The Place of the Humanities in Politics and Law
posted by Frank Pasquale
I just wanted to highlight two very insightful articles on the humanities I should have read earlier. First, here’s part of the abstract of Balkin & Levinson’s Law and the Humanities: An Uneasy Relationship:
Law’s professional orientation pushes legal scholars toward prescriptivism - the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.
Laura Kalman has observed a similar tension between advocacy and academic research in the legal academy, and I’m happy to see B&L moving the conversation forward.
Second, here is Harvey Mansfield writing in First Things on How to Understand Politics:
Politics is not an exchange between the bargaining positions of a buyer and a seller in which self-interest is clear and the result is either a sale or not, all without fuss. As it happens, self-interest does not explain even commercial transactions. That we get angry if we feel cheated, or that we succumb to the charm of salesmanship, shows that more than a small measure of ego enters into the behavior of those who pride themselves on calculation.
Self-interest, when paramount, cools you off and calms you down; thumos pumps you up and makes you hot. In politics there is bargaining, as in commerce, but with a much greater degree of self-importance. People go into politics to pick a fight, not to avoid one.
A provocative and passionate take on a subject that many have tried (and failed) to reduce to transactional logics.
Here is Mansfield’s conclusion:
My profession needs to open its eyes and admit to its curriculum the help of literature and history. It should be unafraid to risk considering what is ignored by science and may lack the approval of science. The humanities too, whose professors often suffer from a faint heart, need to recover their faith in what is individual and their courage to defend it. Thumos is not merely theoretical. To learn of it will improve your life as well as your thinking.
It is up to you to improve your life by behaving as if it were important, but let me provide a summary of the things that you will know better after reflecting on the nature of thumos: the contrast between anger and gain; the insistence on victory; the function of protectiveness; the stubbornness of partisanship; the role of assertiveness; the ever-presence of one’s own; the task of religion; the result of individuality; the ambition of greatness. Altogether, thumos is one basis for a human science aware of the body but not bound to it, a science with soul and taught by poetry well interpreted.
Though Charles Taylor critiqued the modeling of human sciences on natural sciences over twenty years ago (and interpretive social science is getting a second look), few have applied such ideas as eloquently or entertainingly as Mansfield does in this essay.
December 19, 2007 at 12:09 am
Posted in: Law and Humanities, Philosophy of Social Science
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Responses (6)
Daniel Goldberg - December 19, 2007 at 12:53 am
What am I, chopped liver?
The sad fact is that even most academics don’t really know what the humanities are or where they come from, and don’t understand that the defining feature of the studia humanitatis, if I may be an essentialist for the moment, is the use of erudition not in the pursuit of metaphysical truth or certainty but in moral guidance for our daily practices. Their model is IM obviously biased opinion indispensable for thinking deeply about Plato’s fundamental question: how should I live?
You know that there’s little I find as aggravating as scientism, including the annoyingly persistent habit of seeking to model all knowledge modalities on the natural sciences in spite of how poorly such methods may apply for illuminating the desideratum.
khkjh - December 19, 2007 at 5:23 pm
Wow, Mr. Pasquale, I find myself disagreeing with basically everything you write. I don’t see how humanities are relevant to the law at all (except in isolated circumstances, such as literary theory being relevant to copyright law).
kjhkjhkj - December 19, 2007 at 5:35 pm
I think the problem with Goldberg’s argument is that the humanities don’t even come close to answering, or even helping one to answer, the question of “how do I live?” Theoretical debates in the humanities are basically un-endable. Unlike with science, there is no objective right answer in the humanities, and no criteria that one can use to find the right answer. Thus, people’s positions in theoretical debates end up being defined by their own pre-determined notions about amorphous concept like “fairness”. But what’s fair to one person may be completely unfair to another, and there’s no real way to settle this debate.
This is why it’s better to tackle those problems that actually do have objective answers. This is why law is so much more influenced by economics than the other disciplines. With economics, we can all at least agree that some variant of Kaldor-Hicks efficiency is the goal, and that we will adopt whichever policies are best adapted to meet that goal.
A.J. Sutter - December 19, 2007 at 7:06 pm
“Law’s professional orientation pushes legal scholars toward prescriptivism” — speaking as a practitioner, may I observe that this seems to be pretty much the only thing toward which legal scholars are pushed by law’s professionalism. (Present company on this blog excluded, of course…)
As for the existence of “objective right answers” answers in science, kjhkjhkj should read more deeply in historical scholarship about science, e.g. about such basic stuff as the conservation of energy. Much that is solid melts into air, or at least is more problematic than he thinks. As for the notion that economics provides objective answers, the situation is even worse; there’s a vast literature on that too, a good place to start being the work of P. Mirowski. In these cases, an antidote to oversimplified thinking is not necessarily humanities, but history.
Daniel Goldberg - December 19, 2007 at 8:22 pm
KJH,
I find the humanities indispensable to answering this question, as did the medieval and Renaissance humanists themselves.
The notion of objective right answers in science is a hoary old narrative that philosophers of science like Kuhn, Feyerabend, and Keller have mercilessly undermined for the past 30 years. Science is a human practice like any other field of inquiry, and as such is subject to just the same biases, predispositions, and misconceptions as other human practices. The search for truth and certainty in science has, I would argue, hardly gotten us much further than most other knowledge modalities, as important and useful as scientific discourse as been.
But that’s just the point — science is useful and practical, not because it provides certainty or objective truth, which is nonsense, as far as I am concerned.
Moreover, kjkh commits the naturalistic fallacy which is sadly prevalent in economics discourse. The mere fact that we have attained KH efficiency does not automatically imply that we ought to purse the set of policies that provide such efficiency. In some circumstances, we have moral obligations to act in inefficient ways. Economics purports to explain descriptive propositions — is this set of policies efficient? To conclude therefrom that the same set of policies is the normatively preferable one is a rank instance of the naturalistic fallacy.
Finally, even scientists themselves, in the wake of the implications of Heisenberg’s uncertainty principle and complexity theory, have abandoned pretensions to objectivity and truth that you claim science and economics can provide.
Matt - December 20, 2007 at 9:37 am
kjkh- not only can we (or ought we) agree that “some variant of Kaldor-Hicks efficiency is the goal” it’s far from clear that KH efficiency is in any way normatively relevant. If you and I are both at a level of +5, and a legal change will send me to +1 but you to +10, why should _I_ or anyone find that at all desirable or worthy of doing? Not only is KH efficiency not something widely agreed on, it is widely (and rightly) rejected.
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