P. 1
Virginia Law Review

Virginia Law Review

|Views: 43|Likes:
Published by TLSJurSemSpr2010

More info:

Categories:Types, Research, Law
Published by: TLSJurSemSpr2010 on May 03, 2010
Copyright:Attribution Non-commercial


Read on Scribd mobile: iPhone, iPad and Android.
download as DOC, PDF, TXT or read online from Scribd
See more
See less





Virginia Law Review April, 1992 Is Pragmatism Useful?

*719 WHAT CAN YOU EXPECT FROM ANTI-FOUNDATIONALIST PHILOSOPHERS?: A REPLY TO LYNN BAKER Richard Rorty [FNa] Copyright (c) 1992 by the Virginia Law Review Association; Richard Rorty PROFESSOR Lynn Baker says that “an anti-foundationalist conception of social change as evolution may dilute both the prophet's belief in her own vision and her motivation to effect social change.” [FN1] It might, but if it does then the prophet is the wrong kind of prophet, the kind who thinks herself the voice of something bigger and more authoritative than the possible consequences of the application of her ideas. The good kind of prophet thinks of herself as just someone who has a better idea, on an epistemological par with the people who claim to have a new gimmick for retreading tires, or programming computers, or redrawing the company's table of organization. Good prophets say that if we all got together and did such and such, we would probably like the results. They paint pictures of what this brighter future would look like, and write scenarios about how it might be brought about. When they've finished doing that, they have nothing more to offer, except to say “Let's try it!” (a phrase I prefer to “Just do it!”). This kind of prophet does not think that her views have “legitimacy” or “authority.” The other, worse, type of prophet thinks of herself as a messenger from somebody (God) or something (Truth, Reason, History, Human Nature, Science, Philosophy, the Spirit of the Laws, The Working Class, the Blood and Soil of Germany, The Consciousness of the Oppressed, Woman's Experience, Negritude, the Overman who is to come, the New Socialist Man who is to come)-somebody in whose name, or something in the name of which, they speak. Such prophets think of themselves as not just one more voice in the conversation, but as the representative of something that is somehow more than another such voice. They defend their proposals not solely in terms of how much we would like the consequences of *720 the change they propose-how glad we, or at least our descendants, will be that we made that change-but also by reference to the authority of that for which they speak. ***** Baker says that I “persuade[ ] one ultimately that anti-foundationalism might be useful only to especially intellectual prophets, and only when they need to extricate themselves from philosophical or theoretical hassles.” [FN2] I quite agree. The kind of prophet I prefer rarely gets

mixed up in these hassles. (As J.M. Balkin has noted, in a lucid and succinct statement of the case for legal pragmatism, “ b eing a legal pragmatist means never having to say you have a theory.” [FN3]). More precisely: she never gets mixed up in them unless the audience she is trying to persuade forces her to do so. If the audience keeps braying “What's your authority?”, “What's your source of legitimation?”, and so on, then she will have to have something to say. Faced with that sort of audience, even relatively unintellectual prophets may need philosophers to run interference for them, just as political activists may need civil rights lawyers to run interference. Pragmatism is having a philosopher on hand to murmur in your ear “You have the right not to answer that question.” In a culture still tinged with religious fundamentalism and with Enlightenment rationalism, prophets will frequently be hassled by theorists. In that culture, it may indeed be useful for prophets to conceptualize (in Baker's words) “the social change they advocate as part of a larger, endless evolutionary process.” [FN4] For that conceptualization helps them to shrug off questions about authority. It does so *721 by helping them keep their eyes on a utopian future, rather then looking into the past, or beyond the stars, or deep within themselves. It permits them to adopt what William James called “ t he attitude of looking away from first things, principles, 'categories', supposed necessities; and of looking towards last things, fruits, consequences, facts.” [FN5] This attitude was, James said, “what the pragmatic method means.” [FN6] I do not see the contradiction Baker sees between saying that pragmatism is “something comparatively small and unimportant” and saying that prophets might profit from thinking of themselves in pragmatist terms. [FN7] But they will, to be sure, profit only if somebody distracts their attention from last things by asking them about first things-asking them to turn philosophical. In the thoroughly anti-foundationalist culture of my dreams, the culture in which philosophy is one more literary genre rather than an expression of the need for authoritative reassurance, this request would not be made. In our culture, it frequently is made, and prophets sometimes need philosophical advice about what to say in reply. To say that they should conceptualize their own vision as part of a larger, evolutionary process is just to say that they should be able, when necessary, to articulate their own preference for looking toward last things. The force of the analogy with biological evolution, like that of most other things pragmatists have to say, is primarily negative and renunciatory: it is a way of saying “You can no more be sure of your own usefulness to future generations than could the first fish who crawled up on land; but you just might, in time, deserve the same gratitude.” I can't, Baker rightly says, “be sure that anti-foundationalism is preferable to metaphysics for realizing [my] ... utopian vision.” [FN8] But then the woman who has a new gimmick for retreading tires can't be sure of her ground until she gets her hands on a tire factory. The man who has some ideas for legalizing drugs or criminalizing pornography can't be sure until he sees how enforcement of that legislation works out in practice. I won't be able to be sure of my view until I see what *722 a culture looks like in which questions about authority and legitimacy no longer have the resonance they have in ours. I should live so long.

Still, while waiting, I can recite the same optimistic “up from principles” story that Dewey recited. [FN9] I can point to the steady decline in requests for legitimation and for citation of authority over the last few hundred years, the steady increase in willingness to experiment. I can give examples of how the citizens of the constitutional democracies have been getting less fanatical, more willing to listen to novel prophecies, more imaginative, since the churches were disestablished, the franchise opened up, a liberal education was made available to the masses, avant-garde art made a paying proposition, and so on. This is the only sort of case I can make to show that, in Baker's words, “this recognition of contingency makes the prophet more effective.” [FN10] It is hardly a conclusive case, but it is not, as Baker claims, “no case.” [FN11] ***** By suggesting that “we” are ready and willing to listen to proposals for radical social change, I seem to many of my critics to suggest that we in the United States, or in the rich democracies generally, are already capable of Habermasian “undistorted communication.” I seem to suggest that it is enough, nowadays, for prophets to say “Try it; you'll like it” rather than “You won't like it much, because you will lose the ability to oppress you presently enjoy, but you should do it anyway.” My critics on the left [FN12] remind me that, despite all the *723 progress made in opening up people's imagination, it is still very hard for radical proposals to get a hearing, and that this is because “truth is an effect of power.” I am constantly told that I seem unaware of the existence of power. I think it is quite true that truth and power are linked, and always will be; I also think the pragmatist philosophers, by naturalizing the notion of “truth,” were among the first to make clear why this linkage is indissoluble. The linkage in question comes down to the following two facts: (1) which statements count as truth-candidates, as reasonable matter for discussion, is determined by the vocabulary of moral and political deliberation currently being used; (2) this vocabulary is in use because, in the past, some people won power-struggles (military, political, academic, etc.) over other people. Had the Nazis gotten across the Channel and won the war, the British would now be evaluating political proposals within a different vocabulary than the one they presently use. If the Roman Empire had succumbed neither to Christianity nor to barbarism ...; if the Nineteenth Amendment had never been passed ...; if the ERA had been passed ...; if the armed forces had never been desegregated ...; if Derrida had read “Structure, Sign and Play” at a Johns Hopkins conference in 1956 instead of that kerygmatic moment in the late 1960s .... We all have some idea how to fill in these blanks. Given this connection between truth and power, however, I still do not see that we need what a lot of the left seems to think we need-a lot of deep philosophical thought about what James calls “first things.” [FN13] The left finds pragmatism disappointing and wants philosophical thought that is more “radical” than that of James or Dewey, because less “complacent”-as if a really powerful philosophy could break down all the resistance to radical social change by dissolving all the old fears and prejudices.

I think of philosophical thought (that is, the sort of thinking that you have to study Aristotle, Descartes, Locke, Kant, Hegel, Frege, Heidegger, Wittgenstein, etc., to get good at-the sort of discussion of the nature of truth, knowledge, and morality in which we philosophy professors specialize) as having relatively little to do with the reach of *724 the political imagination. It seems to me a sign of despair, and therefore of failing imagination, when a left becomes as philosophized, as preoccupied with theory, as the academic left in the United States presently is. The fantasy that a new set of philosophical ideas-a new contribution to the Aristotle-Wittgenstein sequence-can do quickly and wholesale what union organizers, journalistic exposés, activist lawyers, charismatic leftist candidates, and the like can do, at best, very slowly and at retail, seems to me the result of a failure of nerve. One nice thing about pragmatism seems to me to be that it is very hard to pretend (as Baker suggests we self-deceptively might) that it is “something large and powerful' that is on one's side.” [FN14] This is because so much of pragmatism is purely negative and renunciatory: in Dewey's and James' work, the punchiest and most memorable passages consist of irony at the expense of foundationalist philosophers. [FN15] Neither can easily be viewed as supplying a powerful tool for digging down to the roots of political problems, as opposed to a suggestion about how to facilitate communication. [FN16] Baker fears that any philosophy-even antifoundationalism-which has a “bolstering” effect, which increases the prophet's self-confidence, will lapse into the role of Authority. I think it is pretty hard to make James or Dewey *725 into authority-figures, or to think of pragmatism in the way that fundamentalists think of Scripture or in which Marxists thought of what they called “scientific socialism.” A further advantage of pragmatism is that, unlike deconstruction, pragmatism doesn't provide much of a jargon. So it is hard for devotees of pragmatism to hypnotize themselves into thinking that by reciting the jargon they are changing the world. (Still, I have to admit that, back in the thirties and forties, quite a few third-rate social scientists managed to convince themselves that, by endlessly paraphrasing Dewey and Mead, they were doing something valuable for the culture of democracy. I also have to admit that people who can turn Derrida's stuff into a polemical jargon can probably turn anybody's-even Dewey's-stuff into a polemical jargon. Anything, I guess, is grist for the mill of really fervent authority-freaks-people with a deep need to think of themselves as armed with the very latest theoretical weapons.) ***** Still, what about this “we” to whom I imagine the good sort of prophet appealing when she says “If we try it (treating all men and women as brothers and sisters, abolishing slavery, banning pornography) we'll like the consequences?” Isn't there an ambiguity between “we, the people with power to change things” and “we-all of us-the powerless as well as the powerful?” Doesn't my cheerful, up-beat, “liberal” use of “we” obscure this difference? It does, but then the difference has become more obscure-or at least more usefully obscuredas what Nietzsche was pleased to call “slave-morality” has caught on, as the franchise has been

extended, as education has become more nearly universal, etc. The rhetoric of the relatively powerful has had to change to take account of the need to use persuasion rather than force on the relatively powerless. Lately, the operations of constitutional democracy-the pressures brought by what President George Bush is pleased to call “interest groups”-have forced people to stop naked appeals to sexism and racism, and forced them to make cloaked appeals instead. A lot of things that some of the powerful believe in their hearts-e.g., that men have the right to beat up on women whenever they need to bolster their own self-confidence-are things they can no longer say in public, and can barely admit to themselves. We have a long way to go in this direction,*726 obviously, but I see no better political rhetoric available than the kind that pretends that “we” have a virtue even when we do not have it yet. That sort of pretense and rhetoric is just how new and better “we's” get constructed. For what people cannot say in public becomes, eventually, what they cannot say even in private, and then, still later, what they cannot even believe in their hearts. Foundationalists think that things have been getting better in recent centuries because there is a power not ourselves that has been working for righteousness. Anti-foundationalists think it's just been good luck, and that with a bit more luck, and a lot of work, this drift might continue. As long as it does continue, the rhetoric of “we'll like it” will often work. For this rhetoric says to the powerful: “You don't think you'll like it, but your better self-the one that sometimes makes you vaguely ashamed of some of the things you are accustomed to do-will like it.” Foundationalists think that this better self is something that is always already deep down there-down at a level at which, somehow, Truth does its thing without interference from Power. Anti-foundationalists think that it's the sort of self that gets created by pretending that it is already there. This is the way parents create a conscience (or, as Foucault calls it, “a subject”) ex nihilo by saying things like “You didn't really want to hurt Susy, did you?” “You don't really want to grow up to be a faggot, do you?”, etc. In political situations, one says things like “America isn't really the sort of country that destroys villages in order to save them, is it?” We anti-foundationalists have no hope of substituting non-social constructs for social constructs; we just want to substitute our social constructs for theirs. What Stanley Fish calls the anti-foundationalist “theory hope” [FN17] characteristic of the contemporary academic left in the United States-the hope that leads them to want madder philosophical music and stronger philosophical medicine than pragmatism can provide-is the hope that, because they now know the Anti-Foundationalist Truth that “truth is an effect of power,” they themselves have become more powerful. They seem to think that they have somehow become the exception to their own rule-that they have seen through Appearance (social constructs) to Reality (something that isn't just our social constructs rather than the bad guys' *727 social constructs). People who think this way are in danger of becoming the second, bad, kind of prophet. If we pragmatists are good for anything in the present cultural situation, it is because we supply a bit of informed irony about the everrenewed hope for authority. That may not seem all you have a right to expect from us anti-foundationalist philosophy professors, but it is the only useful thing you are going to get. As long as you think of “Philosophy” as the name of

something having intrinsic redemptive power-or even as something which might provide a quick fix-you are going to find pragmatism disappointing. [FNa]. University Professor of Humanities, University of Virginia. [FN1] Lynn A. Baker, “Just Do It”: Pragmatism and Progressive Social Change, 78 Va. L. Rev. 697, 714 (1992). [FN2] Id. at 717. [FN3] J.M. Balkin, The Top Ten Reasons to be a Legal Pragmatist, 8 Const. Commentary 351 (1991). Balkin goes on to point out that if you are a legal pragmatist, “[y]ou can also be (a) a civic republican, (b) a feminist, (c) a deconstructionist, (d) a case-cruncher, (e) a crit, (f) a law and economics type, or (g) anything else.” Id. Balkin here echoes William James, who says, paraphrasing Papini, that pragmatism is like a corridor in a hotel: Innumerable chambers open out of it. In one you may find a man writing an atheistic volume; in the next someone on his knees praying for faith and strength; in a third a chemist investigating a body's properties. In a fourth a system of idealistic metaphysics is being excogitated; in a fifth the impossibility of metaphysics is being shown. But they all own the corridor, and all must pass through it if they want a practicable way of getting into or out of their respective rooms. William James, Pragmatism 32 (1978). [FN4] Baker, supra note 1, at 714. [FN5] James, supra note 3, at 32 (emphasis deleted). [FN6] Id. [FN7] Baker, supra note 1, at 713 (quoting Richard Rorty, Feminism and Pragmatism, 30 Mich. Q. Rev. 231, 238 (1990)). [FN8] Id. at 717-18 (emphasis added). [FN9] This is the story Dewey told in the first four chapters of his Reconstruction in Philosophy. See John Dewey, Reconstruction in Philosophy (1920), reprinted in 12 The Middle Works of John Dewey (Jo A. Boydston & Bridget A. Walsh eds., 1988). “It is no longer enough for a principle to be elevated, noble, universal and hallowed by time. It must present its birth certificate, it must show under just what conditions of human experience it was generated, and it must justify itself by its works, present and potential.” Id. at 106. [FN10] Baker, supra note 1, at 714.

[FN11] Id. [FN12] For examples of leftist criticism drawn from the law reviews, see Joseph W. Singer, Property and Coercion in Federal Indian Law: The Conflict Between Critical and Complacent Pragmatism, 63 S. Cal. L. Rev. 1821 (1990); Allan C. Hutchinson, The Three 'Rs': Reading/Rorty/Radically, 103 Harv. L. Rev. 555 (1989) (reviewing Richard Rorty, Contingency, irony, and solidarity (1989)); Joseph W. Singer, Should Lawyers Care About Philosophy?, 1989 Duke L.J. 1752 (reviewing, inter alia, Richard Rorty, Contingency, irony, and solidarity (1989)). The gist of much of such criticism is given in Jonathan Culler's claim that my antifoundationalist views produce “a way of protecting a dominant ideology and its professionally successful practitioners from the scrutiny of argument, by deeming that critique can have no leverage against everyday beliefs and that theoretical arguments have no consequences.” Jonathan Culler, Framing the Sign: Criticism and Its Institutions 55 (1988). [FN13] James, supra note 3, at 32. [FN14] Baker, supra note 1, at 716 (quoting Richard Rorty, Feminism and Pragmatism, 30 Mich. Q. Rev. 231, 254 n.21 (1990)). [FN15] Consider, for example, James' satiric treatment of theories of truth according to which true ideas somehow correspond to, or copy, reality: The notion of a reality calling on us to 'agree' with it, and that for no reasons, but simply because its claim is 'unconditional' or 'transcendent,' is one that I can make neither head nor tail of. I try to imagine myself as the sole reality in the world, and then to imagine what more I would 'claim' if I were allowed to .... What good it would do me to be copied, or what good it would do that mind to copy me, if farther consequences are expressly and in principle ruled out as motives for the claim (as they are by our rationalist authorities) I cannot fathom. When the Irishman's admirers ran him along to the place of banquet in a sedan chair with no bottom, he said, “Faith, if it wasn't for the honor of the thing, I might as well have come on foot.” So here: but for the honor of the thing, I might as well have remained uncopied. James, supra note 3, at 112. [FN16] Some pragmatist philosophers-notably Dewey-happened to be very good at digging down to the roots of such problems. Others-notably Wittgenstein-were political imbeciles. But Dewey's columns in The New Republic got only atmospheric and indirect reinforcement from his views about the nature of truth, knowledge, and morality. For an account of the merely accidental relations between pragmatist doctrines on the latter topics and the quest for social justice, see Richard Rorty, Just One More Species Doing Its Best, London Rev. Books, July 25, 1991, at 3 (reviewing some of the recent Dewey literature, most notably Robert Westbrook, John Dewey and American Democracy (1991)). [FN17] Stanley Fish, Doing What Comes Naturally: Change, Rhetoric, and the Practice of

Theory in Literary and Legal Studies 322-23 (1989). 78 Va. L. Rev. 719 END OF DOCUMENT

You're Reading a Free Preview

/*********** DO NOT ALTER ANYTHING BELOW THIS LINE ! ************/ var s_code=s.t();if(s_code)document.write(s_code)//-->