Robert Talisse On ‘Too Much Democracy’ And The Public-Private Distinction

Over at Aeon Magazine Robert Talisse worries that “our social lives” are being “tyrannised by democracy” because “choices about mundane matters…are all deeply tied to [our] political profile…social worlds are shaped by the travails of contemporary politics” and builds to the conclusion that “there is such a thing as too much democracy,” that “we must reserve space in our shared social lives for that which is not political.” Because the “saturation of civic life by democratic politics crowds out the fundamental bases for community and social cooperation….we must cultivate a…civic friendship,” by engaging “with each other on matters that are not political,” by talking with each other “about matters of substance that are not at all political.”

Roughly, let us not structure our personal lives and spheres by the political, by democratic politics, revolving around the expression and instantiation of political preferences; rather, let us let the political emerge from a set of personal micro-interactions, cultivating along the way, the ‘civic friendship’ that should underwrite a viable democracy. Talisse thus insists on reserving an exclusively personal space, free of politics, one from which the political—‘democracy’—would emerge; at least in this way, Talisse’s analysis reinforces an older public and private distinction. Here is the personal, and here is the political; the twain shall meet but on the terms dictated by the former; the latter is not permitted to ‘tyrannize’ the personal. (Incidentally, we might ask whether the problem that Talisse points to is specifically a problem of democracy or of any political system in which the personal is infected by the political?)

I agree with Talisse that the social world–as it is visible in his formulation–is structured by politics but I think we get a narrowly framed picture of what this structuring is like if we think of this only in terms of political preferences i.e., I’m picking and choosing my friends and family and acquaintances based on their and mine political preferences and tastes. For instance, my socially constructed race and gender, and my materially constructed class has a great deal to say about what my social spaces and thus, what my social interactions, are like. This is not a matter of my political preference; I am placed into certain social spaces by these attributes of mine, and those are determined by larger social materialities. Furthermore, I am susceptible and vulnerable to legal control in differential ways, depending on my race, class, and gender, resultant in a vector of social placement and comfort; this susceptibility is only partially determined by political preferences.

As these examples show, we certainly exercise many choices in structuring our social spaces but many of our spaces are structured for us; for instance, many school children in the US today grow up in a society that is far more sharply segregated than it was in the past. They have not chosen their schoolmates based on their preferences; their mates have been chosen for them. How free then is their educational attainment and their subsequent economic and physical placement in a particular city neighborhood?

So, I would suggest that while Talisse is right in pointing to the importance of the micro-personal interaction as a basis for larger politics and political formations, it is not clear to me that this suggestion will result in the kind of democracy-or-politics-free space desired. Those spaces of micro-personal interactions will be structured by class, by race, by gender: working class black folks are going to spend, in the US, most of their personal time with other working-class black folks; and middle-class white women are going to spend their personal time with folks very much like them. Now, it is a consequence of materialist (or feminist or critical race) analysis that these kinds of class (or gender or race) placements do determine political preferences in interesting and significant ways, so in fact, it turns that even these personal spaces are politically structured. Indeed, it is not quite clear whether even in the domains of the romantic or sexual such structuring can be avoided. The activities that Talisse suggests could be made the basis of a civic friendship–mundane social activities all of them–are quite plausibly viewed as being infected thus. And perhaps that is as should be is we understand politics as a community wide movement towards a common goal, a project of inherent plurality that implicates even the minor personal interactions.  The personal is indeed political.

Mass Incarceration And Teaching Philosophy Of Law

This coming spring semester, as in the just-concluded fall semester, I will be teaching Philosophy of Law. As I get down to thinking about my syllabus, one imperative seems overriding: I must ‘do more’ on mass incarceration (and related topics like the theory of punishment and the death penalty.) No topic seems more important, pressing, and urgent in today’s United States. In the face of the brutal particulars of mass incarceration (and the racism and War on Drugs that animate and sustain it), the highly theoretical particulars of the traditional debates in the philosophy of law–the nature of law according to natural law and positivist theories, legal reasoning, the interpretation of legal texts–seem curiously context-free, unanchored to empirical particulars pertaining to the lives of actual legal subjects. (To be sure, legal realist, critical legal studies, critical race, and feminist legal theories do animate and make concrete these discussions considerably; they also inject a much-needed dose of historical and political perspective.)

With these considerations in mind, a tentative outline for the upcoming semester’s syllabus suggests itself to me: begin with Lon Fuller‘s The Case of the Speluncean Explorers, using it to animate–or as my friend Cathy Kemp likes to say, ‘ignite’–discussions on natural law, positivism, and statutory interpretation; move on to Justice Oliver Wendell Holmes‘ classic The Path of the Law; follow this up with H. L. A. Hart‘s The Concept of Law (almost certainly not in its entirety), and then, switching gears, move to Michelle Alexander‘s The New Jim Crow and  Albert CamusReflections on the Guillotine. (As noted, this is an outline; I will supplement this basic structure with some selected case studies that will help illustrate the central issues at play in reasoning by analogy and precedent, and the dominant theories of constitutional interpretation.)

Needless to say, this is a pretty idiosyncratic syllabus, and I might be accused by many philosophers of law of leaving uncovered a host of topics that have traditionally been of interest to that demographic: rights, justice and equality, responsibility, legal procedure and evidence, torts, property, contracts etc. My syllabus shows a clear bias toward public law and ignores private law altogether; there is no critical legal studies; some traditional philosophers will be appalled to see Camus in this reading list; and so on. (The alert reader will have noticed however, that the first four topics on that laundry list cannot but occur, implicitly or explicitly, in a discussion of mass incarceration like the one undertaken in The New Jim Crow.)

I remain resolutely unapologetic about these omissions though. My syllabus will strike a reasonable balance between the ‘theoretical’ and the ‘applied’, and more to the point, it will bring into my classroom, that moral, political, and legal atrocity–mass incarceration–that is not only America’s greatest modern embarrassment but also, in some ways, the most relevant topic of all as far as my students’ lives are concerned.  I’d consider this the strongest reason of all in favor of its displacement of traditional material.

Critical Theory And The Nature Of Law

My graduate seminar on ‘The Nature of Law‘ read and discussed critical race theory this past week. I’ve–along with my students–been thinking about the relationship of critical material like this–along with the critical legal studies readings we did over the last two weeks–to the definitional and foundational debates that so occupied us in the beginning of the semester. Certainly, we seemed to be distant, in our concerns and preoccupations, from the question of what law is ‘–at least in the way that, for instance, the folks engrossed in the natural lawpositivism debate were. In one dimension. For instance, precisely because critique seizes upon normative failings, we were often discussing what the law ought to be as opposed to what it is. But in another, we aren’t.

For note that in providing the sort of critique critical race theory and critical legal studies are advancing,  the kind that informs us it is an agent of social construction and reification, an instrument of ideological control, a diversion away from radical political and social change, toward change more palatable to the established orders, we are also being told a great deal about what the law is not. It is not an impartial dispenser of justice, and neither is it a reliable instrument of social change. The critical race theorist is able to remind us of law’s limitations and circumscriptions: the inability of its remedies to redress some kinds of particularly pernicious wrongs, its helplessness in the face of entrenched, ‘internal’ racism, the kind which deeply implicates every social, political, and economic reality it interacts with, its being frozen into accepted trajectories of reasoning and categorization that prevent it from playing the kind of role most optimistically envisaged for it by a certain species of liberal theorizing. For instance, the critical race theorist’s advancement of an argument for reparation shows how current legal reasoning and analysis is inflexibly locked into presumptive modes of inquiry and understanding about guilt, responsibility, and even the ontology of groups and persons, that lead to a reflexive rejection of such claims. Law constructs many social facts, and there are many others that construct it in turn.

The critical theorist also–most crucially–adds color and depth to the earlier bloodless debates about whether law is understood as a system of rules, the command of a sovereign or the imperfect realization of a social morality. Critical theory informs us that the identity, the placement within social and political orderings and hierarchies, of legal actors–and those subject to them–is a crucial determinant of the content of law; it is a crucial force in determining the trajectories and workings out of a legal system. (Feminist legal theorists, who we will begin reading in two weeks time, will obviously bolster such identification.)

The nature of law remains crucially undertheorized unless its definitions are bolstered by critique. For it is only by means of the latter that the history of law can be seen and examined. And that, of course, is how we bring its coherence and incoherence to light.

Fearing Tenure: The Loss Of Community

In ‘The Clouded Prism: Minority Critique of the Critical Legal Studies Movement‘, Harlan L. Dalton wrote:

I take it that everyone drawn to CLS is interested in specifying in concrete terms the dichotomy between autonomy and community. If so, talk to us. Talk TO us. Listen to us. We have lots to say, out of the depths of our own experiences. For many of us, our sense of community is a strength, a resource, something we struggle to hang onto, sometimes in the most peculiar ways, especially when the pull of autonomy is strongest. The day that I am awarded tenure, should that happy event occur, any pleasure that I experience will be more than offset by the extreme panic that I’m sure will set in; I will worry that I have been propelled (or more  honestly that I have wittingly, selfishly and self-destructively propelled myself) two steps further away from so much that has nurtured me for so long. Even for those of us who have revelled in the sense of connectedness that, paradoxically, racial oppression has conferred upon us, there is a kicker: we don’t have any choice in the matter. We can’t choose to be a part of the community; we can’t choose not to be a part of the community.

When I first read these lines, I was reminded of a conversation that used to recur in some of my therapeutic sessions: Why would you shrink from that which you most–supposedly–desire?

Some insight may be found in Dalton’s confession. Tenure would mean not being part of a ‘community’, membership in which, while a reminder of exclusion from another, was also a belonging in a very particular way. It meant the enjoyment of a very distinctive camaraderie, the dwelling in a state of being that had its own rewards.

I will not attempt to speak for Dalton’s experiences so let me just briefly address my own. Gaining tenure meant the end of a ‘struggle’; it meant the end of a state in which I had a very ‘clear and distinct’ goal, a terminus of achievement, one that had established yardsticks and baselines for me, calibrating my ‘progress’ and reminding me of how far I had come and how far I still had to go. I saw myself as member of a group marked by its presence in the margins, by its distance from the center, by a vaguely heroic air of struggle against economic, intellectual, and even political barriers. We were the untenured, the ‘assistant professors’; we had secured the prize of a tenure-track position, but we were still ‘battlers.’ I had trajectories to follow, and I had fellow-travelers. My lot was sympathized with; many were solicitous of the state of my journey, my distance from its destination. I was assured of celebrations and revelries were I to cross the finish line. I could look ahead and see the goal; I could feel my cohort around me, propping me up.

In the midst of all this, even as I desired that onward and upward movement, I knew what I would leave behind: a time and a place in which I was in possession of that dearest of things, a clear and unstinting purpose.

I am well-aware that a reflection like this, in the context of today’s job market, is an extremely self-indulgent one. I write it only to highlight the ironic and puzzling nature of the situations that Dalton and those in therapy might find themselves in, and of the artfully hidden blessings of even those portions of our lives that we might find oppressive and worth delivering ourselves from.

Philosophical Silencing: A Follow-Up

In response to my post on an act of philosophical silencing, Wesley Buckwalter wrote the following comment (over at the NewAPPS blog, where I cross-posted):

As you know, I was the gentleman that made that remark in a private facebook thread with a close friend. If I recall correctly, people in that thread were asking about whether certain kinds of thought experiments were typically referred to as “Gettier Cases”. I said that they were, despite how inaccurate or uninformative it might be to do so, in part because of the alternative traditions you cite. I’m sorry you interpreted my remark as silencing my friends on facebook. Personally I believe that philosophers should abandon the notion of “Gettier cases” and that the practice of labeling thought experiments in this way should be discouraged. If you are interested, I have recently argued for this in two articles here ( and here (

Many thanks to Wesley for his clarification. His initial comment, which I cited, did not acknowledge the content of the other comment I had quoted, and neither did it mention the presence of “alternative traditions” as a reason for the stance that he takes in the first of the two papers he refers me to. Those papers, if I remember correctly, were not cited in the thread. So, in the comment he had initially made, it had seemed to me that the amendment offered by the first commenter had not been taken on board.(In the Gettier case paper, Wesley refers to the following article–Turri, John. 2012. In Gettier’s Wake. In S. Hetherington (Ed.) Epistemology: The Key Thinkers. Continuum Press–as citing the Indian philosopher Sriharsa as someone who has offered similar examples. I am obviously very glad to see such an acknowledgment made in a published work.)

Let me go on to say that the attitude I was interested in highlighting, even if not instantiated in this particular token, is an existent type. (As you can tell, I was trained as an Anglo-American analytical philosopher.) Which is why I was not interested in naming individuals but in pointing to the existence of an intellectual stance. To the commenter Chris, who thinks he was ‘misled’, let me direct the following question:  What were you misled about? That an unnamed individual indulged in silencing or that the silencing of academic conversations about alternative philosophical traditions exists in academic philosophy? Perhaps my excessive familiarity with such acts of silencing, thanks to twenty-three years of utter failure in provoking a conversation about Indian philosophy, led me to the kind of conclusions I drew. I don’t think the conclusion to be drawn in response to my original post is that all is good, there is nothing to see here, and that we should just move on.

I started studying philosophy twenty-three years ago. In that time, I’ve only managed to provoke conversations about alternative philosophical traditions with the following demographics: one graduate school friend of mine who asked me a few questions about Indian philosophy while we were drinking beers, one senior professor who teaches Buddhism (among other things), my dissertation adviser (an Indian) who is a practicing Buddhist, and the attendees at a conference on Eastern philosophy a few years ago. In that same period, I’ve initiated several conversations about Indian philosophy, and have had them all shot down with varying degrees of skepticism and disdain. My worst mistake was to try to talk about Buddhist theories of relational consciousness with the members of a class on consciousness who were going down the usual Nagel-Block-Rosenthal-Ramachandran-Churchland et al route.

I realized over the years that most people I talked to in philosophical academia conflated ‘Eastern philosophy’ with ‘mysticism’. In response, I would sometimes point to the ‘harder’ schools: Samkhya and Lokyata (or Carvaka). The latter, in particular, was materialist in its orientation; perhaps that would appeal to the hard-edged analytical types I hung out with, the ones so enamored of science? Sometimes I would try to talk about Nyaya;  you know, logic and inference, and all that good stuff that analytical types like and love? No dice. It never worked. I was perceived as either indulging in a kind of facile ‘We’ve done it all before!’–perhaps like someone invoking the glories of the Nubian empire in a modern conversation about technological and cultural achievements–or dragging in wishy-washy pale imitations of the real thing.  (Logic only started with Frege, Russell, and Wittgenstein, dontcha know?)

But, of course, those traditions were not the only ones so dismissed. Within ‘Western philosophy’ I have heard graduate students who had never read Foucault dismiss him as ‘useless’, describe feminist theory as fundamentally misguided, and the less said about critical race theory, the better.

A few weeks ago, I posted a photograph of an old family friend, a former professor of philosophy, with the following caption:

A photo of my brother and myself with Dr. Dhirendra Sharma, a man I deeply admire and respect. He is the author of _The Negative Dialectics: A Study of the Negative Dialecticism in Indian Philosophy_, _The Differentiation Theory of Meaning in Indian Logic_, a critic of India’s nuclear program back in the 1970s, (when he was writing about “appropriate technology”), an environmental activist working to preserve the Garhwal Himalayas, and going back further, an anti-Vietnam war activist when he had tenure at Michigan State. He is now in his 80s, fit as a fiddle, bright as ever. I aspire to his health and wisdom.

Posting that photograph reminded me of an incident that occurred during my thirtieth birthday. On that day, many of my graduate school friends showed up to help me celebrate. Some of us moved to my room to drink beer and smoke cigarettes. I then owned one of Professor Sharma’s books and I took it down from the shelves and thrust it toward one of my friends. Because it featured ‘meaning’ in its title, and because all of us, as analytical types, seemed suitably obeisant toward philosophy of language, I thought it might get someone interested in opening it and taking a look. Instead, it was contemptuously waved off, even when I desperately said that it invoked distinctions that were reminiscent of the Fregean distinction between sense and reference. No one accepted the book held out, and it remained unopened.

Silencing exists.

Springing Back To Teaching

I return to teaching tomorrow.

The 2015 spring semester kicks off at 9:30 AM with the first meeting of my ’20th Century Philosophy’ class. The class’ description reads:

This course will serve as an introduction to some central themes in the twentieth-century’s analytic, post-analytic (or neo-pragmatic), and continental traditions. Time permitting, the philosophers we will read and discuss include: Dewey, Du Bois, Russell, Heidegger, Wittgenstein, Ayer, Gadamer, Sartre, de Beauvoir, Austin, Davidson, Foucault, Derrida, Rorty, Rawls, and MacIntyre.

Yes, this is a little ambitious, and I’m sure some of my readings will drop off the end of the queue as the end of the semester approaches. Besides, teaching some of the folks on that list makes me a little apprehensive; I have my expository work cut out for me.

Then at 11AM, almost immediately after I finish that class, I will hold the first meeting of my ‘Philosophical Issues in Literature’ class. (The fifteen minute break between classes, to put it bluntly, blows chunks; I barely have time to walk back down to my office, drop off my books, grab a sip of water, pick up the next set of books and then head out again.)

On Monday, my graduate class–‘The Nature of Law’–will begin at the CUNY Graduate Center. This  class’ description is as follows:

This course will serve as an introduction to theories of natural law, legal positivism, legal realism, critical legal studies, legal pragmatism, critical race theory, and feminist legal theory.  Some of the topics to be covered will include: the varieties of natural law, the Hart-Fuller debate, the relationship between legal realism and legal positivism, the political critique  of law mounted by critical legal studies and feminist legal theory, the legal construction of race (and science), law as ideology, the nature of pragmatic jurisprudence.  There will be, hopefully, an interdisciplinary flavor to our readings and class discussions.

The first half of the class has a conventional feel to it with the usual definitional debates taking center stage; the second half takes a critical look at the law.

Three classes; two new preps. The repeat prep is the ‘Philosophical Issues in Literature’ class, which I taught last semester. I had considered changing the reading list dramatically, but instead, dropped two novels–‘Canticle for Leibowitz‘ and ‘Dog Stars‘–from my original list and retained the remaining five. I did this for two reasons. One, I’d like to take a second crack at teaching these novels; even as I taught them last semester, I was aware my understanding of them had changed, and I was not able to cover all the issues they raise in their many different ways. Second, more prosaically, my two new classes threatened to swamp me with their reading lists; three new preps would have spread me out a little too thin.

The winter break–some of which I used to try to complete a book manuscript long overdue with its publisher–is over. There was some hopeful chatter about a snow day tomorrow, but truth be told, I’d rather get this ball rolling and get on with the business of making headway on the business of teaching. A winter break spent at home always makes me a little stir crazy. I’d much rather be walking to campus, getting in front of my classes and talking philosophy.

Famous last words: bring it on.