Before the Law

Rorty and Romanticism

About to set off for a conference on political and other varieties of messianism (and procrastinating writing my paper, for a change), I've been thinking more about Richard Rorty, the least messianic of  our contemporary philosophers.   For reasons that I may get to in another post (and hope to at least suggest in this one), it seems to me that his thinking and the chord it strikes with our cultural moment (despite, and in part because of, its controversy) are important symptoms of the zeitgeist and one its most significant pathologies (a pathology that is dominant, at least, in the United States).  Despite the frequent op-eds and other political commentary of his latter career, it seems to me that Rorty (or I should say, his philosophical position) is ultimately the enemy of the political, at least the political that we need today, which is not any particular political program, doctrine or set of norms, but the ethical drive to act politically that is the prerequisite of all these specific forms of politics.

I've been mulling over some recent posts by Brian Tamanaha at Balkinization (marginally relevant to my topic here, but I especially recommend this one, which bitterly rejects patriotism and, beyond that, calls for the downfall of the political state -- not something you see everyday coming from a law professor).  The one that got me thinking about Rorty and his significance to contemporary culture is titled " Legal Theory as Myth Construction"  (I should note that Tamanaha wrote one about Rorty too).   In it, Tamanaha floats the idea (which he recognizes is not original) that theory-making in general and legal theorizing in particular constitutes, at least sometimes, myth-making as well.  His notion of myth is modest and attractive and in fact resembles in some ways (although he is less radical) Rorty's neo-pragmatic notions about truth being no different than the stories we successfully manage to tell ourselves and so on.  In any event, it is striking to hear legal theory identified with myth even as cautiously as Tamanaha does it (and again, particularly striking to hear that coming from the mouth of a law professor!), and it reminded me of that most radical of all claims of this type, the call for a new "mythology of reason."  That fabulously paradoxical notion comes from the so-called "Oldest Systematic Program of German Idealism," an anonymous fragment from 1797 the authorship of which has been attributed variously to Hegel, Schelling and/or Hölderlin.  (An on-line version, which has a couple of typos, is available here.) 

The "Oldest Systematic Program" packs more intellectual ambition -- or rather, ambition for the intellect -- into one page of text than one would have thought possible, and for that reason alone it constitutes a virtual anti-Rorty screed.  Beginning with the notion that, after Kant, the idea of moral freedom must be the foundation of metaphysics, it moves on to endorse a radical politics ("We must therefore go beyond the state!-- Because every state must treat free human beings like mechanical works; and it should not do that; therefore it should cease.") and the unity of truth, the good, and beauty ("I am convinced that the highest act of reason, which, in that it comprises all ideas, is an aesthetic act, and that truth and goodness are united like sisters only in beauty-- The philosopher must possess just as much aesthetic power as the poet.").   On every point, the radically romantic idealism of this text seems to be opposed to Rorty's chastened notion of a reason that must constantly be on guard against exceeding its boundaries, and not just the boundary between finite Verstand and infinite Vernunft a la Kant, but between private (aesthetic) critical irony and public, political (and non-critical) reason (see my earlier Rorty post on this self-limitation).  On the other hand, there's a pragmatic element to the "Oldest Systematic Program" as well -- the notion that the aestheticization of philosophy and politics is necessary to reach "the people."  All of these elements combine in the final call for the new "mythology of reason":

First I will speak about an idea here, which as far as I know, has never occurred to anyone's mind-- we must have a new mythology; this mythology must, however, stand in the service of ideas, it must become a mythology of reason.

Until we make ideas aesthetic, i.e., mythological, they hold no interest for the people, and conversely, before mythology is reasonable, the philosopher must be ashamed of it. Thus finally the enlightened and unenlightened must shake hands; mythology must become philosophical, and the people reasonable, and philosophy must become mythological in order to make philosophy sensual. Then external unity will reign among us. Never again the contemptuous glance, never the blind trembling of the people before its wise men and priests. Only then does equal development of all powers await us, of the individual as well as if all individuals. No power will be suppressed any longer, then general freedom and equality of spirits will reign-- A higher spirit sent from heaven must establish this religion among us, it will be the last work of the human race.

There you  have it -- a proto-Hegelian "external unity" of philosophy, politics, art and religion (although I would highlight the fact that in this passage, religion, unlike the other fields, is not derived from the idea of reason but arrives from an outside -- a "heaven" -- even though this arrival is also described as a human achievement, "the last work of the human race").  Could any "program" be less Rorty-esque?  And yet we should recall Rorty's statement, early in his career, that "the time may have come to try to recapture John Dewey's 'naturalized' version of Hegelian historicism"  (from "The World Well Lost").  What began as an impulse to free reason from its philosophical (more accurately, metaphysical) presuppositions by taking its status as language ("vocabulary," narrative, story, myth) seriously ended, in works like Contingency, Irony, Solidarity, with reason itself crumbling into tiny component parts (private ironies, public values, etc.) so feeble that they could not even justify themselves, much less join together in any kind of unity, even a non-metaphysical one, that would justify use of the general term "reason" at all.   Having rejected the idealist glue that held the language of "reason" together (the best name for which, as in this fragment, still remains today "religion"), Rorty could not -- and the rest of us haven't been able to, either -- find a way to keep it from falling apart completely.  All that remains of "reason" after this collapse (which, again, is our collapse, it's cultural) is the positivistic vocabulary of the natural sciences, which has recently gone on the attack against the rear-guard actions being fought by the anti-rationalist forms of religion represented by fundamentalism (which are of course themselves symptoms of this collapse).  (See, for example, the recent books by Richard Dawkins and Christopher Hitchens denouncing the whole idea of religion, analyzed with typical flair by Stanley Fish in his New York Time blog (alas you need a TimesSelect subscription to read them .  . . .). 

I hope it's clear that I'm not advocating that we can or should save "reason" in its Romantic form, especially to the extent that it rested ultimately on religious notions that were themselves metaphysical (the Christian substrate of the "Oldest Systematic Program," for example, is apparent in the distinction between the "spirit" and the "letter" that it rests on and the incarnationist solution that it proposes).  But the (apparent) disappearance of even the possibility of a rational religion -- of a new "mythology of reason," if you like -- does seem to me to characterize the cultural dilemma we now find ourselves facing, in the realm of politics -- where the chief problem, in the United States, at least, is not figuring out what needs to be done (we all have opinions about that) but convincing ourselves to get off  our self-satisfied, materialistic asses and doing it -- as well as in other spheres.  The various contemporary attempts to articulate a (non-Romantic, non-metaphysical) notion of  "political messianism" (which are the impetus for next week's conference) represent one way that some philosophers are attempting to resolve this cultural lack; I'm looking forward to what the participants have to say. 

Kafkaesque

Last week the Supreme Court decided a case called Bowles v. Russell.  It didn't set or shatter any earth-shaking precedents, decide any significant constitutional issues, or otherwise rate as a particularly newsworthy event -- basically, it's a case about when judges have to follow the rules of civil procedure -- but given the title of this blog, I feel compelled to say something about it . . . .

Here's (a slightly truncated version of) the Supreme Court's official summary of the case:

Having failed to file a timely notice of appeal from the Federal District Court’s denial of habeas relief, petitioner Bowles moved to reopen the filing period pursuant to Federal Rule of Appellate Procedure 4(a)(6), which allows a district court to grant a 14-day extension under certain conditions, see 28 U. S. C. §2107(c). The District Court granted Bowles’ motion but inexplicably gave him 17 days to file his notice of appeal. He filed within the 17 days allowed by the District Court, but after the 14-day period allowed by Rule 4(a)(6) and §2107(c). The Sixth Circuit held that the notice was untimely and that it therefore lacked jurisdiction to hear the case under this Court’s precedent.

        Held: Bowles’ untimely notice of appeal—though filed in reliance upon the District Court’s order—deprived the Sixth Circuit of jurisdiction. Pp. 2–10.

Fascinating stuff, huh?  (The full case is available here.)  Here's what happened, boiled down to the essence that makes the case interesting (or ironic, or Kafkaesque):  Bowles, a convicted murderer, filed a habeas corpus petition in federal district court claiming that the conviction was based on violations of his constitutional rights.  He lost, and then asked the district court to extend his time to take an appeal.  The court did so, for a period of 17 days, even though the relevant federal rule of procedure and statute say that the time can only be extended by 14 days.  Bowles (and his lawyer) didn't notice the judge's mistake, and, relying on the judge's 17 day extension order, filed his appeal within 16 days (obviously thinking he was playing it safe and beating the deadline by a day).  The Supreme Court held that he was out of luck -- the rule and statute said 14 days, and that was all he had, no  matter what the district judge told him.  In other words:  his good-faith reliance on the judge's order was understandable and regrettable; nevertheless, he should have understood that one proceeds in reliance on such orders -- which is to say, on judges' official interpretations of the law -- at one's own risk.  (I am, needless to say, glossing over the particularities of the case in ways that would make some law professors say, hold on a minute, it's more complicated than that, but that is, essentially, what the Supreme Court's 5-4 majority said.)

The companion case to Bowles, for my purposes at least, is Walker v. City of Birmingham, which was decided in the thick of the civil rights movement in 1967.  In Walker, ministers from some Birmingham churches planned to hold peaceful demonstrations against the Jim Crow laws and practices of the local establishment.  Upon learning of their plans, city officials promptly went to state court and got an injunction against all such (First Amendment-protected) activities, an injunction that was patently unconstitutional on its face.  The ministers announced they would march anyway and did so.  When they were charged with criminal contempt of court for violating the order, they attempted to defend themselves by arguing that the injunction was unconstitutional and that they were therefore under no obligation to obey it.  On appeal from their convictions, the Supreme Court told the ministers that the legality of the judicial order was irrelevant.  Yes, the majority conceded, the "breadth and vagueness of the injunction itself would also unquestionably be subject to substantial constitutional question"; nevertheless, there were higher values to be served:  instead of  protesting, they should have gone back to the Alabama courts and attempted to appeal from the original injunction.  "[N]o man can be judge in his own case, however exalted  his station, however righteous his motives, and irrespective of his race, color, politics, or religion," as the Court put it.  (In fact, as the dissent explained, Walker and his fellow protestors chose not to fight a prolonged and obviously futile court battle because they wanted to march on particular symbolic days (Good Friday and Easter Sunday), which legal proceedings would have made impossible.)  "One may sympathize with the petitioners' impatient commitment to their cause. But respect for judicial process is a small price to pay for the civilizing hand of law, which alone can give abiding meaning to constitutional freedom."  Accordingly, as required by the civilizing hand of law, the protestors did their time in jail for violating an unconstitutional court order.  (Walker is available here.   Robert Cover's Harvard Law Review article "Nomos and Narrative" provides the canonical analysis and critique but doesn't seem to be available on-line except in for-pay databases.)

Let us put Walker and Bowles together.  A judicial order that is inconsistent with the law must be obeyed (even if patently unconstitutional, Walker), but it may not be relied upon (Bowles).  Put that way (again, perhaps a little reductively) we indeed seem to be approaching the Kafkaesque.  Another Kafka-esquity:  How are you are supposed to determine what the law is -- which, of course, you'd better do since you can only rely on a judicial order that complies with it -- if you can't rely on what judges say it is?  (The problem is especially acute if  you agree with the Supreme Court that "no man can be judge in his own case" and decide for him/herself what the law is or ought to be.)  On the Supreme Court's account in these two cases, aren't we all standing before the Law like the man from the country (and so many other Kafka characters), assured of the Law's majesty and authority, believing that it "should surely be accessible at all times and to everyone," and yet left eternally waiting to find out what in fact it says and what it has in store for us?  But I'm probably over-reading, as usual . . . .

Richard Rorty

I left this comment over at Balkinization last night while avoiding grading, but thought I would reprint it here by way of slipping back into the business.   Much  more to be said, of course, but I think I stand by this as a first pass at my feelings about him:

For me the sad thing about Rorty (and it's interesting to hear others' in-person perceptions of him; when I heard him lecture he sounded depressed) was that the value of his pragmatic critiques of the scientism, irrelevance, etc., of contemporary analytic philosophy ultimately got lost in something very much like neo-positivism -- a stubborn insistence on a strictly behaviorist theory of meaning (which he himself recognized was "reminiscent of the positivists’ verificationism") combined with an (equally stubborn) insistence on a kind of discourse nominalism, the notion that one can blithely live out one's life in incommensurable discourses (or "vocabularies") with out ever experiencing a conflict or need to reconcile them ("We should confine ourselves to making sure that we are not burdened with obsolete ways of speaking, and then insuring that those vocabularies that are still useful stay out of each other’s way"). (The quotes are from a 2005 talk, "Naturalism and Quietism," available on-line.) The net result was the kind of theses that drove me (and others as well) crazy in CIS, to the effect that we can ironize -- by which he meant, question critically -- the liberal values handed down to us by tradition in private, but we had better stand by them in public regardless of the results of that (private) critical inquiry. That is, Rorty's pragmatism seemed to end not just in a rejection of pointless philosophizing, but in exhortations to avoid critical thought more generally. The problem is that at least for some people (many of whom are religious but not all), meaning means something more than patterns of behavior, and, I think, for virtually everyone, it's essentially impossible to keep vocabularies from "getting in each other's way" -- at least, vocabularies that one actually lives in or through. Critical thought thus isn't just a life-choice or language game that can be passed up in favor of something else; it's forced on (at least some of) us by an existential condition. Rorty started out telling us that philosophy shouldn't scratch where it doesn't itch but ended up with a philosophy that amounts to urging us to stop itching, which isn't nearly as useful advice.