Law in Contemporary Society

To Hold in a Single Thought Reality and Justice

A true war story is never moral. It does not instruct, nor encourage virtue, nor suggest models of proper human behavior, nor restrain men from doing the things men have always done. If a story seems moral, do not believe it. If at the end of a war story you feel uplifted, or if you feel that some small bit of rectitude has been salvaged from the larger waste, then you have been made the victim of a very old and terrible lie. There is no rectitude whatsoever. There is no virtue. -- Tim O'Brien, The Things They Carried

The philosopher Richard Rorty writes that when he was 12, he was preternaturally occupied with two of his parents' books about Leon Trotsky, which he regarded as did other children their family Bibles. He "grew up knowing that all decent people were, if not Trotskyites, at leasts socialists," and "that the point of being human was to spend one's life fighting social injustice."

Outside of thinking about Trotsky and social justice, Rorty spent a great deal of time hunting wild orchids in the mountains of northwest New Jersey. But for some reason, he says, he felt that he could not separate his passion for orchids from his desire for a more equitable society. He wished "to reconcile Trotsky and the orchids" -- "to find some intellectual or aesthetic framework which would let me [following Yeats] 'hold reality and justice in a single vision.'" He wished to bring into commensuration those moments where he "had felt touched by something numinous ... of ineffable importance" with "the liberation of the weak from the strong" for which Trotsky stood. In the manner of children, and perhaps of law students, he wished to find a necessary relation between those things which in the world meant the most to him.

As a student at Chicago, Rorty became attracted to moral and philosophical absolutes, which at once seemed necessary if one were to argue convincingly against the political atrocities of the 20th century, and also aesthetically similar to wild orchids -- "numinous, hard to find, known only to a chosen few." He began studying philosophy under the assumption that knowledge was virtue, or at least would lead him to it. But the more he studied, the more he became aware of philosophy's limitations and of the problem of noncircular justification whereby it seemed impossible ever to justify one's chosen first principles over any others. Nor did the idea that the best test of philosophical truth was coherence help him much, because it was too easy to avoid contradictions by drawing ever more distinctions. His insights were, and are, equally applicable to the law.

Ultimately, Rorty came to Hegel, to the idea that if "philosophy is just a matter of out-redescribing the last philosopher, the cunning of reason can make use even of this sort of competition [by weaving] the conceptual fabric of a freer, better, more just society." Philosophy, here, is no more than "its time held in thought," motivated by a "commitment to irreducible temporality." By committing itself to temporality, and thus to contingency, philosophy frees itself from the need both for universality and for absolutes. As a result, if one is committed to social justice, then one need not appeal to anything beyond "the sense that the pain of others matters, regardless of whether they are of the same family, tribe, colour, religion, nation or intelligence as oneself" -- a belief that "can only be made evident to people whom it is not too late to acculturate into our own particular, late-blooming, historically contingent form of life." Thus we must accept that "a sense of moral obligation is a matter of conditioning rather than of insight" and "that the notion of insight ... as a glimpse of what is there, apart from any human needs and desires, cannot be made coherent." In this scheme, there is no way to reconcile Trotsky with the orchids, to hold reality and justice in a single vision.

The point here is that justice lacks meaning without reference to the needs and desires of the one holding his time in thought. This idea is difficult for those of us who "want to unite their sense of moral and political responsibility with a grasp of the ultimate determinants of our fate," who wish to find justice "deep down in the nature of things" or, say, in the structure of the law. We can have no guarantee that our "intellectual acuity, and those special ecstatic moments which that acuity sometimes affords, are of some relevance to [our] moral convictions." This does not mean, however, that we are intellectually or practically powerless. Rather, it means that we should not waste time searching for "principles or foundations or deep theoretical diagnoses, or a synoptic vision" for philosophy, society, the law, or anything else. We should instead spend our time formulating strategies and tactics for accomplishing what we can, in accordance with what we really want to do, within the context of the framework given to us, and in preparation for what may come after. In a sense, our autonomy plays itself out not in terms of creating ourselves from scratch, but in terms of exercising our will with respect to who we have found ourselves to be.

Nor should we fool ourselves -- if we happen to be interested in social justice, for example -- into thinking that because people share our moment in time they must necessarily also share our particular passions and predilections. Nor is there anything wrong with the idea that they do not. To some extent, we cannot change who we are, nor can we change who other people are or wish to be. The trick lies in finding some common ground on which we might argue for what we want. If we are interested in a more equitable world, then, we are left with appealing to human decency -- which is all we ever really have to appeal to at any discrete moment in the first place -- and in the present we are tasked with finding the right words to trigger the sympathy underlying the ways people relate to each other. But the present remains just one contingency among many. Thus we are tasked with employing the cunning of reason in such a way as to describe our current moment so that, when dusk comes, and the owl of Minerva spreads its wings, the next world may yet be a better one.

-- By GloverWright - 26 Feb 2010

You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable. To restrict access to your paper simply delete the "#" on the next line:

# * Set ALLOWTOPICVIEW = TWikiAdminGroup, GloverWright

Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list


Webs Webs

r4 - 13 Jan 2012 - 23:14:13 - IanSullivan
This site is powered by the TWiki collaboration platform.
All material on this collaboration platform is the property of the contributing authors.
All material marked as authored by Eben Moglen is available under the license terms CC-BY-SA version 4.
Syndicate this site RSSATOM