, Holmes did not support many of the projects that his decisions made possible; nor did he consider his own views unconditionally right; he therefore refused to insert his ideas into places where a faraway, federal judge’s opinion did not belong.  Menand seems to suggest that Holmes’s experiences as a soldier in the 20th Massachusetts, during the Civil War, shaped Holmes’s views about law, particularly with regard to regional particularities and idiosyncrasies.  His entire life, Holmes would couch his catchy rhetoric in the vocabularies of war, and he insisted that certitude, such as it was, could lead only to violence.

Absolute, uncompromising certitude is precisely what Holmes had against natural law jurisprudence.  Holmes saw natural law as an excuse for those who thought their worldview was correct to impose their politics onto others with different ideas.  Holmes defined truth as the system of his own limitations and as whatever it was that he could not help but believe.  Truth, for him, was no grounds for policy; it was simply what one does with what one knows.

In “The Path of the Law,” Holmes put forth the bad man theory or prediction theory of law, which holds that we should not view the law as an abstract statement about morals, but as those consequences which a bad man predicts will obtain if he chooses one course of action instead of another.  The law is, accordingly, a prediction about what will happen if one performs certain acts.  Such informed, calculated guessing—a habit acquired and refined by experience—is the way most of us decide to do one thing or another.  Most of us do not, when we stop at a traffic light, for example, consider the morality of the action we are performing, but instead consider the ramifications of our potential act should we actually carry it out.

That Holmes continues to be such a hotly contested figure, that his writings continue to be cited by judges at all levels, state and federal, suggests that his legacy remains important and that his ideas, however misunderstood, continue to figure the direction of American law and government.

My Reading List for 2013

In Arts & Letters, Books, Creativity, Fiction, History, Humanities, Law, Literature, Novels, Philosophy, Politics, Western Civilization, Western Philosophy, Writing on December 12, 2012 at 8:45 am

Allen Mendenhall

Editorial Note (April 15, 2013):  At this point in the year, I have already discovered flaws in this list. For instance, I gave myself two weeks to read Augustine’s Confessions and one week to read Aquinas’s Summa Theologica.  I should have done the reverse.  Summa Theologica may have required more than two weeks to read, since I found myself rushing through it, and it is not a book through which one should rush.  My schedule has forced me to speed read some texts in order to avoid taking shortcuts.  Some of the texts on this list will therefore appear on my list for next year, so that they get the treatment and consideration they deserve.

2013 will be a good year for reading.  I’ve made a list of the books I’m going to undertake, and I hope you’ll consider reading along with me.  As you can see, I’ll be enjoying many canonical works of Western Civilization.  Some I’ve read before; some I haven’t.  My goal is to reacquaint myself with the great works I fell in love with years ago and to read some of the great works that I’ve always wanted to read but haven’t.  I wouldn’t go so far as to say that everybody ought to read these works, but I do think that by reading them, a person will gain a fundamental understanding of the essential questions and problems that have faced humans for generations.

Some works are conspicuous in their absence; the list betrays my preferences.  Notably missing are the works of Shakespeare and the canonical texts that make up the Old and New Testament.  There’s a reason for that.  I’ve developed a morning habit of reading the scriptures as well as Shakespeare before I go to work.  If I’m reading these already, there’s no need to add them to the list, which is designed to establish a healthy routine.  What’s more, the list comes with tight deadlines, and I’m inclined to relish rather than rush through the Bible or Shakespeare.

Lists provide order and clarity; we make them to reduce options or enumerate measurable, targeted goals.  Lists rescue us from what has been called the “tyranny of choice.”  Benjamin Franklin made a list of the 13 virtues he wished to live by.  What motivated him is perhaps what’s motivating me: a sense of purpose and direction and edification.

At first I wanted to assign myself a book a week, but realizing that some works are longer or more challenging than others, that as a matter of obligation I will have other books to read and review, that I have a doctoral dissertation to write, that the legal profession is time consuming, and that unforeseen circumstances could arise, I decided that I might need more time than a week per book depending on the complexity of the particular selection or the busyness of the season.  Although I hope to stick to schedule, I own that I might have to permit myself flexibility.  We’ll see.

For variety—and respite—I have chosen to alternate between a pre-20th century text and a 20th century text.  In other words, one week I might read Milton, the next Heidegger.  For the pre-20th century texts, I will advance more or less chronologically; there is no method or sequence for the 20th century texts, which I listed as they came to mind (“oh, I’ve always wanted to read more Oakeshott—I should add him.  And isn’t my knowledge of Proust severely limited?—I’ll add him as well.”).  It’s too early to say what lasting and significant effects these latter texts will have, so I hesitate to number them among the demonstrably great pre-20th century texts, but a general consensus has, I think, established these 20th century texts as at least among the candidates for canonicity.

I have dated some of the texts in the list below.  Not all dates are known with certainty, by me or anyone else.  Some texts were revised multiple times after their initial publication; others were written in installments.  Therefore, I have noted the time span for those works produced over the course of many years.

One would be justified in wondering why I’ve selected these texts over others.  The answer, I suppose, pertains to something Harold Bloom once said: that there are many books but only one lifetime, so why not read the best and most enduring?  I paraphrase because I can’t remember precisely what he said or where he said it, but the point is clear enough: read the most important books before you run out of time.

Making this list, I learned that one can read only so many great works by picking them off one week at a time.  The initial disheartenment I felt at this realization quickly gave way to motivation: if I want to understand the human condition as the most talented and creative of our predecessors understood it, I will have to make a new list every year, and I will have to squeeze in time for additional texts whenever possible.  I am shocked at the number of books that I wanted to include in this list, but that didn’t make it in.  I ran out of weeks.  What a shame.

Here is my list.  I hope you enjoy. Read the rest of this entry »

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