Monday, April 24, 2006

Angela Davis and the Need for Theory.

Angela Y. Davis, If They Come in the Morning (New York: Signet, 1971).
Angela Y. Davis, Autobiography (New York: International Publishers, 1974).
Angela Y. Davis, Are Prisons Obsolete? (New York: Seven Stories, 2003).
Duncan Kennedy, Legal Education and the Reproduction of Hierarchy (Cambridge: Afar, 1983).
Josef Pieper, In Defense of Philosophy (San Francisco: Ignatius Press, 1966).

An interest in philosophy or literature is a guilty secret for many young people today, especially for young minority men. The United States has always been hostile to intellectuals, but this attitude is now more widespread than ever. It is no longer a source of self-scrutiny or doubt, so that dismissiveness concerning the life of the mind -- as opposed to pursuit of money and power -- is simply said to be "common sense." Ironically, even in universities this attitude may be found, together with contempt for intellectual achievement or true learning as "irrelevant" in the "real world."

Law schools are often places where a blinkered, narrow focus is deemed a sign of seriousness and practicality. ("Is this going to be on the bar exam?") Business schools are not far behind in this attitude, which may have something to do with the impoverishment of spirit in American life so often noted by commentators and visitors to our shores.

Money and power are the gods to which we really pray. Fame and status are minor deities. In our spiritual hunger, we confuse the superficial rhetoric of New Age preciosity and affectation for genuine philosophical insights and true religion. This confusion is the only explanation that I can find for the popularity of a novel like The Da Vinci Code.

Philosophy is desperately needed, since the confusion and ignorance of the intellectual tradition found in judicial opinions and government reports as well as in many published works -- which often receive respectful reviews in leading publications! -- is nothing less than stunning. Many such celebrated texts are, in fact, self-undermining.

I plan to focus on law school attitudes, together with the mores of lawyers and judges, only because they are familiar to me. I am sure that other examples are available from public administration and business. I distinguish pop fashion and entertainment from true arts. Some celebrities are just that; others are artists who happen to be famous. Among genuine artists hostility to intellectual achievement and wisdom are rare, among trendy celebrities and people who go to parties, they are quite common.

Oliver Wendell Holmes said that "the law sharpens the mind by narrowing it." Persons with narrow minds -- however sharp they may be -- should not be making values decisions for society, decisions such as: whether persons have a right to die; or whether an infant born horribly disfigured should be "terminated"; or whether human embryos may be "used," thrown away, or destroyed after abortions; whether organisms created in laboratories may be patented and those patents then sold to the highest bidders, something currently permitted under U.S. intellectual property law.

These and many other questions in law involve philosophical assumptions -- sometimes contradictory ones -- having important implications that are often unrecognized, with the result that much American case law is incoherent or inconsistent, at a theoretical level, creating more legal work for an overburdened system in the hopeless task of clarification.

Law school study consists largely of reading "cases" and seeking to relate and reconcile them with emerging patterns of doctrinal development in jurisprudence. American legal education is weak in the teaching of theory. Legal and general culture are almost non-existent in the average law school graduate, even in graduates of so-called "elite" schools.

Theory is not practical, in a narrow sense, because it is not supposed to be. Yet theory (vision) is essential for reasons that certainly do have practical significance. Take another look at the name or title of this blog. Philosophy is essential to our practical concerns -- in the widest possible meaning of the word "practical" -- because theories determine the quality of the "inner" life of a person or society, by not being practical in an "instrumental" or narrow sense.

"Philosophy does not serve any purpose -- not only as a matter of fact, but because it cannot and must not serve any purpose! In the words of Martin Heidegger, 'It is entirely proper and perfectly as it should be: Philosophy is of no use!' ..."

This statement by German thinker and Thomist Joseph Pieper could not be made by an American philosopher, reared on James and Dewey -- nor by a Marxist, perhaps -- but notice the very specific point being made:

"This privilege [of philosophy] is called freedom. Philosophy by its nature is a free endeavor, and for this reason serves no one and nothing!"

And again:

"Analyzing Aristotle's text in his Metaphysics, we find to our amazement that 'free' there means the same as 'non-practical'! 'Practical' is everything that serves a purpose. Precisely this, then, does not apply to philosophical reasoning or theoria. Philosophy is 'free' insofar as it is not geared toward some purpose outside itself. Philosophy, rather, is an endeavor containing its own meaning and requires no justification from a purpose 'served.'..."

Paradoxically, it is disinterested speculation (not for money) that yields the attitude of mind and learning which is most useful in confronting, say, legal questions with important values implications. Philosophy serves no single or narrow instrumental purpose, neither do you, because both philosophy (and you, as a person) are concerned with the "free" formulation of ultimate or non-instrumetal purposes. (See my story "Pieta.")

"Theoria and theoretical are words that, in the understanding of the ancients, mean precisely this: a relationship to the world, an orientation toward reality characterized entirely by desire that this same reality may reveal itself in its true being. This, and nothing else, is the meaning of truth; nothing else but the self-revelation of reality."

The crucial insight is this:

"... 'contemplation' means a loving gaze, the beholding of the beloved. We have to raise the question, then, whether philosophical reflection on reality as such may not equally presume or imply some kind of acceptance of this same reality. I hesitate to use the word 'love,' because it is too big. 'Acceptance,' on the other hand, seems too imprecise and too weak. Even those who are simply incapable of any philosophical theoria because they consider the objects of the world, and perhaps even human beings (excepting themselves), as so much raw material that may be useful for some purpose -- even those 'masters and owners of nature' [capitalists] could be said in a certain sense to accept reality and find it good: good of course for them and their aims. For the true philosopher, however, the challenge seems to be this: to acknowledge before any consideration of specifics and without regard to usefulness, that reality is good in itself -- all things, the world, 'being' as such; yes, all that exists, and existence itself."

This is not a prescription for quietism or conservatism, necessarily, nor is it a radical program. It is to suggest that to see something or someone, you must not reduce the subject of contemplation to your "narrow" purposes or intention of manipulation. At this point, Marxism becomes highly relevant. This is an attempt to escape both commercial and legal relations that are objectifying. I seek to join thinkers like Lukacs, Gramsci and Chomsky with Merton and Buber. My goal as a "Hegelian Kantian" may be to kidnap a bit of the Marxist and Christian project for my own purposes of spiritual, and only then material liberation. Therapists should take note. It is important to recognize the autonomy of the subject of contemplation, so as to recognize his or her free essence. I am not -- I never will be -- what you can reduce to your categories and jargon. I am not something to be placed in a specimen jar and labelled. I will not be controlled by your bullshit.

This respect for autonomy is particularly true in the human realm, so that all externalizing intellectual approaches -- such as the scientific or legal and commercial approaches that view reality through the prism of a particular research agenda or methodology -- will be inadequate to grasping the full and complex reality of another free being or the world of meanings and values created -- and creating -- those free beings. U.S. hostility to theory is kept in place by an informal system of rewards and demerits that begins in law schools. Resistance to this form of chosen "stupidity" or "narrowness," for a few people, then simply "happens" at some point in their lives. Duncan Kennedy writes:

"There are no absolute radicals, just people being radical in particular situations. People don't (at least in my experience) get to be like that by deduction from general principles. There's no more reason to hope you can convert them by logic than to fear they'll desert if the theory isn't right. It's more like you wake up one morning knowing that you aren't going to stand some abuse or injustice for another day, not knowing what will happen as a result, not even sure you can justify whatever it is you're about to do."

For example,

"Sometimes things bubble to the surface in a group of friends that sound more oppositional than you thought you were, and they support rather than shun you. Or an opponent treats what you thought was a moderate statement as advocacy of socialism or 'radical feminism,' and you find yourself defiantly embracing the label instead of weasling out of it. It's then that one begins to want theory -- to want it as a way to express one's new orientation, rather than to determine its content or serve it as an instrument."

These ideas lead to a view of social theory as a kind of freedom that serves and fosters collective human freedom in society. It leads to a radical project of truthfulness at the cost of professionalism, of justice over technical legality. It leads to the understanding that there is, as Lon Fuller suggests, "a morality that makes law possible."

Theory or genuine philosophical probing, with love for the victims of power, of what is humanly necessary produces in me an iron-like determination to oppose all that denies freedom and justice. These insights lead me, equally, to the work of thinkers such as Angela Davis and Thomas Merton, Noam Chomsky and Simone Weil, Ernst Bloch or Walter Benjamin and Martin Buber. I am aware that people find it shocking that I associate such texts.

Theorizing has also produced an enormous inpatience and boredom in me with the bromides of America's legal establishment, whose canned arguments of "policy" just don't cut it any more. New thinking is desperately needed, both at the level of principle and in terms of political and legal theory. Unfortunately, there is not too much original or new thinking around. In fact, there's not too much thinking around.

This philosophical stance is threatening to the legal profession and social order, so that it will always be punished and discouraged. It is no accident that legal and social theory is not required in most American law schools. Political philosophy and jurisprudence are also not required subjects. The legal system is used as a mechanism of adjustment and conformity, but it can be the opposite. Think of how contemporary these warnings seem today, though they were issued in 1971, by Angela Davis:

"The ruling circles of America are expanding and intensifying repressive measures designed to nip revolutionary movements in the bud as well as to curtail radical-democratic tendencies, such as the movement to end the war ... The government is not hesitating to utilize an entire network of fascist tactics, including the monitoring of congressmen's telephone calls, a system of 'preventive fascism,' as Marcuse calls it, in which the role of the judicial and penal systems loom large."

If it is clear that philosophy is deemed dangerous, yet trivialized or marginalized, eliminated from the law school curriculum -- though it is taught to law students in Europe and Latin America -- then we need to wonder why this is so. How can it be useful to the U.S. power structure to have lawyers and judges who are so often lacking in philosophical sophistication and a population without the theoretical training to detect contradictory or incoherent messages from public officials or decision-making authorities? Why are we content to accept stupidity in ourselves or in high places? Why is it reassuring to us to believe in a "Forest Gump-like" simplicity in politicians and judges? If knowledge is power, should it surprise us that politicians are afraid of that power in the hands of the people?

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