Essentially Contested America

Stanley Fish “reviews,” if  that’s the proper term, Terry Eagleton’s latest book “Reason, Faith and Revolution.” Apparently, (I have not read Eagleton’s book), Eagleton attempts to defend the faith of his fathers against the attacks of such irksome atheists as Richard Dawkins and Christopher Hitchens. Fish’s summary doesn’t explicitly reveal what he himself thinks of the book, but it it does explicitly reveal his feelings about “the shallow arguments of school-yard atheists like Hitchens and Dawkins.” The contrast seems to be between those who have faith in faith and those who embrace something called “liberal rationalism.” Fish never mentions the possibility of a third approach to understanding our penchant for believing in something greater than ourselves. To understand this third approach one must recognize one’s own morality as an influential power in one’s self-consciousness. To oversimplify shamelessly, appreciating one’s own morality is like no other phenomenological experience conceivable. How can it be that I (or you), someone who can engage in both theoretical and practical reasoning, a being that can take an impersonal stance toward oneself, can make oneself an object of one’s own examination, how can such a being perish, permanently exit existence? For those who can appreciate the significance, force, and import of these type of query, the gods we constructed, whether they be God, science, rationality, progress, and so forth. These are all easily recognizable as monumental attempts to distract ourselves from existential anxiety over our impending death.  How many years is it for you?  Thirty? Ten? Five? We all await death and the civilizations we construct are all designed to repel, negate, and “falsify” the permanence of our own deaths. Both sides in the controversy between Eagleton, on the one side, and Dawkins and Hitchens, on the other, simply haven’t the courage or understanding to appreciate how puerile their controversy in the face of death.  But where does Fish stand on this issue?

Check out Katharine Mieszkowski’s piece in Salon.com tracing an imaginary scenario implicating continued degradation of the economy had Senator McCain won the presidency. Here’s a taste: “Before hailing the close of the Bush administration’s eight-year attack on the environment and scientific integrity, and celebrating Barack Obama’s takeover, let us pause to imagine an alternative future with John McCain and Sarah Palin in the White House.  . . .   Even a grizzly bear shudders to think of it.  . . .  During the 2008 presidential campaign, McCain and Palin displayed a callous disregard for scientific research, while attempting to make light of wasteful government spending. On the stump, McCain ridiculed a major grizzly bear study, charging that the taxpayers had spent millions to study DNA of bears in Montana and joking, “I don’t know if that was a criminal issue or a paternal issue.’ Never mind that McCain himself voted to fund the totally legit study, which assessed the federally protected species’ distribution in a 12,000-square-mile area in and around Glacier National Park.’” Click here to read further.

The Bush assault on the environment; his inability to appreciate the perils of continuing our degradation of the environment; his disdain for science and scientists; and his egregious incapacity to approach environment problems as well as other problems with a sophisticated, inquisitive mind and the analytic capacity to draw lessons from a comprehensive understanding of these problems, rendered Mr. Bush totally incompetent to govern.  Surely Mrs. Palin would have been even worse in attempting to approach the enormous range of challenges we face today. And, alas, so too would John McCain. The know nothing approach of the past eight years would have been prolonged in a McCain administration. We’re lucky that the brutal year of 2008, at least, ended on a positive note with the election of Barack Obama. Let’s hope that the 44th president will continue approaching governing with the experience and intellectual acumen he has displayed during the campaign.  Only then will America have a chance, however meager, to restore American politics and constitutionalism to their rightful place in governing our great nation.

Click here for more on the downfall of the Republican Party.  And for the legacy on the environment Mr. Bush bequeathed to President Obama click here.

Check out the article in yesterday’s NY Times on scientific laws. Here is an introductory passage: “Unlike, say, traffic or drug laws, you don’t have a choice about obeying gravity or any of the other laws of physics. Jump and you willcome back down. Faith or good intentions have nothing to do with it. . . . Existence didn’t have to be that way, as Einstein reminded us when he said, “The most incomprehensible thing about the universe is that it is comprehensible.” Against all the odds, we can send e-mail to Sri Lanka, thread spacecraft through the rings of Saturn, take a pill to chase the inky tendrils of depression, bake a turkey or a souffle and bury a jump shot from the corner. . . . Yes, it’s a lawful universe. But what kind of laws are these, anyway, that might be inscribed on a T-shirt but apparently not on any stone tablet that we have ever been able to find? . . . Are they merely fancy bookkeeping, a way of organizing facts about the world? Do they govern nature or just describe it? And does it matter that we don’t know and that most scientists don’t seem to know or care where they come from? . . . Apparently it does matter, judging from the reaction to a recent article by Paul Davies, a cosmologist at Arizona State University and author of popular science books, on the Op-Ed page of The New York Times` . . . Dr. Davies asserted in the article that science, not unlike religion, rested on faith, not in God but in the idea of an orderly universe. Without that presumption a scientist could not function. His argument provoked an avalanche of blog commentary, articles on Edge.org and letters to The Times, pointing out that the order we perceive in nature has been explored and tested for more than 2,000 years by observation and experimentation. That order is precisely the hypothesis that the scientific enterprise is engaged in testing.” (Click here for more of this interesting article.)

“Order,” a hypothesis? “Faith” in an “orderly universe”? What’s going on here? Maybe a particular kind of “order” is a hypothesis, but not order itself. What sense can we give to the extravagant claim that scientists have faith in the existence of an orderly universe? Scientific “faith” is not a choice, but rather it’s an inescapable truth. Any universe must be orderly, at least in some elementary sense, before we can even began to investigate its precise nature. Similarly, and with a copious amount of respect for Professor Einstein, any universe must first be comprehensible, again in at least in some elementary sense, before the question of whether it’s completely comprehensibility, in some more robust sense, can be raised in the first place. For scientific purposes, as well as for descriptive purposes, there is no realistic choice between a lawful universe and a lawless one, an orderly universe or a disorderly one. Only lawful universes can be subject of our investigations and debate. As David Hume, the eighteenth century philosopher, pointed out: we would be unable to describe or even conceptualize a completely lawless universe. The very idea of a lawless universe is quite unintelligible. Alternatively stated, for any of our purposes, as we understand ourselves, such a universe cannot exist. Of course, there are coherent and incoherent descriptions of the universe, coherent and incoherent scientific claims about the universe, but that is a far cry from incoherent universes, whatever that would mean. So we’re stuck with the notion of an orderly, comprehensible, at least to some degree, universes. We have no choice in the matter; faith is not only unnecessary in scientific explanation; it has no place pertaining to the axiom that the universe is orderly. Consequently, Dr. Davis’ claims about scientific faith are and must be erroneous.

On a related point, have you ever wondered about claims that God or the Big Bang explains the origination of the universe and all that it contains? It is incomprehensible how these claims can be taken seriously. If the universe needs explaining, positing the existence of God or the Big Bang simply moves the question of explanation one step beyond what we originally wanted explained. If what we originally wanted explained actually needs explaining and is capable of being explained, then why doesn’t its explanation also need explaining? Accordingly, if we posit the existence of God or the Big Bang to provide the explanation we need, why don’t we need an explanation of the origination of God and the Big Bang? Within our current conceptual framework, there can’t be a privileged first explainer that needs no explanation because then the initial need for explanation seems inexplicable. Now our current conceptual scheme might be losing its explanatory force and should be replaced by a sexier version if that is even possible and desirable. But until we do, longing for God or the Big Gang to provide the security and understanding some say we need is beyond belief, and for that matter, beyond faith as well.

Credit for First Image
Credit for Second 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“

Check out an interesting article on faith and science in the Pew Forum on Religion and Public Life. Here’s the introductory paragraph: “The relationship between faith and science in the United States seems, at least on the surface, to be paradoxical. Surveys repeatedly show that most Americans respect science and the benefits it brings to society, such as new technologies and medical treatments. And yet, religious convictions limit many Americans’ willingness to accept controversial scientific theories as well as certain types of scientific research, such as the potential use of embryonic stem cells for medical treatments.” The bigger problem is that the medical benefits American embrace derive from the same scientific methodologies that underly the controversial issue of intelligent design versus evolutionary biology. Following intelligent design results in neither one medically ameliorative pill nor one life-saving surgical procedure. Following evolutionary biology does. Thus, if concrete results is what determines whether a theory is also a fact, then intelligent design is just a theory, and a poor one at that, while evolutionary biology is, through its practical benefits, just as much a fact as a thunderstorm or a tree that is felled by the thunderstorm.

While it is true that ordinary there is no necessary contradiction between science and faith as the ultimate answer to the question of what origin of the universe is, in the final analysis, a conflict will arise. Theists say God. Atheists say matter. Theists say what is the origin of matter, but are baffled when asked the question what is the origin of God. The standard theistic answer is God always existed. Well if that’s possible, why isn’t it equally possible that matter always existed. Human, even some very smart humans, seem to buckle when confronting the idea of eternity. But the problem applies to both science’s answer and equally to faith’s answer. Conceptually, God cannot have a privileged position in this argument without circularity.

Human beings are “venerators.” We seek people, places, and things we can revere for their impeccability, even sometimes their putative perfection. Both the United States Constitution and the human brain have been lauded for their elegance of design and for the genius of their designers. We’re not content with a good constitution or a good brain. No, we seek perfection and necessity. When something is perfect, it cannot be changed for the better; we see its perfection as necessary. And venerators detest change. But, in the final analysis, both the Constitution and the human brain fall far short of perfection or necessity. The United States Constitution lacks a simple organizing principle, perhaps any organizing principle at all for that matter. Indeed, it is instead a series of ad hoc compromises resulting in a document that could be barely ratified and one which embedded slavery more deeply into American society. The delegates, for all “they have been celebrated . . . bear responsibility for having entrenched slavery deeper, for not even beginning to express disapproval of it.” [David O. Stewart, The Summer of 1787: The Men who Invented the Constitution 263 (2007)] Moreover, unforeseen consequences followed from their compromised structure designed to protect slavery. With the ratification of the three-fifths rule, slave states were given an unfair advantage which they used to control the early presidency, the speakership of the House, and the Supreme Court. Indeed, John Adams’ loss to Jefferson in 1800 was a direct consequence of the three-fifths rule for representation in Congress. Moreover, today, the same structure inordinately protects the wealthy to the disadvantage of everyone else. Yet we nonetheless revere the Constitution to such a great extent as to render its glaring imperfections invisible.

The human brain also has been described as being elegantly designed by an intelligent, super-smart designer. The computer in our mind eludes the talents of Bill Gates or Steve Jobs. It is flawless in both form and function. How very comforting! But the human brain is much more accurately characterized as accidental. Indeed, the very features we value most arose accidentally. As David J. Linden puts it “[t]he transcendent aspects of our human experience, the things that touch our emotional and cognitive core . . . are not the latest design features of an impeccably crafted brain. Rather, at every turn, brain design has been a kludge, a workaround, a jumble, a pastiche. The things we hold highest in our human experience (love, memory, dreams, and a predisposition for religious thought . . . result from a particular agglomeration of ad hoc solutions that have been piled on through millions of years of evolutionary history. It’s not that we have fundamentally human thoughts and feelings despite the kludgy design of the brain molded by the twists of evolutionary history. Rather, we have them precisely because of that history. [The Accidental Mind: How Brain Evolution Has given Us Love, Memory, Dreams, and God 245-46 (2007)]. Our quest for perfection in what we do and in what we are is probably a hard-wired feature of the human brain, but so is critical thinking and reasoning. Given the world as we know it, which has greater pragmatic punch, the quest for perfection or a process of critically analyzing policies put forth by our fellow citizens in the hope of improving our brief stay here? If there is genius in American political and constitutional history, it resides in the democrat’s [small "d," of course] penchant for criticism. We democrats pride ourselves of examining, testing, and refining our choice of constitutional design. Fidelity to the underlying values of our Constitution requires a commitment to criticism, refinement, and improvement, not something as atavistic as the Founders’ original intent or the original meaning of their words. The latter pursuits are for monarchists and theocrats. We democrats have little patience with such remnants of a rejected past. Instead, we democrats rightly ask of the Constitution, “What have you done for us lately?” Does our constitutional system enhance or inhibit the possibilities of equal freedom for Americans? Or is such talk merely rhetoric which restricts the realization of a nation truly governed by the people?

This post is a slightly modified version of an item originally posted on Ratio Juris on 6 September 2007.

Check out the announcement of the first annual conference–Law,
Ethics, and the Life Sciences–at the Brandeis School of Law on October 26-27, 2007. Here’s the description.

Half a century ago, C.P. Snow identified a debilitating clash between competing literary and scientific cultures. To this day, abiding cultural divides cripple public understanding of a wide range of scientifically sophisticated issues, from global climate change and biodiversity loss to childhood vaccination, embryonic stem cell research, contraception, abortion, and end-of-life decision making. This conference aspires to span all of these subjects, and others, without regard to internal boundaries within law, ethics, or the life sciences. Environmental law, health law, food and drug regulation, biotechnology, law and behavioral psychology, and evolutionary analysis of law share a common scientific core. The best path toward understanding that core lies in embracing the similarities among these legal subdisciplines.

In a word, or rather in four words, this clash reveals “the fact/value distinction,” which has challenged legal and ethical inquiry at least since David Hume. This distinction, or rather dichotomy, contends that facts and values are categorially different. That is, they operate in entirely different conceptual categories. One can neither derive prescriptive judgments from descriptive ones nor define the former in terms of the latter. Hume’s “Is-Ought Fallacy” and G.E. Moore’s “Naturalistic Fallacy” provide the grounding of the fact-value dichotomy.

This presents a problem for the relationship between law and ethics, on the one hand, and the life sciences on the other. The life sciences tell us what is possible, while law and ethics inquire about what is good and how we ought to live. The fact-value distinction insists that never the twain shall meet. For instance, the fact that stem cell research can cure diabetes does not entail that we should engage in stem cell research. Curing diabetes might be good, but at what cost? This question cannot be answered without considering what values might be compromised by engaging in stem cell research, for example, destroying human life. All of the above legal and bioethical controversies cannot be resolved or usefully discussed without first providing an awareness of the fact-value dichotomy. This does not mean the fact-value dichotomy has no critics. Indeed, Philippa Foot and Hilary Putnam have critically examined the force of the dichotomy. The point is that questions about the relationships between law and ethics, and the life sciences must deal with the fact-value dichotomy before engaging other central issues in this relationship.

The conference promises to be an important step in the continuing national conversation about two areas that will become considerably more important as technology in the life sciences becomes more sophisticated.

As reported by the People for the American Way, James Dobson, of focus in the Family, disapproves of Mary Cheney and her partner intention to become parents. In a Time Magazine article, Dobson wrote that “the two most loving women in the world cannot provide a daddy for a little boy.” Dobson appealed to the work of psychologist Carol Gillgian to support his thesis. Dobson write:

According to educational psychologist Carol Gilligan, mothers tend to stress sympathy and care to their children, while fathers accent justice, fairness, and duty. Moms give a child a sense of hopefulness, dads provide a sense of right and wrong and its consequences. Other researchers have determined that boys and not born with an understanding of “maleness. The have to learn it from their fathers.

Professor Gilligan replied:

I am writing to ask that you cease and desist from quoting my research in the future. I was mortified to learn that you had distorted my work this week in a guest column you wrote in Time Magazine. Not only did you take my research out of context, you did so without my knowledge to support discriminatory goals that I do not agree with. What you wrote was not truthful and I ask that you refrain from ever quoting me again and that you apologize for twisting my work.

Finally, there is nothing in my research that would lead you to draw the stated conclusions you did in the Time article. My work in no way suggests same-gender families are harmful to children or can’t raise these children to be as healthy and well adjusted as those brought up in traditional households.

Dobson seems to privilege the traditional family because it is natural or biologically grounded. Yet, he also contends that young males do not come by their maleness biologically; they must be taught to be males. A strange juxtaposition of contentions.

In ECA’s view, it seems clear that both boys and girls should have men and women in their lives as role models. It hardly follows, however, that one of each must live with children in their homes as parents. Kids growing up with one parent seem to develop just fine when they are exposed to members of both genders in schools, in civic associations, and elsewhere in society. In the final analysis, Dobson’s point seems inexplicable except by invoking an invidious bias against same sex parents. There’s little social science here, but there is a great deal or prejudice.