This is an essay about the relationship between post-modernism and justice. My topic is the apparent disjunction between post-modernists' moral and political intuitions on the one hand and their philosophical views and cultural leanings on the other. Crudely put, the essay asks what we can learn from the fact that someone who rejects the notion of "integrity" as either a psychological, moral or textual quality, nevertheless condemns the Dean or the Senator for having "no integrity," admires the display of principled consistency in public life or the interpretation of the Constitution, and would characterise the difference between, say, Nelson Mandela and Bill Clinton, as the difference between a principled ascetic who would endure jail or death for his beliefs and a pack of cut-out caricatures, reshuffled at every shift in public opinion, held together only by an expensive suit and a set of selfish appetites.
I want to stress the magnitude of the apparent clash between the spirit of post-modernity and the idea of integrity. To the extent that post-modernism has any philosophical content at all, it is its hospitality to a series of arguments -- some of them very old indeed -- that point out the insoluble difficulties in postulating a coherent, unitary self, text or set of moral principles. In persona, hermeneutics and deontological argument, integrity is all that post-modernism tells us is impossible, indeed undesirable. And yet the moral intuition in favour of integrity remains. For some, this the final proof that post-modernism is just wrong.(3) For those who are more convinced of the philosophical and aesthetic strictures of a post-modernist, anti-foundationalist worldview, however, the answer must be something else. Is it that we believe post-modernists but we wouldn't want to be one, or marry one? Is it that principled integrity, with its Kantian overtones, is just another way of thwarting the justice-claims made by various subordinated groups, abstracting norms to some level of "consistency" at which point they lose their force -- replacing "black equality" with colour-blindness, the actual oppressed person with some universal stick figure? (Yet to equate all claims made by particular subordinated groups and to oppose them to all universalist norms, makes it sound as though post-modernism is marred by the same combination of sanctimonious ineptitude and moral tunnel-vision that made political correctness such an easy target.)
Alternatively, is the problem fundamentally a philosophical one? Are our intuitions about public morality, or legal justice, dependent on assumptions that we would reject as a philosophical matter? Is it simply that "integrity" doesn't mean anything anymore? Is this feeling for integrity the coelacanth of our moral sentiments, a creature that has outlived its own epoch and now lives on as a grotesque anachronism, a living fossil?
My answer to these puzzles is unsatisfactory. (Do not mistake this confession of failure for a rhetorical flourish. You will soon find out its truth.) I picked this issue because I have sympathy for some but not all of the post-modernist beliefs and because I think that these stubborn intuitions about integrity present the hardest questions for post-modernists to deal with. In other words, this is not the usual performance piece in which the writer first carefully constructs the top-hat, before removing the bunny from it. It is more like the exploration of a nagging toothache, painful but impossible to leave alone. There is a lot to be said for confronting the areas where one secretly thinks one's ideas are the weakest. It is however, a virtue much more comfortably urged on others than practised oneself.
On the other hand, the trouble with confronting really hard problems is that you probably won't be able to solve them. As different drafts of this essay accumulated, I revised my aspirations downward to meet my performance so many times that I began to feel like a defence contractor. The final version attempts merely to move the debate forward a little, to clarify some of our assumptions about integrity, morality and post-modernism. The clash between moral intuition and post-modern practice does not disappear, but it does change, I think. From a discussion of Ronald Dworkin's idea of "integrity" in law, and of the idea of principle in public life, I argue that many of our moral assumptions are constructed reasonably, but incompletely, around a binary opposition between self-interest and morality. From a comparison of the effect of Hume's guillotine on the one hand and Hume's critique of induction on the other, I develop an argument that celebrates, rather than laments, the conflicts within both our moral and legal traditions. Finally, and least satisfactorily, by introducing the notion of "practice" into moral and legal argument, I explore the apparent tension between post-modernism and tradition, be it moral or legal tradition.
What do we mean when we talk about post-modernism? I am going to avoid the term "post-modernity" because I don't believe in "post-modernity": an epochal label strangely at odds with the protean discourse it purports to represent.(4) It conjures up for me the image of a New Yorker cartoon in which characters muse to each other that, now that they are in the Enlightenment, things will be easier to understand.(5)
Instead it seems useful to distinguish between post-modernism as a kind of arch cultural schtick, and post-modernism as an earnest MLA epistemology.(6) The former, which I shall refer to as "po-mo," is built on kitsch quotation and the flight from ponderous sincerity, on the juxtaposition of contradictory styles and modes so that each impliedly mocks the other without any assistance from the "speaker," on the use of tension and internal inconsistency to make a point, the co-optation of 50's soap operas as markers for forms of sexuality sternly denied during the 50's, the sardonic aside, the cultivation of the parodic personality, on the incongruity between the three piece suit and the eyebrow ring. Above all, po-mo is the world of irony, irony, irony.
Post-modernism is an altogether different kind of beast, more serious altogether. Po-mo would jokingly conjure up a seminar on "Sexuality on Gilligan's Island" or in "I love Lucy"; post-modernism would hold it. At length.
Much philosophy described as post-modernist actually consists of the retreading of ideas that were first described as "post-structuralist," "deconstructionist," social constructivist, pragmatist, Wittgensteinian or simply relativist. (Since many of these ideas are interesting and useful, post-modernism has much to recommend it.) The recycled ideas are then linked to an aesthetic of irony and juxtaposition that, while it is not required by the philosophical structure, nevertheless seems to fit. Thus, in practice, to call some piece of work post-modernist normally means something like "anti-foundationalist with a twist" or "not mainstream and with an aspiration to campy outrage." It is hard to be more precise than this; we are not in the world of analytical philosophy. (7) But if post-modernism does have a central catechism, it revolves around a belief in two ideas, both of which are at odds with a notion of textual or personal integrity.
But despite what I have said about the differences between po-mo and post-modernism, there is one important common theme that I want to point out now. Both find freedom, or fulfilment, or meaning to lie in the tensions between and within traditions, rather than in the correct working out of those traditions or in their wholesale rejection. The conventionalist wishes to instantiate the tradition in as coherent a way as possible. The modernist wishes to burst through, to go beyond the last form, the last convention, into some bright new future where art, or writing, or human potential are not stifled by yesterday's boundaries, traditions or constraints. In the end, the bursting of the last form becomes the heart of modernism.(13)
The post-modernist rejects both conventionalism and modernism as bad fantasies neither possible nor desirable. Po-Mo style is probably best described as "ironic conformity," turning traditions against themselves and finding both freedom and art in the space between the conflicting tugs of opposing ideas. It is as if the post-modern subject was one of Giacometti's stick figures, grotesquely thinned out, emaciated, and able to move only when the ponderous gravity of one life-world or tradition was almost perfectly balanced by the ponderous gravity of another. Astronomers use the term "Lagrange points" (after the 18th century French mathematician) to describe those spots in space where the gravitational attractions of two or more bodies cancel each other out. One way of seeing post-modernism is as the art, politics and culture of the Lagrange point. In an alternative, and probably more accurate picture post-modernism sees truth, justice and freedom as always constituted by the clash, the simultaneous embrace, of contradictory traditions.
I realise that, through history, a couple of people have taken a crack at this question; I mean it only to signify three broad lines of inquiry: the emancipatory, the deontological and -- for want of a better phrase -- the novelistically personal. (Again, what could be better in this context than to separate the political from the moral from the private?) As an observed fact, though, there are those of us who seem mainly concerned with the question of what postmodernism means for (history as the struggle of a particular oppressed group for) Justice, those who care mainly about what postmodernism means for (the moral philosophy of the public sphere and) Justice and those who care most about postmodernism and what it means for (their personal attempts, within their own lives to achieve some modicum of) Justice. Each of these concerns impinges on the other two, of course.. pace Martha Nussbaum.(14)
The themes I will discuss here -- public and private integrity -- fit more easily in the second two categories, but I want in passing to note that there is a rich and appropriately obscure literature on the first topic. Laclau and Mouffe, for example, have interesting and vaguely Gramscian things to say about the impact of post-modernism on the idea of a coherent Emancipatory Subject(15) -- such as the working class, or the worldwide women's movement -- whose historical role was as both the agent and the beneficiary of the movement of history and the struggle for justice. Here as elsewhere, post-modernism's contribution is to challenge most of the fixed terms in which the theory is worked out; particularly the notion of stages to history, of definite relations between material structures and ideologies and of the idea of a coherent oppressed group whose common interest will automatically yield the emancipatory lock-pick to the shackles of false consciousness. As is fitting for an academic philosophy, post-modernism tilted towards the conclusion that everything was much more complicated; po-mo on the other hand, seemed to offer only a kind of smirking playfulness that was a poor trade for the high seriousness of grand theory.
Post-modernism's critics decried it as a threat to theoretical determinacy
(and often to rigour); po-mo culture was condemned as a threat to commitment.
No-one seemed to be deterred by fact that this little morality play was
a very old one; one that was being staged thirty years before anyone
talked about postmodernism, with a distinguished sequence of cast members
in the leading roles; existentialism, neo-Marxism and feminism have successively
been cast as the villains who imperilled theoretical determinacy, while,
on the cultural side, Yippies, the New Left and a variety of others have
posed as the moustache-twirling enemies of seriousness. The fact that the
accusations are old, of course, doesn't mean they are wrong. Still the
unacknowledged repetitions of this little drama shed some doubt on the
particular cultural and theoretical villainies attributed to postmodernism.
Grand theory and high moral seriousness were tied to the tracks long before
post-modernism appeared on the scene. If there is something particularabout
the threat that post-modernism poses to our familiar languages of justice,
we will find it only by looking more closely.
Law and Integrity: In Law's Empire(16) Ronald Dworkin makes a fascinating argument that combines -- indeed melds --a claim about interpretation and a claim about justice. Both areas are, to some extent, the same, he argues. Judges should seek an interpretation of the law that makes it "be all that it can be" -- a process that combines pulling interpretive coherence out of the received materials, with the process of producing a universalised moral coherence in society's commands. Mere coherence is not enough; the norms that underlie that coherence have to be defensibly universal. Thus, for example, Dworkin believes that any vision of the equal protection clause which allowed legal discrimination against gays would be judged insufficiently universalised, and hence indefensible. The fact that it would be consistent with a flat footed reading of most of the existing case-law is irrelevant. The final goal of this process is a set of norms which could coherently and justifiably be held by a single person, the community personified: Kant's Leviathan. Dworkin calls the goal of this process, "integrity" and I want to stress the fact that the integrity is a concept that is both hermeneutic or interpretive and deontological or moral.
I suspect the thought that I am now going to offer some vaguely post-modern critique of this notion has already produced a premonitory flutter of boredom. From within the dominant set of epistemological beliefs in the academy, nothing could be easier. The assumption of a coherent and unitary personality for the state, indeed the notion of coherent personality at all, the idea of texts in which a best interpretation rises, like cream, to the surface, the notion that normative universalisation carried with it an account of its own limits -- so that we can know why the equal protection clause protects gay love, but not public flashing -- these are familiar targets, even if one might occasionally doubt the quality of the arrows that are shot at them.
Nevertheless, it would again be idle to deny that Dworkin's idea of integrity resonates with a powerful set of moral and political intuitions. That appeal is at its strongest in Dworkin's account of the checkerboard abortion statute.(17) Say that you have a deeply held belief on abortion, be it pro-choice or pro-life. Imagine that you knew, absolutely knew, that your belief would lose as both a constitutional and a legislative matter, and lose totally. Instead, I offer you a compromise; women born on even numbered years will be able to have abortions, those born on odd numbered years would not. In terms of results, this deal is better than the alternative. At least 50% of women will be operating under the regime that you think has right on it side. Depending on your belief, you have either preserved the liberty of 50% of the women in America, or saved 50% of the unborn children from murder. Dworkin suggests that most people would nevertheless refuse the deal. Though it has obvious "pragmatic" advantages, they will reject it, indeed be disgusted by it. Why? Using a lovely planetary trope, Dworkin analogises our search for reasons to the astronomer's search for Neptune, the missing planet which their calculations told them must be there. "Integrity is our Neptune," he declares.
The checkerboard statute, the compromise solution, fails both the interpretive side and the Kantian side of Dworkin's principle. On the interpretive side, Dworkin would argue that no single author could create a text containing such contradictory instructions. On the moral side, more importantly, there is no principle that could support both the prohibition of and the freedom to have, abortions, based merely on the question of whether the number at the end of your birthday is divisible by two. Dworkin's point is that by rejecting the checkerboard statute we have rejected a merely pragmatic or, for that matter, utilitarian account of law and justice. Indeed, many would be willing to sacrifice pragmatic gain in order to preserve the principled consistency of integrity.
This attention to principle is consistent with Dworkin's earlier work. In all of his books Dworkin argues against a particular style of decision making, a style that one could describe as means-ends reasoning, or pragmatic reasoning, or utilitarian reasoning or, in an earlier incarnation of the argument, against recourse to "policy" in hard cases. Instead he argues for a style of reasoning perhaps best described as principled. Why?
Over time, Dworkin's answers have varied, reflecting -- I think -- the multiplicity of reasons we have for finding "integrity' attractive. Sometimes it has seemed that he advocated this method of reasoning because it was required by the very nature of law, or morality, at other times because only thus could we give effect to the determinate political rights on which the legal system rested. Sometimes Dworkin implies that only principle can give the citizen an adequate trump to play against the potentially oppressive interests of the state and other citizens; utilitarianism, we are supposed to believe, will forge bars inadequate to cage Leviathan and the Hobbesian brute. At still other times, Dworkin develops an interesting moral anthropology in which he claims that his theory explains his reader's normative beliefs better than they can themselves, and thus should be accepted because it accounts for data otherwise inexplicable. "Integrity is our Neptune," he says, leaving me to wonder whether he would consider the theory to be falsified if his readers did not in fact hold the moral beliefs he asserts they possess, or whether he would tell them that they should hold such views, basing this argument on some other normative ground.
In Law's Empire his justification seemed to be elegantly recursive, perhaps to the point of circularity; the method of reasoning Dworkin suggests is both an example of and a justification for the interpretive search for integrity. Integrity allows Law with a capital 'L' to be the best that it could be, taking all that was most noble about Law as a practical human activity and using consistency with that nobility as an guide to discover the best method of interpretation. Meanwhile, each contending interpretation produced using this method tries to take the best principled interpretation of the particular legal materials to hand, law with a little 'l', and to make consistency with the principles revealed by that interpretation as its guide. Thus, on both the level of meta-theory and the level of concrete interpretive practice, the notion of integrity pushes us towards Kant rather than Bentham, principle rather than policy and -- when push comes to shove -- even rule-utilitarianism rather than act-utilitarianism.
Now that we have disaggregated at least some of integrity's attractions, what problems appear?
Now when Dworkin uses his abortion checkerboard statute idea, he sidesteps this boundary problem in two ways -- both of them apparently reasonable. First, Dworkin assumes that all his readers will share a certain definition of the class of people to whom either the prohibition of abortion or the right of abortion should apply. The right, or prohibition, would presumably apply to all women; or if one takes seriously Justice Rehnquist's logic, to all people, though it will have a particular significance only for those who can actually get pregnant. (This seems fair enough, although a little thought might suggest some problems. Does either principle apply to minors, rape victims, foreigners, foreigners dependent on American aid, those passing through the country?)
Second, because Dworkin has neatly bracketed the issue by setting up the issue so that one can be either pro-life or pro-choice, he gets to rely on a naturalistic assumption about those to whom the appropriate moral principle applies He does so despite the fact that the defining feature of the broader abortion debate is precisely a fundamental disagreement about the scope of the identified principles. To put it in the language of bumper stickers, is it a child or a choice? Is the discrete and insular minority to be protected by the courts, the class of women, or of fetuses? Each side of the debate is certain about the scope of the principle they are vindicating by rejecting the checkerboard statute. Thus, by allowing them to set up the tension between integrity and pragmatism, Dworkin can bootstrap his way out of the problem. His achievement should not be understated. Through this ingenious thought experiment, he actually ends up using a situation of moral incommensurability to defend the idea of "principle-not-policy." What's more he does so without getting into the difficulty that principles cannot define the scope of their own applicability and that most of the attempts to draw such boundaries lead either into the forbidden realm of consequentialist argument or into a claim of free-standing natural rights.
When one turns to other checkerboard statutes, however, the problem becomes more obvious and Dworkin's responses to it become markedly weaker. What's more, their weakness reveals something about the concept of integrity itself. Consider, for example, the question of whether we should have a regime of strict liability or negligence in our tort system. At present, of course, we have a (highly limited and qualified) regime of strict liability for manufacturers and sellers of products and a regime of negligence for providers of services. When Dworkin sets up the checkerboard statute dilemma here, he simply assumes the validity of the line between goods and services as the boundary line for the principle that he is discussing. If one manufacturer of goods is held strictly liable, all must be. "Even if I thought strict liability for accidents was wrong in principle, I would prefer that manufacturers of both washing machines and automobiles be held to that standard than that only one of them be."(23)
Unless I am missing something fundamental (Plato's lost defense of the Maytag/Mercedes distinction, say) this is complacent nominalism coupled to bad tort law. Dworkin acts as if the goods/services distinction was a philosophical given. He is creating a set of natural legal classes, thus obviating the need to provide the limits of the principle or to justify the conventional classification rather than merely applying it. "Subject all goods to the same liability system" has been made a monadic concept as unchallengeable as the "treat all persons with equal concern and respect." But this doesn't pass muster.
Take Dworkin's example. At the moment, American tort law jaggedly divides liability regimes by the line between sellers of goods and providers of services.(24) Yet one can think of many other lines that could be drawn; there are, for example, eminently defensible classifications that would justify subjecting cars but not washing machines to strict liability. Strict liability could be applied to high value goods, to goods that cause many deaths a year, or to goods that, if defective, could easily injure others outside the circle of the buyers friends and family. One could follow the logic of McPherson v. Buick and use it as a guide to the imposition of strict liability, rather than to the curtailing of the privity limitation. In fact, one might go further and say that the goods/services distinction is a very rough and ready way to implement a set of judgements about who should be subject to strict liability, namely that strict liability should be applied to those who are the best loss avoiders, and best cost spreaders, those who are in systemically superior positions to judge risk and to inspect for dangers and so on and so on. If one thought that in general manufacturers and sellers of products fit the bill here, and that providers of service in general did not, one might draw the boundary line along the ordinary language meaning of "good" or "product," acknowledging that the line would inevitably be over, or under-inclusive.
Subsequently, one might choose to hold a provider of services who had all the characteristics of the seller of goods liable under a de facto or de jure strict liability standard(25) and, conversely, to say that a person who appeared to be a seller of goods actually was a provider of services and thus should be held to a negligence standard.(26) In practice, this is what the tort system often does.
This dynamic oscillation between classifications and their (presumed) goals, with frequent revisions of both, is a fundamental part of legal discourse. Yet, Dworkin's claims to the contrary notwithstanding, it appears in only the most bland and sanitised form in Law's Empire. Similarly, the hermeneutic side of integrity demands that the law be analogised to a chain novel in which an interpretation of the received materials is ruled out if "no single author who set out to write a novel; with the various readings of character, plot, theme, and point that interpretation describes could have written substantially the text that . . . [the judge] has been given." (p. 230) This quest to analogise law to a text produced by a single author writing a pre-modernist novel is defended partly as capturing the internal experience of legal argument. To me, however, it seems to ignore an important component of the experience of those involved in legal discourse. One defining characteristic of the "internal perspective" is that legal fields are frequently (and beneficially) constructed by contradictory and abutting normative ideals, whose continued friction produces one unstable cease-fire line after another. When it comes to deal with this particular aspect of legal practice, post-structuralism's epistemological fascination with the return of the repressed term, the dangerous supplement, seems better than Dworkin's integrity. Integrity certainly speaks to a particular impulse and moment in legal practice, but for me, it stumbles when it comes to offering a convincing account of the movement of legal doctrine between say, the will theory of contract and the reliance theory of contract, strict liability and negligence, formal equality and substantive equality. In contrast, the post-modernist or post-structuralist sees conceptual tension as the motive force, the mainspring of legal development -- an unduly idealist picture to be sure, but one which seems to capture an undeniable aspect of one legal culture. For Dworkin, conceptual tension is simply a close call with a right answer: just another opportunity for Hercules to strut his stuff. What the lawyer experiences as continually productive antinomy or dialectic between contradictory visions of the good, Dworkin sees as an error to be resolved. This is a point to which I shall return later.
In sum, then, integrity sounds best when one represses the knowledge that both the principles to be applied and the boundaries within which they are applied are constantly being remade, and remade in a way that turns to policy, to utilitarian calculation, to pragmatic consideration of effects. Put crudely, post-modernism's concentration on fluidity, contradiction, internal tension, and the social construction of identity and text seems as much a part of law's empire as Dworkin's Herculean Kantianism.
There is also a further implication. Even for Dworkin, principles only matter once they start to have some specificity. Barring a cultural practice of extraordinary formalist classification, (a world, say, in which goods and services seem naturally different from each other, in which everyone 'knows' that money is speech and T-shirts are not) they cannot get this level of specificity without the recourse to utilitarian or consequentialist argument.(27) If one's proposition is that principle constrains in a way that mere policy never could, one has to make it an historical claim rooted in a particular culture and practice, not an epistemological or deontological claim rooted in the nature of language or morals.Integrity in law and public life continues to seem attractive, but its attraction cannot be based on the qualitative distinction between uniquely binding principle and manipulable utilitarian policy argument.
In the last section I discussed the idea that only principles can tie the hands of Leviathan or constrain potentially brutish fellow citizens. Integrity, in this view, is the hallmark of the only metal strong enough to imprison contrary desire. The flip side to this idea is that principles are only real when they are forcing us to do something we do not want to. On some level, we are aware that we do not leave the openness of moral reasoning behind when we plump for principle rather than policy and so -- in practice -- it is the sight of someone doing something they dislike that is the ultimate proof of actual principle, real integrity. This sounds like a very crude idea, yet I think that it represents a cluster of beliefs that exercise a powerful force over popular and to some extent academic discourse about morality. Talk is bullshit, goes the assumption, there is always a way to rationalise one's position. (A lot of American lawyers seem to believe that utilitarian arguments are particularly manipulable, but that principle can certainly be spun, too.); under these conditions the proof of -- indeed the warrant for -- integrity is action against self-interest. Morality is constructed as the antonym of selfishness.
If I am right about this, part of the attraction of principled integrity depends on a contrast that would be very hard to defend as a philosophical matter and that, ironically, adopts attitudes towards language and moral argument that have something of the cynicism often attributed to post-modernism itself. If we truly felt that language constrained, reason reached unique solutions to moral problems and subject-position did not affect moral conclusions, would we believe in such a strong, even constitutive, opposition between self-interest and morality?
So far, I have argued that any distinction between the binding power of principle as opposed to policy must be sought in actual history and context of some community and some project -- the advantages of "principled integrity" would rest on historical claims about a practice, not on epistemological claims about a form of argument. Second, I have argued that there is a profound irony in our stock image, even our cultural imprimatur, of the way that principle constrains, the image of the person acting against self-interest, forced by an overarching principle. For most of us, certainly for me, this image exemplifies the idea of integrity -- both personal and principled. Yet it also seems to rest on a tacit skepticism about the purity of language, the power of reason and the irrelevance of subject position; to depend, that is, on a tacit skepticism about the ideas central to integrity.
Assume for the sake of argument that there is something to the points I have made so far. So what? Even if intuitions about the superior binding force of principle are dubious, even if arguments about the advantages of principle rather than policy should be historical rather than epistemological and even if our notions of principled integrity are constructed around an indefensible opposition between self-interest on the one side and principled integrity on the other, so what? Don't these moral intuitions actually work well enough in most cases? Particularly in the last case, isn't the idea that morality is most clearly marked by action against self-interest a pretty good benchmark for everyday life? The answer, I think, is both yes and no. Let's start with the 'no.'
The antonym of morality and self-interest is a crude notion that causes us systematically to undervalue the threats posed by certain kinds of belief-systems. It is, to be more precise, an a-historical generalisation built on a particular experience of "normal politics." There is no better example of its dangers than Arthur Miller's play Incident at Vichy. In this play, a group of detainees sits in a railway station, waiting to be interviewed by the German authorities. As the play proceeds, the detainees nervously seek to reassure themselves that nothing is going to happen to them. To do so, they must walk a narrow path; discussing in the abstract what the Nazis might be doing without ever admitting that they, themselves, might be targets of Nazi persecution.
As time goes on, the pressure builds and the efforts at reassurance become all the more blatant. Increasingly, the inhabitants of the waiting room are willing to accept that horrible things might be done to them. They discuss the possibility of imprisonment, even forced labour, all in the attempt to show that the outcome will not be the one they fear: genocide. They point out how crazy it would be, as a matter of self-interest, for the Nazis to be exterminating people in the middle of a war when every soldier, every piece of rolling stock is desperately needed. Even the most ruthless of totalitarian societies would at least use its enemies as forced labour. It would be irrational to do otherwise. Finally, Von Berg can contain himself no longer. He crushes his fellows' hopes with words that offer a striking commentary on the opposition between principled integrity on one hand and cold-hearted cold-hearted calculations of self-interest on the other.
After all, what is self-restraint but hypocrisy? If you despise Jews the most honest thing is to burn them up. And the fact that it costs money and uses up trains and personnel, this only guarantees the integrity, the purity, the existence of their feelings. They would even tell you that only a Jew would think of the cost.(28)
The horrified recognition produced by Von Berg's words marks the weakness, indeed the dangerous blindness, of the way of thinking I have described. Not all evil is venal, or even pragmatic for that matter; the genocidal zealot can join the noble liberal in scoffing at utilitarian calculation. The idea that we have found morality where we see action against self-interest is a generalisation drawn from a particular kind of normal politics in a life-world with a particular, narrow set of goals and constraints. The mass of repeated experiences on which it relies to be convincing are the experiences of the pork-barrel statute and the car showroom, as well as the experiences of the Franciscan renunciate or the nobly uncompromising civil libertarian. They are not the experiences of the evil fighting faith, of the zealots happy to act against immediate self-interest, precisely to "guarantee the integrity.. of their feelings."
Fundamentally, the moral intuition I describe may rest on the fact that, in the world of the United States in the 1990's, the greatest moral danger is likely to be venality rather than passionate devotion to an abstract set of destructive ideals. The moral dangers to which this intuition is attentive are those of materialist rapacity and self-interested indifference to the plight of others, rather than missionary zeal or fascistic fury; Love Canal rather than Dachau, mugging rather than racial purification. Such a concept of morality falters when it comes to explain the Ayatollah's jihadic passion or the Fuhrer's vision; in comparison, the murderous greed of a strongman dictator is almost reassuring. My point is that, within its context, the opposition between morality and self-interest works well enough but, like the claim that principle is more constraining than policy, its virtues are those of the historically limited rule of thumb, not the timeless truth deduced from the meaning of morality itself. The sting of the lash guarantees neither insight nor virtue; the assumption that it does relies ironically on a strange combination of cynicism and naivete: a cynical skepticism about the power of reason and the constraint of moral discourse -- "give us painful deeds not noble words" -- and a naive generalisation of the characteristics of one set of moral conflicts into a constitutive rule for all.
On the other hand, the notion of moral integrity as 'that which is not self-interest' is an idea that works. The intuition that tells us
may be, as I have argued here, one that is as wrong in premise and deontology as it is in simple logic. However, as a rule of thumb, as a way of saving time and thought, as a quick way of estimating the bullshit-quotient of the moral position being expressed, it has its own pragmatic virtues. In a lovely twist, some of the moral intuitions which tilt us towards integrity may rely on the very pragmatic instrumentalism that integrity, in and outside the pages of Law's Empire, is supposed to refute.
If our image of integrity is this everyday cameo, rather than Dworkin's Kantian Leviathan, then we could say that integrity needs both more and less post-modernism. Its skepticism about discourse and subject position should be a little less crude, its complacency about the universality of its particular experiences a little less naive. Again, the advantages of "principled integrity" would rest on contextual and historical claims about a practice, not epistemological claims about a form of argument.
This vision of the relationship of science to morality is an interesting one. It depends in part, I think, on assumptions about the epistemological foundations of science and morality. Science can, and does, produce reliable knowledge. In morality, our castles are always built on sand; every moral theory rests on a leap of faith, a leap of faith that is always implicitly challenged as we look out and see others who hold beliefs very different to our own. The job of the moral philosopher or the normative theorist such as Dworkin is to dispel this moral conflict: to show that there is a right answer even to the hard moral and legal questions, to hold moral conflict at bay. There are more and less ambitious versions of this idea. For some, integrity is attractive because we have given up on the notion of objectively correct moral positions and seek only consistency within a single person. (This idea can often be seen in the contemporary media where it is assumed that values are relative and actual assessments of good and evil impossible. In such a world the only way to sin, is to fall short of a standard that one has set oneself; thus hypocrisy and cover-up become the ultimate sins.) Other visions of integrity are more ambitious. To return for a moment to Dworkin's notion of integrity: law must be interpreted so that it reflects a coherent set of moral views that could be held by a single person, the community personified. Hercules' idea of integrity is to produce answers that are not merely 'right for him,' but right.(29) In both the modest and the ambitious versions, however, moral conflict is the problem. Integrity is the solution.
I want to use the work of David Hume explore the idea of integrity as a solution, even a partial solution, to world full of moral conflict. Hume and the other writers of his generation have had a profound effect on this essay, particularly in terms of the importance of an analysis of the moral sentiments, but the aspect of his work that I want to focus here is rather different. Hume is particularly well-known to modern philosophers because of two powerful sceptical ideas. The first, known to many as Hume's Guillotine, is the argument that it is impossible infer any normative statement from a statement of fact (or vice versa). The world of facts and the world of norms are separate domains and only a leap of faith, the expression of some preference -- itself logically ungrounded -- can carry us across the border. For modern philosophers, this simple point sounded the death knell of moral philosophy. Exiled forever to a world of faith and fuzzy conflict, what was moral philosophy but a peculiar, highly formalised form of religion? For philosophers at least, Hume's Guillotine is an important part of the explanation of the lack of evolution of the moral sciences as compared to the physical sciences.
Interestingly, Hume is also known as the originator of another argument vital to modern philosophy, the argument, generally known as "the problem of induction." (The term is a little confusing because Hume himself never used the word "induction" but his discussion of causation offers a devastatingly skeptical account of the worth and validity of inductive arguments.)The heart of the argument is simple. Regular repetition of a sequence of events in the past does not prove that future events will occur in that sequence, still less that event A "causes" event B.. We can stare as hard as we like at the space between the colliding billiard balls, but we will find no lurking "necessary connection" on which to build an inexorable science of causation. "The scenes of the universe are continually shifting, and one object follows another in an uninterrupted succession; but the power or force which actuates the whole machine is entirely concealed from us, and never discovers itself in any of the sensible qualities of body."(30) Even on empirical grounds, how can we distinguish between law-governed regularity and mere accidental conjunction except by reference to still other law-like statements which must, themselves, have been built on the shifting sand of inductive argument?
The alert reader will have realised that the Humean problem of induction merely does to statements about facts, and thus apparently for the sciences, what Hume's Guillotine did to statements about norms and thus for moral philosophy. More precisely, the problem of induction tells us that the leap from observed facts to statements of lawlike regularity about facts, is as philosophically perilous as the leap from observed facts to statements of lawlike normativity. One could in fact apply to both Hume's comment about the origins of our particular ideas about causation. "The connexion, therefore, which we feel in the mind, this customary transition of the imagination from one object to its usual attendant, is the sentiment or impression from which we form the idea of power or necessary connexion."
Yet despite the apparent similarity in both form and result between the problem of induction and Hume's Guillotine, the effect of the two arguments on their respective practices have been very different. For every moral philosopher, the initial leap from fact to norm is a vital (and often the only distinguishing) part of the argument. Some use teleological arguments, implying norms from a purpose attributed to factual schemes. Some create hypothetical situations of free choice -- either small or large -- and try to get the audience to agree that if the design of the initial situation is acceptable, the norms emerging from that situation will also be good. Some aggregate many individual value choices, through the market, the democracy or some felicific calculus, and argue that the factual pattern revealed has a normative power. There are many other strategies. More commonly, the problem pointed out by Hume's Guillotine has caused moral philosophers to resign from their task, which they have done frequently and somewhat dramatically under the name of such movements as emotivism and moral relativism.
The problem of induction certainly caused philosophers of science a great deal of anguish. Bertrand Russell argued that we must bend from the paths of logic just at this one place, because "without induction science is impossible." But he also wondered aloud how this made him any different from the devout religious believer. Any good philosopher, allowed one leap of faith, given one epistemological "get out of jail free" card, can build you pretty much any philosophy you want. After Russell, other philosophers attempted to specify the essence of science without either falling afoul of the problem of induction or, on the other hand, writing into canonical and timeless method that which was really this year's scientific practice. Falsification, Bayesian empiricism, the views of scientific micro-communities -- each has its own attractions as the solution to the problem. And, as in moral philosophy, there are those who have dramatically resigned from the task or lapsed into a kind of Oliver Wendell Holmes/Andy Warhol definitionalism. Science is what scientists do, and thus, whatever you can get away with. Feyerabend is probably the best example.
On this level, then, if we are comparing the work of the philosophers of science and the moral philosophers, there is a superficial resemblance between the way that Hume's arguments have been received. The difference comes when we move down one step to the level of actual practice. There is the philosopher of science, and then there is the scientist. There is the moral philosopher and then there is .. us. Now most people, if pressed could come up with some version of the point that there are multiple moral systems and that it seems impossible to prove that one of them is superior to all the others. Not everyone believes this, to be sure -- indeed there are probably places and moments when all of us feel it to be wrong -- but it is hardly an unfamiliar idea. Going further, a lot of people with no training in moral philosophy could point out the difficulties in moving from some state of facts (our absence of wings) to some moral norm (it is wrong to fly). The problem of induction however, is one that is unfamiliar, both to many scientists and engineers and to the general public. Why? Unfortunately for my argument, there are clearly a lot of reasons. One of them, however, strikes me as particularly important in this context. Crudely put, the reason is that it is a daily occurrence for us to confront basic conflicts between different moral systems, each of which we hold as true. The same is not true of science. Conflicts between systems of scientific explanation certainly happen. Light is both a particle and a wave, the Newtonian laws we have softwired into our reactions as we jump for a header or run to catch a fly ball don't work very well in the particle accelerator. But these are conflicts that appear mainly in the range of the very small, the very big, the very fast, the very old and the very far away; conflicts that happen where we do not live. We do not look upon the colliding billiard balls believing that the angle of incidence will equal the angle of reflection, while we also believe that the balls long to throw themselves around the table and will do so as soon as they are woken by a tap. Conflicts between systems of moral prescription, on the other hand, are a quotidian experience. The moral side of Hume's argument flourishes on the rich soup of our experience of daily life, while the problem of induction must live upon the thin gruel of abstract thought and indirect perception.
We have all had the experience of knowing that from the perspective of a certain moral system, a moral system that we ourselves subscribe to, our conduct is wrong yet from the perspective of another moral system it is acceptable, perhaps even admirable. I am not speaking here of the occasions where we were guiltily aware of our own moral failings, but rather those occasions where we believe we have done "the right thing," and yet know that the set of ideas which vindicates our action is in conflict with another set of ideas we also believe in. We all shuttle between systems of formal and substantive justice, between iron-clad rules and utilitarian expedients, between systems that see morality as absolute and systems that see morality as contextual and relative. We have all cried "let justice be done though the heavens fall," "this is a matter of principle, goddamit" and we have all told little white lies and believed that in this case the end did justify the means, that there was no point making a Federal case about it and that losing is not a moral virtue. We have all acted as though, liberty, equality and democracy were absolute virtues and seen each of them as merely a temporary instantiation of a larger substantive good. In moral terms, we have all been Walt Whitman, "Do I contradict myself? Very well then, I contradict myself. I am large, I contain multitudes."
Integrity sees this feature of our lives as a flaw: a moral flaw as well as a flaw of personality -- and seeks to eradicate it. But what if it is a virtue, personal, moral, legal, social? What if moral conflict, incommensurability and internal contradiction are 'not bugs, but features'? First, I think this would explain better the tension between our feelings about the difficulties of moral reasoning on the one hand, and the feeling that moral action in the world does not depend on a deduction from Kantian premises. Second, I think this view of morality would explaining more about our practice of moral theorising. If the task of a moral theory is to transcend the fact-norm dichotomy, to guarantee the agreement of all intellectually honest persons, then all moral theories are "failures." Yet we have the sense that even the "failed" moral theory has some use, and that it is useful as more than the evidence of a noble nature. The idea that the availability -- and the use -- of developed, conflicting moral systems is itself valuable seems to me to explain our feelings better even than beautiful passages like the following one from Wittgenstein.
"My whole tendency and I believe the tendency of all men who ever tried to write or talk Ethics or Religion was to run against the boundaries of language. This running against the walls of our cage is perfectly, absolutely hopeless. Ethics so far as it springs from the desire to say something about the ultimate meaning of life, the absolute good, the absolute valuable, can be no science. What it says does not add to our knowledge in any sense. But it is a document of a tendency in the human mind which I personally cannot help respecting deeply and I would not for my life ridicule it."(31)
"[D]oes not add to our knowledge in any sense?" Might ethical theories, even ones that "spring from the desire to say something about the.. absolute good" add to our knowledge even when they fail? A pessimistic conclusion is what the wrong question begets.
I think the last two points give two reasons to believe that the qualities of contradiction, incommensurability and conflict are not the flaws which integrity portrays them to be. The most powerful argument for my position, however is a different one. We know that, through history, people have demonstrated amazing abilities to provide rationalisations for existing arrangements. This tendency seems particularly strong in those who benefited from those arrangements (one of the reasons that it seems plausible to see morality as the antonym of self-interest) but it has often found expression even in those who have suffered under a particular regime. Given everything we know about the tendency of "what is" to seem natural, inevitable and just, how is it that we ever come to criticise at all? As I put it in another work, why is it that norm does not come to follow fact, like a slip-cover following the contours of a chair? The question is not "how can one human being ever come to enslave another?" but rather how is it that some members of one race come to believe passionately that the common practice of enslaving members of another race is wrong, to the point that they are willing to lay down their own lives to end the practice? How is it that the disenfranchisement of women or the bombing of people in a faraway country comes to seem anything other than the natural course of events? 'Through struggle,' comes the response, and of course this is true. But where do the intellectual and moral resources for that struggle come, both inside and outside the community of the oppressed? How do we ever break the anaesthetic grip of the normal?
It is no answer to say that the mere experience of oppression will always provide the intellectual keys to unlock that oppression; historically, that claim turns out to be false. It certainly doesn't explain the fact that even some members of those who benefit from a certain state of affairs and who grew up with it as the assumed background of their lives, nevertheless come to experience it as unacceptable. 'Natural sympathy' is certainly part of the process but another part, I think, is the fact that we do not live in a morally univocal culture, we do not live inside a single moral master narrative. Our beings, our persons, are constructed against the conflicting pulls of many different moral schemata. This point is understood even by those who take a different position on morality. Consider the following wonderful quote from William Gass.
Our characters congeal around our choices and our moralities make the best of it. So some of us grow up small boys, arrogant and imperious, inclined to throw tantrums when our wills are thwarted; others of us feast on renunciation, fattening our spirits until they poke from our bodies as our bones do; still others go about kowtowing to circumstances, crying that "what will be, will be," like the reassuring chirp of birds; or we sing instead the song the sirens sang, make an art of our passivity, prepare our bodies to be drawn on as banks, and open our legs there like a purse.(32)
Gass's argument assumes the existence of a society, a lifeworld, where there are multiple modes of moral being, each well enough known that they, and their supporting rhetorics, can be conjured up by a few words. In other words, even when morality is seen only as a kind of spin doctor whose job it is to put the best possible construction on the things we have already decided to do, it is the existence of multiple contending moral systems that makes the task conceivable. In my view, however, the significance of multiple moralities goes much further.
Integrity sees moral conflict as something to be solved or eliminated -- individually when we speak of personal integrity, theoretically within a moral theory, legally when we speak of the integrity of the state's value judgements. Earlier I argued that one aspect of legal practice was the feeling that areas of legal doctrine are constituted by contradictory and potentially imperial ideals, whose continued conflict generates one temporary cease-fire line after another. Dworkin on the other hand, indeed integrity in general, seeks to eliminate the conflict, to resolve it. This instinct may be right or wrong, but it misses the fact that the ability to produce and understand conflicting moral systems is one of the things that helps to give us the freedom to work our way free of the anaesthetic grip of the normal. Like a climber levering his way up a rock chimney, our ability to see the world as both rights thinkers and utilitarians, integrationists and nationalists, libertarians and egalitarians, allows us to brace ourselves and progress despite the absence of an obvious handhold. Moral incommensurability, in this view, is not a tragedy of the gap between hard science and fuzzy morals, but a cultural and personal resource of enormous value. And this brings me back to post-modernism.
Earlier in this essay, I described post-modernism as the theory and art of the Lagrange point: a practice built on setting traditions against each other, simultaneously affirming and undermining each, finding the space to work in the gravitational pulls between two life-worlds. Obviously, (to me at least) this is not the only kind of moral, aesthetic, or legal activity we engage in. The idea of totalised post-modernism is both unattractive and silly. But it is a kind of moral, political and aesthetic activity and an important one at that. I cannot prove this point, of course, though I hope the account I have given here helps to make the idea plausible. If confirmation of this notion is possible, it would lie only in introspection and cultural examination. Think of your own moral decisions; not the sanitised version you present to the outside world, but the internal Joycean stream of notions, emotions, reasoning and ideas. Look at legal development in a particular area or study the rhetoric and moral discourse of a particular historical moment. I believe you will find something of what I have described here, and that you will find it good. Which leads to an obvious question. Is it a good idea, then, to have as our model of moral reasoning, or legal analysis or personal development, a way of thinking that seeks completely to eliminate, to resolve, such tensions? The question is not whether the goal can be achieved. The question is, how much of our scarce energies should we expend in the task, how much of the architecture of our practices should we build around the goal of ending moral conflict, ending morality itself?
This criticism wouldn't feel so powerful if it didn't have some truth to it. I have certainly seen obscurantism and deconstruction used by the post-structuralist intelligentsia as an epistemological 'get-out-of-jail-free' card to evade responsibility for words or actions later regretted. (To be fair, academics have always had survival habits similar to the squid; when threatened they tend to emit a billow of ink and flee. Post-structuralism simply provides a particularly impenetrable cloud to cover their escape.)
Fundamentally, though, I think the image of Marcel Duchamp as the Article 3 judge misstates or misunderstands both the points that are being made here and the practices in which they are situated.
First, no theory of our moral or legal practices can either cause, or save us from, our damnation; such theories have neither the level of interpretive determinacy nor the operative binding power to drag us from, or into, the pit. A theory of original intent in constitutional interpretation does not require Dredd Scott v. Sandford(33) and a process theory aimed at protecting discrete and insular minorities will not preclude Korematsu. When it comes to personal moral decision making, I have tried to argue here that the actual process by which we make moral decisions does not resemble the neat logic of the moral theorist, and that this is no bad thing. Theories do however, make the terrain more hospitable to a particular line of thought; they matter, but not in the exaggeratedly determinist sense we often impute to them.
Second, it is fallacious to imagine that theories are being offered and debated outside of a practice and a history. For example, in conventional American legal practice, one could argue that the constitutionally mandated period of years between elections should not be seen as crude numbers, but rather as judgements, based on the facts of the late eighteenth century, about electoral convenience and legislative capture. True fidelity to the Constitution, in this view, would require that we revisit these numbers in the light of the different facts of our own time. "Four years" might mean three or six or ten.
Now this kind of argument is actually accepted elsewhere in the legal system and views have certainly changed about the irreducible meanings inherent in words. The First Restatement of Contracts, for example, says that private parties can set up particular codes which change the meanings of words. I can tell you to buy five bushels and, if it can be established that we had set up a code whereby numbers should be multiplied by ten, be held to have contracted for fifty bushels. There are limits however. 'Yes' can never mean 'no.' The Second Restatement gives up such limits declaring, along with the Red Queen, that words mean whatever we choose them to. 'Yes' can mean 'no.' All of this notwithstanding, a judge who made such an argument in support of the proposition that Senatorial elections should be every eight years, would be appealed, overruled and perhaps committed. Practices constrain, though the limits of their constraints often cannot be identified in advance; the 'formal' availability of a gambit within a discursive system tells you little about whether or not it would be seen as persuasive, irrelevant or completely ludicrous.
It is in this context that discussions about integrity and post-modernism must be understood. Theoretical arguments about moral, legal and literary practices can neither free the devils of self-dealing, nor guarantee the triumph of the angels of our better natures.(34) The effects of such arguments are on the margins -- which is not to say they are unimportant. And what are those effects? My arguments indicate that we should pay more attention to a certain class of moral danger, to cherish rather than reviling the messiness of our moral reasoning, to acknowledge that we unjustifiably turn historical rules of thumb into supposed philosophical absolutes, perhaps even to allow a little more of the actual way we make moral and legal decisions to be reflected in our theorising.
This is has the sting we often associate with insight, but I have to say that I think the Critic just wasn't listening. I am all for giving post-modernists a hard time; po-mo, at least, is literally asking for ridicule. Yet if one is going to defend the concept of integrity in any sphere, to see whether it actually possesses the virtues claimed for it, one can only do so from the inside, and that is what this essay has tried to do. I have tried to make three specific arguments that bear on the apparent conflict between an idea of principled integrity on the one hand and post-modernist thought and po-mo practice on the other.
All of this leads back to the question I posed at the beginning of the essay. Is integrity merely a living fossil, a form of words used to describe a set of moral attitudes that we now realise are impossible as well as undesirable? The answer is no, both on the level of moral sentiment and felt-experience and on the level of deontology and moral practice. Admittedly, I did try to show that "integrity" is not always what we think it is, that the idea of unswerving, and self-sacrificing consistency is built in part on skepticism about the power of moral reasoning and the effects of "subject position" on moral argument, and finally, that we should not count our profusion of contradictory moral ideas as tragic evidence of failure, but rather as one tool that enables moral criticism in the first place. I hope that these points are useful and that they help to move the debate forward a little.
To argue all of this, however, is not to depose integrity and crown post-modern ethics in its stead. To do so, would be to put post-modernism outside the charmed circle of its own skepticism. Post-modernists claim that post-modernism exists within the aesthetic practices it describes, within the po-mo culture that spawned both. If there is any impact of post-modernism on ethics it cannot be to exterminate the idea of integrity, the way that Hercules disposes of contrary principles. Rather, it would be to make integrity a richer and more contextualised idea, an idea with a history, an idea that stengthens one of our visions of the good at the cost of making us minimise much that is valuable about our moral traditions, an idea rooted in personal and social experience, with the specific and dangerous blind-spots that those experiences produce, an idea always in productive tension with other traditions in our moral and legal practices.(35) Integrity is no fossil, even if -- as I have tried to show here -- our anatomy of it is rather inaccurate. It is that task of anatomical exploration that I have tried to begin in this essay, but I am distressingly aware of how far I am from completing it.
1. Visiting Professor, Yale Law School. © James Boyle 1998. This essay grew out of a paper delivered at the Yale University, Whitney Humanities Center, Conference on Postmodernism/Postmodernity. I would like to thank the organisers of the conference, particularly Robert Gordon and Peter Brooks, for their assistance. I am also grateful to Jack Balkin, Peggy Radin, and Robert Post for thoughtful suggestions made during the presentation of an earlier version of this essay. Patrick Crawford, Ken Anderson, Adrienne Davis and Stanley Fish provided trenchant and probably insurmountable, written criticisms. Michael Roemer tried to demonstrate to me the sins of post-modernism while also telling me that "every story is over before it begins." (Two propositions that seemed strangely at odds with each other.) My greatest thanks, however, go to the Rockefeller Foundation's Bellagio Study and Conference Center for its support -- aesthetic, financial and gustatory -- during the writing of this essay. Errors are mine.
2. Arthur Miller, Incident at Vichy 38-9 (1965) (emphasis added).
3. Though, as I will point out later, even the opponents of post-modernism turn out to reject the notion of integrity is some areas and accept it in others.
4. I am not sure whether this puts me in the camp of the facile repudiators or the facile celebrators. "We are within the culture of postmodernism to the point where its facile repudiation is as impossible as any equally facile celebration of it is complacent and corrupt." Fredric Jameson, Postmodernism, or, The Cultural Logic of Late Capitalism 62 (1991) (emphasis omitted).
5. See also the following account of "stages of history," taken from sentences culled from undergraduate history papers. "The Middle Ages slimpared to a halt. The renasence bolted in from the blue. Life reeked with joy. Italy became robust, and more individuals felt the value of their human beings. Italy, of course, was much closer to the rest of the world, thanks to nothern Europe... The enlightenment was a reasonable time. Voltare wrote a book called Candy that got him into trouble with Frederick the Great. Philosophers were unknown yet, and the fundamental stake was one of religious toleration slightly confused with defeatism. France was in a very serious state. Taxation was a great drain on the state budget..." Anders Henriksson, `Life Reeked with Joy' The Wilson Quarterly, Spring 1983. Barring the spelling and the economics, I am not sure that contemporary sweeping statements about the condition of post-modernity are any less determinist, or any more accurate.
6. There are certainly other ways to divide up the issue, though most of them end up with a relatively similar set of lines. Jack Balkin describes post-modernism as the intersection of an historical period, the cultural forms produced within that period and a set of critical claims about art, philosophy and culture. J.M. Balkin, What is a Postmodern Constitutionalism? , 90 Mich. L. Rev. 1966. He also makes an interesting argument about the economic and material bases of postmodernism. "[W]hile modernity is often associated with the Industrial Revolution and mass production of material goods, postmodernism is better identified with the rise of mass forms of communication and the commodification of intellectual products and symbolic forms." Id. at 1968. Though I don't think the more general claim can be sustained, the analysis seems to be right on point when applied to at least some post-modern art-forms. Indeed for many appropriationist artists, the commodity form of mass-entertainment, intellectual property, is the real "form" that art should subvert. The appropriationist band Negativland puts it this way. "However, aside from the copyright deterrence factor which now prevails throughout our law-bound art industries, we can find nothing intrinsically wrong with an artist deciding to incorporate existing art "samples" into their own work. The fact that we have economically motivated laws against it does not necessarily make it an undesirable artistic move... Artists have always perceived the environment around them as both inspiration to act and as raw material to mold and remold. However, this particular century has presented us with a new kind of influence in the human environment. We are now all immersed in an ever-growing media environment -- an environment just as real and just as affecting as the natural one from which it somehow sprang." "Fair Use" in Negativland, Fair Use: The Story of the Letter U and the Numeral 2 (1995).
7. Admittedly, post-modernists will sometimes decorate their work with baroque analytical filigree, its relationship to the epistemology of the remainder of the work is generally left obscure, however.
8. Karl Marx, Economic and Philosophic Manuscripts of 1844, in The Marx-Engels Reader 70 (R. Tucker 2d ed. 1984).
9. Michel Foucault, the Order of Things: an Archaeology of Human Sciences (1970)
10. Erving Goffman, The Presentation of Self in Everyday Life (1959).
11. How can one reduce the great peril, the great danger with which fiction
threatens our world? The answer is: One can reduce it with the author. The author allows a limitation of the cancerous and dangerous proliferation of significations within a world where one is thrifty not only with one's resources and riches, but also with one's discourses and their significations. The author is the principle of thrift in the proliferation of meaning. Michel Foucault, What Is An Author?, in Textual Strategies; Perspectives in Post-Structuralist Criticism 146, 158-59 (J. Harari ed. 1979).
12. The (very modernist) implicit suggestion was that the philosophical ideas received historicist verification from the evolution of the Volksgeist. If Napoleon was "reason on horseback" for Hegel, then Madonna was post-modernity on..? The figure doesn't bear completion.
13. [T]he modern hubris is in the refusal to accept limits, the insistence on continually reaching out; and the modern world proposes a destiny that is always beyond: beyond morality, beyond tragedy, beyond culture. D. BELL, the Cultural Contradictions of Capitalism 49-50 (1978) (footnote omitted). M. Berman, All That Is Solid Melts into Air (1982); E. Lunn, Marxism and Modernism (1982); Modernism 1890-1930 (M. Bradbury & J. Mcfarlane Eds. 1976); S. Spender, the Struggle of the Modern: an Historical Study of Lukacs, Brecht, Benjamin, and Adorno (1963).
14. Martha Nussbaum, The Discernment of Perception: An Aristotelian Conception of Public and Private Rationality in Love's Knowledge 54-105 (1990) cf Michael Walzer, Spheres of Justice
15. Ernesto Laclau and Chantal Mouffe, Hegemony and Socialist Strategy: Towards a Radical Democratic Politics (1985)
16. Ronald Dworkin, Law's Empire (1986)
17. Id. at 217-232.
18. Texas v. Johnson, 491 U.S. 397 (1989)
19. Cohen v. California, 403 U.S. 15.
20. Bernstein v. Department of State 945 F. Supp. 1279 (N.D. Cal. 1996).
21. Buckley v. Valeo, 424 U.S. 1(1976)
22. Frederick Schauer, The Second-Best First Amendment, 31 Wm. & Mary L. Rev. 1(1989).
23. Law's Empire at 182.
24. Interestingly, Dworkin himself seems mistakenly to assume that strict liability is applied only to manufacturers of goods rather than to product sellers in general.
25. Cf Colmenares Vivas v. Sun Alliance Insurance Co. 807 F. 2d 1102 (1986). Service provider (Municipal port authority running international airline facility) held to have a "non-delegable duty" to maintain safety in the airport. Negligence to be presumed where injury caused by malfunctioning escalator, unless absence of negligence can be proven.
26. Murphy v. E.R. Squibb & Sons 710 P.2d 247 (Cal. 1985) (pharmacist who sells prescription drugs not seller of goods).
27. To be fair to Dworkin, in the case of his stronger examples -- abortion, gay rights and so on -- he offers vaguely Kantian reasons why the principle must stop where it does. I would argue, however that even in Dworkin's best examples, the ones where we are dealing with "fundamental human rights" it is precisely the historical and practical consequences of excluding some person or group from the classification of "human" that makes us shrink away from the idea, and that in turn has helped to create the world in which the universality of the concept seems "natural." Acceptance of this point, however, is not needed for my argument here to succeed.
28. Arthur Miller, Incident at Vichy supra note 1.
29. Although 'right' here, means something like: the best interpretation within the boundaries of the practice as seen through a particular Kantian lens. It does not mean "objectively" right; Dworkin has consistently argued that "the notion of external objectivity is a fake."
30. Enquiry, §XII pt. 1 & 2 Selby-Bigge.
31. Ludwig Wittgenstein, Ethics, Culture and Value reprinted in The Wittgenstein Reader (A. Kenny ed. 1994).
32. William Gass, The Polemical Philosopher The New York Review of Books vol XXXV, No. 1 35, 36 (1988)
33. Dred Scott v. John F. A. Sandford 60 U.S. 393, 404(1856). "The words "people of the United States" and "citizens" are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty, and who hold the power and conduct the Government through their representatives. They are what we familiarly call the "sovereign people," and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is, whether the class of persons [African Americans] described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word "citizens" in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings, who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them."
34. This is the truth at the heart of Stanley Fish's writing, though in my view he sometimes takes the point to an extreme where it becomes both unconvincing and self-consuming; if theoretical arguments cannot change practice, then Fish's theoretical argument to that effect is...?
35. Take the area where the pull of integrity is the strongest; the idea of a person of integrity, a person who is centred, who does not let the changing opinions of others or the changing contexts around him buffet him to and fro. Turn up the contrast on your mental model and soon you are describing a bombastic dogmatist to whom a particular vision of himself and his ideas is so important that it makes the rest of the world invisible: a kind of egotistical solipsism. The question whether being true to one's self and one's ideas in this situation is noble consistency, cranky obstinacy, or simple self-delusion will always be an open question; theory cannot solve it for us, just as theory cannot -- post-modern declarations to the contrary notwithstanding -- tell us that the dilemma does not exist, or that the notions of coherence, consistency and principle are fallacies, errors or delusions.