A Persistent Difficulty In Teaching Philosophy Of Law

This semester, I’m teaching Philosophy of Law–again. My syllabus, as always, is a new one, and reflects an altered orientation and focus from those of days past. The current edition is fairly simple: it kicks off with Lon Fuller‘s ‘The Case of the Speluncean Explorers,’ excerpts from H. L. A Hart‘s The Concept of Law, Justice Oliver Wendell Holmes‘ ‘The Path of the Law‘ and then moves on to a selection of readings from Alan Hutchinson’s edited collection Critical Legal Studies. And yet again, I’m finding that I have a very hard time explaining or making comprehensible or plausible the distinction between natural law theories of the law and legal positivism, or indeed, even making clear what those theories are.

On the face of it, this should not be too difficult: natural law theories insist on a conceptual connection between law and morality such that legal obligation is a species of moral obligation; positivists, treating law as a matter of social fact, separate law from morality, and find legal obligation grounded in posited social arrangements and their resultant expectations.

But year after year, semester after semester, I find that I cannot get this distinction across clearly. Rest assured, I do not employ the language of the paragraph above, which is quite formally stated. But no matter what language I use, what instructive examples I use–I always kick off my classes on this distinction by asking students to provide me examples of “something that is legal but would be considered immoral by some and something that is legal but would be considered moral by some”–and of course, I offer extensive exposition and encourage discussion of the texts we use, many of my students’ responses–written and oral–make it quite clear the central concepts involved in making the distinction between natural law and positivist theories of the law clear are, in point of fact, not so. (Sometimes I’m tempted–because of my formal education–to say that natural law theorists say that “no matter how you define law, you are going to have morality somewhere on the right hand side”; I can only occasionally resist this temptation.)

I do not think this is my students’ fault. I suspect this is because over the years I’ve come to suspect I don’t understand the supposedly clear-cut distinction myself, especially as I’ve come to believe that natural law theories can in fact be subsumed under positivist theories: a system of morality and the particular moral principles it entails are a kind of social fact, one that has resulted from the ongoing evolution of a particular social formation; the moral principles that we take to be true at any given instant, the ones that command our obligation and allegiance and that help preserve key social distinctions and help realize socially desired ends; natural law theories can then be understood as claiming the social fact of morality as the one that underwrites legal claims and obligations; in this light, you don’t get out of the historically contingent particulars of the social into some transcendent realm of morality. (Or you could give natural law and positivism a Nietzschean twist by claiming as Nietzsche did in The Genealogy of Morals that morality is derived from law.) As Hart had noticed in his Concept of Law, the theory of law he presented did not say anything about the content of rules; they could be amoral or moral. Understood in this light, natural law theories can be understood as both descriptive i.e., making the claim that legal systems do indeed, always strive for moral content in their  laws or prescriptive i.e., legal systems should include moral content in their rules. Where natural  law would then turn out to be false is that they would not capture crucial features of extant legal systems; they would have attempted to make their descriptions exhaustive, capturing some supposed conceptual connection, and failed in the process. This fact, and the distance it puts between a natural law vision of the law and the postivist vision would still be worth pointing out.

Thus far, I have not succeeded in making myself clear though. I’ll keep trying.

Nietzsche As Pragmatist

Nietzsche is a pragmatist with strong resonances with the American pragmatists; this is not a new claim. Renè Berthelot, for instance, termed Nietzsche “a German pragmatist” and emphasized the resemblance between Nietzsche’s perspectivism and the pragmatist theory of truth.[1][2] The resemblance between Nietzsche and the American pragmatists [3] is made especial note of in Arthur Danto‘s Nietzsche as Philosopher, which bids us examine The Gay Science. There, as Danto notes, Nietzsche claims that “we `know’…just as much as may be useful in the interest of the human herd” and that our primary epistemic concern is “how far a belief furthers and supports life, maintains and disciplines a species.” Nietzsche’s epistemological strategy has clear entailments for his ontology: what we believe exists is a function of how useful that belief is; metaphysics and epistemology are inseparable. Questions of ontology for Nietzsche are questions of human interests; they do not address the ‘ultimate nature of being,’ to anything unconditioned, to “something which would be true, absolutely and unconditionally, outside of all temporal and perspectival conditions.”

For Nietzsche, perspectives, interpretations, constitute our epistemological relationships with the world completely, rendering talk of distortions of reality unintelligible. Thus, marking the beginning point for pragmatic evaluations of theoretical formulations, our dominant perspective and its attendant ontology are the most “useful and necessary.” Morality and our moral theories too, allow a life-preserving way of living and interacting with this world. Morality becomes one of our many perspectives; but there are no moral phenomena or facts—all we have are “moralistic interpretations of phenomena.” Nietzsche thus dismisses the fact-value distinction—as a pragmatist might—because there are no facts, only interpretations guided by our interest-driven values. Such values come to constitute our sense of ourselves for “evaluation is creation.”

As Danto notes, Nietzsche claims there is “an inescapable tendency on our part to posit entities—to think in terms of things—and to regard the world as characterized by ‘unity, identity, permanence, substance, cause [and effect], thinghood and being.”[4] This positing tendency, the hallmark of theory construction, leads to perspectives which speak of, and manipulate these entities in their claims; these perspectives are sustained by their success in helping achieve our ends; utilizing these concepts ‘works for us’ in furthering our collectively determined ends.

Nietzsche’s perspectivism entails all terms are theoretical. The supposed contrast between theoretical terms and constructs and the objects of ‘common sense’ now vanishes; the solid object we bump up against is a theoretical posit within the perspective termed ‘common sense.’ We construct a world and its attendant reality—for ourselves, the theory’s proponents—by constructing a theoretical world indispensable for the forms of life we lead. The acceptance of these ‘articles of faith’ and their indispensability hints at the theoretical resilience of these entities. Nietzsche thus urges a pragmatic understanding of concepts like ‘cause’ and ‘effect’ as “conventional fictions.” Concepts are creative, ways by which we can fashion a new being, a new form of life.

Nietzsche’s perspectivism—human needs constitute the world for us—rejects metaphysical realism, preferring a view in which a dynamic always-becoming world is theorized into a form suited to our purposes.  Perspectives are interpretations; they make some statements true and not others but none is privileged–absolutely–above the others. In Nietzsche’s ontological view “the world is a mere fiction, constructed of fictitious entities” (The Will to Power, 568); these entities are invented to suit our ends. The entities Nietzsche considers ‘fictitious’ includes “substance, soul, (ego, philosophical subject), synchronic and diachronic identity, being, thing, cause and effect, duration, and materiality.”[5] Our language—a theory with its theoretical terms, its ‘fictions’—is a function of our means and ends and interests and bears the mark of our social activities and organizations, its service of particular ends and ways of life. Those forms of life determine the metaphysics the language necessitates. (For instance, the view that “the self is a substance that is identical over time and is that which acts and is the agent of moral responsibility” is ‘required’ by law and adopted in its ontology. )

For Nietzsche ‘things’ do not exist independent of perspectives; objects—the members of an ontology—exist within theories; they do not have character independent of them. Our concepts carve up the world according to our interests; they give us a lens through which we may categorize and make comprehensible the world.  Our interests dominate our theoretical presumptions; we assess explanations by their consonance with those interests and our values.

The trail of the human serpent is thus over everything.

Notes:

[1] (http://www.nytimes.com/books/first/d/dickstein-pragmatism.html

[2] Resonances with the pragmatist theory of truth may also be found in In Truth and Lies in a Nonmoral Sense.

[3] These resonances between Nietzsche and the American pragmatists have been exhaustively explored in Jennifer Ratner-Rosenhagen’s magisterial American Nietzsche.

[4] (Danto, 86) 

[5] (Danto, 60-61)

Fascism And The Irrelevance Of ‘Truth’

Yesterday, a former student wrote to me, asking for clarification on something he had read in an online discussion group:

We [Fascists] don’t think ideology is a problem that is resolved in such a way that truth is seated on a throne. But, in that case, does fighting for an ideology mean fighting for mere appearances? No doubt, unless one considers it according to its unique and efficacious psychological-historical value. The truth of an ideology lies in its capacity to set in motion our capacity for ideals and action. Its truth is absolute insofar as, living within us, it suffices to exhaust those capacities. [From: Gregory J. Kasza, “Fascism from Above? Japan’s Kakushin Right in  Comparative Perspective,” in Stein Ugelvik Larsen, ed., Fascism Outside Europe (Boulder, Colorado: Social Science Monographs, 2001)]

My student asked:

What is being implied about fascism and ideology? What is being said from “fighting for an ideology means fighting for mere appearances?” Is the author implying that to the fascist, truth cannot be unquestioned and as a result, can potentially change?

I have not been able to procure a full copy of the paper so my remarks are limited to the excerpt above. In it, the speaker/writer claims that political and theoretical struggle for the fascists is not necessarily devoted to the pursuit of truth; a clash of competing ideologies is not a clash of competing truth claims. In one sense, a battle over ideologies, over competing systems of thought, is a kind of superficial battle for ‘mere appearances’–precisely because one ideology is not clashing with another to establish itself on the grounds that it is the ‘true’ or ‘correct’ one; but this clash becomes more than just a matter of appearance when we realize that the truth value of an ideology is independent of what the author terms its ‘psychological-historical value’; that the ‘truth of an ideology’ is found in its capacity to make us act. That is what of value to the fascist, the fact that a system of thought–theory–induces praxis, that it shortens the gap between the two, that it encourages those powers within us that make us act.

For the fascist then, truth is not the most important quality of a theory; a theory could be false in the conventional sense of ‘accurately corresponding to the actual state of affairs’ and yet still be a ‘good’ theory precisely because at a particular moment in historical time, marked by very particular material, economic, and political circumstances, it is able to get one class of political and social actor ‘moving’; it is able to make real this actor’s agency; it has found, magically, the key that unlocks access to a potential actor’s world-changing capacities. Theories of politics, according to the speaker/writer above, are theories of action; their value is judged accordingly. Do they make us act? To what ends? Are they effective? If the theory is effective in making us act to bring about the desired ends, it is a ‘true’ or better still, a ‘good’ or ‘useful’ theory. (This moving past the truth of a theoretical claim to its utility is a Nietzschean maneuver, visible in–among other places–‘On Truth and Lies in a Nonmoral Sense‘ and in many passages in Beyond Good and Evil.

Anticipating Another Encounter With Books And Students

This coming fall semester promises to be a cracker: I have the usual heavy teaching load of three classes (including two four-credit classes whose lectures will be one hundred minutes long, thus making for a very exhausting Monday-Wednesday sequence of teaching running from 9:05 AM to 3:30 PM, with an hour break between the second and third class meetings); and I will be trying to make some headway on a pair of manuscripts, both due next year in May and August respectively (one project examines the Bollywood war movie and the Indian popular imagination, another conducts a philosophical examination of the Indian film director Shyam Benegal’s work.)

The three classes I will be teaching this semester are: Social Philosophy, Philosophy of Law, and Landmarks in the History of Philosophy. The following are their reading lists: the first two classes below feature my favored kind of reading assignments–pick a few select texts and read them from cover to cover; this is a slightly risky move, given that my students–and  I–might find out, together, that the text is ‘not working.’ For whatever reason; some works do not bear up well under closer inspection in a classroom, some material turns out to be tougher to teach and discuss than imagined, and so on. When it works though, a detailed and sustained examination of a philosophical work pregnant with meaning can work wonders, allowing my students and I to trace the various strands of complex arguments at leisure, drawing out their many interpretations and understandings as we do so.

Social Philosophy: 

Hannah Arendt, The Human Condition, University of Chicago Press; 2nd ed., 1998,

Herbert Marcuse, One-Dimensional Man, Routledge Classics,

Sigmund Freud, Civilization and its Discontents, W. W. Norton & Company, 1989,

Landmarks in the History of Philosophy:

William James, Pragmatism, Dover, 1995

Mary Wollstonecraft, A Vindication of the Rights of Woman, Dover, 1996,

Thomas Szaz, The Myth of Mental Illness, Harper Perennial

Philosophy of Law: 

‘The Case of the Speluncean Explorers’ by Lon Fuller (to introduce my students–briefly and vividly, hopefully–to theories of natural law, positivism, and some tenets of the interpretation of legal texts.)

HLA Hart, ‘On Primary and Secondary Rules’

Justice Oliver Wendell Holmes, ‘The Path of the Law’

David Caudill and Jay Gold, Radical Philosophy of Law

Besides these three classes, I will also be conducting an independent study with an undergraduate student on the relationship between Nietzsche’s writings and Buddhism; this promises to be especially fascinating. The following is the list of books my student and I will work through over the course of the semester:

Nietzsche and Buddhism: A Study in Nihilism and Ironic Affinities

Nietzsche and Zen: Self Overcoming Without a Self 

Nietzsche and BuddhismProlegomenon to a Comparative Study

Nietzsche and Buddhist Philosophy

Every semester, as always, brings on that same trembling anticipation: books and students and all the promises those encounters hold–the revelations, the surprises, the discoveries, the missteps. What a great way to spend one’s waking hours; I will have ample opportunities to count my blessings in the weeks that lie ahead.

Nietzsche’s Inversion Of Natural Law In The Genealogy Of Morals

The radically constructive nature of legal and economic concepts emerges quite clearly in the brilliant second essay of The Genealogy of Morals. Here, Nietzsche sets out his view of how the concept of a contract creates persons, how the ethical subject is not found but made. For Nietzsche, the law, a set of human practices, ‘creates’ its subjects by acting upon humans to make them into beings capable of obeying the law. The inversion Nietzsche forces upon us takes from the notion of a contract as a legally enforceable promise to the notion of a promise as a morally enforceable contract.

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Prophecy And Propaganda As Compensatory Fantasy

In a footnote in his chapter on Herder in Three Critics of The Enlightenment: Vico, Hamann, Herder (Princeton University Press, Princeton, 2000, p. 231), Isaiah Berlin writes:

Like other passionate propagandists, Herder pleaded for that which he himself conspicuously lacked. As sometimes happens, what the prophet saw  before him was a great compensatory fantasy. The vision of the unity of the human personality and its integration into the social organism by ‘natural’ means was the polar opposite of Herder’s own character and conduct….It has frequently been remarked that it is tormented and unbalanced personalities–Rousseau, Nietzsche, D. H. Lawrence–who celebrate with particular passion physical beauty, strength, generosity, spontaneity, above all unbroken unity, harmony and serenity, qualities for which they had an insatiable craving.

Great artists (writers) are very often ‘passionate propagandists’ and ‘prophets,’ and Berlin is right to note that their creative urges often manifest themselves in their theorizing–by the creation of alternative worlds that are decked out in the colors they find lacking in the ones they currently inhabit.

The prophet in particular, sustains his vision of the world he has seen by underwriting it with his own desires and imaginings; the world he describes is the world he would like realized; it is visible to him because  his longings make it come alive. The more acutely sensed the absence of a particular quality in the present world, the more vividly is its presence articulated in the dreamed of world, the more unambiguous the revelation. Berlin does not mention Freud here, but he might well have by his invocation of a ‘compensatory fantasy.’ The prophet’s visions and revelations are wish fulfillments; they make concrete, in relatively unambiguous form, his hitherto unconscious (or not) fantasies and desires and longings.

The propagandist, similarly, finds his pen and prose animated by these as yet unrequited longings; they bring his polemics to life; they make them stir and summon others to action. The successful propagandist is able to enlist and recruit others to help realize his desired for vision; the success of this task depends on how successfully he is able to transmute the force of his need into the clarity and beauty of his depiction of the desired state. Through his claims he can create a need where none had existed before; he is able to convince his ‘followers’ that his needs are theirs now; the desired for world is one whose absence they sense in their own lives.

Our theoretical frameworks are not just autobiographies, as Nietzsche had suggested, they are also fantasies of the way we would like the world to be. What we find lacking in our lives, we find instead in the theoretical claims we make, in the arguments we adduce in their favor. When we defend our theories and our arguments, we are not engaging in idle academic speculation (or should not be); we are (or should be) engaged in attempting to bring to life a hoped-for world whose presence we can dimly sense in thought and dream and fantasy.

The Defenses Of United Airlines’ Behavior Reveal Some Uncomfortable Truths

There are, roughly, two kinds of defenses offered of United Airlines’ behavior–in DraggingGate–that have been offered thus far. First, the ‘abide by the terms of the contract’ defense. Second, the ‘just shut up and obey orders, and everything will be allright’ defense. On closer inspection, of course, these two turn out to be instantiations of the same abstract concept: bow down to authority, legal or penal, and all will be fine. But for the time being, let us take a closer look at them separately.

The first defense, which bids us to ‘quit complaining because you know what you signed up for’ is especially fascinating. This defense demands that we surrender all notions, all norms, of social good-will to the obtuse, deliberately disguised, terms of a contract. With probability one, it can be surmised that the person offering this defense has never read the fine print of the many, many, contracts that regulate his or her life. The libertarian paradise of a world in which the government only exists to enforce contracts entered ‘freely into’ by various contractors seems a rather bizarre one when we realize that most contracts are unreadable by almost anyone lacking a legal education; moreover, many of those contracts contain terms that are ‘unconscionable,’ buried deep in some sub-clause somewhere. As I’ve noted elsewhere, misery needs company: I’m bound by contracts I find incomprehensible, whose terms are ‘forced’ upon me; so everyone else should be; there is no ‘fellowship’ of citizens or consumers here.

The second defense is exceedingly familiar. It is the one trotted out by defenders of the police whenever there is an instance of police misbehavior. Most offensively, it makes an appearance when the police have just performed an execution of a recalcitrant citizen, one who did not raise his hands in time, or perhaps spoke back insolently. If any injury ensues to a citizen–fatal or otherwise–well, too bad. Once a citizen has refused to comply with orders, all force, including its deadly variants can now be exerted to make the citizen bow down. Disobedience is a sin; one worthy of capital punishment if need be.

The recurring appearance of these sophistical arguments in the American polity is revealing. Why are ‘shut up and obey orders’ and ‘you should know enough legalese so that you can negotiate every single transaction you enter into your life’ held up as exemplars in ‘the land of the free and the home of the brave’? This regulated life–by contractual terms, by penal authority–seems a particularly grim realization of the American dream. DraggingGate reminds us too that the so-called ‘free market’ in aviation works because all airlines offer equally appalling service in a world where airline travel has become indispensable for business and personal affairs. Soon, we will have to fly; and we will find our restricted choices leading us back to United Airlines. (Why not open up the US market to Asian airlines?) Remarkably, not one passenger on the flight stood up to intervene; they all knew the consequences. They would either be thrown off the flight themselves–thus suffering ‘inconvenience’–or they would be arrested. They too, complied. As all those who defend United Airlines would have us do.

Perhaps we are, as Nietzsche worried, desperate to find other forms of authority–now that the religious  has been partially displaced–to rule over us; perhaps those exerting their wills in resistance to the strictures of contract law and the police remind us that we are living lives of subservience ourselves. We are authority’s minions; we do as we are told; so should everyone else.