Monthly Archives: November 2011

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The Human Condition And the Liberal Order

Martha Albertson Fineman, The Vulnerable Subject and the Responsive State, 60 Emory L. J. 251 (2010), available at SSRN.

Have philosophers of the liberal political order been correct in their understandings of the human condition? Moral arguments for liberalism have sometimes been difficult to separate from a standpoint from which liberal order appears as the archetype for social order generally: the human condition in its most exalted and successful form. Certain features of the Kantian legacy have provided much intellectual nourishment for liberal thinkers. Kant tells us: sapere aude! Lean not on others, but become autonomous! Neo-conservatives have seized upon this aspect of Kant’s thought, celebrating liberal society’s facilitation of the autonomous agent. Socialists, forced to engage with a liberal order that has triumphed over their deepest dreams, have emphasized a different dimension of Kant’s legacy, centring upon his ideas of equality and of justice.

Taking as its starting point ideas of equal protection under the United States Constitution, Martha Fineman’s article offers a criticism of recent writing in liberal theory for failing to understand the human condition in the right way. The most pressing characteristic of the subject of liberal politics is not autonomy, but vulnerability. One might say that neo-conservatives and those on the liberal left have misunderstood the nature of human vulnerability. For conservatives, vulnerability is connected with unfreedom. Full of ideals of personal liberty, they insist that as the state increases its organization of the welfare of the private sphere, people will become less resilient. Individuals must learn to stand on their own two feet if society is not to produce a class of dependent people. They have a point. Individuals will only become masters of their situation if they are allowed to create their own arrangements. Human freedom is a more ingenious solver of problems than the government’s legislative schemes. But liberal society itself does not equal the defeat of acquisitive and competitive instincts in human nature. Indeed, liberal society is unimaginable without a market that is also free to operate in uneven and cruel ways. The same neo-conservative philosophies thus also increase vulnerability, leading many to curse the inhumanity of a faceless system (the market) which remains harshly indifferent to their needs.

Socialists rightly criticize conservatives for their failure to respond to vulnerability. Many of the things that make people vulnerable (economic poverty, health, treatment of minority groups) do not abate in the face of increased opportunity. A social philosophy which leaves people to sink or swim will not render vulnerable individuals more resilient in the face of their vulnerabilities, nor force them to become resilient enough to overcome them. Autonomy for Kant was never a condition of being that human beings actually manifest, but an aspirational condition that we everywhere fail to manifest. Is it wise to found a politics upon a character (the autonomous subject) that does not exist? Socialists connect vulnerability with injustice. Following their instinct for greater organization, they demand that help must be available to those who are powerless to take charge of their situation. Difficult to argue with, there is however no doubt that this creates new focuses for dependence. Socialists frequently confuse vulnerability with welfare need. Alleviating the effects of certain forms of vulnerability, socialists have therefore encouraged people to become vulnerable in other ways, reliant on systems of support over which they have no meaningful control.

These arguments about the organization of liberal society are constantly at risk of equating liberal order with the removal of vulnerabilities. For conservatives, nothing matters more than the elimination of structures which inhibit freedom. The defeat of this last enemy will allow men to escape all others: surely no one who is the author of his own situation can be afflicted by vulnerabilities? More aware of the enormous range of human vulnerabilities, socialists prefer to put the power of the state behind the effort to mitigate them. Vulnerabilities are directly, rather than indirectly, politicized. Equality is the primary consideration: if vulnerabilities cannot be eliminated, they can at least be neutralized. But socialists may then foster a dream which propagates beyond the confines of socialist ideologies: the idea of the ‘ideally just society’. Everything will be put into the balance! Conservatives and socialists both see vulnerability in all too structural terms. Vulnerability is not natural but ‘done to us’. The right structure – or absence of structure – will overcome it.

Fineman’s article reminds us of the important truth that vulnerability is a permanent feature of the human condition. A politics genuinely attuned to the realities of the vulnerable subject must do more than create modifications to the operation of the market. Its efforts must be directed not simply at the removal of disadvantage or inequality, but must learn to deal with the effects of ‘systems of disadvantage that are almost impossible to transcend.’ (257) It must understand that autonomy is experienced unevenly, an aspiration that ‘cannot be attained without an underlying provision of substantial assistance, subsidy, and support from society and its institutions’. (260) Liberals who are serious about the merits of liberal society must do more to cultivate autonomy. They must come to realize that the success of their political ideals rests upon ‘a more active and responsive state.’ (id.)

In one sense, the development of a more responsive state is not the answer to the problem. Desperately necessary for addressing the growing ‘welfare vulnerabilities’ experienced in the West, a more interventionist philosophy for the state leaves society vulnerable to the danger that liberals have feared above all others: authoritarianism. Flying from the cruelty and indifference of invisible hands, we risk falling into the hands of protective institutions which (in Kant’s view) ‘everywhere’ place ‘restrictions on freedom’, and in the presence of which there is no end to the abuses to which we are vulnerable. Fineman is very aware of the problem (274), but wonders whether it is possible to work toward a conception of an active state in non-authoritarian terms. For myself, I remain pessimistic about this possibility. It would depend upon a means of overcoming another, equally ingrained and ineradicable dimension of the human condition to which Fineman is perhaps less sensitive: the presence of selfish and brutal instincts (in traditional Christian terms humanity’s ‘Fallen’ nature, which Augustine aptly calls the libido dominandi), which operate everywhere to subvert or corrupt even the best human motives and achievements. Political theory since the medieval period has lacked a proper sense of the extraordinarily narrow limits within which human efforts (especially collective ones) can meet with success. Fineman shares with most liberals a much more optimistic sense of what can be achieved. Her analysis is nevertheless relentlessly honest and challenging of what liberals have achieved. It raises important questions that many liberals have neglected or otherwise deflected by their analysis. Most of all, it reframes debates about equality and liberal justice in a new and fresh and urgent way. The importance of its vision should not be underestimated.


The Province of Jurisprudence Determined

Robin West’s new book on “normative jurisprudence” should have an immense and lasting effect on American discourse about the law. This volume should be important for two reasons and in two senses of the word should: first, because Professor West has great authority in the American legal academy as an early and much-admired proponent of feminist jurisprudence, law and literature, and critical legal studies; and second, because she is in this volume on almost every point and in almost every way correct about the purpose, value, and nature of jurisprudence and the law.

I distinguish two senses of the word “should” in this way because the central argument West makes is that although both the “is” (predictions about existing power and authority) and the “ought” (justice) matter in understanding the path of American jurisprudence, the latter is more important, and much overlooked.  West calls for a renewed “normative jurisprudence”, by which she means a jurisprudence dedicated to studying not primarily what the law is, but what it ought to be — how to make the law more just.

For the most part West’s advocacy restricts itself to mapping the province of jurisprudence — what “jurisprudents” (as she calls them) ought to be talking about — which is justice. She doesn’t say as much about what justice is or could be in practice. But simply to speak of “justice” or “normative” jurisprudence at all commits West to what she recognizes must amount to a revival of the secular natural law tradition. And she goes further: Robin West embraces the ancient doctrine that laws are and only can be just to the extent that they advance the “common, human good”. Brava!

When West insists that the study of jurisprudence (properly so-called) requires the pursuit of just laws through a better understanding of justice, the human good, and human nature, she repeats simple truths well stated and restated by Aristotle, Marcus Tullius Cicero, Thomas Aquinas, Thomas Paine, John Adams, and most students of the law in most cultures for most of human history — but oddly absent in the discourse of contemporary American lawyers and legal academics. The bulk of this volume is dedicated to gently and sympathetically explaining how and why American jurisprudence went off the rails — and eloquently, persuasively urging her colleagues back onto the right track.

This book will be influential in large part because West takes such trouble to address the fashions and obsessions of her errant contemporaries. The three main chapters engage (seriatim) proponents of what West identifies as the three currently dominant jurisprudential traditions of (1) natural law, (2) positivism and (3) critical legal theory, represented in American legal discourse by (1) Ronald Dworkin and Lon Fuller, (2) Oliver Wendell Holmes, Jr., and (3) Janet Halley — all indulgently chided for slipping away from the earlier and more ambitious jurisprudence of (1) Thomas Aquinas, (2) Jeremy Bentham, and (3) Peter Gabel and Roberto Unger.  What Aquinas, Bentham, Gabel and Unger have in common — West also mentions John Finnis — is their commitment to advancing a “moral brief”: their attempt to explain how laws and the world could be made to be more just and therefore less oppressive to real human beings.

This is indeed what lawyers, legislators, and law professors ought to be doing, but I cannot help feeling that in her effort to persuade by offering an “internal” critique of contemporary jurisprudence, flattering each theory’s intentions, West is too kind to legal positivism and the critical legal studies movement, and unfair to “liberals” such as Ronald Dworkin, who try to make American law live up to its declared ideals. Briefly, the father of legal positivism wasn’t Bentham, but Hobbes, and the essence of positivism has always been the promotion of stability and legal certainty at the expense of justice. Similarly, the essence of CLS was always the denial of (moral) truth and (legal) constraint, in order to empower ones allies and friends. (And the refusal to accept that any idea or concept has an “essence”, which is why I so delight in saying so.)

These last three sentences lost me half the readers who made it this far, which is why perhaps West’s approach is best — to show that in fact we all in the end agree (or would agree if we thought about it) that the only good purpose of law is justice.

This makes it doubly surprising when she turns on Dworkin for taking a similarly “internal” view of the United States Constitution and the common law, interpreting them in the interest of justice, and therefore legitimating (as she sees it) a profoundly unjust system. This criticism of constitutionalism needs to be argued for, not asserted, and leads to my one criticism of this book, which is that it too easily attributes the injustices of the United States to the American legal system, and not primarily to the judges, lawyers and above all law professors whose pernicious doctrines deny justice as the proper purpose of law and the state.

But in the end these differences are matters of tone and law school generation. West studied under liberals and saw the dangers of complacent constitutionalism. I studied under crits and saw the damage of self-indulgent antinomianism. What we both saw and what anyone must know who can see or hear or feel or live in America today is that injustice is everywhere and often supported and advanced by the very laws and legal system of which we are the priests and expositors in our law schools, courts and classrooms. To serve without question makes us complicit in oppression.

Robin West has done a tremendous service by reminding American lawyers that jurisprudence and the law must be normative to have any value at all — and that it matters which norms these are. “To willfully fail to act … is shameful” she tells us.  I agree.