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’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.

Continue reading

Does Donald Trump’s ‘Pragmatism’ Mean Pragmatism Is Incoherent?

A devastating accusation is making the rounds in America: Donald Trump is a pragmatist; therefore pragmatism is an incoherent ethical and political philosophy. This breathtakingly simple argument establishes its solitary premise by making note of Trump’s assertions that he will do what it takes to fix America’s problems. His supposed inconstancy–his curious admixture of populism, authoritarianism, the occasional progressive standpoint–furnishes the best possible proof: Trump is no ideologue, committed to a rigid manifesto; there are no sacred cows; all is at play when it comes to devising solutions for whatever ails America. (This claim underwrites assessments by Joe Dan Gorman, Mychal Massie, P. M. Carpenter, John Porter, and achieves its condemnatory form in a Washington Post article by Christopher Scalia.)

The picture of pragmatism that is implicit here is that of a toolkit of solutions geared to solving problems. So far, so good. Things get terrible, as Scalia seems to assert, when those means and ends are divorced from values:

Ultimately what sets pragmatists apart from traditional conservatives or liberals is not their faith in the effectiveness of their ideas, it’s their originality — the whatever, not the works….there’s nothing in the Pragmatist’s Playbook that forbids mocking a rival’s face, height, footwear, eating habits, energy level or spouse, or even encouraging supporters to physically assault protesters. And although it’s certainly reprehensible to promote absurd conspiracy theories — like Trump’s suggestion that my father, Justice Antonin Scalia, was assassinated — it’s not necessarily unpragmatic.

The condemnation of pragmatism now immediately follows: because there are no abiding values to guide the pragmatist–all is up for contestation and revision–the pragmatist is as likely to flirt with fascist principles as he is with socialist democratic ones. The pragmatist is at heart unprincipled, committed to a brutally reductive and desiccated means-ends cost-benefit, outcomes-oriented analysis.

You say that like it’s such a bad thing.

This critique of pragmatism glibly commits two fallacies. First, it assumes that such an outcome oriented analysis is devoid of values; but au contraire, the choice of ends–which guides the choice of solutions–is very much informed by values. For instance: Which ends should we concentrate on first? Which ones are most ‘important’ for us? Which ones can we ‘afford’ to ignore for now? Ends are not so easily divorced from values.

Second, the critic of pragmatism assumes that he or she has at hand a set of values which will ‘correctly’ guide the supposedly amoral, purely instrumentalist pragmatist in problem-solving; moreover, these values will be the ‘right ones’ to set the offending pragmatist back on the path of moral rectitude. Add some values–the ones I have in mind–and all will be well. The problem is that disagreement about values is the most interesting part of being evaluative and normative; what if the value-guided non-pragmatist happens to be inspired by ‘wrong’ values like racism or sexism?

Pragmatism did not aim to banish values from ethical and moral discourse; it only bid us examine ours more closely to see why we hold them, and under what circumstances we would be willing to relinquish them. Our values reflect our ends, and our ends reflect our values; this is the inseparability that lies at the heart of pragmatism, and which the facile claims and critiques above all too easily elide.

Donald Trump might be a pragmatist, but that does not mean he escapes normative political critique; that option remains as open for the pragmatist as it does for anyone else.

Contra Damon Linker, ‘Leftist Intellectuals’ Are Not ‘Disconnected From Reality’

Over at The Week, Damon Linker accuses ‘the Left’ of being disconnected from reality, basing this charge on his reading of two recent pieces by Corey Robin and Jedediah Purdy. (It begins with a charge that is all too frequently leveled at the Bernie Sanders campaign: that its political plans are political fantasies.) What gets Linker really offended is that ‘left-wing intellectuals’–who presumably should know better–are trafficking in the same ‘disconnected from reality’ ramblings.

I don’t think they are. Rather, they are doing the exact opposite of what Linker claims, and in this spectacular misreading of them, Linker only indicts his own disconnect from the actual historical realities of how ideas and actions–especially political ones–interact.

First, Linker suggests that Robin thinks that indifference to political reality is a virtue. As he notes:

In a provocative essay for The Chronicle of Higher Education, “How Intellectuals Create a Public,” Robin argues that “the problem with our public intellectuals today is that they are writing for readers who already exist, as they exist,” as opposed to “summoning” a new world, a new public, a new reality, into being.

In his essay, Robin offered a critique of Cass Sunstein‘s libertarian paternalism, suggesting that it merely further reifies an existing political reality, leaving everything as it was before; later Robin goes on to suggest that Ta-Nehisi Coates is afflicted by a kind of ‘impossibilism’ about the possibility of the “politics of a mass mobilization.” (Robin’s take on Coates deserves far more considered analysis than I can provide here. More on that anon.) Linker then, by linking to Marx’s famous quote in the Theses on Fuerbach about the need for philosophers to change the world and not just interpret it, insinuates that Robin is just being an impractical Marxist in accusing Sunstein and Coates of producing “an all too accurate reflection of the world we live in.” (Incidentally, this trope “You sound like Marx; you’re impractical!” is profoundly unimaginative. I’m surprised it still does work for people.) The production of this facsimile for Linker is a virtue; for Robin, in the case of Sunstein, it speaks of a limited imagination (in the case of Coates, I think, again, that matters are very different.)

What makes Linker’s critique of Robin especially bizarre is that from the very outset of his essay, Robin is talking about action, activity, making and remaking, interacting with this world, reshaping and reconfiguring it–through ideas and beliefs, expressed through writing, sent out into this world in an effort to change people’s minds, to make them see the world differently. This is about as far as being disconnected from reality as you can imagine; Robin is not advocating a retreat to the ivory tower, to write complacently for a pre-existent audience that will force the author into the templates of its demands; rather he is suggesting that the author, the intellectual, by the form and content of his ideas–as expressed in his writings–can change and alter those templates and bid his readers follow different trajectories of both thought and action.

As Robin says:

[The public intellectual] is…the literary equivalent of the epic political actor, who sees her writing as a transformative mode of action, a thought-deed in the world.

This is as ‘reality-based’ as you can get, and you only get to doubt that if you, perhaps like Linker, seemingly doubt the power of ideas and beliefs; you know, those things the American pragmatists called ‘rules for action.’ Let’s forget about religion for a second, and simply consider a couple of examples Robin provides: Rachel Carson‘s Silent Spring and Michelle Alexander‘s The New Jim Crow. The former produced an environmental movement; the latter has galvanized a nation-wide movement against mass incarceration.

As Robin goes on to note:

By virtue of the demands they make upon the reader, they force a reckoning. They summon a public into being — if nothing else a public conjured out of opposition to their writing. Democratic publics are always formed in opposition and conflict: “to form itself,” wrote Dewey, “the public has to break existing political forms.

The role for the public intellectual that Robin envisages is the breaking of existing political forms–philosophers of culture like Nietzsche suggested doing this with a hammer; we’ll have to settle for our word processors. Far from being disconnected with reality, Robin is suggesting an active engagement with the world; these engagements, Linker might be surprised to know, take many forms, ranging from the grubby and sordid to the elevated and sublime. Sometimes those forms of engagement are literary, sometimes physical, sometimes performative, sometimes emotional.

The problem is that Linker’s imagination is limited; he is himself cut off from the very reality he claims to be in touch with. Robin’s vision, by extending further than Linker’s, might be informing him that there are more things in this world than he might have allowed for.

Linker then moves on Purdy, summarizing his claims as follows:

[P]olitics and economics have been “denaturalized” in our time, and that even nature itself is undergoing the same process….all appeals to permanent, intrinsic truths or standards by parties involved in political, economic, or environmental debates have become unconvincing. Nothing is natural in the normative sense — no political or economic arrangement, and not even any specific construal of the natural world and its meanings.

All such appeals to nature are in fact conventional, artificial constructs of the human mind imposed upon the world.

Linker suggests that Purdy draws a ‘radical’ conclusion from this:

a wonderful opportunity [which] holds out the possibility of a collective “world-shaping project” that would bring about a radical democratization of politics and economics, and of the relation of both to the natural world.

Linker now fulminates:

The problem with this way of describing the world is not merely that it’s wrong. (As long as human beings have physical bodies that can thrive, be injured, and die, and as long as they live out their lives in a physical world that obeys natural laws disclosed by science, politics and economics will be hemmed in by constraints and obstacles that stand in the way of any number of potential “world-shaping projects.”)

Purdy’s claims are not particularly ‘radical’; instead they build on a rich tradition of deflationary claims about the pretensions of absolutist theorizing about metaphysics, ethics, and politics. Linker should know–if he’s read any philosophy of science or history of science–that science richly interacts with politics and economics and law. Thus the very science that Linker so valorizes is in fact something co-constructed with the society in which its practices are embedded. The politics and economics of this world impinge on the science it practices; a radical remaking of our politics and economics will also remake the science we practice. Not the truths it discovers but what it thinks it is important to research, investigate, and pursue as an object of knowledge.  Science is “hemmed in by constraints and obstacles that stand in the way of any number of potential “world-shaping projects.” Want to build that accelerator? Sorry; we don’t have the funds. Want to go to Mars? Same problem. Want to do stem-cell research? Sorry, no can do. The religious folk won’t stand for it.

If Linker simply wishes to say that our physical bodies and the world limits our physical actions, then he’s stating the obvious. What he missed out on, like he did with Robin above, is that Purdy is speaking of an untrammeled imagination, which hitherto has been restricted and confined to pre-existing categories of thought and possibilities. It is the ‘construals’ of the world that have been limited; change those and you change your sense of what is possible for your interactions with this world. We’ll always bump up against the hard, unforgiving edge of something or the other; but we don’t even know, so long as we are confined by existing construals, what and where those edges are.

And then, Linker levels that old canard:

The even bigger problem with Purdy’s account of things is that it renders political evaluation and judgment impossible. As Will Wilkinson writes in a brilliant critique of the essay, “Appeals to value only make sense…against a background of belief about how things really are. If our best ideas about the way the world works can’t put a boundary around political contestation, then leaving the lead in Flint’s drinking water makes as much sense as taking it out.”

The kind of anti-metaphysical claims that Nietzsche made, the kind of radical undermining he conducted of morality, did not render moral evaluation impossible. Au contraire, it bid us examine the foundations of our moralities to see whose interests were represented therein. We, moral subjects, could radically reconfigure those values by dint of our actions. By, you know, our politics, our imaginations, our actions, our writings.

Accusing of intellectuals of being disconnected from reality is a tired, old, reactionary political trick. It is a ideological maneuver, one that merely indicts the one making the charge of preferring their own fantastic vision of the world.

Political Disputes Are Moral Disputes

Writing for The Stone, (‘Can Moral Disputes Be Resolved?‘, New York Times, 13 July 2015), Alex Rosenberg claims:

Moral disputes seem intractable….With some exceptions, political disputes are not like this. When people disagree about politics, they often agree about ends, but disagree about means to attain them. Republicans and Democrats may differ on, say, health care policy, but share goals — a healthy American population. They differ on fiscal policy but agree on the goal of economic growth for the nation….this is often a matter of degree. Political disputes can have moral aspects, too. The two sides in the debate over abortion rights…clearly don’t agree on the ends. There is an ethical disagreement at the heart of this debate. It is safe to say that the more ethical a political dispute is, the more heated and intractable it is likely to become.

These claims misunderstand political disputes and thus mischaracterize the nature and quality of the disagreements they give rise to.

Political disputes generate as much heat and light as they do because, very often, their participants do not share goals–opponents on either side of a political divide are well aware of this. I remain entirely unconvinced Republicans have a ‘healthy American population’ as a political goal, as opposed to ‘maximizing profits for the healthcare businesses – insurance, hospitals, doctors etc.’ Nothing in their actions and pronouncements suggests such an ascription would be remotely plausible. Only a commitment to shoehorn their views into some predetermined template of ‘acceptable political views’ could animate such an understanding of their political goals. Similarly, I do not think Republicans share the goal of ‘economic growth for the nation’ with me. Their concern appears far more limited, only extensible to a privileged–economically and morally–subset of the population. In these circumscribed political spaces, I find moral and metaphysical principles at work: that there exists a category of people termed ‘undeserving’, the members of which are not entitled to the benefits of the nation’s social and economic arrangements. These are not the principles that animate my political viewpoints.

A ‘political goal’ is not a simple scheme for power sharing; it speaks to a possible arrangement of social, economic, and moral goods, and the animating premises for the arguments made on its behalf rest invariably on some larger vision of how the world should be. In short, political goals are infected with normativity; they seek to conform to the ordering of some table of values their proponents have in mind. It might be that in a particular sphere of politics, some goals have to be artfully disguised in order to make their realization more plausible; this can generate the illusion of ‘agreement on goals-disagreement on means’ which Rosenberg so charitably ascribes to contemporary political conflict.

Rosenberg makes a concession to the intractability of political disputes by admitting the moral nature of some subset of them, but he has mischaracterized them sufficiently to not notice the glaringly obvious conclusion we can draw instead: political disputes are just as intractable as moral ones; the reason for this is that at heart, that’s what they are.