Does a cross in a courtroom infringe on the religious freedom of non-Christians involved in legal proceedings? Does it violate the principles of a secular state? These questions have recently arisen in Germany thanks to the trial of Beate Zschäpe. Zschäpe is the one surviving member of the National Socialist Underground (NSU), a band of neo-Nazis that allegedly murdered eight people of Turkish descent, one person of Greek descent, and one non-immigrant German police officer in a string of premeditated attacks from 2000 to 2007.
Zschäpe is currently standing trial at the upper court of appeals in Munich, and like other legal chambers in the state of Bavaria, its décor includes a modest wooden cross.
This cross did not evoke comment from the judge and lawyers in the run-up to the trial, and it was not an initial source of concern for the victims’ immediate relatives, who are acting as joint plaintiffs in the case. But it did draw the ire of Mahmut Tanal, a member of the Turkish parliament who attended the first day of the proceedings. Tanal, who is affiliated with the secularist Republican People’s Party, argued that a religious symbol like a cross has no place in the courtroom and should be removed immediately. In his estimation, the cross not only violated the principle of state neutrality in religious affairs, but also constituted a “threat” for the Muslim relatives of the Turkish victims.
Several conservative politicians in Germany responded to his complaints with sharply worded defenses of the cross. Norbert Geis, a parliamentarian for Germany’s Christian Social Union (CSU), announced that “the cross belongs to our culture” and urged Tanal to display more respect for the Christian influence on German life. Günter Krings, a member of parliament for the Christian Democratic Union (CDU), contended that the cross “symbolizes brotherly love and tolerance and is an expression of our Christian-Western roots.” And Günther Beckstein (CSU), Bavaria’s former Minister President, insisted that it was important to make clear, even in a courtroom, that “God stands above the person.”
The matter might have ended there if one of the joint plaintiffs, Talar T., had not agreed with Mahmut Tanal and filed a motion for the cross to be removed. Talar T. insisted that he had a pressing claim “not to be exposed to the influence of a religion—even in the form of a symbol—by the German state.”
Significantly, there is no established legal precedent on this and related matters. The State Court in Saarbrücken ruled in 2001 that a cross must be removed from a courtroom when a concerned party believes that its presence injures her or his right to religious freedom. But it is not clear whether this judgment would apply to courts in Bavaria, especially when Germany’s federalist system grants individual states considerable legal and policymaking autonomy. Indeed, it is precisely this system that has allowed Bavaria to hang crosses in its courtrooms when most other German states avoid and even disavow the practice.
We should not place undue emphasis on this aspect of the trial, which is highly charged for reasons that have nothing to do with the presence or absence of a cross. After all, German prosecutors accuse Zschäpe and her NSU compatriots of a string of xenophobic if not racist murders, and they charge that incompetence at the highest levels of German law enforcement allowed many if not all of these murders to occur. Nevertheless, I would argue that the contention and uncertainty surrounding the cross remain significant in their own right, for they speak to important arguments about the nature of secularism as a modern historical phenomenon.
In a series of recent articles and a concluding book, the University of Chicago anthropologist Hussein Agrama has proposed that secularism, contrary to the normative claims advanced in its favor, is not an institutional framework in which religion and politics are clearly separated. Instead, secularism consistently fashions religion as an object of governmental management and intervention, and it therefore expresses the state’s sovereign power to decide “what count should count as essentially religious and what scope it can have in social life.” Yet in the act of exercising this power, the secular state repeatedly blurs the very line between religion and politics that it aims to draw. For example: if a state insists that religiosity may only be expressed in the private sphere, what is the nature and extent of that sphere? Does it only include the home? Or does it also encompass communal places of worship, or believers’ choice of clothing and other forms of adornment? Is not the demarcation of a private realm of legitimate religious expression itself a political act?
In the end, Agrama argues that secularism is not a solution that neatly defines religion’s place in contemporary life. Instead, it constitutes a problem-space “wherein the question of where to draw a line between religion and politics continually arises.” Moreover, this question cannot be easily ignored, for it is inextricably bound up with the distribution of liberal rights and freedoms.
In Germany’s case, the state and federal governments, including the one in Bavaria, have adopted the principle that the state is independent of religious institutions and should not invoke or favor one religious tradition over another. The state and federal governments have also affirmed the right of all citizens to express their religious beliefs without undue interference from the state. These commitments are basic elements of German liberal governance, and the presence of the cross in Bavarian courtrooms would appear to complicate if not directly contradict them. To use Agrama’s language, the cross blurs the line between religion and politics, and it raises questions about the substance of the religious freedom that citizens may claim.
As my preceding discussion indicates, proponents of the status quo in Bavaria have tended to finesse these difficulties by insisting that the cross is merely a “symbol.” The cross, they imply, evokes a tradition that has exerted a formative influence on culture and politics in Germany and humanist thinking more broadly, but its presence is ultimately incidental to the legal proceedings and judgments that the state initiates. Moreover, the cross does not “threaten” non-Christians because it does not enshrine Christianity as the state’s religion, and it does not infringe on citizens’ freedom of religious belief or their equality before the law. To an important extent, this logic would seem to deny that the cross, at least in this context, is a “religious” artifact at all.
Of course, we might well wonder whether a symbol that is incidental to legal proceedings really needs to be present in a courtroom in the first place. More importantly, though, we might wish to question the innocence of the cross given the larger context of the case against Beate Zschäpe.
The NSU murders have led many migrants and post-migrants, including those from Muslim-majority countries like Turkey, to doubt their full inclusion in the German nation and polity. Moreover, the climate of lingering distrust surrounding Islam has only sharpened many Muslims’ perception that their faith is not a welcome and integral aspect of German life. Thus, even if the inclusion of a cross is not meant to be a “threatening” gesture, it is hardly a neutral, merely “symbolic” one either.
In the wake of the Arab Spring, many Euro-American commentators have wondered whether the new governments in Egypt and other Middle Eastern countries will be “secular” or “religious.” At least some of them have also maintained that “secular” governments will further the region’s democratization and long-term stability. To my mind, this line of thinking presumes that states in Europe and North America are exemplary polities which have more or less resolved the perplexities of secularism. But if the recent debates over the cross in Germany are any indication, such a judgment is premature if not complacent and self-serving. Even in those polities where secularism seems firmly established, uncertainty and dissension over religion persist. Indeed, such a condition may be the norm that defines secularist structures of power, not their fleeting and aberrant exception.
NOTE: as I was finishing this post, the U.S. Supreme Court announced that it will rule on the constitutional status of prayer in town board meetings, based on a case from Greece, New York. Many of my remarks on the Zschäpe trial are pertinent in this instance as well.
"Men=earthbound creatures, living in communities, endowed with common sense, sensus communis, a community sense; not autonomous, needing each other’s company even for thinking (“freedom of the pen”)=first part of the Critique of Judgment: aesthetic judgment."
-Hannah Arendt, Lectures on Kant's Political Philosophy
This fragment from Arendt’s Lectures on Kant’s Political Philosophy is easy to overlook, as upon first glance, it seems to do little more than restate her reliance on Kant’s concepts of the sensus communis and “enlarged thought” to define judgment. These lines are notes she has jotted down, expressing early sketches on the finished product of judgment as the idea that judgment is the mental operation of “placing [oneself] at the standpoint of others” to become an individual of “enlarged thought."
But upon closer examination, a puzzle emerges. In these lines, the sensus communis and the community that is presumed in this sense seems to encroach upon thinking—that faculty that Arendt insists occurs only in isolation. Thinking is the silent dialogue, the “two-in-one” that exists only when I am alone, for in appearing to others, “I am one; otherwise I would be unrecognizable.” In these notes in the Lectures, however, Arendt seems to reject the very terms by which she herself establishes the category of thought, undermining the boundary between the thinking self and the community, which she herself establishes. (“You must be alone in order to think; you need company to enjoy a meal.”)
One obvious solution to the puzzle is to say that the community sense arises from imagining others’ standpoints, rather than from actual others who could constitute “real” company. But given how often Arendt describes the two-in-one of thinking as a “duality” by which I keep myself company, drawing the line between imagined others and actual others seems too crude to capture what Arendt means by company. We do not need others, imagined or otherwise, to have company, as one can—and should be—one’s own company.
Another solution, and the one that has come to define Arendtian judgment, has been simply to ignore the solitude that thinking imposes onto judgment and to instead describe the operation of the latter as an imagined discourse that one might have with others. Here, judgment seems to introduce into the two-in-one of thinking other individuals such that it is not myself, but other people, who keep me company in thought.
But this characterization of judgment should make careful readers of Arendt uncomfortable, for in reducing the “thoughtfulness” of judgment to a dialogue with others in their specific circumstances, we not only veer dangerously close to empathy, but also lose conscience and responsibility as gifts that accompany thinking in its solitude. Without conscience telling us that we must live with ourselves, it becomes too easy to lose in the company and noise of others who we are and what we do. It becomes too easy to perform tasks that exposed in the solitude of thought; we might not be able to live with.
What then could Arendt mean when she says that we might need each other’s company for thinking? I submit that the interpretive problems that I’ve so far identified emerge from associating the “general standpoint” of enlarged thought too much with the visiting of other standpoints at the expense of another prominent metaphorical figure in Arendt’s Lectures—the figure of the Judge. As Arendt acknowledges, the “whole terminology of Kant’s philosophy is shot through with legal metaphors: it is the Tribunal or Reason before which the occurrences of the world appear.” It is as an impartial judge in a tribunal, not as an individual who engages or empathizes with the specific circumstances of others, that one achieves a “general standpoint.” In one’s position as a judge, one gives up not only one’s own “factual existence,” but also factual existence as such. The judge “lays down his verdict” not with the multiplicity of human life in mind, but rather with the impartiality that comes from giving up “the dokei moi, the it-seems-to-me, and the desire to seem to others; we have given up the doxa, which is both opinion and fame.” The judge is not impartial because he has seen all the partial perspectives of the world, but because he is importantly isolated from any of these perspectives.
But despite this language that seems to move us away from what we usually see as Arendt’s politics, Arendt chose to focus on Kantian judgment, shot through with all of its language of reason and the law, to develop a political understanding of judgment. She did so, I submit, because she saw that the courtroom also demands the openness and publicity that is the hallmark of the political. The impartiality of the judge lies in the simple fact that for the judge and the court, “justice must not only be done but must be seen to be done.” And when it comes to judgment properly understood, the audience is the world itself with all of its multiplicity and plurality, which would overwhelm any individual’s attempt even to begin imaginatively to apprehend, much less visit, the universe of perspectives it contains.
One must simply accept this plurality as a sheer given and a fact, acknowledging that such a world will be the tribunal in which one will be judged. To again borrow words that Arendt used in a different context, judgment is fundamentally about the willingness to “share the earth” with whoever happens to occupy it such that “member[s] of the human race can be expected to want to share the earth” with us as well and be willing to judge us. Judgment does not require that we attempt to know the specific circumstances of these others. In fact, it demands that we do not attempt to understand or know it, and instead to accept and reconcile ourselves to the fact that there are others and, more importantly, that it is in front of an unknown, cosmopolitan world that contains them that we will be seen and judged.
Eichmann lacked judgment because he refused to live in such a world, choosing instead to follow a regime whose policy it was to try to remake this world more familiar and friendly to it. And as difficult or impossible as the project of the Third Reich was to bring to fruition, carrying it out certainly did not require the bravery demanded in politics. The cowardice of the Nazis was evident in the trials of Nuremburg and Jerusalem, as well as in their reaction to resistance even during the war, when the “courage” of the soldiers “melt[ed] like butter in the sun” in the face of Danish resistance. The courage of politics, the courage of judgment demands that one be able to stand in front of and be willing to be judged by world full of strangers whose particular perspectives, standpoints, ideas, or circumstances we could not begin to appreciate.
"[T]here is another even more cogent reason for [the layman] concerning himself with a critical situation in which he is not immediately involved. And that is the opportunity, provided by the very fact of crisis—which tears away facades and obliterates prejudices—to explore and inquire into whatever has been laid bare of the essence of the matter…"
-Hannah Arendt, "The Crisis in Education"
It is often said that the Chinese word for “crisis,” or weiji, means a combination of “danger” and “opportunity,” and every so often the trope appears in the highest echelons of American politics. Linguist Benjamin Zimmer cites its frequent use by John F. Kennedy in speeches leading into the 1960 presidential election; and more recently, Al Gore in 2006-7 used weiji to anchor both his Congressional testimony on the problem of climate change, and his Vanity Fair article (“The Moment of Truth”) concerning the same. During her January 2007 trip to the Middle East, then-Secretary of State Condoleezza Rice told reporters of conditions in the region, "I don't read Chinese but I am told that the Chinese character for crisis is wei-ji, which means both danger and opportunity…And I think that states it very well. We'll try to maximize the opportunity."
This use of weiji has irked some linguists. Zimmer calls Gore’s Chinese riff a “linguistic canard” and writes that in all these cases, “[T]he trope was deployed for similar effect: as a framing technique for describing current perils posed by a particular world crisis and future possibilities for resolving that crisis. Thus it allows the speaker to shift rhetorical footing from pessimism to optimism, ending with an upbeat tone and a call to action.” Victor H. Mair, a professor of Chinese language and literature at UPenn, identifies a “fatal” error of interpretation that centers on the second character, ji, which rather than “opportunity,” here means something like “incipient moment; crucial point (when something begins or changes).” Thus, “A weiji indicates a perilous situation when one should be especially wary. It is not a juncture when one goes looking for advantages and benefits.”
To those still seeking New Age wisdom in the danger/opportunity coupling, Mair points to the old Greek usage. Modern “crisis” stems from the Greek krinein, meaning to separate, decide, or judge. The word reached Middle English in the 15th century via Latin, and the Oxford English Dictionary says that by mid-16th century it meant judgment related specifically to sickness and the sudden change of disease (The Online Etymology Dictionary cites Hippocrates using krinein in the same way.). Soon thereafter it referred more generally to “A vitally important or decisive stage in the progress of anything; a turning-point,” as well as judgment or decision simply, and “A point by which to judge; a criterion; token; sign.”
In moments of crisis the important connection between “danger” and “opportunity” centers on their common source in a disruption of normal order, a disruption that entails instability and volatility, but also openings to previously precluded or unimagined possibilities for action. The moment of crisis is transient, and in political matters the statesman’s virtue is two-fold—not only to manage (or “seize”) a crisis situation, but also to recognize the situation when it arises (See Lenin, “The Crisis Has Matured,” September 29, 1917) or foresee its coming. By recognizing a crisis for what it is—a moment of decision—we can wrest the decision to ourselves.
Hannah Arendt’s essay “The Crisis in Education” seems to offer a different understanding of social and political crisis—one less concerned with critical moments and more concerned with the “elemental structures” of modernity that “crystallize” over time and manifest today in a variety of ways. The essay starts by observing that “The general crisis that has overtaken the modern world everywhere and in almost every sphere of life manifests itself differently in each country, involving different areas and taking on different forms.” In America the general crisis has assumed the form of “the recurring crisis in education that, during the last decade at least, has become a political problem of the first magnitude[.]” This introduces a recurring theme in the essay, that while examining a particular political crisis in America, the essay is also—and perhaps more fundamentally—about “a more general crisis and instability in modern society.”
This more general crisis is the modern crisis of authority that is “closely connected with the crisis of tradition…the crisis in our attitude towards the realm of the past.” Seeing how this bears on the crisis of education requires examining “whatever has been laid bare of the essence of the matter, and the essence of education is natality, the fact that human beings are born into the world.” At the same time, Arendt writes, “Basically we are always educating for a world that is or is becoming out of joint,” a world that, because it is made by mortals, “runs the risk of becoming as mortal as they.” And thus—because the essence of education is natality, and the “newcomers” need a world in which to live and act, but the world in which we live and act constantly “is or is becoming out of joint”—the problem of education concerns how to stabilize this world for the “newcomers” without also stifling their capacity to renew or even drastically alter it: “Exactly for the sake of what is new and revolutionary in every child,” Arendt writes, “education must be conservative; it must preserve this newness and introduce it as a new thing into an old world[.]”
Here the crisis of modernity and education converge—for the process of giving students a world has historically relied on the authority of tradition and the past. But if these authorities can no longer be relied upon, then what remains? Stunningly, Arendt locates a new authority for modern conditions in the teacher’s “assumption of responsibility for that world.”
Arendt’s account of the American crisis of education illustrates the connection between local political crises around the world and a larger civilizational crisis. Indeed, a central goal of “The Crisis in Education” is to highlight the blind spots in understanding that result when one regards “a local phenomenon” like the crisis of education as “unconnected with the larger issues of the century, to be blamed on certain peculiarities of life in the United States” (as for example its history of “continuous immigration”). To localize such problems is tempting because “However clearly a general problem may present itself in a crisis, it is nevertheless impossible ever to isolate completely the universal element from the concrete and specific circumstances in which it makes its appearance.” But while “There is always a temptation to believe that we are dealing with specific problems confined within historical and national boundaries and of importance only to those immediately affected”— “It is precisely this belief that in our time has consistently proved false” (emphasis added).
This false belief prevents us from, among other things, ascertaining “which aspects of the modern world and its crisis have actually revealed themselves” (in a local crisis)—that is, “the true reasons that for decades things could be said and done in such glaring contradiction to common sense.” And events continue in this manner due in part to the illusion that situation-specific and/or scientific solutions, which may (or may not) satisfactorily solve local problems in the short term, actually touch upon the heart of the matter. The illusion manifests in “repeat performance” of the crisis, “though perhaps different in form, since there are no limits to the possibilities of nonsense and capricious notions that can be decked out as the last word in science.” Arendt’s criticism of the futility of pragmatist pedagogy in addressing the crisis of authority in the classroom represents a case in point.
In recent months and years, few words have achieved more prominence in Washington politics than crisis. As recently as February 3, President Obama said in a CBS interview that “Washington cannot continually operate under a cloud of crisis.” And following the latest inconclusive negotiations over the country’s fiscal situation and looming (depending on who you ask) “debt crisis,” a recent article in the Huffington Post bemoans the “pattern of a Congress that governs from crisis to crisis” that has become “all too familiar—and predictable. The trend goes something like this: As a deadline approaches, Republicans repeat their calls for spending cuts. Democrats accuse Republicans of hostage-taking. A short-term agreement is then reached that averts economic calamity, but ultimately kicks the can down the road for yet another fight.”
What does it mean for a Congress to routinely “govern from crisis to crisis”? Does “governing by crisis” constitute functioning politics, or a political crisis of the first order? In The Crisis in Education Arendt writes that “the very fact of crisis…tears away facades and obliterates prejudices,” and allows one “to explore and inquire into whatever has been laid bare of the essence of the matter.” But to state the obvious, if “the very fact of crisis…tears away facades and obliterates prejudices,” then such tearing and obliteration requires that “the very fact of crisis” be recognized and acknowledged. In the current governing crisis in Washington, what fundamentally new, to say nothing of unprejudiced, questions—other than how Washington’s two parties will “compromise” and avoid self-destruction—have been asked? Who has spoken seriously, truthfully, and critically, in an effort to lay bare the essence of the matter?
At a time when happenings in Washington “could be said and done in such glaring contradiction to common sense” (How else are we to understand “governing by crisis”?), Hannah Arendt reminds us to seek out and overcome those “prejudices” and “preformed judgments”—including the obligatory moves to technocratic and ideological narratives—that preclude the introduction of new questions and corresponding answers that require direct and original judgments and, perhaps most importantly, thinking and responsibility. Counterintuitively, in such situations Arendt highlights the importance of questions rather than solutions in confronting political crisis—that the proper response to crisis requires thinking rather than knowledge. To narrowly search for efficient policy “solutions” or ideological “compromises” based on prior prejudices simply misses the point.
If crisis does not seem especially urgent to Arendt in “The Crisis on Education,” she does warn that, in the end, “unreflective perseverance…can only…lead to ruin.” Ironically, one of the prejudiced assumptions that seems most prevalent in Congress today—that abandoning one’s prejudices and preformed judgments spells political death—may be most indicative of our current political crisis.–—And yet if, as Arendt suggests on more than one occasion, one answer to the modern crisis of authority lies in the “assumption of responsibility”—be it responsibility for the world in the classroom, responsibility for extraordinary action in politics (Arendt once attributed Lenin’s revolutionary authority to his singular willingness to “assume responsibility for the revolution after it happened.”), or even responsibility for truthful speech (as opposed to “mere talk”) and action in normal, everyday politics—then notwithstanding whatever the American crisis is, whoever has the courage to speak truthfully and accept political responsibility may wake up to find real power and opportunity suddenly within his grasp.
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.
Louis Pasteur once wrote:
I see everywhere in the world, the inevitable expression of the concept of infinity…. The idea of God is nothing more than one form of the idea of infinity. So long as the mystery of the infinite weighs on the human mind, so long will temples be raised to the cult of the infinite, whether it be called Bramah, Allah, Jehovah, or Jesus…. The Greeks understood the mysterious power of the hidden side of things. They bequethed to us one of the most beautiful words in our language—the word ‘enthusiasm’—En Theos—“A God Within.” The grandeur of human actions is measured by the inspiration from which they spring. Happy is he who hears a god within, and who obeys it. The ideals of art, of science, are lighted by reflection from the infinite.
To bear a god within is not an easy task for us mortals. The god within—even more so than the god without—demands to be obeyed. Having a god inside us—or Socrates like a daimon on our shoulder—is no recipe for happiness.
It can lead to unbearable obligation and even to martyrdom. And, if the god is a muse, it can lead to the travails of the artist.
All great art and all great artists are consumed by the infinite. As Oscar Wilde once wrote, “We are all in the gutter, but some of us are looking up at the stars.” Those are the artists, the ones who amidst the muck feel part of something higher, something everlasting, the infinite.
The great enemy of the infinite is reason. Reason is calculating. It is rational. It is logical. It insists that everything is knowable and comprehensible. Ends justify means. And means can achieve ends. Reason insists on explanation. The self—the mystery—must be made knowable.
David Brooks in the NY Times today lauds the entry of behavioral psychology into politics and policy. We want to know, he writes, how to get people to vote and how to get congress to cut the deficit. If science can tell us how what to put in their drinking water, how to frame the question, what books to read to them in vitro, or how to rewire their brains to be rational, wouldn’t that make policy all the more reasonable? Wouldn’t that be a good thing?
Science can make us more rational. That of course is the dream of people like Ray Kurzweil as well as the social scientists who insist that humans can be studied like rats. Let’s not object to the fact. We can be studied like rats and that is what university social science departments around the country and the world are doing everyday. This research is eminently useful, as Brooks rightly remarks. If we employ it, we can be made to be more reasonable.
What the rationalization of humanity means, however, is not a question science can answer. Max Weber began the study of the rationalization of mankind when he proposed that the rise of the enlightenment and the age of reason was bringing about an “Entzauberung” or a “de-magicification” of the world. Capitalism emerged at this time for a number of reasons, but one main reason, Weber understood, was that capitalism provided in the profit motive rational and objective criteria for measuring human endeavors. The problem, as Weber so well understood, is that the elevation of reason and rationality brought about the devaluation of all highest values—what Nietzsche would call nihilism. This is because reason, derived from ratio, is always a relation. All values are relative. In such a world, nothing is infinite. Stuck amidst the relations of means and ends, everything is a calculation. All is a game. There is no purpose or meaning to the game of life. As we become more rational, we also become less consumed by the infinite. That is the true danger of the rise of the social sciences and our rationality-consumed culture that insists that all human behavior be made understandable so that it can be made better.
In The Human Condition, Hannah Arendt is concerned with the way that the rise of reason and rationality is challenging the quintessence of the human condition—at least as that human condition has been experienced and known since the dawn of humanity. The rise of the social sciences, she writes over and over, are subjecting the mystery and fecundity of human action to the law of large numbers. While each and every human action may in itself be surprising and mysterious, it is nevertheless true that studied in groups and analyzed over time, human action does fall into comprehensible patterns. The more we study and know these patterns, the more we come to think of humans as predictable animals rather than surprising and spontaneous selves. This sociological and psychological reduction of man to animal is very much at the heart of what Arendt is opposing in her book.
Nowhere is the rationality of our times more visible than in the victory of labor and the marginalization of art. We are, all of us, laborers today. That is why the first question we ask others we meet is: What do you do? Our labor defines us. It gives our lives meaning in that it assigns us a use and a value. Even professors, judges, and presidents now say regularly: this is my job. By which we mean, don’t blame us for what we do. Don’t hold me to some higher standard. Don’t expect miracles. It is our job to do this. We do this to make a living.
The one group in society who is at times excepted from this reduction to labor is artists. But even the artist is today is taken less and less seriously. Insofar as artists are enthusiasts consumed with the infinite, they are ignored or viewed as marginal. Art is reduced to playfulness. A hobby. “From the standpoint of “making a living,” every activity unconnected with labor becomes a “hobby.”” And those artists who are taken seriously, whose work is bought and sold on the art market, turn artistic work into the job of making a living.
Art, Arendt writes, is a process of magic. Citing a poem by Rainer Maria Rilke, she insists that the magic of art is the artist’s transfiguration of something ordinary—the canvas, clay or word—into something extraordinary, an expression of the infinite in the finite world of things.
Because art figures the infinite, poetry is the “most human” of the arts and the art that “remains closest to the thought that inspired it.” The poem, of all artworks, is the most lasting because its medium is the least subject to decay. It is the closest expression of the infinite we humans possess.
Ralph Waldo Emerson, whose resonance with Arendt in so many things has been too infrequently remarked, agrees that poetry is the art form in which the individual artist can access and figure in the world a public and common truth. In “The Poet,” Emerson writes:
It is a secret which every intellectual man quickly learns, that beyond the energy of his possessed and conscious intellect, he is capable of a new energy (as of an intellect doubled on itself ), by abandonment to the nature of things; that, beside his privacy of power as an individual man, there is a great public power on which he can draw by unlocking, at all risks, his human doors and suffering the ethereal tides to roll and circulate through him: then he is caught up into the life of the universe; his speech is thunder; his thought is law, and his words are universally intelligible as the plants and animals. The poet knows that he speaks adequately, then, only when he speaks somewhat wildly, or, “with the flower of the mind”; not with the intellect used as an organ but with the intellect released from all service…inebriated by nectar. As the traveler who has lost his way throws his reins on his horse’s neck and trusts to the instinct of the animal to find his road, so must we do with the divine animal who carries us through this world. For if in any manner we can stimulate this instinct, new passages are opened for us into nature, the mind flows into and through things hardest and highest, and the metamorphosis is possible. This is the reason why bards love wine, mead, narcotics, coffee, tea, opium, the fumes of sandalwood and tobacco, or whatever other species of animal exhilaration. All men avail themselves of such means as they can to add this extraordinary power to their normal powers, and to this end they prize conversation, music, pictures, sculpture, dancing, theaters, traveling, wars, mobs, fires, gaming, politics, or love, or science, or animal intoxication, which are several coarser or finer quasi-mechanical substitutes for the true nectar, which is the ravishment of the intellect by coming nearer to the fact.
I take this quotation from Emerson’s “The Poet” from an exceptional recent essay by Sven Birkirts. The essay appears in the latest edition of Lapham’s Quarterly, an entire issue focusing on the merits and need for inebriation.
As Birkirts writes:
For Emerson, the intoxication is not escape but access, a means of getting closer to “the fact,” which might, with heartfelt imprecision, be called life itself. What he means by “public power,” I think, is something like what Carl Jung and others later meant by the phrase collective unconscious, the emphasis falling on the unconscious, that posited reservoir of our shared archetypes and primordial associations—that which reason by itself cannot fathom, for it is, in essence, antithetical to reason.
Birkirt’s reflects not only on the need for inebriation in the pursuit of artistic infinity, but also on the decreasing potency of intoxicants today. For him, the rise of the mass market in art, the globalization of experience, the accessibility of all information all have made the world smaller, knowable, and accountable. What is lost in such access is precisely the portal to the infinite.
Artistically and in almost every other way ours has become a culture of proliferation. Information, perspectives, as well as the hypercharged clips and images of our global experience are within the radius of the keystroke. Nothing is unspoken, nothing is unaccounted. Every taste is given a niche and every niche is catered to. Here, one might argue, is more material than ever; here are opportunities for even greater acts of synthesis. But I am skeptical. Nietzsche wrote in Thus Spoke Zarathustra, “Nothing is true, everything is permitted.” The temptation is to invert the phrases and ascribe causality: where everything is permitted, nothing is true. Where nothing is true, where is the Emersonian fact to be found? This bears directly on the artist’s task. The idea that writers can keep producing grandly synthesizing or totalizing work—that has the ring of truth, of mattering—is debatable.
Birkirt’s essay may not be the intoxicant of your choice this weekend, but it should be. It is your weekend read. And you might check out the surprising selection at the bar at Lapham’s Quarterly as well.
And for those with time to spare: Arthur Koestler, from whom I first learned of the Louis Pasteur quote at the top of this essay, was consumed with the connection between intoxication and the infinite. I have discussed Koestler’s pursuit of the infinite at length. You can read that discussion here.
Hannah Arendt feared that our unwillingness to judge and to make decisions was the great moral and political danger facing our world. In her essays and books, Arendt gave voice to what she called the “fear of passing judgment, of naming names, and of fixing blame—especially, alas, upon people in power and high position.” The Arendt Center has written extensively about our unwillingness to judge, here, here, and here.
Today in the NY Times, Thomas Friedman expresses his exasperation at the lack of judgment by our political leaders. Here are two core quotations from the essay:
No leaders want to take hard decisions anymore, except when forced to. Everyone — even China’s leaders — seems more afraid of their own people than ever. One wonders whether the Internet, blogging, Twitter, texting and micro-blogging, as in China’s case, has made participatory democracy and autocracy so participatory, and leaders so finely attuned to every nuance of public opinion, that they find it hard to make any big decision that requires sacrifice. They have too many voices in their heads other than their own.
At a time when, from India to America, democracies have never had more big decisions to make, if they want to deliver better living standards for their people, this epidemic of not deciding is a troubling trend. It means that we are abdicating more and more leadership to technocrats or supercommittees — or just letting the market and Mother Nature impose on us decisions that we cannot make ourselves. The latter rarely yields optimal outcomes.
Read the whole of Friedman's column here.
You can also view a TEDx talk on the way that technology is replacing and threatening human judgment here.
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