1. PHILOSOPHY, DEMOCRACY, AND THE TURN TO FILM
This chapter brings our earliest model of philosophy into contact with our latest: it brings Socrates to the postmoderns. Because the history of philosophy might be thought of as a long conversation, the difference between the end points is not as great as one might think, particularly if one emphasizes the dramatic and dialogical. Some scholars draw a distinction between Socrates and Plato: the former practices discursive engagement; the latter advances an abstract metaphysics and merely uses the dialogues as a vehicle to convey his ideas. From this point of view my reading is Socratic.
My opening pages refer to Plato’s Euthyphro and Republic. For a dialogue that takes up directly the nature of philosophy—and how it differs from other practices of speech—look to the Gorgias. For a sense of the drama that philosophy can be, there is no better place to begin than with the Apology and Crito.
At the postmodern end I have been particularly interested in works in legal theory. Important works of this genre include Robert Cover, “The Supreme Court Term 1982, Foreword: Nomos and Narrative,” 97
Harvard Law Review 4 (1983); and Stanley Fish,
Is There a Text in This Class? The Authority of Interpretive Communities (Cambridge, MA: Harvard University Press, 1980). On the critical idea that thought itself has a history that philosophy should bring to light, see Michel Foucault,
The Archaeology of Knowledge and the Discourse on Language, trans. A. M. Sheridan Smith (1971; repr., New York: Vintage, 1982); as well as his classic studies
The Birth of the Clinic: An Archaeology of Medical Perception, trans. A. M. Sheridan Smith (New York: Vintage, 1994); and
Discipline and Punish: The Birth of the Prison, trans. Alan Sheridan (New York: Vintage, 1995). I have tried to bring these insights to bear on the general practice of legal studies in Paul W. Kahn,
The Cultural Study of Law: Reconstructing Legal Scholarship (Chicago: University of Chicago Press, 1999). See also Arthur Austin, “The Postmodern Infiltration of Legal Scholarship,” 98
Michigan Law Review 1504 (2000).
The idea of philosophy as an interpretive practice, the object of which is the imaginative world of meaning, draws equally from the modern disciplines of psychoanalysis and anthropology. On the former, Freud’s works on culture are particularly useful; see, e.g., Civilization and Its Discontents, trans. David McLintock (1930; repr., Mansfield Centre, CT: Martino Publishing, 2010); and Group Psychology and the Analysis of the Ego, trans. James Strachey (1959; repr., New York: Norton, 1990). On the latter I have been particularly influenced by the work of Clifford Geertz, including his Interpretation of Cultures (New York: Basic Books, 1973) and Local Knowledge: Further Essays in Interpretive Anthropology (New York: Basic Books, 1983).
For more on the specific concept of the social imaginary, Charles Taylor’s work is essential—not just the short text
Modern Social Imaginaries (Durham, NC: Duke University Press, 2003) but, more importantly, his magisterial
Sources of the Self: The Making of the Modern Identity (Cambridge: Cambridge University Press, 1989). A similar, although somewhat narrower, idea was suggested by Hannah Arendt in her description of what she thought of as that form of human activity—“action”—that is uniquely characteristic of a political life. She referred to the “in-between” world of meaning that binds people together through words and deeds as a “‘web’ of human relationships” (Hannah Arendt,
The Human Condition [Chicago: University of Chicago Press, 1958], 182–83).
For the idea that philosophy should turn from foundational principles to a more modest enterprise of self-examination, there are sources in both the analytic and the pragmatic traditions. On the former, Ludwig Wittgenstein’s Philosophical Investigations, ed. P. M. S. Hacker and Joachim Schulte, trans. G. E. M. Anscombe (Oxford: Wiley-Blackwell, 2009), is the place to begin. On the latter, one can look to Richard Rorty, Contingency, Irony, and Solidarity (Cambridge: Cambridge University Press, 1989).
The controversy over the role of narrative in historical work is well summarized in Hayden White, “The Question of Narrative in Contemporary Historical Theory,” History and Theory 23, no. 1 (1984): 1–33. A more detailed discussion of the critique and defense of narrative in historical work is presented in Paul Ricoeur, Time and Narrative: Volume 1, trans. Kathleen McLaughlin and David Pellauer (Chicago: University of Chicago Press, 1984), 95–174. For classic examples of the Annales’ approach (supra note 33), which disavows narrative, see Ferdinand Braudel’s three-volume work, The Mediterranean and the Mediterranean World in the Age of Philip II, trans. Siân Reynolds (New York: Harper, 1972); and Marc Bloch, The Royal Touch: Monarchy and Miracles in France and England, trans. J. E. Anderson (New York: Dorset Press, 1990).
My own past work has touched on many of the themes proposed here. In particular, Putting Liberalism in Its Place (Princeton, NJ: Princeton University Press, 2005) challenges the usefulness of a political theory that seeks a foundation of the state in abstract, first principles.
2. FREEDOM AND PERSUASION
There is a long debate in contemporary philosophy over the relationship of causes to reasons. This has been of particular interest to those writing in the analytic tradition. This discussion may have begun with G. E. M. Anscombe’s
Intention (1957; repr., Cambridge, MA: Harvard University Press, 2000), in which she accepts the distinction for what she calls “full-blown” cases (24). Donald Davidson argued that reasons, properly understood, are causes. See Donald Davidson, “Actions, Reasons, and Causes,”
Journal of Philosophy 60, no. 23 (1963): 685. For an interesting response to Davidson that emphasizes, as I do, the possible in an account of reasons, see Mark Risjord, “Reasons, Causes, and Action Explanation,”
Philosophy of the Social Sciences 35, no. 3 (2005): 1–13.
The discussion of Kant’s effort to ground morality in reason continues in some excellent books, including Christine Korsgaard, The Sources of Normativity (Cambridge: Cambridge University Press, 1996); and Susan Nieman, The Unity of Reason: Rereading Kant (Oxford: Oxford University Press, 1994). Challenges to Kant’s moral theory, which rely on the idea that a person is always situated in a particular historical community, begin as early as Hegel. The modern challenge that pursued this sort of an argument was formulated by the communitarians. Particularly important were Michael Sandel, Liberalism and the Limits of Justice (Cambridge: Cambridge University Press, 1982); and Charles Taylor, Hegel (Cambridge: Cambridge University Press, 1975). Alistair MacIntyre’s After Virtue: A Study in Moral Theory (Notre Dame, IN: University of Notre Dame Press, 1984) pursued a similar sort of critique but appealed to an Aristotelian conception of moral character or what is sometimes called “virtue ethics.” See, generally, The Liberalism-Communitarianism Debate: Liberty and Community Values, ed. C. F. Delaney (Lanham, MD: Rowman and Littlefield, 1994).
Much of what I have to say about the role of narrative in the construction of individual and social identity follows paths opened by Paul Ricoeur in multiple works, including Time and Narrative, trans. Kathleen McLaughlin and David Pellauer, 3 vols. (Chicago: University of Chicago Press, 1984); Interpretation Theory: Discourse and the Surplus of Meaning (Fort Worth: Texas Christian University Press, 1976); and Oneself as Another, trans. Kathleen Blamey (Chicago: University of Chicago Press, 1992). MacIntyre also has a very useful discussion of narrative in After Virtue. Like Ricoeur he argues, “Narrative history of a certain kind turns out to be the basic and essential genre for the characterization of human actions” (MacIntyre, After Virtue, 208). This claim is central to my approach. Although I turn from this insight to an exploration of the social imaginary, both MacIntyre and Ricoeur want to put the claim to ethical use, investigating the relationship of narrative to the human good and particularly to relationships of recognition.
Narrative has also had an important role in contemporary jurisprudence. Despite Dworkin’s substantive liberalism, his idea of the judicial opinion as a chapter in a “chain novel” points to the importance of narrative in judicial decision making. See Ronald Dworkin,
Law’s Empire (London: Fontana, 1986), 239. Narrative was also central to Robert Cover’s idea of the jurisgenerative character of every legal text. See Robert Cover, “The Supreme Court, 1982 Foreword:
Nomos and Narrative,” 97
Harvard Law Review 4 (1983). Consideration of the multiple and changing possibilities of interpretation in law—the element of surprise alongside that of continuity—has led me to understand narrative as far less stable than MacIntyre suggests. This deep instability makes it difficult to posit normative claims based on the narrative structure of the imagination.
The ideas in this chapter of the relationship of narrative to persuasion and persuasion to action also draw on the work of Hannah Arendt, who put the idea of man as a “storyteller” at the center of her account of action. The capacity to tell a story is for her inseparable from the capacity to bring something new into the world: without the story there would be no memory of the act. To show oneself, accordingly, requires the possibility of memory, and that requires the story. See Arendt, The Human Condition (Chicago: University of Chicago Press, 1958), 184.
An excellent work on the way persuasion draws on narrative and character is Eugene Garver’s For the Sake of Argument: Practical Reasoning, Character, and the Ethics of Belief (Chicago: University of Chicago Press, 2004). An excellent work trying to recover the role of persuasion in the history of Western political theory is Bryan Garsten’s Saving Persuasion: A Defense of Rhetoric and Judgment (Cambridge, MA: Harvard University Press, 2006).
3. ON INTERPRETATION
The main sources for this chapter are largely the same as those for the prior chapter. Both chapters examine the concepts of imagination, narrative, and interpretation. What unites persuasion and interpretation is narrative. Particularly relevant to my emphasis on the conversation as a model of the role of narrative in understanding is Hans-Georg Gadamer,
Truth and Method, trans. Joel Weinsheimer and Donald G. Marshall (London: Sheed and Ward, 1975).
On the idea of and diversity among symbolic forms see Ernst Cassirer, The Philosophy of Symbolic Forms, trans. Ralph Manheim, 4 vols. (New Haven, CT: Yale University Press, 1965); and Suzanne Langer, Philosophy in a New Key: A Study in the Symbolism of Reason, Rite, and Art (Cambridge, MA: Harvard University Press, 1942). Several recent books on Cassirer are particularly interesting: Deniz Coskun, Law as Symbolic Form: Ernst Cassirer and the Anthropocentric View of Law (Dordrecht: Springer, 2010); Peter Gordon, Continental Divide: Heidegger, Cassirer, Davos (Cambridge, MA: Harvard University Press, 2010). On the necessity of interpretation in dealing with the range of meaningful behavior and experience that constitute the human world, one should look to Charles Taylor’s essay “Interpretation and the Sciences of Man,” in Philosophy and the Human Sciences: Philosophical Papers II (Cambridge: Cambridge University Press, 1985), 15–57.
The distinction I draw between creativity and planning is loosely based on Hannah Arendt’s distinction between making and acting. See Hannah Arendt, The Human Condition (Chicago: University of Chicago Press, 1958). My emphasis on the work as drawing forth its creator takes her distinction in quite a different direction.
The issue of the “bearer” of political history has become a central problem in work on national self-determination. How exactly do we determine who or what is the nation, which has a right to self-determination? A claim of national identity easily becomes a polemical, political claim, for there is no natural unity that is the nation. Works exploring this problem include Ivor Jennings, The Approach to Self-Government (Cambridge: Cambridge University Press, 1956); Benedict Anderson, Imagined Communities: Reflections on the Origin and Spread of Nationalism (New York: Verso, 1983); Eric Hobsbawm, Nations and Nationalism since 1780: Programme, Myth, Reality (Cambridge: Cambridge University Press, 1992); and Martti Koskenniemi, “National Self-Determination Today: Problems of Legal Theory and Practice,” 43 International and Comparative Law Quarterly 241 (1994).
To explore further the nature and significance of the dispute between the nominalists and the scholastics on the nature of God, the best place to begin is Michael Gillespie,
Theological Origins of Modernity (Chicago: University of Chicago Press, 2008). The nominalist idea of a radically indeterminate God that can act in ways that appear wholly arbitrary to human beings becomes central to Luther’s theology and, of course, continues in much of Protestantism. See Diarmaid MacCulloch,
The Reformation: A History (New York: Viking, 2003).
4. VIOLENCE AND THE STATE
The subjects of this chapter are at the center of much of my recent work in political theory. My views on the relationship of sovereignty to law have been elaborated in two books: Putting Liberalism in Its Place (Princeton, NJ: Princeton University Press, 2005); and Political Theology: Four New Chapters on the Concept of Sovereignty (New York: Columbia University Press, 2011). My views on the nature of political violence and its relationship to sacrifice, on the one hand, and torture, on the other, are developed in Paul W. Kahn, Sacred Violence: Torture, Terror, and Sovereignty (Ann Arbor: University of Michigan Press, 2008).
Other important recent works on the general theme of the relationship of violence to law include Giorgio Agamben, Homo Sacer: Sovereign Power and Bare Life, trans. Daniel Heller-Roazen (Palo Alto, CA: Stanford University Press, 1998); Jacques Derrida, “Force of Law: The ‘Mystical Foundation of Authority,’” in Deconstruction and the Possibility of Justice, ed. Drucilla Cornell, Michael Rosenfeld, and David Gray Carlson (New York: Routledge, 1992); and René Girard, Violence and the Sacred, trans. Patrick Gregory (London: Continuum, 2005). Important earlier texts include Walter Benjamin, “Critique of Violence,” trans. Edmund Jephcott, in Walter Benjamin: Selected Writings, ed. Marcus Bullock and Michael Jennings, 4 vols. (Cambridge, MA: Harvard University Press, 1999), 1:237; and Carl Schmitt, The Concept of the Political, trans. George Schwab (Chicago: University of Chicago Press, 1996). For a critique of the politics of sacrificial violence see Hannah Arendt, On Violence (Orlando, FL: Harcourt Brace, 1970); and Jonathan Schell, The Unconquerable World: Power, Nonviolence, and the Will of the People (New York: Henry Holt, 2003).
On the continuing place of sacrifice in the modern nation-state see Moshe Halbertal,
On Sacrifice (Princeton, NJ: Princeton University Press, 2012); and Carolyn Marvin and David W. Ingle,
Blood Sacrifice and the Nation: Totem Rituals and the American Flag (Cambridge: Cambridge University Press, 1999).
The dispute over the continuing place of a politics of sovereignty has also produced a substantial body of work. The attack on the modern relevance of sovereignty is well expressed in Stephen Krasner, Sovereignty: Organized Hypocrisy (Princeton, NJ: Princeton University Press, 1999). Earlier, David Luban criticized the moral integrity of the concept of sovereignty in a debate with Michael Walzer, who argued in favor of international humanitarian law’s presumptions about sovereignty. See Michael Walzer, Just and Unjust Wars (New York: Basic Books, 1977); and David Luban, “The Romance of the Nation-State,” Philosophy and Public Affairs 9, no. 4 (1980): 392–97. This debate over the relevance of sovereignty to law entered international legal scholarship in the 1990s through work on the emergence of a new, transnational legal order. See Harold Koh, “Why Do Nations Obey International Law?” 106 Yale Law Journal 2599 (1997); and Ann-Marie Slaughter, A New World Order (Princeton, NJ: Princeton University Press, 2004).
The disappearance of sovereignty from jurisprudence was exactly the complaint that Schmitt brought against Hans Kelsen. See Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, 2005), 16–35. Contemporary analytic jurisprudence continues in the vein of Kelsen (and H. L. A. Hart), seeing no great need for a concept of sovereignty in order to understand law. See H. L. A. Hart, The Concept of Law (Oxford: Oxford University Press, 1961); and Scott Shapiro, Legality (Cambridge, MA: Belknap, 2011).
Also relevant to the concerns of this chapter is some of the work of modern, cultural anthropology. The beginning point is Clifford Geertz,
The Interpretation of Cultures (New York: Basic Books, 1973); and Victor Turner,
The Ritual Process: Structure and Anti-structure (Ithaca, NY: Cornell University Press, 1969) (on the liminal). More contemporary work on issues of political meaning and sacrifice includes Mateo Taussig, “Outsourcing Sacrifice: The Labor of Private Military Contractors,” 21
Yale Journal of Law and the Humanities 103 (2009); and “Sacred Property: Searching for Value in the Rubble of 9/11,” in
After Secular Law, ed. Winnifred Sullivan, Robert Yelle, and Mateo Taussig-Rubbo (Palo Alto, CA: Stanford University Press, 2011), 322–45.
CHAPTER 5. LOVE, ROMANCE, AND PORNOGRAPHY
In the
Symposium and the
Phaedrus Plato placed love at the center of philosophical inquiry. Philosophy not only took up the subject of the character of love, but doing philosophy was itself to be accounted for as a practice of eros. There has been a dramatic turn away from love, and to reason, in Western philosophy—as if these two were in tension. Presumably, this has had to do first with the Christian inflection on the nature and role of love but second with Freud’s intervention on the nature of eros. Love has become a topic for theologians and psychoanalysts. Recent exceptions include Harry Frankfurt,
The Reasons of Love (Princeton, NJ: Princeton University Press, 2004); Jonathan Lear,
Love and Its Place in Nature: A Philosophical Interpretation of Freudian Psychoanalysis (1990; repr., New Haven, CT: Yale University Press, 1998); and my own works
Law and Love: The Trials of King Lear (New Haven, CT: Yale University Press, 2000), and
Out of Eden: Adam and Eve and the Problem of Evil (Princeton, NJ: Princeton University Press, 2007).
Hobbes’s problem with sacrifice and conscription was identified by Michael Walzer some time ago. See Michael Walzer, Obligations: Essays on Disobedience, War, and Citizenship (Cambridge, MA: Harvard University Press, 1970), 80–88. In Putting Liberalism in Its Place (Princeton, NJ: Princeton University Press, 2005) I argue that liberalism can have no adequate concept of sacrifice, and this produces a fundamental mischaracterization of the nature of the political experience. I develop these themes further in Political Theology: Four New Chapters on the Concept of Sovereignty (New York: Columbia University Press, 2011).
There is a substantial body of work on the nature of the exception. The place to begin is Carl Schmitt, Political Theology: Four Chapters on the Concept of Sovereignty, trans. George Schwab (Chicago: University of Chicago Press, 1986). Contemporary work includes Giorgio Agamben, State of Exception, trans. Kevin Attell (Chicago: University of Chicago Press, 2005); Bonnie Honig, Emergency Politics: Paradox, Law, and Democracy (Princeton, NJ: Princeton University Press, 2009); and Richard Posner, Not a Suicide Pact: The Constitution in a Time of National Emergency (Oxford: Oxford University Press, 2006).
Philosophical reflection on the tension between the family and the polity goes back at least to Plato’s Republic. On the role of family in modern democratic theory see Brian Duff, The Parent as Citizen: A Democratic Dilemma (Minneapolis: University of Minnesota Press, 2011). Recent work on childhood in American political and cultural life includes Steven Mintz, Huck’s Raft: A History of American Childhood (Cambridge, MA: Belknap, 2004); and Steven Mintz and Susan Kellogg, Domestic Revolutions: A Social History of American Family Life (New York: Free Press, 1988).
Speaking of the role of fortune in the world of love, I am indirectly invoking Machiavelli, who saw fortune—mostly misfortune—as a threat to political order and success. See Niccoló Machiavelli, The Prince, trans. N. H. Thompson (New York: Dover, 1992), 66–67.