Essentially Contested America

Just when some influential scholars are championing the idea that not all the members of the Court should be lawyers, Chief Justice Roberts embraces the view that it would be good for all the members of the Court to be former federal appellate judges. For the first time in American history all Supreme Court Justices had been federal appeals court judges. Prior to this questionable development ‘the practice of constitutional law — how constitutional law was made — was more fluid and wide ranging than it is today, more in the realm of political science.’ But the new composition of the Court has seen ‘the method of analysis and argument shifted to the more solid grounds of legal arguments. What are the texts of the statutes involved? What precedents control?’ According to Roberts, the result is ‘a more legal perspective and less of a policy perspective.’ In the erroneous jargon of the day, the Court now interprets the law rather than making it. Can this be right? The Chief Justice is oblivious to the possibility that the more narrowly defined criterion for Court membership the more likely the Court will become committed to a perspective unreflective of the concerns of ordinary Americans.  Without such a perspective, Supreme Court arguments are destined to mimic arguments over how many angels fit on the head of a pin. As Adrian Vermeule explains, “[o]n epistemic grounds, sensible institutional design demands a modicum of professional diversity among the arbiters of the law. None of this requires us to impugn the motivations of lawyers or of the Court’s members.  It only requires a willingness to see the epistemic benefits of professional diversity along with other types of diversity.” Adrian Vermeule, Law and the Limits of Reason 23 (2009). Epistemic diversity, in this passage, refers to the idea that law, as reflective of society in general and the different categories of knowledge in American society in particular, requires different methods for deciding complex and stylized conflicts in practical reasoning. Consequently, “the basic suggestion is that it is bad, on epistemic grounds, that all of the Supreme Court’s members are lawyers.  Nothing in law or elsewhere requires this, and in a world of substantial common-law-making by the Justices (both in nominally constitutional and in nominally statutory cases, it is a bad idea to have all the Court’s membership drawing upon the same, highly correlated sources of professional training and information.” Id. Since constitutional conflicts typically involve philosophical, political theoretic, historical, and sociological issues, confining the qualifications for judges to a narrow, legalistic domain seems ab initio, a bad idea.

The Chief Justices’ perspective derives from an ill-advised commitment to the discredited dichotomy between law and politics. Roughly, law is neutral, impartial, and requires an autonomous, independent epistemic base, while politics concerns contentious policy conflicts reflecting only the values of political partisans.  Together with this failed dichotomy Chief Justice Roberts’ view depends upon a tendentious dichotomy between fact and value. See Hilary Putnam, The Collapse of the Fact/Value Dichotomy and Other Essays (2004). In this view, facts are objectively verifiable while values are subjective and relative. Both the law and politics dichotomy and the fact/value distinction rest on failed jurisprudence and a troubling ontology. Building these elements back into the jurisprudence of the Court will create either a Frankenstein monster of judicial tyranny or a Court irrelevant to American controversies, or in different cases, both.  This Chief Justice’s recommendation to return to some halcyon era where judges perform like baseball umpires will continue to exacerbate the anomaly of a life-tenured, unelected Court running roughshod over a republican democracy. Since amending the Constitution through Article V is so difficult, a Robertsian Court can permanently thwart the reflective judgments of generations of majorities. American deserves better. Click here for Roberts on judges as umpires.

Michael Heller, recent winner of the Templeton prize made the following common, but nevertheless astonishing, remark, and I paraphrase: “If you don’t believe in God, evil is meaningless.” Therefore nonbelievers are more likely to commit crimes and cause evil and suffering. Accordingly, a belief in God is required to protect us from the temptation of evil and the ravages of immorality. It’s astonishing because there’s no hard empirical evidence to suggest theists commit fewer horrendous crimes than nonbelievers. Consider the justification of slavery and segregation as biblical dictates, the Spanish Inquisition, the perpetrators of 9/11 and other acts of terror, the religious wars that historically have enfeebled Europe and now cause death and destruction. Consider Steven Weisberg’s trenchant remark: “With or without religion, good people can behave well and bad people can do evil; but for good people to do evil–that takes religion.” But what’s really astonishing is the supposition that if you don’t believe in God and you’re confronted with human suffering and evil, it will leave you indifferent. If observing evil does not, by itself, itself horrify one to realize it is something to eradicate, I can’t see how the supposition that God exists will. Undeniably, evil and suffering in religions crafted along the lines of the Abrahamic religions are more likely to be acceptable since the victims will be rewarded with eternal life anyway. But why does a perfect divinity need to go through such an onerous process in the attempt to explain away suffering. Why not just construct the world differently.

The ad hoc character of such reasoning is also revealed in Heller’s remark:

Various processes in the universe can be displayed as a succession of states in such a way that the preceding state is a cause of the succeeding one . . . (and) there is always a dynamical law prescribing how one state should generate another state. But dynamical laws are expressed in the form of mathematical equations, and if we ask about the cause of the universe we should ask about a cause of mathematical laws. By doing so we are back in the Great Blueprint of God’s thinking the universe, the question on ultimate causality, . . . ‘Why is there something rather than nothing?’ When asking this question, we are not asking about a cause like all other causes. We are asking about the root of all possible causes.

It’s simply a non sequitur to insist that seeking the cause of mathematical laws, whatever that means anyway, requires appealing to “the Great Blueprint of God’s thinking the universe.” Moreover, if a preceding state is the cause of a succeeding state, how can there be a “root of all possible causes.” Whatever that means, it would need a preceding cause to explain it. To reply that “the root of all possible causes” necessarily lies outside of the ordinary series of causality is completely circular. Presumably, one is attempting to explain whether there exists a cause outside of the series of causes, which serves as a first cause or ground. One needs to argue for that proposition not assume it in the premises of an argument.

In my view, there never has been a successful rebuttal of the problem of evil or suffering. Neither the freewill defense, the appreciation of good defense, the builds character defense, nor the best of all possible worlds defense have been persuasive, certainly to intelligent lay persons. That God is necessary to appreciate evil and suffering is a hubris that flies in the face of what we know of the ordinary communal life of human beings. I don’t need much of a reason to want to stop your suffering, but I certainly need one to start it.

The concept of truth is the most obvious and (yes simultaneously) the most arcane concept in legal reasoning. In one sense, no lawyer or judge can do without the idea of legal truth. Indeed, the goal of a trial is to fairly arrive at the truth. But it’s nonetheless difficult to appreciate just what the concept means and what role it plays in legal ratiocination. Is it true that the defendant committed the crime?

How does that sentence differ from “Did the defendant commit the crime?” This puzzle is not restricted to legal reasoning. Consider the following: Is it true that it is now raining? Just go look. If it is raining, then the sentence “It is raining” is true. Nothing can be simpler or more routine. But what does the predicate “is true” add to the sentence “It is raining”? Does the predicate entail that the sentence or the truth of the sentence reflects, pictures, or corresponds to the way things are? If so, just how should we understand this idea of a sentence corresponding to reality? Does the sentence contain a snapshot of rain falling on one’s head? What about the proposition “2+2=4″? Does this sentence, because it is true, reflect some fact in the world? If so, it seems to be a rather mysterious sort of fact. “2″ and “4″ are curious enough facts in the world. But what about the relations “+” and “=”? The sentence “American constitutionalism creates a separation of federal powers.” is true. But does that mean that the sentence itself “corresponds” to the White House, the Capitol, and the Supreme Court building or some relation between the three? Can sentences reflect relations?

However we understand truth generally or in legal reasoning, the notion of justification can’t be too far behind. Indeed, it’s difficult to understand either concept without making essential reference to the other. A legal proposition is justification whenever it is true. And I can justify a legal proposition only if I can provide evidence of its truth. Indeed, justification seems more dependent on truth than truth is dependent on justification.

The conventional wisdom is that the goal of a trial is truth–what happened, who did it, under what circumstances–while justification–consensus–whether unanimous or not–is all we ever really achieve. In appellate courts we seek the true meaning of the law and whether the lower court committed some mistake concerning the law’s meaning or application. But all we get is a consensus of the appellate panel, whether en banc or ordinary. Consequently, in the American legal system, justification seems to trump truth.

No one has done more to disparage truth than the late Richard Rorty, a recovering analytic philosopher whose more healthy persona embraced pragmatism. Rorty insists that truth as a reflector of reality doesn’t exist. All we ever have are sentences that achieve some sort of consensus. Rorty often refers to this consensus as justification. For Rorty, “[w]e do not have any way to establish the truth of a belief or the rightness of an action except by reference to the justification we offer for thinking what we think or doing what we do. The philosophical distinction between justification and truth seems not to have any practical consequences.” See WUT, below at 44-45. Is that right? Isn’t truth necessary, conceptually necessary, to make sense of justification. Without the normative notion of correctness, of truth, justifications become empty. Or put differently, making sense of justification requires the notion that whatever is justified would be true absent the ordinary conditions limiting justification such as complete knowledge, flawless reasoning, and so forth.

In Rorty’s attempt to cut truth from its moorings in our conceptual scheme, the idea of justification seems to go with it. Yet, if Rorty prefers justification to truth he most certainly is throwing the baby (justification) out with the bath water (truth). In other words, we can’t make sense of justification without appealing to some conception of truth. Perhaps, there is some way to throw both notions out yet retain a manner of speaking that it not egregiously relativist or subjective. But no one has yet done so convincingly.

In the brief exchange between Rorty and the French analytic philosopher Pascal Engel, in What’s the Use of Truth? [WUT] the tension between retaining justification while abandoning truth becomes prominent. Engel and Rorty, have a lively debate regarding these and other issues involving truth, justification, and the attractiveness of analytic philosophy. For those interested in these conceptual, epistemic, and historical issues, this book is highly recommended.

This week in the New York Times, Stanley Fish, the gifted literary theorist and legal scholar, poses this question: “Does Constitutional Theory Matter”? Since many jurists and scholars believe that constitutional theory is indispensable to deciding cases correctly, an answer to Fish’s question is critical. If constitutional theories have no real-world consequences, then why should we waste our time trying to construct them? The answer is we shouldn’t waste our time. Even more intriguing, in Fish’s view, is that even if we want to and think we can, we’re just flat out wrong.

There is much of value in Fish’s Times piece, but unfortunately, there’s much that’s problematic. Fish is right, in my view, that the Dworkinian approach to constitutional interpretation rewrites the constitutional text; it doesn’t interpret it. (I make a similar, but stronger, argument against Dworkin’s constitutional jurisprudence in the second chapter of my book, Constitutional Revolutions.) Fish correctly distinguishes between “seeking the meaning the framers intended” and “seeking the best interpretation of the Constitution.” The former sticks to authorial meaning, while the latter seeks “to satisfy some extra-authorial standard, the standard of what someone — but not the framers — regards as morally and philosophical best. An interpreter who does that will no longer be engaged in the effort to determine what some agent or agents mean by these words. Instead, he or she will have traded in that humble task for the more exalted task of giving moral guidance to the world.” This might sometimes be so, but not if the interpreter discovers the moral guidance in the framers’ text. That, of course, is the issue between Fish and Dworkin’s approach to constitutional law. Fish says we can use moral philosophy in interpretation only if the moral imperatives we select belong to the framers, no matter how defective those moral imperatives might now be. In Dworkin’s view, we can only be faithful to the framers’ text, and the morality contained therein, if we in interpret it, from our perspective and with contemporary knowledge in mind, as the best morality it can be simplicter. That, however, advances a tendentious conception of fidelity to the framer’s intentions or to the original meaning of the words and sentence the framers employed in writing the Constitution.

Significant problems arise when Fish inveighs against the practical efficacy of “constitutional theory.” Curiously, Fish never bothers to specify just what he means by “constitutional theory.” Consequently, we are forced to wonder whether his protestations derive from some insight pertaining to the relationship between theory and practice or rather whether they are simply based on his own idiosyncratic–and undefined–conception of constitutional theory, if he has such a conception at all. For instance, does the accusation that a judicial decision is counter-majoritarian (or counter-democratic) rely on any theoretical factors? What about “judicial activism” or “judicial restraint”? Judges and courts often fashion their opinions to embrace or avoid one of these conceptions. And as such, these theoretical constructs have direct practical consequences. (Besides leaving “constitutional theory” undefined, Fish never explains “practical consequences” or what it might be like, conceivably, for theoretical factors to be involved in generating judicial decisions.) But carefully consider, had there been one more justice on the Court who believed in judicial restraint, we might now be bidding farewell to Al Gore, not George W. Bush. You can’t get any more practical than that, can you? Of course, Fish might reject the supposition that “judicial restraint” has a theoretical dimension. But that simply underscores the necessity for Fish to say what he means by “constitutional theory.” It also reveals the strategy behind his argument. Smuggle into the argument an idiosyncratic re-description of some critical term and viola, a Fishian victory ensues, or should I rather say a fishy “victory” ensues. (Ooooh!)

The peculiarity of Fish’s position can be brought out by referring to an incident that occurred, of all places, on a baseball diamond. Fish uses an incident involving the pitcher, Dennis Martinez, and his manager, Earl Weaver, as a model for his own, may I whisper the term, “theory.” According to Fish when a reporter asked Dennis Martinez what his manager, Earl Weaver, had said to him just prior to one of Martinez’ starts, Martinez replied: “He [Weaver] said, ‘Throw strikes and keep ‘em off the bases’ . . . and I said, ‘O.K.’” Martinez continued: “What else could I say? What else could he say?’” Fish’s point in using this bewildering example is that when playing a game, there’s nothing more to say. You can either play or not. No theory or advice is needed or possible. The coup de grace is that “playing [the game] has nothing to do with following words of wisdom, whether they are Weaver’s or Aristotle’s, and everything thing to do with already being someone whose sense of himself and his possible actions is inseparable from the kind of knowledge that words of wisdom would presume to impart.” In short, after learning to play baseball, going out to play is just doing what comes naturally. And doing what comes naturally doesn’t need coaching or a theory.

Incidentally, following Aristotle’s conception of reasoning can be efficacious. For one thing, seeking balance and avoiding excess is pretty good counsel. Sure, reciting these directives has no talismanic effects, but it’s sure better than “do your own thing” or “live for the present.” And general strategies for practical reasoning may be, as Aristotle intimates, the best we can do. No greater precision is possible. But just because theories or advice cannot always pinpoint one and only resolution to a conflict, doesn’t mean that using theories and advice is pointless. Rather, general strategies provide directives that our own individual autonomy can then express in satisfying ways. Aristotle might not be able to explain the distinction between a hit-and-run and a run-and-hit in baseball, but he’s pretty good on more general strategies concerning ordinary life. And his more general strategies clearly have practical consequences.

If games are rule-structured activities, and different people exhibit different abilities in following rules, why wouldn’t a coach be a benefit, even perhaps a necessity? In Fish’s view, if Weaver were “to enumerate the possible situations that might arise during the game and suggest strategies to deal with those situations, Martinez would be understandably incredulous and justifiably resentful.” Wow! Has Fish ever played any organized team sports? What does he think coaches do in timeouts or when managers visit the mound without removing the pitcher? Suppose Weaver told Martinez to remember that he’s developed a hitch in his wind-up and should employ the strategy the pitching coach tried to teach Martinez in practice. Or suppose Weaver told Martinez that his splitter didn’t seem to be working well when he was warming up. Maybe he should use it only sparingly. Or perhaps he instructs Martinez that if Speedo gets on base to make a special effort to keep him on first, a greater effort than he usually makes. Incredulity? Resentment? Why? Though it’s difficult to appreciate Fish’s reason for this bizarre view, I’ll bet it has something to do with theory and theory’s relationship to practical consequences. Somehow whatever advice Weaver gave Martinez would be superfluous; it would have no practical effect. Just as theories of practical reason are impossible and unnecessary so is advice and strategizing. Martinez already knew everything he needed to know and now his task was to pitch. Advice is irrelevant, even if the advice itself was also doing what came naturally.

Fish’s piece is permeated with this mystifying commitment to an idiosyncratic conception of “constitutional theory” and what counts as a theory mattering. Certainly, a comprehensive theory of constitutional law, conceived of as an algorithm, might not yield judicial decisions. But that a refined, white-collar, algorithmic, theory won’t generate judicial decisions, doesn’t mean that other kinds of theories also will fail. A blue-collar theory or blue-collar theoretical factor, for instance, directing courts to defer to the elected branches in these and those circumstances might influence, even in some cases compel, judges to decide cases in a certain predictable manner. Fish is probably right that white-collar theories of practical reasoning might not exist, but blue-collar theories having practical consequences certainly do. I know because I’ve actually seen them work.

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Credit for Second Image
Credit for Third Image

Thomas Kuhn’s effect on intellectual history in science, philosophy, and a host of others areas cannot be overestimated. Indeed, his distinction between normal and revolutionary science can be redeployed in most discursive discourses, even to constitutional adjudication. For Kuhn, science did not develop through careful, incremental steps evolving into our current state of knowledge. Rather any discourse develops conceptual paradigms according to which paradigm-related problems are resolved with intra-discourse rationality. “Intra-discourse rationality,” or normal science can be (and often is) enormously productive in making linear progress according to the reigning paradigm(s) until such progress encounters obstacles leading to crises and the breakdown of the paradigm. The field of inquiry then founders until such time, if ever, that a paradigm reassessment occurs and fundamentally alters or shifts the paradigm for inquirers in that field. Kuhn thought that perhaps some paradigm shifts occur because an inquirer or small group of inquirers–conceptual revolutionaries–seeing incompletely only the duck stumbles into seeing the rabbit and sometimes continues seeing the duck until the inquirer then shifts to the rabbit, then the duck again, through a gestalt, holistic process. Consider Kuhn’s words: “The subject of a gestalt demonstration knows that his perception has shifted because he can make it shift back and forth repeatedly while he holds the same book or piece of paper in his hands. Aware that nothing in his environment has changed, he directs his attention increasingly not to the figure (duck or rabbit) but to the lines of the paper he is looking at. Ultimately he may even learn to see those lines without seeing either of the figures, and he may then say (what he could not legitimately have said earlier) that it is these lines that he really sees but that he sees them alternatively as a duck and as a rabbit. . . . . As in all similar psychological experiments, the effectiveness of the demonstration depends upon its being analyzable in this way. Unless there were an external standard with respect to which a switch of vision could be demonstrated, no conclusion about alternate perceptual possibilities could be drawn.” Thomas Kuhn, 3 The Structure of Science 114 (1996).

Another example of these perceptual “ambiguity” shifts can be found in Dali’s “nun/bust” image. Here we can see a group of nuns contained in a white background and we can then shift to the white background and see the image as a bust with the “nuns” constituting the features in its face. We can then shift back again to the nuns. This is certainly an intriguing phenomenon, but does it have any implications for political and constitutional controversy? I have certainly tried to do so in Constitutional Revolutions. Consider the myriad of controversies where two sides seem to emerge flowing from two different paradigms of social organization causing incommensurability (and sometimes indeterminacy) in deciding what exists or what is good or right? Could it be that something similar to this the Kuhn-Dali phenomenon causes these intractable controversies? Could it be that systematic 5-4 decisions in constitutional adjudication rest on something like the duck/rabbit or nun/bust phenomena?
Credit for the Image of the “Duck”
Credit for the Image of the “Rabbit”
Credit for Dali Image of the “nun/bust“

Richard Rorty matured in a philosophical tradition that reigned (reigns?) over much of the English speaking world. It was an intoxicating tradition, one promising to render philosophy on par with science and mathematics. Rorty rejected this tradition but found no greater solace in the aspirations of continental philosophy. Accordingly, this prompted Rorty to embark on a journey which almost no one else–except perhaps poets–undertake, the process not of seeking to find truth to resolve our conflicts, but rather a process of redescribing the landscape in which one finds oneself mired. For Rorty, poets and political philosophers play the same role in seeking redescriptions to create an edifying discourse, new ways of understanding ourselves and our relations with others. Rorty’s trip was self-propelled, innovative, and bold in the same way his “philosophy” is self-propelled, innovative, and bold. Rorty wanted to explore the possibilities of liberation and agency in creating a better world, a democratic utopia, if you will. He repudiated the pointless quest to grasp the essence of knowledge, reason, truth, and reality. This obsession with identifying something external to oneself in order to validate ones beliefs and values is, for Rorty, a dead-end. Instead, Rorty chucked epistemology for democracy just as he chucked reason, truth and reality for perpetual conversation with the only external validation one needs or can ever hope for, namely, the inter-subjective consensus of other members of the moral community. Rorty treated racism, bigotry, and oppression as obstacles to continuing the expansion of the moral community, of continuing to expand, that is, who counts as one of us. In Rorty’s view, “we need to restate our intellectual ambitions in terms of our relations to other human beings, rather than in terms of our relation to non-human reality.”[1]

Incredulity is one possible reaction to Rorty’s painting political philosophers and poets with the same brush. Consider the following comment appearing several months ago on Crooked Timber:

  I think it is truly astounding that an educated adult can persist in the belief that artists, poets and writers have somehow been more pivotal (or done more(?) [sic]good than political thinkers, activists, demonstrators, petition signers, union members and other active, politically engaged individuals.

Apologies if this is not what Rorty is saying, not intending to set up a straw man here (although Rorty makes a good one), but it seems truly bizarre that anyone but the most cloistered literarian could ever believe such a thing.

The idea that Rorty anoints only artists broadly construed–but including, of course, poets, novelists, composers, and so forth–distorts the positive contribution of Rorty’s pragmatic conversationalism. Rorty is committed to the pragmatist ideal of improving the world, of reducing cruelty and of decreasing suffering. The means re-creating, conjuring up, imagining new descriptions of our problems which hopefully suggest solutions now invisible to us in our current conceptual framework. Rorty sees the noblest pursuit to be the quest for edification, to transcend our limitations of being stuck in the mud of seemingly intractable controversy, not by necessarily directly formulating solutions, but rather by indirectly forging new modes of discourse, robbing the original controversy of any force. Though the content of this process is not pellucid, Rorty’s idea is that indirection, piecemeal constructions of new ways of seeing and new ways of responding to what we see is the only hope for amelioration. Of course, this sometimes requires revolutionary recreations of our linguistic schemes, but not because we’ve discovered the essence of truth, reason, reality, and knowledge. For Rorty, relying on these concepts for progressive transformation and for moral “progress” is a dead-end, not only because the meaning of these concepts will be perennially contested, but more importantly, because these concepts make no practical difference to the quest of improving the world. Only by eschewing the temptation to engage in pointless and arcane perseveration about the essence of truth, reason, reality, and knowledge may we finally appreciate the role practical conversations play in helping us jettison the straight-jacket of philosophy and in enabling us to begin to envision a different narrative for living an progressive, intelligent, passionate, and committed life. Pragmatic conversationalism, for Rorty, encourages us to alleviate cruelty and suffering–first locally but then also at a distance–and to simply acknowledge that the notions of “truth,” “reason,” “mind,” knowledge,” and so forth are uninteresting because their payoff is largely irrelevant to finding better ways of achieving solidarity.

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[1] Richard Rorty, “Universality and Truth,” in Rorty and His Critics 25, n. 3 (Robert B. Brandom, ed. 2000).

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Credit for the Second Rorty Image

“The essence of the liberal outlook lies not in what opinions are held, but in how
they are held: Instead of being held dogmatically, they are held tentatively,
and with a consciousness that new evidence may at any moment lead to their
abandonment.”–Bertrand Russell

An alternative way to express this “liberal outlook” is captured by a distinction between dedicated discourse and deliberative discourse. The former accepts certain canonical forms of reasoning and language and eschews, at least formally, the strategy that change should (or even can) come about because new “evidence” leads to abandoning the dedicated values of the society. Dedicated reasoning and language, though not formally closed, renders inter-discourse reasoning virtually impossible. That’s one reason ideological wars occur. One or both of the ideological factions refuse to credit the other guy’s dedicated language worthy of reconstruction and ratiocinative compromise. Deliberative communities seek fallibilistic change through a non-Enlightenment conception of practical reason. According to this pragmatist conception of practical reason, members of deliberative communities jointly attempt to formulate political truth independently of any a priori or non-deliberative standards of the right and the good. By contrast, dedicated communities seek what they regard as the truth about reality and insist upon adhering to those cultural and social givens or icons of their communities which express this truth.

The distinction between deliberative and dedicated communities is relevant to the debate between liberalism and communitarianism. Rather than viewing this debate as one between those who value community and those who do not, it is better understood as a controversy over the appropriate kind of community. Typically, liberals seek deliberative communities, while communitarians seek dedicated ones. However, a person committed to deliberativism as the method of social change can also regard deliberativism as defining a certain conception of community and the conception of the person suitable for membership. Consequently, in this view, almost every serious person is a communitarian, but some people are deliberative communitarians while others are dedicated communitarians. Communitarian democracy is an attempt to describe a deliberative community. Communitarian democrats seek freedom, equality, and solidarity for the purpose of devising joint solutions to social problems. In order to achieve this, communitarian democrats devise a civic discourse shorn of dedicated features, which values each citizen equally as a member of the community. This has implication for at least three conflicts in political and constitutional affairs. Since no irreducibly dedicated premises are possible in this civic discourse, dedicated arguments are impossible without translation into deliberative terms. This implies a particular conclusion to the debate about religion in the public square, namely, that dedicated religious discourse must be translated into its deliberative counterpart, if it has one, before it is suitable for use in public justification. Similarly, concerning multicultural conceptions of the right and the good, communitarian democrats can accept only those multicultural conceptions translatable into deliberative discourse. And, finally, communitarian democrats must guard against constitutional atrophy, the process by which initially deliberative structures become dedicated through lack of vigilance, criticism, and challenge. In a communitarian democracy, atrophied deliberative structures may be just as inefficient, unfair, and resistant to change as some decidedly dedicated structures and must be similarly avoided.

Many of the contemporary domestic and international conflicts can be explained by just how deliberative and dedicated the parties’ beliefs and values are. No one has purely dedicated beliefs and values and no one has purely deliberative ones. There always exists some combination of these forms of reasoning in any doctrine, discourse, or perspective. Just what the appropriate ratio of dedicated to deliberative discourse is appropriate is difficult to specify in advance, and most likely should be assessed and implemented pragmatically.
First Photograph: Bertrand Russell
Second Photograph: John Dewey

Bart Streumer has a review of Ingmar Persson’s book The Retreat of Reason: A dilemma in the philosophy of life in the November 9, 2007 issue of the Times Literary Supplement. Here’s an introductory paragraph: “Analytic philosophers are often accused of ignoring the large questions that philosophy should be about and of concentrating instead on small technical questions that no one else is interested in. This accusation is not entirely unfounded. However, in order to answer large philosophical questions, we often need to answer many smaller and more technical ones first, whether or not anyone is interested in the answers to them. In his excellent new book, … the Swedish philosopher Igmar Persson does exactly that. … The large philosophical question Persson tries to answer is: how should we lead our lives? . . . Persson’s answer is we must choose between a life of cognitive rationality or a life of “satsifaction.” The two styles of life are inherently in conflict. So we must choose between embracing true beliefs about the human situation or seek a life of fulfillment, but not both.

For someone trained in analytic philosophy, but disenchanted with its tendency to valorize science, mathematics, linguistics, semantics, and cognitive studies while treating ethics and political philosophy as if they had no real world implications, I am eager to read this book. But I don’t plan to do so until April 2008 when the paperback edition will be published. Here’s a paradigmatic example of the exorbitant prices Oxford University Press charges for many of its titles. The cloth version is discounted on Barnes & Nobel. com at $79.20, and on Amazon.com at $86.30. Much too pricey for my tastes.

Richard Rorty’s death has prompted well-deserved praise and appreciation for a public life well spent. There has been, however, little serious discussion of his political views. This is unfortunate, because politics is the radiating core of his philosophy. Rorty’s project replaces epistemology with politics and knowledge with warranted assertability which is achieved through political debate. More precisely, conversation–deliberative debate designed to achieve unforced inter-subjective agreement–is the goal of Rortyan politics. Similarly, deliberative conversation is the method for talking about politics and culture. By engaging in this multi-layered conversation, we may be able to agree about some critical features of social life. When we agree we achieve provisional closure of debate. When we disagree, the debate must continue until we achieve agreement. If agreement is improbable at the time, we can at least appreciate just what is at stake in our disagreement. Often underlying our disagreement are two incommensurable perspectives. When this occurs we must pause, but then return to “debate” through poetry–non-discursive suasion–which may help us to achieve agreement through edifying vocabularies that convert others to our point of view.

It’s not Rorty’s intention to try to refute the framework of truth, knowledge, reason, and reality, whatever that would be like. He doesn’t seek to demonstrate that this framework is self-contradictory, for example. On the contrary, he engages in kibitzing–a form of jocular coaching–about the usefulness of retaining this framework. Rorty urges us to imagine a new world where people were simply uninterested in philosophical justifications of the judgments that matter most to them. These new worlders are deadly serious about whether these judgments are true, but not about what is meant by “truth.” They seek true judgments, but not true judgments about the nature of truth. In this new world, the word “true” applies simply what other people let us get away with. It is the normative compliment awarded to the judgment that withstands criticism best. The nature of truth, knowledge, reason, and reality–these foundational justifiers–simply don’t turn new worlders on. In a similar fashion, the nature or existence of God leaves these new worlders cold. Instead, they are engaged in building a future dedicated to minimizing cruelty and suffering. They are always ready to argue whether a particular policy reduces cruelty and suffering. But they find it tedious to try to demonstrate why cruelty and suffering should be reduced in the first place. These new worlders have experienced cruelty and suffering themselves and just want them eliminated. Their experiences is all the proof necessary. For them, seeking a demonstration of whether cruelty and suffering should be eliminated is a fool’s errand. We have no guarantees or guarantors in trying to eliminate cruelty and suffering, just our own and others’ experiences, and a conviction that we can do better. Rorty suggests that these new worlders can be us.

Some critics insist that the above story makes Rorty a relativist or worse, a nihilist. Maybe. But perhaps these critics can only envision the framework of either-or: either God and foundational justifiers or relativism and nihilism. These critics should explain why we need to retain this framework. Rorty wants to kibitz long enough for us to take seriously that there are other possibilities. We can seek the framework best suited to achieve our goals. We don’t need guarantees (nor guarantors) that this framework will work. We just continue its promotion by experiencing and acting upon the world through an edifying vocabulary to see if it does.

Most people in contemporary society retain deeply held moral convictions while rarely asking whether these convictions are grounded in God or foundational justifiers. Sure, if challenged, they might attempt to defend their entire system of convictions by appealing to God or the foundational justifiers, but for the lion’s share of their everyday lives, they never give them a thought. Yet, these same people disdain cruelty, refrain from mayhem, and would never contemplate killing their neighbors. Rorty’s point stripped down is simply that God and all the foundational justifiers aren’t necessary for human society to be populated by people who passionately seek to create better opportunities for human liberation, where what’s deemed “better” isn’t completely known in advance.

When a critic asks how can “better” have any significance without tying it to “God” and “truth” Rorty’s might reply as follows: Imagine reading in tomorrow’s newspaper “God is dead and there is no such thing as truth.” Suppose you were convinced by this report. What would you do? Go out and murder your neighbor? Probably not. Instead, you would trudge along as before. Why? Because cruelty and suffering have their own experiential (avoidance) hold over us. Try excising them from your personality and psychological reactions. In short, go forth into the world and see cruelty, and suffering; then imagine no God and no foundational justifiers. Do you think for a moment the horror you feel when confronting, cruelty, and suffering would dissipate? You might be inclined to reply that the intelligibility of this hypothetical depends on the existence of God and the foundational justifiers both of which serve as the basis of morality. Without their existence or at least their intelligibility the hypothetical has no force. Yet, that is precisely the problem. Where Rorty sees a world in which people work together to create a better future, his critics see God and rationality creating and guiding the entire operation. However, if one is authentically moral, if morality is integrated in one’s personality in an Aristotelian fashion, no further grounding is necessary. Relativism and nihilism are not implausible because some remarkable philosopher refuted them. Rather, they are implausible because the hard and soft wiring of human personality invariably rejects them. Natural and environmental factors together contribute to make most people sensitive to cruelty and suffering, though some people ignore the suffering of others by compartmentalizing their experience of it. More tragically, some notorious and infamous cases exist of sadists who enjoy cruelty and suffering. But as it now stands, God and the foundational justifiers have not successfully prevented these moral monsters; so why should Rorty’s proposal be held to a higher standard?

Rorty urges us to imagine a world where our passion for creating a better society does not depend on first rationally demonstrating that we possess a better way, just that it’s worth a try. Of course, in the “wrong” hands, danger might result. But in the “right” hands danger results now. For Rorty, we should continually strive to seek novel ways to cope with life’s vagaries. Imagine if talented undergraduate intellectuals spent less time trying to discover whether God exists or what reason demands and redirected their efforts to figure out how to reduce homelessness, war, brutality, and as so forth. “Devote yourself to first-order problems, not second-order ones” is the pragmatist’s advice. Let’s abandon a framework which requires us to first seek permission from an external authority before we try to follow where commonsense and passion suggest it’s more profitable to go. This search for a better world here and now–a utopian and more liberated America if you will– prompts Rorty to reject the panoply of “authorities” standing in our way.

Summarizing, Rorty embraces conversation–a type of fancy kibitzing–designed to formulate provisional solutions to social problems, but it is a kibitzing that should never end. We’re ready to terminate kibitzing only if we’re ready to give up freedom. The first photograph of Rorty was taken by Suhrkamp Verlag.

Richard Rorty is guaranteed a prominent place in the pantheon of great Western thinkers, especially for his role in reviving American pragmatism, long moribund or at least dormant throughout the vast wasteland of analytic philosophy. From time to time ECA will post some items on Richard Rorty’s views on justification, politics, and society. The first installment follows below.

Richard Rorty breathed new life into pragmatism, arguably America’s unique contribution to Western philosophy. Have you ever wondered what pragmatism is? Pragmatism is difficult to understand, partly because it can mean almost anything. Indeed, it is far from clear whether “pragmatism” stands for a discrete, set of views. Too often pragmatism simply refers to anti-foundationalist views without making clear just how it differs from “foundationalism,” whatever that is. So then, how do you know whether you’re a pragmatist? Since pragmatism has few, if any, well-demarcated doctrines, it might be better to try to figure out whether you’re not a pragmatist. Here goes.

You know you’re not a pragmatist if only “justification[s] from on high”–justifications which stand external to human experience–are your cup of tea. If you need to grasp the essence of such foundational justifications as Truth, Knowledge, Reason, and Reality before you can take a stand on whether we should legitimize same-sex marriage, you’re not a pragmatist. If practical judgments–judgments about what to do–need some authority beyond offering a particular solution to a particular problem, turn in your pragmatist credentials, if you still have them. If “true” and “right” must signify “a relation to some antecedently existing thing–such as God’s Will, or moral Law, or the intrinsic Nature of Objective Reality,” you’re most certainly not a pragmatist. If progress means getting closer to that antecedently identifiable value, forget trying to pass the pragmatist litmus test.

Richard Rorty rejected justifications on high. For Rorty, justification involves finding “a solution to a problem: a problem which may someday seem obsolete.” There are no guarantees in Rorty’s world, only discrete, incremental solutions. And don’t, for a minute, think that these solutions form a system, which needs a justification. Such thoughts will get you barred from the pragmatist club house. The only sort of justification for these solutions is political and political solutions are always contestable.

What implications do Rorty’s views have for contemporary American society? Take the same-sex marriage controversy. I suspect Rorty would ask whether instituting same-sex marriage solved any problems gay and lesbian couples experience living in relationships without the title “marriage.” Would same-sex marriage benefit or hurt children? A Rortyan would also attempt to ascertain whether extending marriage to gays would create unforeseen problems. All that’s remains now is to evaluate the pros and cons of same-sex marriage and then decide.

What Rorty most certainly would not do would be to appeal to external justifications for or against same-sex marriage. God, the true nature of sexuality and marriage, or an abstract appeal to equality would all be rejected. Pragmatist justification is unconcerned with the fundamental principles alleged to underlie this controversy or how such principles might have generated the controversy in the first place. No existing authoritative foundation dictates the solution to this problem. Forget about past-looking inquiries. For Rorty, the controversy needs to be resolved by looking to the future. Will same-sex marriage benefit gays and lesbians, children, and society in general? That’s the question for Rorty, and the answer lies in ordinary experience, not in justifications on high. In sum, pragmatists don’t seek whole-sale solutions to societal problems; they’re content in shopping retail.