Professor Robert Hayman’s Tribute to Bobby Lipkin

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This will be a short talk about one of Bobby’s “big ideas,” about pragmatism, which might be best described as revolutionary pragmatism.

Bobby’s interest in constitutional revolutions is well-documented, but the full corpus of his work documents a broader and deeper commitment to a revolutionary creed.  Each of his articles is in fact a mini-insurrection, a rebellion against one order or another.  As an author, Bobby is the James Dean of pragmatists; you got it, he rebels against it.  In his writings, no order is stable, no heuristic is safe, no paradigm is left unshifted.

Journey into one of his articles and see the world get re-made.   Old structures yield to new ones – of Bobby’s creation.  Old dichotomies yield to new ones – of Bobby’s creation.  Old terms yield to new ones – of Bobby’s creation.  So meet the new boss – he’s the not the same as the old boss, because the new boss is Bobby.   Bobby is, in his writing, the fabricator of new intellectual universes, the creator, and this is literally true, of new discourse.  The writing teems with, it overflows with, creativity.  But of course.  As Camus, the patron saint of pragmatists,  reminds us, what is creativity, after all, but rebellion.  James Dean got that too.

But Bobby’s rebellion is rebellion for a cause, and in that cause pragmatism is, fittingly, both means and ends.  Pragmatism is the vehicle for the perfection of American constitutional democracy; and pragmatism itself needs to be perfected, for its own sake – because it matters.

That’s another facet of Bobby’s work, the passion he shows for pragmatism. Read Bobby on pragmatism, and hear him revel in it, feel his joy in engaging it, it’s as if he cannot believe his impossibly good fortune in having discovered this remarkable philosophy that he can make his own.
And it suits him so well.  Inclusive enough, like Bobby, to embrace nearly every important jurisprudential movement of the past half century; rigorous enough, like Bobby, to be branded a philosophy, a brand it dismisses with studied disdain.  Committed, on the one hand, to critique and relentless skepticism; equally committed, on the other, to the power of prophecy, and to an enduring hope.   And it does matter; it is important.  The joy of Bobby’s work – and he is at times positively giddy – is matched by an earnestness; the stakes, he sees, are high.  Future generations will render their verdict but it should be no surprise if they determine that pragmatism’s influence on two generations of legal thinkers – in the academy, on the bench, in the White House – is rivaled in our history only by the New Deal era realists – the main difference being, of course, that we don’t have a New Deal.

At least, not yet.  Because the pragmatist’s story – Bobby’s story – is still unfolding. Who knows what tomorrow will bring, who knows which of Bobby’s fabricated universes will become our own.  We have witnessed, with Bobby, a President Obama; who is to say that we won’t witness a President Lipkin – Sara, as she’s known to her friends.

So here’s a bit of Bobby the revolutionary pragmatist, doing what pragmatists do – arguing with other pragmatists – because that’s they way they become better, it’s the way they learn how to build their new, better, universes.

The subject of Bobby’s work here is: an argument between two other pragmatists.  One of them, Richard Rorty, had counseled against the use of “foundationalist” language to make normative appeals; we cannot pretend, he insisted, to be possessors of first order moral insights.  The other, Lynn Baker, had taken Rorty to task; stripped of its moral dimensions, pragmatism, she insisted, lost its ability to persuade, and was of scant value to progressive movements, or to the cause of oppressed peoples.  It is true, Rorty conceded, that the language of progressive prophecy is sometimes littered with moral absolutes; but the prophets who use that language, he maintained, are the wrong kind of prophets.  Enter Bobby, stage left.  In a Tulane Law Review Article he titles “Pragmatism–The Unfinished Revolution,” Bobby writes this:
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Rorty’s conception of the language of prophecy does not correspond to the language of actual prophets.  In short, the kinds of prophets we admire use very different descriptions than the ones that seem to follow from Rorty’s conception of antifoundationalist, prophetic language.  If doctrinaire pragmatism cannot accommodate the actual language of prophecy, then arguably it cannot be used for reflective social change even in the way Rorty endorses.  Rorty’s conception of good prophecy distorts moral language and moral psychology, the same language and psychology that have permitted Western intellectuals to seek to eradicate suffering and render society free and just.  Unlike doctrinaire pragmatism, reflective pragmatism can support and extend the language of prophecy as the only nonviolent means of reform and revolution.
Based on everything we know, reflective pragmatism permits universal moral truths.  Its antifoundationalism remains intact.  These truths are historically derived and do not pretend to represent any reality save our historical heritage.  The reflective pragmatist does not believe for a minute that these truths are anything more than deep, contingent generalizations.
For the reflective pragmatist, permitting universal judgments saves us from the straightjacket of doctrinaire pragmatism.  The language of universality permits us to say more of what we want to say about good and evil, our understanding of the moral past, and our utopian aspirations for the future.  So, despite the contingent imperfection associated with universal moral judgments, adopting a judicious use of such judgments is better than abandoning them entirely.  Reflective pragmatism, unlike its doctrinaire counterpart, contends that more pragmatic benefits accrue by permitting some universal judgments than by proscribing their use entirely.
Reflective pragmatism promises to continue the pragmatic revolution, a revolution that should always remain unfinished.  The unfinished pragmatic revolution indicates that pragmatism is a process that can exploit any other type of discourse when that discourse has pragmatic benefits.  As long as we recognize this, a pragmatist can adopt foundationalist, realist, objectivist, or universalist discourses shorn of their epistemological and metaphysical commitments when the pragmatic price is right.  Reflective pragmatism frees the pragmatist from both foundationalism and doctrinaire pragmatism.  Reflective pragmatism, in short, renders the pragmatist free from foundationalism as well as free to adopt foundationalist discourse, thereby expanding the pragmatic conversation.  Given reflective pragmatism’s superiority over doctrinaire pragmatism, nothing should prevent us from viewing the transition to reflective pragmatism as pragmatism’s next revolutionary moment.

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See what he did there.   “Doctrinaire pragmatism,” “reflective pragmatism” – a new dichotomy; his dichotomy; his terms; his creation.  The paradox of the doctrinaire pragmatist – his discovery, if you will, or maybe his invention.  And for the pragmatist committed to progressive change – a new priority, and new discursive possibilities.  A new revolutionary moment.  All that in four paragraphs.  And we’ve barely scratched the surface.

When he was told of this event, Jack Balkin, editor of the balkanization blog and a Con Law teacher at Yale, passed along an email that closed with this thought: “Bobby was a lovely man, and will be deeply missed.”  Of course there’s no disputing any of that; we know it.  And for all the times that we imagine otherwise, for all the times I’ve still seen Bobby in my office doorway, smiling, greeting me with a “hey kiddo,” for all that, still the sense of loss is truly palpable, and still it hurts.

But maybe today points a way toward lessening the hurt, toward a way maybe that we miss Bobby less deeply.  Because Bobby left us more than memories, he left us his words.  And so from time to time we can pull this book from the shelf, and learn again from Bobby, and share with him his passions, witness–maybe even join in –his revolution, travel with him in his marvelous new worlds.  We’ll be better for it – not least because, we’re always better, when we’re with a friend.

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