"There is perhaps no clearer testimony to the loss of the public realm in the modern age than the almost complete loss of authentic concern with immortality, a loss somewhat overshadowed by the simultaneous loss of the metaphysical concern with eternity."
-Hannah Arendt, The Human Condition,
Hannah Arendt was one of the first to remark upon the loss of the public realm, or what Jürgen Habermas called the public sphere. As indicated by the terms realm and sphere, along with related phrases such as public space and public sector, we are referring here to a kind of environment, or as Arendt puts it, "the world itself, in so far as it is common to all of us and distinguished from our privately owned place in it" (p. 52). The private realm, the subject of a previous post of mine (The Deprivations of Privacy) is defined in relation (and opposition) to the public, but both are differentiated from the natural environment according to Arendt. Both are human artifacts, human inventions:
To live together in the world means essentially that a world of things is between those who have it in common, as a table is located between those who sit around it: the world like every in-between, relates and separates men at the same time. (p. 52)
The table is an apt metaphor, as it has the connotation of civilized discourse, and a willingness to sit down for peaceful negotiation. Indeed, it is much more than a metaphor, as the table does create a shared space for individuals, a medium, if you will, around which they can communicate. But the table also keeps individuals separate from one another, establishing a buffer zone that allows for a sense of safety in the company of individuals who might otherwise be threatening. Sitting at a table restricts the possibilities of sudden movement, providing some assurance that the person seated across from you will not suddenly spring at you with sword or knife in hand, especially if both parties keep their hands visible on the table top. No wonder, then, that as the practice of sitting around a table for a meal emerges in the Middle Ages, it becomes the focal point for what Norbert Elias refers to as the civilizing process.
The table is a medium, an in-between, as Arendt puts it, and each medium in its own way serves as a means by which individuals connect and relate to one another, and also are separated and kept apart from one another. In Understanding Media, Marshall McLuhan expressed the same idea in saying that all media, meaning all technologies and human innovations, are extensions of some aspect of individuals, but at the same time are amputations. As I have explained elsewhere, the medium that extends us into the world comes between us and the world, and in doing so becomes our world. Or as I like to put it, with apologies to McLuhan, the medium is the membrane.
The public realm then is a shared human environment, a media environment. As Arendt explains,
everything that appears in public can be seen and heard by everybody and has the widest possible publicity. For us, appearance—something that is being seen and heard by others as well as by ourselves—constitutes reality. (p. 50)
Paul Watzlawick has argued that our reality is constructed through our communication, rather than mere reflected or represented by our messages. And this means that our reality is shaped by our means of communication, our media. It is through publicity that we create the public realm. And for the public realm to exist, there must also be the possibility for some communication to take place privately, in a context where it cannot be seen and heard by everybody, where there are barriers to people's perception and their access to information, what Erving Goffman referred to as the back region.
The public realm is not a media environment we typically associate with tribal societies, where the distinction between public and private is, for the most part, non-existent. Rather, it is strongly tied to the city as a human environment (and a medium of communication in its own right). Lewis Mumford insightfully observed that cities are a type of container technology, indeed the container of containers, and what they contain includes great concentrations of population. As settlements evolved into the first urban centers in the ancient world, they gave rise to the first true crowds and mobs, and also to audiences made up of people who do not necessarily know one another, or have strong social ties to each other.
These new kinds of audiences required a new form of communication: public address. They required new kinds of physical environments: the agora, the forum, the marketplace. And they required new forms of education: the art of rhetoric.
The invention of writing is intimately bound up in all of these developments. Without reasonably well-developed systems of notation, human populations were not able to handle the complexity of large populations. In tribal societies, as population increases, groups split up in order to keep their affairs manageable. Writing, as a container for language, whose primary form is the spoken word, develops side by side with the city as container, and allows for the control and coordination of large populations and diverse activities. And writing, in allowing language to be viewed and reviewed, made it possible to refine the art of public address, to study rhetoric and instruct others in the techniques of oratory, as did the Sophists in ancient Greece. It is no accident that the introduction of the Greek alphabet was followed by the first forms of study, including rhetoric and grammar, and by the first forms of democracy.
Writing also has the peculiar effect of introducing the idea of the individual, of breaking people apart from their tribal, group identity. The ability to take one's thoughts, write them down, and observe them from the outside, made it possible to separate the knower from the known, as Eric Havelock put it, which also separated individuals from their traditions.
Written law, beginning with Hammurabi and Moses, took judicial matters out of the concrete realm of proverbs and parables, and reasoning by analogy, opened the door to the view that everyone is equal, as an individual, before the law. The fact that literacy also facilitated increasingly more abstract modes of thought also was of great importance, but the simple act of reading and writing alone, in isolation, had much to do with the genesis of individualism.
The origin of the public realm is closely tied to the medium of the written word, in highly significant but limited ways. Script gave us the civic public, rooted in rhetoric, but it was the printing revolution in early modern Europe that made the public intro a national, mass phenomenon. As McLuhan noted in his preface to The Gutenberg Galaxy,
Printing from movable types created a quite unexpected new environment—it created the PUBLIC. Manuscript technology did not have the intensity or power of extension necessary to create publics on a national scale. What we have called "nations" in recent centuries did not, and could not, precede the advent of Gutenberg technology any more than they can survive the advent of electric circuitry with its power of totally involving all people in all other people. (p. ii)
A reading public is quite different from a listening public, as readers are separated in time and space from one another, and this form of mediation also had the effect of making individualism a ruling ideology. And yes, Habermas did place a great deal of emphasis on people gathering in public places like coffee shops to discuss and debate the issues of the day, but they did so based on what they read in print media such as newspapers, pamphlets, and the like. Moreover, historian Elizabeth Eisenstein explained in The Printing Press as an Agent of Change, the printers' shops were the first places that people gathered for such intellectual exchanges, long before they gravitated to the coffee shops and taverns. The point is that the content of these discussions were based on typographic media, the mindset of the discussants was shaped by print literacy, and both were situated within the print media environment. Within such an environment, a population of individuals could gain common access to ideas and opinions through print media, which in turn could provide the basis for political action; in this way publics came into being.
Publics were formed by publicity, and publicity was achieved through publication. As much as books, pamphlets, catalogs, calendars, periodicals, and all manner of ephemera were the products of the printing press, so too, as McLuhan observed, was the reading public. Print technology gave us our first form of mass communication, characterized by wide and relatively rapid dissemination of multiple, identical copies of the same text, a democratizing process, as Walter Benjamin observed.
But printing also created a new sense of immortality, of the author's words living on through the ages, and of posterity as the ultimate judge. Elizabeth Eisenstein explains that the very multiplication of texts, however perishable any single copy might be, established what she referred to as the preservative powers of print far beyond anything previously known. This idea of immortality goes hand in hand with the rise of a new kind of historical consciousness, which also emerged out of print culture.
Eternity, by way of contrast, is situated outside of historical time, within what Mircea Eliade calls sacred time. It is a time that looks back towards the moment of creation or a golden age. Through ritual, we can step out of the profane time of everyday life, and in enacting the myth of eternal return enter the sacred time that intersects with all of history—in this sense always a part of it and yet at the same time apart from it.
Traditional cultures look backward to creation or the golden age as a time superior to the present, a time they strive to reclaim. Oral cultures are particularly associated with a cyclical understanding of time. The invention of writing makes possible first chronology, then historical narrative, and this opens the door to the idea of progress. The shift begins with the biblical narrative in ancient Israel, and the secular history writing of ancient Greece and Rome. But a complete reversal in orientation from looking to the past as the ideal towards anticipating the future as a continual process of getting better, perhaps culminating in utopia, is closely associated with the printing revolution and the modern world it gave rise to. This is, in turn, superseded by a present-centered orientation brought on by the electronic media, as I have discussed in On the Binding Biases of Time. The instantaneity and immediacy of electronic communication not only moves our focus from history and futurity to the present moment, but it translates the remembered past and the anticipated future into the present tense, the now of the computer program and digital simulation.
Arendt's insight that the loss of a concern with immortality is intimately bound up with the loss of the public realm implies a common denominator, specifically the electronic media environment that has superseded the typographic media environment. If literacy and print go hand in hand with citizenship, civics, and the public realm, what happens when these media are overshadowed by electronic technologies, from the telegraph and wireless to radio and television now to the internet and mobile technology?
We still use the word public of course, but we have seen a great blurring of the boundaries between public and private, the continuing erosion of privacy but also a loss of the expectation that dress, behavior, and communication ought to be different when we are in a public place, and that there are rules and obligations that go along with being a part of a public. And we have experienced a loss of our longstanding sense of individualism, replaced by an emphasis on personalization; a loss of citizenship based on equality, replaced by group identity based on grievance and all manner of neo-tribalism; a loss of traditional notions of character and personal integrity, replaced by various forms of identity construction via online profiles, avatars, and the like; the loss of separate public and private selves, replaced by affiliations with different lifestyles and media preferences.
As consumers, members of audiences, and participants in the online world, we live for the moment, and we do so with disastrous results, economically, ethically, and ecologically. Arendt suggests that, "under modern conditions, it is indeed so unlikely that anybody should earnestly aspire to an earthly immortality that we probably are justified in thinking it is nothing but vanity" (p. 56). Along the same lines, Daniel Boorstin in The Image argued that the hero, characterized by greatness, has been replaced by the celebrity, characterized by publicity, famous for appearing on the media rather than for any accomplishments of historical significance. Heroes were immortal. Celebrities become famous seemingly overnight, and then just as quickly fade from collective consciousness. Heroes, as Boorstin describes them, were known through print media; celebrities make up the content of our audiovisual and electronic media. These are the role models that people pattern their lives after.
Arendt explains that a public realm " cannot be erected for one generation and planned for the living only; it must transcend the life span of mortal men" (p. 55). And she goes on to explain,
It is the publicity of the public realm which can absorb and make shine through the centuries whatever men may want to save from the natural ruin of time. Through many ages before us—but now not any more—men entered the public realm because they wanted something of their own or something they had in common with others to be more permanent than their earthly lives. (p. 55)
Without this concern with a public realm that extends across history from the past into the future, what becomes of political action based on the common good, rather than private interests?
With the loss of any concern with immortality, have we witnessed not merely the erosion, but the irrevocable death of the public realm?
And perhaps most importantly of all, without the existence of a public, can there still exist, in something more than name only, a republic?
Ronald Dworkin died yesterday, Thursday. He was 81.
For much of my early career as someone engaged in the question of justice, Ronald Dworkin was one of my imaginary antagonists. Reading Dworkin was eternally frustrating. I was consumed with the inevitable temptation to take on Dworkin’s unwavering apologies for legal power. Dworkin was the great defender of the morality of the state, an idea that I had a hard time accepting. He was an advocate for legitimacy of legal rule, which often seemed ungrounded and illegitimate. Above all, his magnum opus, Law's Empire, is a celebration of the imperial grandeur of law, when law often seemed to my youthful and often angry eye to be rather the embodiment of power, interest, and money.
For Dworkin, ‘we’—lawyers, judges, and philosophers of Law’s Empire—are engaged in the utopian project of purifying law. And law, in turn, purifies us. In being “subjects of law’s empire, liegemen to its methods and ideals,” we bridle our action and reasoning with the constraints of legal thinking. What law requires, above all, is that our actions be made consistent with the foundational moral principles embodied in and by the community. Interpreted correctly—that is, observing the integrity of the moral world—law leads to decisions that enrich a “narrative story” of who we are. It is a story that, for Dworkin, makes our practices and institutions “the best they can be.”
Law in Dworkin’s writing embodies a “flourishing legal system” and carries with itself the possibility of securing the utopian and political ideals of fairness, justice, and procedural due process. Lawyers, judges, and especially legal philosophers, are the people responsible for dreaming utopian dreams—dreams “already latent in the present law”—and working to bring about those dreams through law and the legal system. Law, therefore, cannot simply be conventional and self-referential; it must hold within it the promise for progressive societal change. Left, utopian politics, Dworkin states, is law. Or, in other words, law is the center of all political and ethical progress in modern civilized states.
It is not hard to point out inconsistencies and tensions in Dworkin’s philo-legalism. Dworkin’s many critics reveled in pointing to law’s promises of equality broken and its ideal of justice contradicted. The law does not always act for good. But that means that those who would defend law’s empire have a choice. They can defend the law pragmatically and politically—arguing that law is simply a tool in the larger political struggle for justice. Or they can seek to weave the entirety of the law—good and bad—into an overarching moral universe—imagining law as an ideal that can and should in its nature propel us fitfully toward a more just world. Dworkin took the latter approach. The more I saw the impossibility of his project, the greater became my respect for the nobility and grandeur of his effort.
Much of Dworkin’s academic work is full of abstract theory. Perhaps his most enduring contribution, however, is a single metaphor. Law, Dworkin writes, is like a chain novel. And judges, he argues, are “authors as well as critics” who participate in the collaborative writing of the novel that is the law. The chain novel—in which “a group of novelists writes seriatim”—unfolds chapter by chapter, each written by a different author. Each author is required both to fit her interpretation to what has come before—i.e. to make an interpretive judgment about the text under the assumption that it was written by a single author—and to judge which of the possible interpretations makes the work in progress the best it can be. The judgment involves a substantive aesthetic choice; Dworkin insists that this choice is not arbitrary. It is constrained by the structure, plot, and style of the text and authors that have come before.
Dworkin’s claim is that in interpreting and authoring the chain novel, each successive author is not limited to the dichotomous choice between finding the meaning in the text and inventing the meaning of the text. Instead, “each novelist aims to make a single novel.” To do so is not simple and will involve a multifaceted engagement with the text and the principles of what has come before. The author must “find layers and currents of meaning rather than a single, exhaustive theme.” And yet, he “cannot adopt any interpretation, however complex.” Each new interpretation and creation must make the entirety of the chain novel fit together in the best way possible.
Similarly, each judge who decides a case must judge with what Dworkin calls integrity. This means that every judge must find in what has come before the “principle” that “is instinct in law.” When a judge does this, “he reports not a simple-minded claim about the motives of past statesmen, a claim a wise cynic can easily refute, but an interpretive proposal: that the principle both fits and justifies some complex part of legal practice, that it provides an attractive way to see, in the structure of that practice, the consistency of principle integrity requires.” Interpretive practice requires an author to distinguish between continuing the novel and beginning it anew. Only judgments that continue the law’s story are judgments with integrity.
Dworkin’s analogy of law to a chain novel can be read, sympathetically, as saying: look, we have this community with these values and within it neutral judgments based on laws are impossible. If we want law, we better figure out a way to make those judgments possible or we are back to justifying law as the rule of those with power. Law as integrity is such a way. You external skeptics can go around saying our community is contingent and constructed but sooner or later you are going to have to choose between nihilsim and ethical engagement.
What Dworkin yearned for was a theory of interpretation that could assimilate the entirety of the past into a common and clear narrative of the present. His model judge, Hercules, was the judge whose power of interpretation was so fecund as to master the mass of judgments, facts, and decisions into a single, best, and just narrative.
That such a herculean task is not possible—and that defending such a stance could serve as a smoke screen for the interests and power behind the law—was something Dworkin refused to concede.
In the last decade Dworkin turned from abstract legal philosophy to popular writing, which often appeared in the New York Review of Books. His writing about current issues and cases was clear, moral, and passionate—if also quite predictable. Somehow, Dworkin always found that judging with integrity required decisions in accord with a fundamentally mainstream-left-of-center point of view.
Whatever his limits, Dworkin stood for the undying idea that law—whatever its shortcomings—should aspire to do justice. For this reason alone, if nothing else, we should celebrate him.
The best obituaries so far are found in The Guardian and The New York Times. But better yet, open up your old volume of Law’s Empire. And if you don’t have it handy, here is a version you can navigate on the web.
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