Contemporary Pragmatism. Volume 7, Number 2. December 2010

ontemporary CPragmatism

Contemporary Pragmatism Editors

Mitchell Aboulafia, The Juilliard School, USA John R. Shook, Center for Inquiry, USA

Assistant Editor

Russ Pryba, University at Buffalo

Editorial Board

Susana de Castro Amaral, Universidade Federal do Rio de Janeiro, Brazil Randall Auxier, Southern Illinois University at Carbondale, USA Richard Bernstein, New School University, USA James Bohman, Saint Louis University, USA Randall Dipert, University at Buffalo, USA Pascal Engel, Université Paris IV–Sorbonne, France Jose Miguel Esteban, Universidad Autonoma del Estado de Morelos, Mexico Nancy Frankenberry, Dartmouth College, USA Nancy Fraser, New School University, USA Jim Garrison, Virginia Tech University, USA Paulo Ghiraldelli, Jr., Centro de Estudos em Filosofia Americana, Brazil Eddie Glaude, Princeton University, USA Russell Goodman, University of New Mexico, USA Judith Green, Fordham University, USA Susan Haack, University of Miami, USA Jürgen Habermas, Johann Wolfgang Goethe University of Frankfurt, Germany Leoni Henning, Universidade Estadual de Londrina, Brazil Hans Joas, University of Erfurt, Germany; University of Chicago, USA Robert Kane, University of Texas, USA Paul Kurtz, Center for Inquiry, USA John Lachs, Vanderbilt University, USA Alvaro Marquez-Fernandez, Universidad del Zulia, Venezuela Joseph Margolis, Temple University, USA James Marshall, University of Auckland, New Zealand Glenn McGee, Albany Medical Center, New York, USA Floyd Merrell, Purdue University, USA Cheryl Misak, University of Toronto, Canada Lucius Outlaw, Jr., Vanderbilt University, USA Michael Peters, University of Auckland, Austr.; University of Glasgow, Scotland Huw Price, University of Sydney, Australia Hilary Putnam, Harvard University, USA Bjørn Ramberg, University of Oslo, Norway Mike Sandbothe, Aalborg University, Denmark Dmitri Shalin, University of Nevada, Las Vegas, USA Richard Shusterman, Florida Atlantic University, USA Jeffrey Stout, Princeton University, USA Claudine Tiercelin, L’Université de Paris-XII, France Celal Türer, Ankara University, Turkey Bas van Fraassen, Princeton University, USA Marcus Vinícius da Cunha, Universidade de São Paulo, Ribeirão Preto, Brazil Cornel West, Princeton University, USA

Contemporary Pragmatism is affiliated with the International Pragmatism Society. See information for subscribers and contributors on the end pages of this issue.

ontemporary CPragmatism Edited by

Mitchell Aboulafia & John R. Shook Volume 7 Number 2 December 2010

AMSTERDAM - NEW YORK, NY 2010

The paper on which this book is printed meets the requirements of “ISO 9706:1994, Information and documentation - Paper for documents Requirements for permanence”. ISSN: 1572-3429 ISBN: 978-90-420-3287-3 E-Book ISBN: 978-90-420-3288-0 ©Editions Rodopi B.V., Amsterdam - New York, NY 2010 Printed in The Netherlands

Contemporary Pragmatism Volume 7 Number 2

December 2010

Contents Articles Frederic R. Kellogg Hobbes, Holmes, and Dewey: Pragmatism and the Problem of Order

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Brian E. Butler Dews, Dworks, and Poses Decide Lochner

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Sor-hoon Tan Our Country Right or Wrong: A Pragmatic Response to Anti-Democratic Cultural Nationalism in China

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Stephen Harris Antifoundationalism and the Commitment to Reducing Suffering in Rorty and Madhyamaka Buddhism

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Eric Thomas Weber On Applying Ethics: Who’s Afraid of Plato’s Cave?

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William Gavin, Stefan Neubert, and Kersten Reich Language and Its Discontents: William James, Richard Rorty, and Interactive Constructivism

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Matthew J. Brown Genuine Problems and the Significance of Science

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Robert Chodat Evolution and Explanation: Biology, Aesthetics, Pragmatism

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Joseph Margolis Pragmatism’s Future: A Touch of Prophecy

189

Review Essay Brian E. Butler Sen’s The Idea of Justice: Back to the (Pragmatic) Future

219

Book Reviews Tibor Solymosi Review of Jay Schulkin. Cognitive Adaptation: A Pragmatist Perspective. 231

Contemporary Pragmatism Vol. 7, No. 2 (December 2010), 1–14

Editions Rodopi © 2010

Hobbes, Holmes, and Dewey: Pragmatism and the Problem of Order Frederic R. Kellogg

Civil wars in England and America were catalysts in forming the jurisprudential views of Thomas Hobbes and Oliver Wendell Holmes Jr. Holmes’s pragmatism advances a fundamentally distinct view of order from Hobbes’s analytical theory. Holmes replaced the Hobbesian analytical model of law with an endogenous model that assimilates conflict in a process of formal but communal inquiry into discrete types of dispute. Holmes rejected the analytical boundary around law in favor of a holistic fallibilism, which like Dewey’s encompasses all inquiry, legal, scientific, aesthetic, and philosophical, under one ontological roof. Holmes also provided a practical critique of ideology, best known from the words of his famous dissent in Lochner v. New York: “The fourteenth amendment does not enact Mr. Herbert Spencer’s Social Statics”; or, more to the point, “General propositions do not decide concrete cases.”

If pragmatism (as Richard Rorty and others have claimed) has no grand scheme beyond the commitment to deliberative democratic pluralism, does it have some stronger account, as Wilfrid Sellars puts it in defining philosophy, of “how things, in the broadest possible sense of the term, hang together, in the broadest possible sense of the term”? In this paper I will pursue the vision of a distinctly dynamic and transitional concept of order implicit in classical pragmatism, rather than an analytical vision grounded in a fixed cognitive image. Central to this theme is the very different response to human conflict of Oliver Wendell Holmes, Jr., from that of Thomas Hobbes. On 11 November 1862, Captain Holmes wrote from his regiment in Virginia to his sister Amelia despairing that the Confederacy could be overcome by force. He had been wounded twice, in October of 1861 while his regiment was being thrown by a superior force off Balls Bluff into the Potomac River, and again in September 1862 by a bullet through the neck at Antietam. He would soon be hit again at Fredericksburg, his regiment all but decimated. After witnessing the dead piled 5 deep at the Bloody Angle at the Battle of the Wilderness, he declined promotion and resigned his commission in August of 1864 to return to Cambridge to study law.

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Holmes’s despair proved unjustified and the Union did somehow hang together; how barely, he was acutely aware. Philosophical pragmatism – in its classical form – followed the American Civil War. This was only eighty years after the American Revolution, and sixty years after the War of 1812. Emerging in the wake of three fratricidal wars, it is to be expected that within the origins of pragmatism would be some response, if not a distinctive one, to the problem of human conflict. The flip side of conflict is order; and the problems of moral and intellectual order if not inseparable are resistant to separation if we take Sellars seriously. Hume’s task in his moral philosophy, notes Haakonssen, is completely analogous to his task in epistemology: to explain how a common world is created out of private and subjective elements (1981, 4). Holmes, in many ways a successor to David Hume, has not been fully recognized as an original philosopher by legal academics, but a comprehensive reading, in context with his pragmatist contemporaries, adds a distinctive dimension to the making of the moral, and certainly legal, character of that common world. What makes a real community hang together, in the broadest sense of the term? To address this question we may pick up a line of thought developed by Holmes and continue it in Dewey’s extended wake. Dewey’s lifelong project, as Ralph Sleeper has characterized it, was to elucidate a radical pragmatic naturalism as a critique of, and an alternative to, the dominant analytical tradition in logic, epistemology, and ontology (Sleeper 1986). I read Holmes as doing the same for jurisprudence: launching a profound naturalist critique of analytical jurisprudence as it re-emerged with John Austin in the nineteenth century, following Thomas Hobbes in the seventeenth century and continuing today with H. L. A. Hart and Joseph Raz. Holmes’s radical naturalist account highlights critical aspects of Dewey’s project, particularly the precarious nature of democratic order, and the lingering presence of authoritarian models of law. It grounds the often overly abstract conversation about pragmatic models of democracy, and while bringing it down to earth, also suggests a pragmatic agenda in other areas of contemporary philosophy. It does this by exploring, as an aspect of pragmatism, the problem of order as one of addressing and reconciling perennial conflict, which both Hobbes and Holmes made central in all its forms: military, political, moral, and intellectual.1 The difference between them is that Hobbes resolved the problem through authority, while Holmes does so through inquiry and adjustment. How is this related to the origins of pragmatism? Remarkably, on returning to Cambridge Holmes showed no signs of posttraumatic stress disorder. From 1866 into the 1870s he was active in round-robin discussions of philosophy with William James, Chauncey Wright, Charles Peirce, and others; after a disappointing stint at Harvard Law school he worked in a Boston law office; and he read philosophical and scientific works recommended by Wright, as well as the Lectures on Jurisprudence of John Austin and other legal treatises. He eagerly took over from James B. Thayer the

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revision of the encyclopedic legal treatise, Kent’s Commentaries on American Law, a massive task; and he edited and wrote for the American Law Review, eventually tracing a path from which can be devined an original conception of law influenced by Emerson, Wright, Mill, Darwin, Maine, and an immersion in diverse historical and anthropological studies. His conception was the antithesis of Hobbes’s.2 This article examines the mechanism by which Holmes, in the 1870s, came to describe the developing and maintaining of social order. He did not characterize it as such; his subject was law, the common law, and his focus was on cases, rooted in the revision and updating of Kent’s Commentaries. Yet the nature of this mechanism, eventually applied to constitutional law, holds so much in common with the emergent themes of pragmatism that it is illuminating to abstract from it a cognate response to conflict: a pragmatic theory of order, legal in the immediate sense, moral and conceptual by implication. I propose three approaches to elucidate this, in three dimensions: historical, ontological, and practical. By historical I mean Holmes’s replacement of the Hobbesian analytical model of law, designed to address (and presumably suppress) conflict by state control, with an endogenous model that assimilates conflict in a process of formal but communal inquiry into discrete types of dispute. By ontological I mean Holmes’s rejection of the analytical boundary around law, dating to Hobbes and still reflected in the contemporary separation of law and morals, in favor of a holistic fallibilism, which like Dewey’s encompasses all inquiry, legal, scientific, aesthetic, and philosophical, under one ontological roof. The third or practical dimension refers to Holmes’s critique of ideology, best known from the words of his famous dissent in Lochner v. New York: “The fourteenth amendment does not enact Mr. Herbert Spencer’s Social Statics”; or, more to the abstract point, “General propositions do not decide concrete cases.” Having established these three aspects, I hope the reader will agree with me that what distinguishes the pragmatic approach to jurisprudence is that law must be analyzed not as a separate entity but as part of the more general problem, or set of problems, of social ordering. Thereupon we will be in a position to explore pragmatism’s approach to conflict as a dynamic theory of order, distinct from the dominant analytical tradition, and to understand its advantages.3 1. It is well known that Hobbes placed conflict at the center of his thinking about law and government. “My mother gave birth to twins: myself, and fear.” It is also well known that from the premise of inveterate conflict, he deduced in Euclidian fashion a “social contract” by men in the state of nature to cede certain innate rights to the state to establish and maintain civil society. While hardly the first to conceive of law as an autonomous force maintaining and directing

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society, Hobbes gave the tradition a modernist and rationalist rebirth, renewed in succeeding centuries by Bentham, John Austin, H. L. A. Hart, and lately Joseph Raz. It was John Austin’s just-published version of analytical jurisprudence that seized Holmes’s attention in the 1860s, much as it was R. Hermann Lotze’s version of analytical logic that seized Dewey’s by 1903 (Sleeper 1986, 5, 64–5). Accepting for the moment the pervasiveness of conflict, is there a more plausible paradigm than Hobbes’s mythical contract for explaining its relationship to law? Exemplifying a historicist naturalism, Holmes’s model is taken directly from the law books. His is the recorded one of constant disputes, channeled into law courts and thence organized into legal intelligence. For Holmes, litigation, seen all around us, is a key part of the process of social ordering; and I will suggest that he found within it features that are representative of more general relations between dispute and inquiry, between conflict and theory. I suggested that the model was original, but it had important precedents. An earlier version of common law based theory was developed in response to Hobbes by Sir Edward Coke (1552–1634) in the Institutes, and Sir Matthew Hale (1609–1676) especially in his posthumous Reflections, building on Coke. They are the first in the Anglophone tradition to spell out that there is a difference between the form of reasoning implied from the two versions of regulating conflict through law. Law is either exogenous or endogenous.4 Either you control conflict from outside (leading, as the tradition reveals, to formal analytical thinking) or you assimilate it from within, through a frequently inelegant and messy ad hoc system of negotiation and gradual classification. Hobbes, who favored Euclidian elegance, was annoyed by common lawyers like Coke and Hale, who resisted his authoritarian model. Late in life he wrote his Dialogue Between a Philosopher and a Student of the Common Law. Posing as the philosopher, Hobbes asks the student “Would you have every man to every other man allege for law his own particular reason? There is not amongst men a universal reason agreed upon in any nation, beside the reason of him that hath the sovereign power. Yet though his reason be but the reason of one man, yet it is set up to supply the place of that universal reason, which is expounded to us by our Saviour in the Gospel; and consequently our King is to us the legislator both of statute-law, and of common-law.” Hobbes’s attack on Coke was not published until well after his death in 1681; but it was apparently circulated widely enough in manuscript form to come to the attention of Sir Matthew Hale, whose manuscript reply, Reflections by the Lord Chiefe Justice Hale on Mr. Hobbes his Dialogue of the Lawe, was unpublished until 1921 when its importance was recognized by the British legal historian Frederick Pollock, by then an old friend and correspondent of Holmes. Hale begins his Reflections with an elaborate demonstration that reason is by no means univocal as applied to different subjects of inquiry, such as mathematics, physics and politics, and that it must be permitted to assume a

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special meaning in the difficult field of law. This is because “the texture of human affairs is not unlike the texture of a diseased body laboring under maladies, it may be of so various natures that such Phisique as may be proper for the cure of one of the maladies may be destructive in relation to the other, and the cure of one disease may be the death of the patient.” (1921, 503) Though unread by Holmes until much later, it prefigures his own common law based habit of thinking from particular situations, closer to raw experience, while resisting easy general answers. By reasserting an endogenous model against Austin’s analytical scheme, Holmes was obliged to flesh it out and respond to Austin’s more insistent ontological separation of law from morals. Here he would draw on the naturalist, empiricist attitudes of the Scottish Enlightenment that influenced his own education and that of his Harvardgraduated peers like Wright, Peirce, and James. As noted above, Hale’s view was an early challenge to the rationalist approach that Bentham and his disciple John Austin would later elaborate. There was a different response to British rationalism in Scotland in the century after Hale: the moral sense theory of Shaftesbury, Hutcheson, Hume and Adam Smith. As the legal historian John Cairns writes, “from the work of Frances Hutcheson ... rationalist natural law theories in the tradition of Pufendorf had been progressively superseded in Scotland by versions of moral sense theory. A follower of the philosophy of Lord Shaftesbury, Hutcheson attempted to ground ethics in observation and study of the thinking and behavior of human beings.... The foundation of moral judgment was not in reason, but in the senses.” (2003) Cairns traces the influence of this on Kames, Hume, Smith and Millar, as well as the influence of Montesquieu on Scottish Enlightenment thinking about law. We may find that Holmes actually reaches into both traditions, that of Coke and Hale as well as of Kames and Smith. He had absorbed Scottish thought as an undergraduate at Harvard through Francis Bowen, who had taught philosophy and political theory to the members of the Metaphysical Club (and even attended some of their meetings). Holmes’s post-war diaries show that he too read Hamilton, Bain, and other Scots, as well as Montesquieu, and of course Darwin, a major influence on all the members of the Club. We might say that Holmes reinterpreted Hale in privileging precedent as the organic body of patterns of decision – or what is beneath, patterns of conduct, eventually translated into legal concepts as they first clashed and then were adjusted and reconciled. He saw common law as pulling moral standards out of conflict resolution, as reworking them and thereby developing and constantly writing and revising the moral component of law. What Holmes does with moral sense theory seems particularly noteworthy. Holmes historicizes Smith’s “impartial spectator” in a way that conditionally validates precedent. Holmes’s “reasonable and prudent man” was the test for negligence, the standard of care. The prudent person is Holmes’s historical spectator. We value precedent because the prudent person has been there all along, in the role of jury and judge, constantly infusing the common

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law with a historically more plausible – even while still highly idealized – version of Scottish moral sense. This simplified explanation hides underlying complexity but serves to sketch the lineage. What it fails to show, yet, are the implications for applying conflicting precedents and resolving disputes. Smith’s impartial spectator had been a device, a trope, originally devised to emphasize Hutcheson’s antirationalist ethics. The prudent man is also a device, but it is drawn from legal history (explicitly introduced into English law in 1781 by Sir William Jones) and it speaks with caution, more than a touch of Humean or Burkean skepticism. While Smith’s theoretical spectator might say, “Aha! I can look inside myself to do the right thing in any doubtful case,” Holmes’s prudent man is a consensus builder: “Whoa, I think this looks right for now, to me, in this instance, but first let’s check the precedents, allow for future variations, and await a consensus before laying down a rule.” Smith thought the impartial spectator could find the universal in the particular,5 but Holmes recognized from Kent that this takes time and experience. The prudent judge looks first to precedent, and only finds the universal when the time is ripe: It is the merit of the common law that it decides the case first and determines the principle afterwards.... In cases of first impression Lord Mansfield’s often-quoted advice to the business man who was suddenly appointed judge, that he should state his conclusions and not give his reasons, as his judgment would probably be right and the reasons certainly wrong, is not without its application to more educated courts (1870). Here the legal decision is described as coming before the reasoning; the analytical matrix of the law, and its a priori rules of decision, would appear surprisingly irrelevant. This surely appears unsound, until we recognize that Holmes is speaking not of the ordinary case, but of the tough case, the novel situation, often representing a new and at first intractable clash of interests. The simplified sketch implies – perhaps too much so – that there is no clear rational itinerary from the written law to the specific decision. More importantly, though, it implies a common-law judicial minimalism, deciding “one case at a time.” This phrase has most recently been deployed by Cass Sunstein, referring to decisions of the Supreme Court that avoid formulae and withhold sweeping generalization (1999). Sunstein, writing of controversies that are in his phrase “not yet fully theorized,” might profitably have cited Holmes for this principle, as Holmes had in 1870 proposed a quite sophisticated model through which common law rules are ideally formulated: It is only after a series of determinations on the same subject-matter, that it becomes necessary to “reconcile the cases,” as it is called, that is, by a true induction to state the principle which has until then been obscurely

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felt. And this statement is often modified more than once by new decisions before the abstracted general rule takes its final shape. A well settled legal doctrine embodies the work of many minds, and has been tested in form as well as substance by trained critics whose practical interest it is to resist it at every step (1870). Holmes called this process “successive approximation.” Legal rules are viewed historically, and Holmes here proposes that they be understood as emerging from classes of activity, or more precisely from classes of disputes within discrete activities. As new cases arise within a given class, for example vehicular accidents or communications among people forming contractual arrangements, they are initially decided on their facts, a case at a time. Eventually a body of decided cases can be “reconciled,” with the laying down of a general rule, after time has permitted sufficient case-specific analysis, probing the relevant varieties and conditions of accidents or contractual communications. Whereas analytical legal positivism emphasizes language and text, which gives the appearance of fixity, the updated common law model emphasizes patterns of conduct, which may be in the process of adjustment and gradual change. While the positivist model sees legal change as possible primarily through legislation, Holmes saw it as ongoing in areas even already covered by statute; and finality of generalization is ever elusive. The introduction of new forms of travel or communication may require new amendments to the rules of travel or contract, as did the airplane and the telegraph in the previous century. And even new legislation will need to be interpreted and applied on a case-bycase basis.6 2. This truncated historical tour brings us short of important developments in the twentieth century, when the analytical tradition was revised by Hart and his disciples at Oxford and elsewhere. The ontological aspect of Holmes's position becomes evident when we consider his conception of the difficult case and compare it to that of Hart and the contemporary legal positivists. Recall that Hale’s comparison of law to a curative introduced into the “texture of human affairs” separated both his notion of reason and his conceptualization of law from those of Hobbes. His “texture” terminology anticipates Herbert Hart’s “open texture” of legal language; but unlike Hart, the texture of interest to Hale is outside the law, a texture of “affairs” or activity, and the element of difficulty would necessarily be located there instead of within the isolated text. We may compare an example made famous by Hart, the famous bicycle in the park case, and its relation to the notion of an “open texture” in legal language. A local ordinance bans vehicles from a public park. Competent users of English are uncertain or disagree about whether bicycles are vehicles. Hart

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infers that the rule banning vehicles from the park has a core of determinate meaning and a penumbra of indeterminate meaning, into which the bicycle would fall. (1994, 123–127) For Hart, deciding the bicycle case requires a court to assign to the rule an increment of determinate meaning that it did not previously have.7 Positivist open texture theory, adopting the conception of metaphorical space in an opentextured entity “law,” either renders the project of legal interpretation impossible or the language of judges and lawyers fraudulent. For the metaphorical space to be truly empty, any gap in a rule must be a gap in the law as a whole, as there would otherwise be someplace else within the law to find an answer. Hence for such gaps there is no possibility of deciding a case by interpreting “the law.” Picture a circle, with the label “LAW” on the inside, and “MORALS” on the outside. This is the conceptual image of positivist analytical jurisprudence – with law and morals separated by a definable boundary. (I use the idea of a circle for clarity. Perhaps rather than a circle, implying uniformity to varying analytical theories, I should suggest an enclosing line with indeterminate shape.)8 The picture is reinforced by language concerning the very question of law’s relation to morals, and of analysis of that question. It forces the conversation about law into an epistemic boundary issue, rather than a question of process. It focuses on the issue of how things inherently (or at least presently) are, rather than of how things come to be. This line of inquiry in analytical jurisprudence is presumed to be a “given,” as an ancient, fundamental, and defining question of jurisprudence. A recent comment by the preeminent European legal philosopher Robert Alexy suggests that all of jurisprudence has been and must always be dominated by this question, the question of whether law is separate from morals: The central problem in the debate surrounding the concept of law is the relationship of law and morality. Notwithstanding a discussion that reaches back more than two millennia, there remain two basic, competing positions – the positivistic and the non-positivistic. (1989, 3) Here the “non-positivistic” position is simply the other alternative given by the analytical picture: the option of somehow putting a moral element inside the boundary. Western jurisprudence is thus overwhelmed by a powerful linguistic bias toward analytical legal theory and method, by a concept of law with a definitive boundary – whether that boundary includes morals or not. If we ignore Hale and accept Alexy’s comment, the pragmatic view is then entirely original – a third “basic position.” It cannot, however, be so simply mapped, as the pragmatist model of law is part of a model of developing intelligence in the context of all experience.

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3. The analytical picture serves to illustrate the practical dimension of Holmes’s critique of ideology. Picture again the circle with “law” on the inside, but put aside for the moment the precise location of “morals.” If law has a boundary, the question arises, what precisely is inside, and what outside? If a question arises for which legal experts cannot find a clear answer from the materials (statutes, cases, authoritative texts, etc.) that are inside, can they look outside for an answer? And what if “moral principles” are believed to be inside, as Alexy, following Ronald Dworkin, has steadfastly maintained? Can such generals be utilized to decide the difficult case? Holmes’s fallibilism resists the idea of a natural conceptual boundary around law. It sees no difficult case as occupying a place inside or outside a legal boundary. Rather, the hard case presents a degree of novelty or uncertainty. Cases come into the legal process from the chaos of life’s complexity. They bring innumerable distinct kinds of uncertainty and difficulty. It is a categorical error to treat all types of legal uncertainty as univocal, of one conceptual kind, an error that seems inevitably to follow from the notion of a boundary, or at any rate from the debate over the ontological separation of law and morals. It is an error that, as Holmes would later complain, may be used to rationalize a judge’s predetermining the outcome of an ongoing controversy by circumventing detail and appealing directly to a “moral principle.” From this perspective, two fallacies have followed from the analytical conception, going back at least to John Austin, that law has a distinct conceptual boundary. One is that a particular case, embodying a specific question, can arise outside the boundary, and hence be legally indeterminate. According to the positivist model, law, considered as an adjudicative matrix, either succeeds or fails on its own. When deciding difficult cases this means the positivist must accept the problematic possibility of a radical “legal indeterminacy.”9 The other fallacy, following from the debate over whether law and morals are separate, is that morals, or moral principles, must be included within the boundary when necessary to resolve the legally indeterminate case. This gives rise to the superficial notion that constitutional rights, as privileged “moral principles,” can be available as trumps over statute and precedent whenever their sweepingly general language permits. If a case represents a prevalent controversy on which a judge has strong feelings, and there is a relevant constitutional value such as free expression, annoying facts that may align the case with prior contrary decisions can be ignored, in favor of a rhetorical recitation of the historic importance of the constitutional right. While this may appear to be a twentieth-century phenomenon, Holmes first encountered a nineteenth-century version of it during his career as a state judge, in the yet unregulated area of labor organization – the tendency to reject picketing as a violation of constitutionally protected freedom of contract.10 Lochner, in 1902, invoked the same right to overrule state welfare regulation, and would be his

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signal encounter with this phenomenon on the Supreme Court. In both cases he dissented, and in both his position has been born out by historical developments. Constitutional rights are important, but they are implemented by raising fundamental questions for society at large, not by dictating, to the individual judge, shortcut answers to new perplexities like union organizing or social welfare legislation. More recent issues in which the temptation exists to avoid complexity are corporate limits on campaign spending, and medically assisted suicide. Why should judges decide such matters on particular grounds, as Holmes counseled, and refrain from reaching into the constitution for a final, irreversible rationale? The simple answer is that law is part of a broad social inquiry, and in the most vexing controversies, inquiry has to run its course before the correct principle, meeting the fully explored contours of a problem, follows in policy as well as language. And, ample room must be given for input from outside the judicial arena. 4. How do things hang together, amidst crisis and serious conflict? Slavery and its aftermath has overwhelmingly been the greatest source of violent dissension in the history of the republic, a clash of deep commitments worked out only through two centuries of gradual and painful adjustment – of habits, practices, beliefs, and even language. The path of that dispute is irreconcilable with a Hobbesian social contract suppressing the operation of conflicting moral views of law. Such a vision could hardly have appealed to Holmes. As a young abolitionist, he was raised on Emerson’s call to personal responsibility, and he felt its sting. For Hobbes, civil war was unmitigated evil to be avoided at all costs, while for Holmes it came to be understood as simply a more explosive manifestation of the constant clash of fundamental interests. We need not condone fratricidal war in recognizing that, in seventeenth century England and eighteenth as well as nineteenth century America, it addressed moral deadlocks that political and legal institutions could not break. This insight plausibly led Holmes to the intimate connection of legal cases with their underlying conflicts, and an emphasis less on analytical legal doctrine than the non-legal dimensions of adjustment. What is missing from Hobbes’s view is the constant need for adjustment in any real scheme of social ordering. It is this that I refer to as the dynamic order characteristic of pragmatism, the transactional and transformative aspect of inquiry found in Dewey’s work. The logic of the law is not the a priori dictate of legal reason but rather, paraphrasing Dewey, the product of inquiry. The dimension highlighted in retrospect through Holmes is the element of constant conflict as a catalyzing force. As Ralph Sleeper notes, Peirce’s doubt-belief formula directed Dewey’s attention to the actual processes of thought. Inherently vague, the idea of doubt

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has always sought specificity in Dewey’s work. For Sleeper the key to Dewey’s logic was understanding inference “as a real event of transformational force and power, causally real in the emergence of new features of things ‘entering the inferential function.’ It takes inference as action, as behavior that causes changes in reality through interaction with things.” (1986, 83). If the real process of inference begins with doubt, the doubt-belief formula needs to acknowledge that doubt is not merely spectral but must have its own physiology and history. From Holmes we gain the insight that legal intelligence is a special case of inference deriving from constant controversies that find their way into the judicial system. Doubt is palpable in the difficult case. The gradual hammeringout of belief through case-specific resolutions is visible in the record of litigation. Flawed and chaotic though it may be, the resolution of conflict by legal problem-solving provides a written record of naturalistic and pragmatic ordering, revealed in its full flawed and chaotic nature. This aspect of knowledge needs to be recognized equally in relation to the dynamic growth of universals and ideals. In an address given to the New York State Bar Association in 1899, Holmes summarized this point in a way that Dewey must have appreciated: It is perfectly proper to regard and study the law simply as a great anthropological document. It is proper to resort to it to discover what ideals of society have been strong enough to reach that final form of expression, or what have been the changes in dominant ideals from century to century. It is proper to study it as an exercise in the morphology and transformation of human ideas. (1899, 212) This extraordinary passage demonstrates that Holmes saw law entirely differently from Hobbes. Rather than an autonomous force suppressing conflict as pathological, it is embedded within the social processes assimilating and meliorating conflict as a natural condition. Rather than viewing legal and political theory as a prophylactic program for a discrete governing entity, legal theory is cognate with the rest of knowledge and law is viewed as a written record offering evidence of social norms and ideas as continuously cogenerated. Ideals are products of this view of knowledge-as-inquiry, and they are constantly developing in response to the changing nature of the human endeavor. In this original vision, legal philosophy is engaged in a radical departure from the analytical positivist tradition, with interesting and illuminating parallels, not so much to other established jurisprudential schools, but rather (as I have suggested elsewhere, 2010) to the post-Kuhnian study of science, which has already become a vital research program generating its own account of “the morphology and transformation of human ideas.”

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FREDERIC R. KELLOGG ACKNOWLEDGEMENTS

I thank George Browne and members of the Center for Pragmatism and Law at Universidade Federal de Pernambuco in Recife, Brazil; Jeffrey Brand-Ballard, Paul Churchill and the brown-bag-lunch philosophers at George Washington University; Francisco Saffie and members of the Legal Theory Group at University of Edinburgh School of Law; my fellow MacCormick Fellow John Lovett; John Cairns, whom I was privileged to meet in Edinburgh; Larry Hickman; and anonymous reviewers for Contemporary Pragmatism, for their helpful comments and suggestions on previous drafts leading to this paper. This paper is dedicated to Professor George Browne, whose invitation to Recife in 2007 began the process of its formulation.

NOTES 1. See, e.g., Shapin and Shaffer (1985), 15, 99–100. “[S]olutions to the problem of knowledge are embedded within practical solutions to the problem of social order, and different practical solutions to the problem of social order encapsulate contrasting practical solutions to the problem of knowledge. That is what the Hobbes-Boyle controversies were about.” (15) 2. For a full account of this see Kellogg (2007). 3. I am aware that the weight of opinion regarding Holmes has long held that, rather than a pragmatist, he is a positivist within the Hobbes/Austin/Hart tradition. See for example Patrick Kelly, “Was Holmes a Pragmatist? Reflections on a New Twist to an Old Argument,” 14 S. ILL. 427 (1990); and Albert Alschuler, Law without Values (Chicago: University of Chicago Press, 2000). As I observed in Kellogg (2007), these sources over-rely on Holmes’s “Path of the Law.” In that essay Holmes writes, “I often doubt whether it would be a gain if every word of moral significance could be banished from the law altogether,” and he mentions “the evil effects of confusion between legal and moral ideas.” Without the insight from earlier texts, this is easily mistaken for an analytical separation of law and morals, as is his emphasis on an external standard of liability in The Common Law, from which his initial consideration and rejection of Austin was omitted as irrelevant. Dissenters from this conventional view who have seen Holmes as a pragmatist notably include Thomas C. Grey, “Holmes and Legal Pragmatism,” 41 Stanford Law Review 787 (April 1989): 787–856 and “Freestanding Legal Pragmatism,” 18 Cardozo Law Review 21 (September 1996): 21–42; see also Rand Rosenblatt, “Holmes, Peirce, and Legal Pragmatism,” Yale Law Journal 84 (April 1975): 1123–1140. 4. Common law reason has been described as “within the law.” It is rooted in conduct and practice. As Gerald Postema has noted, it was “inseparable from the particular situations brought to the law and resolved by it. It is the reason not of rules and principles, but of cases.” It reflects the fact that cases are the byproduct of problematic interaction among humans engaged in social and economic activities, which fall naturally into patterns that might qualify as “custom,” from which reason cannot be detached. It is distinct, then, from the meaning given to the term by Hobbes. (Postema 1986) 5. See MacCormick (2008). 6. Holmes applied this to legislation (1870). Statutes too are the work of many minds, in elected bodies. Diverse circumstances are explored all at once, in legislative committees, instead of seriatim through litigation. Again unclear circumstances remain,

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to be addressed in a case-specific manner by the judiciary, if not through legislative amendment. See, e.g., Roscoe Pound, The Spirit of the Common Law (Boston: Beacon Press, 1921), p. 174; Edward H. Levi, An Introduction to Legal Reasoning (Chicago: Chicago University Press, 1949), p. 27; Rosenblatt, “Holmes, Peirce, and Legal Pragmatism,” p. 1133. 7. Hart (1994), p. 127. This reading is reinforced by Hart’s own remarks in the Postscript responding to Ronald Dworkin added to the second edition of The Concept of Law, pp. 252–253, 272–273. 8. How about the non-positivist picture suggested by Dworkin, in which morals are not posited as outside of the putative boundary? This has been described as a nonpositivist conception, but it retains a fundamental similarity, probing the possibilities of a circle that includes within it the element of the “moral,” but nevertheless implying a boundary. The imaginary boundary is still extant, deeply embedded in the conversation, and the attention turns to the explanation of the nature of this distinctive boundary, not whether it exists at all. 9. I use this phrase in its radical sense, not the moderate meaning sometimes given by legal realists. See Kellogg (2009). 10. Vegelahn v. Guntner and Plant v. Woods; see Kellogg (2007), 127–134.

REFERENCES Alexy, Robert. 1989. The Argument from Injustice. Trans. Bonnie L. Paulson and Stanley L. Paulson. Oxford: Clarendon Press. Cairns, John. 2003. “Legal Theory” in The Cambridge Companion to the Scottish Enlightenment, ed. Alexander Broadie (Cambridge, UK: Cambridge University Press), pp. 222–242. Dworkin, Ronald. 1977. Taking Rights Seriously. Cambridge, MA: Harvard University Press. Haakonssen, Knud. 1981. The Science of a Legislator: the Natural Jurisprudence of David Hum and Adam Smith. Cambridge, UK: Cambridge University Press. Hale, Matthew. 1921. Reflections by the Lord Chiefe Justice Hale on Mr. Hobbes his Dialogue of the Lawe, printed in William Holdsworth, A History of English Law (London: Methuen, 1956), pp. 499–513. Hart, H. L. A. 1994. The Concept of Law, 2nd edn. Oxford: Clarendon Press. Holmes, Oliver Wendell, Jr. 1870. “Codes, and the Arrangement of the Law,” American Law Review 5 (1870): 1–13, at 1. Holmes, Oliver Wendell, Jr. 1896. “The Path of the Law,” in Collected Legal Papers (New York: Harcourt, Brace), 179. Holmes, Oliver Wendell, Jr. 1899. “Law in Science – Science in Law,” in Collected Legal Papers (New York: Harcourt, Brace), 210.

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Kellogg, Frederic R. 2007. Oliver Wendell Holmes Jr., Legal Theory, and Judicial Restraint. Cambridge, UK: Cambridge University Press. Kellogg, Frederic R. 2009. “The Construction of Legal Positivism and the Myth of Legal Indeterminacy.” At http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1536124. Kellogg, Frederic R. 2010. “Law and Science as Forms of Inquiry: Toward a Comparison of Legal and Scientific Knowledge.” http://papers.ssrn.com/sol3/papers.cfm?abstract_id =1509651 MacCormick, Neil. 1978. Legal Reasoning and legal Theory. Oxford: Clarendon Press. MacCormick, Neil. 2008. Practical Reason in Law and Morality. Oxford: Oxford University Press. Postema, Gerald J. 1986. Bentham and the Common Law Tradition. Oxford: Clarendon Press. Shapin, Steven, and Simon Schaffer. 1985. Leviathan and the Air-Pump: Hobbes, Boyle, and the Experimental Life. Princeton, N.J.: Princeton University Press. Sleeper, Ralph. 1986. The Necessity of Pragmatism: John Dewey‘s Conception of Philosophy. New Haven, Conn.: Yale University Press. Sunstein, Cass R. 1999. One Case at a Time: Judicial Minimalism on the Supreme Court. Cambridge, MA: Harvard University Press.

Frederic R. Kellogg Centro de Ciências Jurídicas Programa de Pós-Graduação em Direito Rua do Hospício, 371, bloco C, 2º andar Recife, Pernambuco CEP 50060-080 BRAZIL

Contemporary Pragmatism Vol. 7, No. 2 (December 2010), 15–44

Editions Rodopi © 2010

Dews, Dworks, and Poses Decide Lochner Brian E. Butler

Lochner represents a crucial case in American constitutional law. An investigation of the decision highlights important philosophical aspects of the place of law in a democratic society. Analysis of contemporary stances on Lochner, the actual Lochner opinion (including the dissents by Harlan and Holmes) and how judges following the legal philosophies of John Dewey, Ronald Dworkin and Richard Posner (“Dews,” “Dworks,” and “Poses”) would have decided the case shows that Dewey’s theory of law and democracy emerges as the most attractive alternative.

1. Introduction Few cases in the history of United States Supreme Court jurisprudence have been more controversial than Lochner v. New York (1905).1 Members of the legal profession almost universally demonize the case. Further, both liberals and conservatives demonize it. One of the most interesting aspects of the legal reception of Lochner, though, is that there is no real agreement as to why Lochner is properly so despised. What is agreed upon is that Lochner represents a crucial case in American constitutional law. The issues and analysis involved in its decision highlight the question of the proper place of democracy, the common law tradition and the judicial system – especially judicial review – within United States government. An investigation of Lochner highlights, in a manner that few other cases in the history of American constitutional law can, important philosophical aspects of the place of law in a democratic society. To investigate the relationship between conceptions of law and democracy this paper begins with an analysis of contemporary stances on Lochner. After that, Justice Rufus Pekham’s Lochner opinion, along with the dissents by Harlan and Holmes will be outlined. Next, and most central to this paper, Lochner will be viewed through the legal philosophies of John Dewey, Ronald Dworkin and Richard Posner. Using each theorist’s description of the place of law in a democratic society I will construct “Dews,” “Dworks,” and “Poses” – that is, judges exemplary of each theory. The aim is to see what judges utilizing the explicit legal and democratic theories of Dewey, Dworkin and Posner would decide. Ultimately it will be argued that Dewey’s theory of

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law and democracy, as applied by a Dew to the facts of Lochner, emerges as the most attractive alternative among the various theories surveyed. Further, through the use of the legal philosophies of Dewey, Dworkin, and Posner, the true importance of the issues in Lochner can be made manifest. Indeed, from the analysis it will be seen that Lochner is properly controversial and, at least from the perspective offered by Dewey’s philosophy, worthy of placement in the set of notorious “anticanon” Supreme Court cases. 2. The Lochner Legacy The facts and legal issues of the Lochner case were clear and horribly mundane. Lochner, an owner of a bakery in New York, violated an article of New York’s Bakeshop Act because he permitted his employee to work more than sixty hours in one week. The Supreme Court found that the Act’s limitation on hours voluntarily worked was unconstitutional because it unlawfully interfered with freedom of contract protected under the Fourteenth Amendment’s due process clause. This content does not seem to be of such nature to admit Lochner to the set of great anticanon cases that includes such momentous decisions as interning American citizens of Japanese descent for little reason, accepting the concept of “separate but equal” or seeing a human being as essentially property rather than citizen. So why is Lochner in this infamous company? The best place to start to look for an answer is Laurence Tribe’s American Constitutional Law.2 In this monumental work, Tribe describes the Constitution as “an historically discontinuous composition.”3 That is, the Constitution has had different interpretations, and different meanings, during various times in American history. One of the great examples of discontinuity from this perspective is the change from the pivotal “Lochner era” where the Court’s use of substantive due process to strike down economic legislation was at its apex, to a very different constitutional regime after West Coast Hotel v. Parrish when the Court backed off of strong review of economic regulation under the due process clause, upheld minimum wage legislation, and started approving New Deal laws in a wholesale manner.4 The Lochner era substantive due process jurisprudence used, according to Tribe, a notion of “implied limits” founded upon an idea of “natural rights.” The idea grounding this stance was that “regulation of economic affairs was not impermissible per se; it was invalid only where the state moved beyond the sphere of its inherently limited authority by using its powers to help some citizens at the expense of others, rather than to promote genuinely public purposes to benefit the citizenry as a whole.”5 The combination of a realm of economic privacy outside of legitimate governmental regulation combined with a picture of equality that separated legitimate laws from factional grabbing created a notable resistance in Court opinions to many types of legislative acts. As to judgment of ends, the Court used natural and common law “implied limitation notions.” Further, in addition to a legitimate end, the Court also required a “real and substantial” relationship

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between a statute and its objectives. Often, in fact, the Court would inquire as to whether the ostensibly public minded law was better interpreted as pretense for illegitimate aims. If so, it was then deemed invalid by the Court. In short, “the Court interpreted its requirement of a substantial means-ends relationship so as to invalidate statutes which interfered with private economic transactions unless evolving common law concepts demonstrated a proper fit between the legislation and its asserted objectives.”6 In practice this was a quite stringent analysis. Tribe argues that Lochner serves as the representative case of the era because it is the best example of this type of review. Tribe argues, further, that the ultimate problem with this Lochner-style jurisprudence is that the common law/natural law baseline that the Court was using in order to distinguish between private and public realms was unstable. This instability is exemplified in Miller v. Schoene, where cedar trees were found to be infected with a carrier of a fungus which would, if left unabated, destroy the commercial value of a nearby apple orchard.7 The Supreme Court upheld a statute that ordered the cedar tree owners to cut down their trees to prevent contagion. The Court found the public interest required by due process in the value of the apple orchard. As Tribe puts it, “Miller not only indicates that redistribution of property between private parties may be justified in the public interest. The decision also suggests that the state inevitably has a positive role to play, a role whose exercise in either direction will benefit some private actors while hurting others. For the Court opined that, of the state had done nothing and permitted disaster to strike the apple orchards, ‘it would have been none the less a choice’.”8 Therefore, Tribe concludes that, “If one accepted fully the central notion which contributed to Lochner’s decline – that even judicial enforcement of common-law rules of contract and property represents a governmental choice with discernable consequences for the social distribution of suffering, pleasure, and power – then it would be hard to avoid the realization that a judicial choice between invalidating and upholding legislation altering the ground rules of contract and property is nonetheless a positive choice, one guided by constitutional language and history but almost never wholly determined by it.”9 Ultimately, Tribe sees the result in Lochner as showing judicial overconfidence both in the Court’s ability to understand complicated empirical conditions and also in its own conception of the constitutional meaning of liberty. Tribe’s analysis offers multiple reasons why Lochner might serve as landmark antiprecedent in American constitutional law. From those reasons probably the most popular story of Lochner is that it represents a clear case of judicial activism and overreaching. In other words, the majority opinion shows an activist Court finding ways to impose both its own narrow views of legitimate government activity and an aggrandizing view of the Court’s function. Perhaps the clearest defense of this position is offered in Paul Kens, Lochner v. New York: Economic Regulation on Trial.10 Kens finds Lochner to be a clear example of judicial activism based upon an unexamined attachment to

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laissez faire-social Darwinism. Further, Kens argues that dogmatic attachment to laissez faire substantive due process ideology led the Court to ignore multiple reports that documented unsafe conditions in New York bakeries. The Court’s strong attachment to free-market ideology made acknowledging the existence of alternate ideals of the state, and therefore other needs of the public, impossible. The blindness was exacerbated because many members of the Court majority and a large part of the legal profession (wrongly) saw the judges as “legal monks” who acted in the role of “passive oracles” identifying and applying the law as it is as opposed to constructing it. Acting on this conception of the judge’s position in American government was, in turn, conceived of as showing the Court’s commitment to principle and proper protection of the constitutional order. But from Ken’s perspective this story was an ideological construct that could not stand up to the actual facts. Ultimately, the Lochner decision came to represent not only a disagreement about the legislature’s legitimate role but also, and maybe more importantly, a disagreement over the Court’s authority to determine the extent of acceptable state action. Kens claims that the real problem with the decision is that the Court “assumed that it had the right to reign over the legislative domain of the states.”11 This, in turn, shows Lochner to be a properly condemned “illustration of the contrademocratic nature of the Court’s power of judicial review.”12 This analysis therefore concludes much the same as does William Marnell; that the Court, through a social Darwin-based interpretation of the Fourteenth Amendment, made it in to a “comprehensive Bill of Rights for corporations.”13 A slightly more benign version of the overreaching conclusion, though without the same awareness that the Court’s own certitude of its central place as protector of the Constitution is questionable, is offered by David Strauss in “Why Was Lochner Wrong?”14 Strauss largely repeats the Tribe analysis, but also notes that the standard argument for the case’s vilification is somewhat paradoxical in light of current civil rights jurisprudence. In his reading the dominant criticism finds Lochner objectionable because the Court has enforced “implied” rights through strong judicial review, rights not explicitly mentioned in the text of the Constitution. Therefore the Court’s problem is one of judicial activism. But this is problematic because the modern Court has recently done much the same thing in the realm of civil rights – for instance finding various implied rights of privacy through penumbras, etc. – yet in the realm of civil rights the Court has not faced the same overwhelming amount of criticism.15 Because of this, Strauss sees the implied rights/activism critique to be unconvincing. Instead, he claims that, “the Lochner-era Court acted defensibly in recognizing freedom of contract but indefensibly in exalting it.”16 Strauss concludes that the real failure of the majority opinion was its lack of humility and inability to face the truly difficult and complicated nature of the issues. This analysis largely accepts that the Court is the proper place for decision as to whether or not such a right should be enforced.

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A different line of critique argues that Lochner was properly decided in its time, but that in the intervening years factors have changed enough so that it is properly seen as bad law today. One example of such an argument is offered by Jack Balkin in “‘Wrong the Day it was Decided’: Lochner and Constitutional Historicism.”17 In his terms, Lochner was not wrong the day it was decided, but more plausibly became wrong because of facts in the world changed. Balkin further argues that Lochner is seen as important because it has come to function as the negative centerpiece of a narrative that legitimated New Deal lawmaking. Another very influential version of this “changing correctness” thesis is Bruce Ackerman’s We the People 1: Foundations.18 Howard Gillman in The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence agrees with Balkin that the case was decided correctly in 1905.19 Gillman, though, offers a meticulous case analysis and locates the origin of liberty of contract ideas in the antislavery movement and the Court’s Jacksonian suspicion of class or partial legislation. For Gillman, “the decisions and opinions that emerged from state and federal courts during the Lochner era represented a serious, principled effort to maintain one of the central distinctions in nineteenth-century constitutional law – the distinction between valid economic legislation, on the one hand, and invalid ‘class’ legislation on the other-during a period of unprecedented class conflict.”20 Therefore, as opposed to a picture of the justices being willful and aggressive, the Court was actually being faithful to precedent and the framer’s intent. The problem with the Bakeshop Act for the Court majority was that labor legislation was thought to be by its very nature class-based and redistributive. Therefore the Bakeshop Act was contrary to government neutrality. For Gillman the great depression and the rise of modern corporate capitalism ended the ability to believe in the earlier conception of a neutral state. Therefore, “The story of the Lochner era is a story about judicial fidelity to crumbling foundations.”21 Another strand of Lochner criticism argues that the underlying common law assumptions treated as passive and neutral by the majority opinion were active and non-neutral all along. Cass Sunstein, in “Lochner’s Legacy,” offers perhaps the clearest version of this type of argument.22 Sunstein contrasts Adkins, where entitlements are taken as prepolitical given and minimum wage law is described by the Court as an unjustified subsidy to the employee, with West Coast Hotel where low wages paid by an employer are seen as being subsidized by society in order to sustain the employee’s necessities. Therefore, “The expansion of the police power in West Coast Hotel signaled a critical theoretical shift, amounting to a rejection of the Lochner Court’s conception of the appropriate baseline.”23 Sunstein draws the conclusion that “Whether rights are treated as ‘negative’ or ‘positive’ turns out to depend on antecedent assumptions about baselines.”24 Ultimately, the rise of the modern administrative state shows that governmental action outside of common law limits has become so necessary as to make Lochner-style analysis obsolete. Jennifer Nedelsky in Private Property and the Limits of American Constitutionalism: The

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Madisonian Framework and Its Legacy, agrees that the “the Lochner era opinions show more than an endorsement of Herbert Spencer and his fellow Social Darwinists; they show an impressive continuity with the Federalists’ vision of constitutionalism, complete with the rights of property as the central boundary to state power, a suspicion of popular efforts to use democratic power to threaten those rights, and contract as a focus for protecting them.”25 On the other hand, Nedelsky accepts Sunstein’s analysis that the common law baseline is now obsolete. There are also some scholars who argue that the case was decided correctly and is still correct today. Blazing the trail was Richard Epstein in Takings: Private Property and the Power of Eminent Domain.26 He advocates a return to Lochner-like standard of review especially in the realm of the takings clause. His analysis has recently been expanded in Supreme Neglect: How to Revive Constitutional Protection for Private Property.27 Epstein sees the Bakeshop Act as motivated by a goal of eliminating competition and argues that Act exceeded “any rational conception of police power, for its major purpose was not safety, but to alter the competitive balance between competitive forms. The cardinal virtue, therefore, of the much-reviled Lochner decision was that it preserved the operation of competitive labor markets from the corrosive effects of differential state regulation. The police power was idle, because there was no market imperfection to cure.”28 Offering a much more detailed version of this largely libertarian argument with a little less free-market fanaticism than Epstein is David Bernstein in, “Lochner v. New York: A Centennial Retrospective.”29 Here once again is a scholar arguing against the “prevailing myth” that the problem with Lochner is that the justices imposed their own laissez-faire views on to the Constitution through overly aggressive interpretation. Bernstein sees this story as a “morality tale” and a “polemical argument with little factual basis.”30 In actual fact, according to Bernstein, Lochner was largely ignored until it became a leading anticanon case in the 1980s. But since then, “Along with Dred Scott v. Sanford and Plessy v. Ferguson, Lochner has become one of the most reviled Supreme Court cases of all time.”31 Why? This morality tale was largely created through casebook organization – most importantly Tribe’s treatise American Constitutional Law. But, Bernstein claims, scholars “have thoroughly debunked the tale’s historical underpinnings.”32 3. Lochner v. New York, 198 US 45 (1905) The actual facts of Lochner were quite simple and not in dispute. Lochner, the owner of a bakery in New York, violated an article of New York’s Bakeshop Act because he “wrongfully and unlawfully required and permitted” an employee to work more than sixty hours in one week. The work Lochner “required” was voluntary. Therefore all that was claimed is that the employer permitted the employee to voluntarily work over sixty hours during a one-week

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period. The question was as to the constitutionality of New York’s maximum hours limitation on an employee’s labor adopted in the Bakeshop Act. Justice Peckham wrote the majority opinion. Therein the Court found that the language of the Bakeshop Act was the “substantial equivalent” of a law that would require that “no employee shall contract or agree to work” more than ten hours a day. Peckham notes that this keeps an employee by law from earning extra money through extra work if such is desired. Because of this, The statute necessarily interferes with the right of contract between the employer and employees concerning the number of hours in which the latter may labor in the bakery of the employer. The general right to make a contract in relation to his business is part of the liberty of the individual protected by the Fourteenth Amendment of the Federal Constitution. Allegeyer v. Louisiana, 165 U.S. 578. Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right.33 Peckham notes that states are allowed to limit the right of contract through their “police powers,” which relate to “the safety, health, morals and general welfare of the public.”34 Indeed, the Court explicitly accepts that property and liberty rights (and therefore contract rights) are “held on such reasonable conditions as may be imposed by the governing power of the State in the exercise of those powers.”35 If the state is exercising its legitimate police powers, then the Fourteenth Amendment does not prohibit such acts. Peckham allows that the Court has indeed upheld state police powers in borderline cases due to the use of interpretive rules “of a very liberal nature.”36 For instance a law limiting Utah underground mine workers to eight hours a day (subject to an emergency exception) was upheld in Holden v. Hardy.37 This law was upheld under the police powers exception because the kind of employees and the type of labor at issue (its inherent danger) made it “reasonable and proper” for regulation to be allowed. Further, for the Court it was thought important that the law affected only a narrow class of laborers and had an emergency exemption. Peckham also distinguishes New York’s Bakeshop Act from the issue in Atkin v. Kansas, where it was held that a state could control work conditions in its own municipal corporations (because this is a part of its own contractual standards), and Knoxville Iron Co. v. Harbison, where an act provided protection for employees when cashing “coal orders” presented to the employer (due to the specific details of the employee/employer arrangements).38 Further, in Jacobson v. Massachusetts, 197 U.S. 11, the Court allowed for compulsory vaccination for public health reasons.39 But, Peckham continues, there must be limits to the police powers, “Otherwise the Fourteenth Amendment would have no efficacy, and the legislatures of the States would have unbounded power” to regulate any activity

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through citing a “mere pretext” of protecting the moral, health or safety of their citizens.40 The Court’s question is therefore framed as: “is this a fair, reasonable and appropriate exercise of the police power of the State, or is it an unreasonable, unnecessary and arbitrary interference with the right of the individual to his personal liberty or to enter into those contracts in relation to labor which may seem to him appropriate or necessary for the support of himself and his family?”41 Peckham argues that by framing it in this manner the majority is not “substituting the judgment of the court for that of the legislature” but rather is deciding whether the law in question is within the legitimate police power of the state – and therefore is a question of law to be decided by the Court.42 In the case at hand, that of the New York Bakeshop Act, Peckham finds that under this test the Act is mere pretext because the bakers as a class are perfectly competent to make contracts, the law is not necessary to protect the safety, morals or welfare of the public, and the trade of baker is not a specifically unhealthy one. Therefore, because the law doesn’t show a direct enough relation “as a means to an end” there is “no reasonable foundation for holding this to be necessary or appropriate as a health law” and is therefore “an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best, or which they may agree upon with the other parties to such contracts.”43 Given the possibility of pretext, Lochner substantive due process analysis uses the following test: “The purpose of a statute must be determined from the natural and legal effect of the language employed, and whether or not it is repugnant to the Constitution of the United States must be determined from the natural effect of such statutes when put into operation, and not from their proclaimed purpose.”44 Under this test, Peckham, writing for the Court, held that the New York Bakeshop Act is an unconstitutional infringement of contract. Justice Harlan (joined by White and Day) wrote the first dissent. Harlan starts by stating that the State’s legitimate use of police power is universally recognized and “extends at least to the protection of the lives, the health, and the safety of the public against the injurious exercise by any citizen of his own rights.”45 The state, though, “may not unduly interfere with the right of the citizen to enter into contracts that may be necessary and essential in the enjoyment of the inherent rights belonging to everyone.”46 But the finding of undue interference is not simple and, because of this, large discretion is “necessarily vested in the legislature to determine not only what the interests of the public require, but what measures are necessary for the protection of such interests.”47 Once again, the question at issue is what are the outer limits to proper legislative authority? Harlan states: “Upon this point there is no room for dispute, for the rule is universal that a legislative enactment, Federal or state, is never to be disregarded or held invalid unless it be, beyond question, plainly and palpably in excess of legislative power.”48 Because of this:

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If there be doubt as to the validity of the statute, that doubt must therefore be resolved in favor of its validity, and the courts must keep their hands off, leaving the legislature to meet the responsibility for unwise legislation. If the end which the legislature seeks to accomplish be one to which its power extends, and if the means employed to that end, although not the wisest or best, are yet not plainly and palpably unauthorized by law, then the court cannot interfere. In other words, when the validity of a statute is questioned, the burden of proof, so to speak, is upon those who assert it to be unconstitutional.49 Harlan finds plenty of evidence that the New York law can be properly read so as to see the rationality of the belief that working over sixty hours a week baking bread can endanger the health of the laborer. Indeed he cites various studies to that effect. In addition, he sees the statute as a reasonable means to regulate such labor. Further, it clearly related to a health issue. Next, Harlan finds that he is unable to say that the law is beyond doubt a clear invasion of fundamental rights and because there is “room for debate and for an honest difference of opinion” and this should be enough to decide the case in favor of the state regulation.50 Finally, voiding the statute under the Fourteenth Amendment, Harlan predicts, will have broad consequences and “cripple” the states in their police power duties. Therefore, Harlan argues that the judgment of the lower court ought to have been affirmed. Holmes filed a separate and lone dissent in Lochner. In it, Holmes famously claims that the majority decided the case through allegiance to a specific economic theory. Further, he points out that the theory in question is one that many in the United States do not agree with. As to the protection of contracts, Holmes cites multiple ways in which they are legally “interfered” with, such as Sunday laws, usury laws and lottery prohibitions. Further, he notes that the broader idea of a general liberty from interference “so long as he does not interfere with the liberty of others to do the same” is refuted by the example of school laws, the Post Office, and taxes.51 In one of the most famous lines in American law he then states, “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social statistics” and continues: But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.52 Therefore, “General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate

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major premise.”53 Holmes then offers his alternate test: “the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.”54 He takes it as needing no effort to conclude that under this test the statute passes. In fact, he allows that it might be reasonable to allow further legislation in the direction of maximum allowable work hours. 4. Dews, Dworks and Poses Decide Lochner Peckham, Harlan, and Holmes all disagreed as to the nature of the law and its application. Harlan and Holmes disagreed with Peckham and the majority’s decision and Peckam and Harlan agree on the Court’s ultimate role as Supreme reviewer. The disagreements between the three opinions are enlightening if one is investigating the place of legislative activity, the legal system and judicial review in a constitutional democracy. By investigating how Dews, Dworks and Poses (judicial followers of the legal philosophy of Dewey, Dworkin, and Posner) would decide Lochner these issues can be brought even further in to focus. For a Dwork, a properly functioning democracy is fully reliant upon proper constitutional law. Dworks advocate a theory of rights as “trumps,” where the individual is expressly protected from the group will, even in the face of policies that are thought to be more beneficial to society as a whole.55 This conception of rights creates the problem of antimajoritarianism, that is, the fact that an elite tribunal can overturn the popular vote. Dworks claim that despite the anti democratic appearance of antimajoritarianism, judges, and law in general, actually have a distinctly foundational role in a democracy. Dworks imagine and to the extent possible emulate an ideal judge, Hercules, who does not always defer to legislative acts because he sees himself as the ultimate protector of real democracy. Indeed, constitutional law is central to a Dwork’s philosophy of law. For him, a strong “moral reading” of the constitution is “practically indispensable to democracy.”56 As opposed to a democracy based upon the majoritarian or statistical premises, where democracy is conceived of as just an aggregation or market device, Dworks advocate a “communal” or “cooperative” constitutional democracy founded upon the aim of treating all members of the state with “equal concern and respect,” as well as having “inherent value” and “personal responsibility.”57 Legal decisions, when made by Hercules, protect the democratic conditions necessary for a properly structured democracy by utilizing these concepts. Judges are, therefore, the supreme “guardians of principle.”58 For a Dwork, “The American conception of democracy is whatever form of government the Constitution, according to the best interpretation of that document, establishes. So it begs the question to hold that the Constitution

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should be amended to bring it closer to some supposedly purer form of democracy.”59 The Constitution is “America’s moral sail,” and Hercules is the United States' moral interpreter.60 What exactly such a communal or cooperative constitutional democracy entails, other than judicial review and a strong moral interpretation of the Constitution, is not really fully conceptualized by a Dwork. There must be structural and relational conditions as well as the assumption of personal moral independence. These conditions include equality and respect conditions. Further, the communal conception of democracy presupposes a type of collective agency. This requires that the whole community can and must see the law as “theirs,” as being properly of “the people.” Once again, Dworks see their theory of law, “law as integrity” as centered around the ideal judge, Hercules. The “hidden structure” of actual judicial decisions that Hercules follows is a scheme of abstract and concrete principles, which in turn provide a coherent justification for the practice of law in every realm. This, in turn is best conceived of as “law as integrity.” Integrity is a type of principled “coherence” or “consistency” in laws. Such laws are described as the opposite of “checkerboard” laws. Principled decision is thought more desirable, but this is not because checkerboard laws are by definition less fair, indeed in many cases they might bring about better results. “Principle,” though, is the central quality that justifies attachment to law as integrity. Principled legal practice requires a general style of argument that treats democratic community as distinct type of community, a corporate moral agent where people “accept that their fates are linked.”61 This, in turn, gives legal decisions moral legitimacy because principled integrity creates the reason for legal obligation. Further, according to Dworks an understanding of law as integrity is properly informed by analogy to the project of writing a “chain novel.” In creating a chain novel, novelists write a novel as a team. After the previous writers have completed the earlier chapters in the order they are to be read, the author in question writes the next chapter so as to make the novel being constructed the best it can be. Each author is to construct the “best” novel through testing upon two dimensions. First, there is “fit.” This conceptual test entails that the next chapter should, as far as possible, “flow” and not leave “unexplained” major aspects of the text as previously constructed (for example it should not ignore already developed major subplots). Second, if after satisfying the fit requirements there are options left over, the author must construct a chapter that is best “all things considered,” or that best “justifies” the previous chapters. Therefore, Hercules as the ideal practitioner of law as integrity practices constructive interpretation. That is, acting as a judge necessarily requires interpretation and construction of the activity at the deepest and most philosophical level. Indeed, “any judge’s opinion is itself a piece of legal philosophy, even when the philosophy is hidden and the visible argument is dominated by citation and lists of fact.” In fact, philosophy of law is the “silent

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prologue to any decision at law.”62 Hercules (and a Dwork) knows that only a community based upon law as integrity “can claim the authority of a genuine associative community and can therefore claim moral legitimacy-that its collective decisions are matters of obligation and not bare power-in the name of fraternity.”63 Indeed, a Dwork believes that when Hercules “intervenes in the process of government to declare some statute or other act of government unconstitutional, he does this in service of his most conscientious judgment about what democracy really is and what the Constitution, parent and guardian of democracy, really means.”64 A Dwork will have much in common with Peckham. First, they both will see the Court’s position as one of protector principle and foundational rights. As Peckham does, so does a Dwork see the Supreme Court as the proper realm wherein to set definite and principled limits to what the legislature may or may not enact. What a democratic process is allowed to do is for both what the Court properly allows it to do. For both the Court is the proper ultimate protector of individual rights as trumps against social legislation, even if the legislation would make the whole society better off. Both accept the image of the Court as the ultimate forum as principle, a forum that should not involve itself with policy because policy is outside the realm of law. Therefore, the issue in Lochner is whether or not the law is properly principled in both fit (dutifully following the proper precedents), and moral vision (holding a proper moral reading of the Constitution). As this is an issue of legal interpretation and not policy, Dworks agree with Peckham that the judges of the Court are not substituting their judgment for that of the legislature but are merely acting in their proper role as deciders of ultimate law. Further, from the prevailing scholarship on Lochner it seems as if precedent was on the side of Peckham and the Court majority. Peckham, as would a Dwork, carefully follows and distinguishes previous cases in order to distill the principle behind previous “chapters” of the Court’s jurisprudence. The majority opinion exemplifies, possibly as well as any other case in American Supreme Court history, a clear and consistent picture (moral conception) of limited government based upon inalienable rights and common-law foundations. In other words, the majority opinion is in many ways a paradigm of principle. Further, a law that just changes the rules of contract in one discreet area of labor, that of baking, and not more universally, so that only one group of laborers or employees lose their neutral right to contract certainly reads as checkerboard. Dworks, therefore, as imagined followers of the principled judge Hercules, have much in common with the assumptions exemplified in Peckham’s opinion. As to Harlan’s dissent, Dworks have less in common. While a Dwork certainly does agree that the legislature may often be able to better determine what the interests of the public require, a Dwork never lets the interests of the public trump the individual rights that are deemed constitutionally essential. And determining what is essential is the domain of the Court. Because of this, Harlan’s deferential stance towards the legislature reads to a Dwork as a

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dereliction of duty, and not an act of judicial virtue. A Dwork asks, “If the justices of the Supreme Court will not protect individual liberties against populist intrusion, then who will?” This question, of course, shows how far a Dwork is from agreeing with Holmes’s dissent. For a Dwork, Holmes allows much too much leeway for democratic (read factional) decision making. Further, Holmes seems to ridicule attachment to talk of principle when he states, “general principles do not decide concrete cases.” Dworks would find this type of statement distasteful and contrary to all that is worthy in law. From the above analysis it appears that a Dwork judge would agree with the majority’s opinion in Lochner and find that New York’s Bakeshop Act was indeed an unconstitutional infringement upon each individual’s right to liberty of contract. In deciding, a Dwork will describe such a decision as standing up for principle and rights in the face of legislative activism. While Dworks place law in a central position and highlight moral principle, Poses see law and democracy largely in terms of limits to the market economy. Poses begin by dividing all democratic theory into two types: concept 1 democracy, an aspirational, utopian or deliberative democracy, modeled upon a faculty workshop; and concept 2 democracy which is “realistic, cynical, and bottom-up,” a democracy based upon the aim of satisfying private interests, and founded upon economic competition.65 Poses advocate for concept 2 democracy because they think it is constructed upon a “unillusioned conception of the character, motives, and competence of the participants in the governmental process.”66 Within concept 2 democracy the private realm of the market is to be left alone as far as possible, and government's limited function is to structure those areas where the price system is seen to be in need of small corrections. Concept 2 democracy sees the democratic process as a competitive power struggle of a political elite for the votes of the masses. This “realistic” democratic and pragmatic liberalism emphasizes “the institutional and material constraints on decision making by officials in a democracy.”67 Ultimately, American democracy is successful because it “enables the adult population, at very little cost in time, money, or distraction from private pursuits commercial or otherwise, to punish at least fragrant mistakes and misfeasances of officialdom, to assure an orderly succession of at least minimally competent officials, to generate feedback to the official concerning the consequences of their policies, to prevent officials from (or punish them for) entirely ignoring the interests of the governed, and to prevent serious misalignments between government action and public opinion.”68 Under this conception democracy largely functions as a means of protecting the private sphere and enabling the public to create laws to curb the external costs of other people’s behavior. This type of democracy is “nonparticipatory,” because “the benefit of voting to the individual is negligible.”69 So, for a Pose, democracy is a particular manner of limited government parasitic upon commercial life. And here, “Not only do philosophical, theological, and even scientific theories have little direct relevance to

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commercial life; they impede it, by drawing resources and attention away from the market and by stirring conflict and animosity.”70 Indeed, too much deliberation is seen as a recipe for social unrest. At the end of the day, “Commercial activity and private life are not only more productive of wealth and happiness than the political life; they are also more peaceable, which in turn reinforces their positive effect on wealth and happiness.”71 Where Poses do seem to agree with Dworks is that their answer to the question of what law is centers around the judge. For a Pose, the main issue in law is how an oligarchic judiciary fits in to the implementation of governmental aims. First, Poses believe that “pragmatism is the best description of the American judicial ethos,” in the sense that judges show a mood or disposition to look to facts and consequences before “conceptualisms, generalities, pieties, and slogans.”72 The Pose judge is a forward-looking antitraditionalist who uses past cases as information, not as a source of duty to be followed. Most important is that the Pose judge doesn’t believe legal formalism is a viable option. “Principle” is not determinative for a Pose, so he or she will need to be better empirically informed than judges traditionally feel necessary. Of course all of this is in service of a picture of society bifurcated into a private realm of market transactions (the “price system”) and a limited public realm where government, and therefore law, is called for when adjustments are needed due to various types of market failure. This leads to the second major part of a Pose’s theory of law; the law and economics theory that judges should make decisions that either further the functioning of markets or, if this is not directly possible, decide in a manner that “mimics” the market. Democracy itself is seen as only a useful means towards a better functioning “private” market. Poses think that Dworks have an insufferably high opinion of themselves and their abilities to come to principled decisions based upon moral reasoning.73 As opposed to seeing judges as central to law and as a foundational force protecting society’s formal democratic ground rules, Poses see themselves as peripheral to the main business of society, which is business. The price system and the market encompass the main system of allocation within society and politics serves, at best, to temper rent seeking activities and correct market failures. Government does this by structuring clear laws and having periodic democratic elections in order to keep the most egregious failures of the market and various rent seeking activities under check. Economic elites contest for the public’s votes and through this process get to pursue their own interests to an extent limited by the proximity of the next election. Poses see this description of liberal democratic society as realistic and unillusioned. They see themselves as “pragmatic” in relationship to this system of “elite” democracy and therefore judge so as to further the virtues of the private market and the limited and limiting factors of representative democracy. This pragmatism is more a toughminded “mood” than a philosophy, but it does entail that the judge must look not just to moral principle but also more directly to policy and empirical fact.

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So how would a Pose decide Lochner? First, a Pose will accept that the right to freely contract does have a place in constitutional law. A Pose treats clear property rights and the market economy as foundational and more important that any strong picture of democratic governance. Therefore a Pose will find the legislature’s interference with traditional property rights and open contracting questionable, and quite possibly an example of rent seeking by a small group of employees or bakeries. But as opposed to the picture of judicial positioning accepted by both Peckham and a Dwork, a Pose does not have the high ground of principle, moral vision or absolute individual rights from which to rule laws unconstitutional. Further, a Pose will look at the relevant precedents for information, but those offered by Peckham do not really help to fill out the specifics of the New York Bakery industry and its employee pool. What is needed according to a Pose, therefore, is less talk of principle and more empirical investigation. This is especially the case if the state police power exceptions to the Fourteen Amendment’s implied limits under the due process clause have to be justified in relationship to the “safety, health, morals and general welfare of the public.” Of course for a Pose, as opposed to a Dwork, the moral aspect of this list is largely irrelevant. But for any judicial decision upon how a law affects the safety, health or general welfare of the public, a Pose will need empirical data and not see this as definable in terms of “the” law. This means that a Pose’s judicial reasoning has much more in common with Harlan’s dissent. A Pose, much like Harlan, would allow that the right to liberty of contract is essential, but that states should have some ability to curb the excesses and faults of the market through the use of police powers. As Harlan emphasizes, the legislature is often in a much better position than the Supreme Court to determine the empirical aspects of safety, health and general welfare legislation. This, in turn, means that in the majority’s search in to both legitimate ends, but more specifically in relation to the proper choice of means, the Court might be exceeding its domain of institutional competence. If the area being regulated is empirically complex and evolving it is an important question to ask of the Court how it is properly to determine that the explicit purpose of a law is really pretext? At the very least an informed opinion will have to look carefully at the social context of the law (as Harlan does in his dissent). If choice of means implicates empirical facts a Pose would agree with Harlan that legislative action should be accorded a large amount of discretion and cannot be decided purely upon legal principle. Finally, as to Holmes’s dissent, a Pose will happily go along with the idea that the Dwork/Peckham appeal to principle and integrity is pretense and that such a picture of legal reasoning is judicial romanticism and idiosyncratic personal judgment wrapped up in the euphemistic garb of morality. This is especially true in relation to areas of the common law that have become economically inefficient due to changing circumstances. On the other hand, a Pose would not be so accepting of the dismissal of laissez faire economic theory or as deferential to popular opinion. A Pose sees modern free-market ideas in the

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form of Chicago School economics to be not based upon the written Constitution, but as the only empirically viable, pragmatic or “realistic” structuring mechanism for a free society. “Democratic” decision-making through regular elections is for a Pose just a safety valve mechanism that keeps the greatest types of market failures in check. Even so, a Pose will often agree that legislative acts are unjustified attempts at rent seeking. Many of these laws might be best left by the Court to society at large to be decided through a Darwinian or Holmesian battle of ideas. But there will be times when a Pose can identify the market breakdown, or that a law is a clear example of rent seeking. In that case, the Pose’s imperative to further the proper activities of the market through enforcing and sometimes creating clear legal entitlements as well as deciding in a manner that best mimics the results of a properly functioning market will put Pose legal reasoning in conflict with that of Holmes’s Lochner dissent. Ultimately, a Pose would want to decide Lochner much like Harlan. A Pose would want to limit legislative intervention to areas where the market through liberty of contract cannot function properly. On the other hand, a Pose acknowledges that courts are often not the proper venue to decide whether or nor legislation is in service of real social needs rather than mere pretence. Because of this, New York’s Bakeshop Act would be held constitutional by a Pose on the grounds that judicial deference is justifiable given the complexity of legal and, more importantly, empirical issues involved. Dews, like Dworks and Poses, start with some core ideas about democracy, law and the proper realm of the legislative branch. First, for a Dew democracy in its most central meaning is a way of life that is social before it is seen more narrowly as a political concept. Democracy to be realized in a meaningful rather than formalist manner “must affect all modes of human association.”74 For political institutions are secondary to, and are the effects of, the underlying culture; “democracy can be served only by the slow day to day adoption and contagious diffusion in every phase of our common life of methods that are identical with the ends to be reached and that recourse to monistic, wholesale, absolutist procedures is a betrayal of human freedom no matter in what guise it presents itself.”75 Dews think that democracy entails pluralistic values and a decentered picture of social institutions. By having plural and decentered institutions as well as a form of life that practices democratic social habits there are multiple avenues that allow for information to be communicated and solutions to be proposed. Dews acknowledge and appreciate the great complexity of causal forces in human society. They think that a “monistic view” just cannot handle the multiple forces that operate in human society. Indeed, they emphasize that one of the great challenges for human society is being able to coordinate, communicate and understand such multiple and diffuse forces. As Dews see the process, social groups feel consequences before being able to label them. Noting and finding ways to control/solve unfortunate consequences of social life demand the construction of symbols. Common

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meanings are created through the construction of symbols which then help animate a public discussion. This whole process is encouraged by the proliferation, interconnection and overlapping of associations. Third, Dews describe the public (or publics) in functional terms. A public is created when social consequences that affect people beyond the immediate group are noted and found to be in need of social control.76 A distinctly political democracy, therefore, comes into being where there is a recognized need to control consequences of social activity. And because problems are in constant change, states need to be continuously “re-made.”77 Therefore the state is best seen as a secondary type of association formed because of perceived externalities of individual or group activities and based upon the given fact of social and intersubjective life. “The only statement which can be made is a purely formal one: the state is the organization of the public effected through officials for the protection of the interests shared by its members.”78 For Dews this view of the state eliminates the possibility that there is an a priori rule or procedure identifiable as sufficient to define democratic government. In a properly democratic state, instead of a top-down constitutional structure determining the parameters of governmental rule, the state reacts to multiple groupings formed upon the basis of interests and acts in order to encourage more socially desirable associations. Further, going back to democracy as a social way of life prior to the political and to the functional idea of the public as formed in relationship to specific and immediate social issues; Dews believe that a living democratic society rests upon experimental intelligence. Dews don’t find this claim controversial because this is only taking a type of intelligence that has proven useful across various human societies and that every human being habitually enacts in everyday life and utilizing it more consistently for the problems of governance. Fear of change and the psychological need for greater certainty have kept society from fully utilizing this greater use of experimental intelligence in social life. Instead, “we have set undue store by established mechanisms.” A blatant example of this is “idolatry of the Constitution.”79 Fifth, the public and its government are institutions based upon real conflict. Democracy is based upon specific problems as problems. It needs no argument to acknowledge that here are real conflicts.80 The only question worth answering is how to settle them in manner that is best for the widest amount of people. Finally, for Dews democracy utilizes both scientific knowledge and creativity for communication and solution. Importantly, social problems cannot be solved solely through allocation of decision-making to technocrats. There are unavoidable problems in the appeal to expertise and “elite” democracy where voting is relegated to the function of safety valve. For example, Dews think that the theory of “elite” representative democracy cannot account for democracy’s usefulness because the populace’s purported inability to understand, deliberate and vote upon the complex and technical issues of the day is not remedied by representation of an elite because the same problems are just replicated one step later (the general claim is that governmental problems

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are too complex for the voters to understand, but why at one step removed and at the level of voting for representatives the issues would be better understood by the voters is unclear and the “elite” become necessarily isolated from the social world and therefore cannot represent the voters needs).81 Law, for a Dew, is seen as just one of multiple social institutions that might, when utilized properly, further the social goal of a truly democratic society. Ultimately, there is one main question; what standard or criterion are we to use to evaluate legal practice? The quest for a standard, though, does not transcend the issues of the period in which the analysis is produced because legal philosophies are products of their time and place and the issues relevant to that specific context. Therefore standards cannot be judged outside of acknowledgement of context. It follows that law “can be discussed only in terms of the social conditions in which it arises and of what it concretely does there.”82 This specificity of context and use “renders the use of the word “law” as a single general term rather dangerous.”83 In good pragmatic fashion, Dews hold that, “A given legal arrangement is what it does, and what it does lies in the field of modifying and/or maintaining human activities as going concerns.”84 Dews believe that much legal theory shows a “confusion of sovereignty with the organs of its exercise.”85 This confuses sovereignty with a specific source of command. Dewsian legal theory, to the contrary, rules out any search for a unifying rule of recognition, and instead allows for plural sources of law. But not every potential source of law is equal. For instance, Dews are quite suspicious of appeals to natural law. Of course natural law has been centrally important in jurisprudential history; in fact in the past appeals to natural law have often served to promote legitimate and progressive human aims. Dews, though, note that “nature” can also be taken as the given, the status quo. This means that injustice may also be supported by an appeal to natural law. Therefore, appeal to natural law may be used to fossilize given values or rules. For Dews, “the effect of any theory that identifies intelligence with the given, instead of with the foresight of better and worse, is denial of the function of intelligence.”86 Dews accept a description of law as emanating from “the minor laws of subordinate institutions – institutions like the family, the school, the business partnership, the trade-union or fraternal organization.”87 This allows for a pluralistic and “bottom-up” conception of the sources of law, one that maps nicely on to traditional legal practice. For instance, it easily handles the casebased and analogical reasoning central to the common-law tradition. It can also handle statutory law as well as the thought that constitutional law is law and not positive morality. But law often arises out of other habits, traditions and customs within society. Importantly though, when law recognizes a custom, it also “represents the beginning of a new custom.”88 Further, Dews believe that “while there would not be laws unless there were social customs, yet neither would there be laws if all customs were mutually consistent and were universally adhered to.”89 Of course law itself is a type of custom, and much of law is made

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up of the concepts it inherits from earlier decisions. So, Dews develop a historicized picture of law that, for example, notes the survival in modern maritime law of the concept of a ship “as personal and responsible being.”90 For Dews, this illustrates that in law, “the old is never annihilated at a stroke, the new never a creation ab initio. It is simply a question of morphology. But what controls the modification in the historic continuity is the practical usefulness of the institution or organ in question.”91 Ultimately Dews believe that law is “social in origin, in purpose or end, and in application.”92 It is historically based and yet contextually varied. Indeed, law as an institution and as a concept “cannot be set up as if it were a separate entity, but can be discussed only in terms of the social conditions in which it arises and of what it concretely does there.”93 Finally, for Dews, because this theory of law is decentralized and flexible it can allow for multiple sources for law and, further “the development of quite new organs of law-making.”94 The end of law is, for Dews, a matter of how and why legal force will be used in society. Law, when properly utilized, can be thought “as describing a method for employing force economically, efficiently, so as to get results with the least waste.”95 Law is not a substitute for force – law is institutionalized force. Law should be justified, therefore, not by its “lawfulness,” but by whether or not it is “an effective and economical means of securing specific results.” If it is not effective and economical, then “we are using violence to relieve our immediate impulses and to save ourselves the labor of thought and construction.”96 Power becomes violence “when it defeats or frustrates purpose instead of executing it or realizing it.”97 Dews realize that this analysis might scare people who admire legal stability and adherence to tradition. But, this analysis doesn’t call for radical changes across the board. For example, experience has shown that it is inefficient for parties to judge their own case, so some type of third part adjudication seems pragmatically warranted. Further, existing legal systems were built up “at a great cost” and constant recourse to other means “would so reduce the efficiency of the machinery that the local gain would easily be more than offset by widespread losses in energy available for other ends.”98 Ultimately, though, for Dews the use of force within a legal system is judged by an external standard. The standard is that of a democratic society and the values this entails. This conclusion entails that the legal profession cannot be fully justified by appeals to an internal perspective, but must always be sensitive to the greater goals of society. Finally, Dews worry about the application of law. For instance, recall the Dew’s suspicion of appeals to natural law. One version of this type of appeal would utilizing Spencer’s laissez-faire theory of human reason as a form of natural law theory and, therefore, not acknowledging alternative possibilities. Dews worry about appeals to any other concepts that in like manner can be read in static or a priori ways. For instance, legal decisions pertaining to ideas of due diligence and undue negligence, wherein reason is used as the standard, and

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personal liability rests upon whether the care and prudence exercised was “reasonable,” might use these terms too passively. Courts, a Dew might note, often equate the word “reasonable” with “the amount and kind of foresight that, as a matter of fact, are customary among men in like pursuits.”99 Further, this use of reasonable is then applied even though the results are undesirable. Dews would redefine “reasonable” functionally as the “kind foresight that would, in similar circumstances, conduce to desirable consequences.”100 Dews are also intensely interested in the nature of legal reasoning and how such reasoning is applied in specific cases. Logic, for Dews, “is ultimately an empirical and concrete discipline.”101 This conception of logic is contrasted with that dismissed in Holmes’s famous line that “the life of law has been experience and not logic.” Dews explain that Holmes is attacking a picture of logic based solely upon “formal consistency,” whereas according to a Dewian conception of experimental logic, “the undoubted facts which Justice Holmes has in mind do not concern logic, but rather certain tendencies of the human creatures who use logic, tendencies which a sound logic will guard against.”102 For a Dew, the formalist picture of logic is dangerous because it distorts the actual reasoning process and gives rise to an unrealistic expectation of certainty. For instance, in the actual activity of legal practice, premises are not just found but “only gradually emerge from analysis of the total situation.”103 Further, the lawyer usually begins with the conclusion that is hoped for, and then analyzes the facts so as to “form” premises. But this is only part of the real story. Courts are also expected to justify their decisions. This is a different type of logic. The judge’s exposition of a decision aims at making the investigatory logic seem clearer, less vague and situational. Courts are therefore tempted to substitute for the “vital logic” which had been used in the process in order to reach the conclusion, “forms of speech which are rigorous in appearance and which give an illusion of certitude.”104 Such exposition may have the salutary effect of strengthening legal stability and regularity, but the packaging also risks confusing a form of apparent logical rigor with stability of practical results in the world. The implication is that law needs to focus much more upon a “logic relative to consequences rather than to antecedents.”105 Dews do not in any way argue that logic is useless, or that there is only the illusion of logical reasoning in law. What is for argued is that there are various types of argumentation in law – various types of logic – and that a conflation of the various tasks and tools used creates mistaken expectations and distorted processes. Dews also note that there are many ways in which legal process can be misused. For instance, Dews believe that “strictly legalistic methods of reasoning” may be used in a manner that allows a procedure to avoid facing the most important issues at question. For instance, one might by splitting the issue into separate and isolated questions create a type of argument by divide and conquer which can allow a procedure to “whittle down the significance of the admitted facts.”106 Further, the ability to shift the standards of evaluation and

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burdens of proof very effectively allows for manipulation. A concrete example might be the ability to change the levels of credibility afforded the various participants. Here Dews show sensitivity to the way alternate legal procedures, different agenda setting strategies and various levels of evidentiary scrutiny, can profoundly change the outcome. On the other hand, legal procedure can also have its proper place. Dews allow that it is often important to define what is inside or outside the professional jurisdiction of judges, for example.107 Here Dews highlight the virtues of legal process and properly constructed evidence laws and therefore argue that it is important to encourage limits to judicial reach. A Dew is not properly read as a full “anti-formalist,” or as against procedure or professional-ism in law. Dews clearly accept the necessity and virtues of institutional rules. What is not accepted, on the other hand, are self-justifying institutional rules untested by empirical and scientific methods. For Dews law is one of a number of institutions that, at best, helps further democractic society. As such, law is evaluated as a system in terms of its effectiveness towards this goal. Dews would decide the Lochner case quite differently than would both Dworks and Poses. As opposed to Dworks, Dews think that appeals to principle, like that of appeals to natural law, might often support good causes, but could also support causes much less just. The problem is that “principle” is a quite vague term with multiple possible conceptualizations. Indeed, the distinction Dworks find perfectly clear between principle and policy, Dews find simplistic and more apt to frustrate proper decision-making than to clarify. Further, Dews are very skeptical of appeals to principle if such appeals are mostly retrospective because this ignores the real important constructive and active aspect of actual legal inquiry. Precedent, for Dews (as for Poses), functions as important data, and as important determinants of social expectations. But, precedent does not carry the moral weight that the Court majority or Dworks hold it to have. In fact, precedent is only one type of information and Dews think it is important to look to a much broader set of sources of information than Peckham or Dworks think relevant. This, of course, means that much of Peckham’s decision is at best useless and probably even untrustworthy from a Dewian point of view. This is because the style of reasoning the majority opinion exhibits might very well cover up the real underlying forces, and falsify the real reasons determining the Court’s decision. Further, instead of seeing judges and the Supreme Court as the ultimate moral guardians of the Constitution as well as the necessary structural conditions of democracy, as Peckham and Dworks do, Dews think such a picture is very naïve. For a Dew, society has to have a democratic set of habits for a democratic government to be possible, not vice versa. To hope that a judicial oligarchy can protect democracy is, from this perspective, absolutely backwards. To believe that a small legal elite can protect democracy is to put a quasireligious worship of text, institution or judge in place of careful empirical inquiry and democratic habits. This quasi-religious worship of text might

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explain why the majority opinion blithely ignores the necessity of factual inquiry. Not only do Dews think that society must have some democratic habits in order to create a democratic political realm, but law, at its best, is for them just one of a number of institutions both political and social that can further democracy. Law is not the ultimate and foundational rule creator or protector of democracy. Instead, social democracy creates the grounding for a political realm wherein law serves a limited role. Further, a constitution is a document that must be constructed in practice, is best seen as a blueprint for experiments, not a tether to the past. From this it can be seen that a Dew’s judicial decision will have very little in common with Peckham’s majority opinion. Peckham sees law as foundational, as is the liberty of contract, and democracy as parasitic upon a common law natural rights baseline largely determined by a retrospective analysis of tradition and precedents. While Dworks will find this very familiar and properly representative of law as integrity, Dews (as well as Poses) find this more a falsely naturalized ideology perfectly fit to justify an oligarchical judicial elite than a plausible description of legal practice in a modern democracy. As for Poses, Dews see them as false pragmatists much too attached to an a priori and non-experimental conception of what is humanly possible combined with dogmatic acceptance of free market ideas. Dews are more humble than Poses in their claims to knowledge of human nature and the relative virtues of disparate social coordination and arrangement strategies. They also are wary of reducing the complexities of human society down to a private realm of market transactions and a public sphere of elite liberal democracy. At the same time, Dews are open to a more ambitious and flexible conception of political aims and arrangements because without fixed assumptions as to what is possible, experiments in governance are encouraged. What should be emphasized are the actual ends in view. Dews will not ignore the need for strong side constraints to certain types of state regulation, but will aim to not prematurely rule out plausible options. This analysis allows a comparison between the Pose’s and the Dew’s evaluation of the Harlan dissent. Poses can largely accept Harlan’s police powers analysis because they are, like Peckham, and Dworks for that matter, still believers in a clear public/private split and the conception of limited government based upon neutral or at least empirically necessary foundations. Therefore the limits upon the various institutions, legal, legislative and executive, can be mapped out in essentialist terms. This, in turn, allows some aspects of the situation to be described as neutral and others to be regarded as affirmative activity. Dews cannot accept this type of institutional essentialism or the conception of baseline neutrality it is founded upon. In this sense, Dews identify much more with the reasoning in West Coast Hotel v. Parrish or Miller v. Schoene. For a Dew, each social institution is constructed in context. In one context common law might have been a progressive social tool, in another situation it might get in the way of essential social programs. In either case the common law is seen as a human construction, an active chore, and is to be evaluated through the results it brings about rather

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than as to whether or not it is living up to some ideal type. Dews may argue, like Harlan, that American courts, and especially the Supreme Court, are not good at factual inquiry and therefore should defer to legislative judgment. But a Dew cannot make this argument based upon any given political, legislative or legal essence. Dews would have to argue this from empirical evidence in light of the democratic aims they deem worthy of pursuit. In addition, Dews are not comfortable in placing the judge in the center of attention, whereas Peckham, Harlan, Dworks, and Poses all are judge-centered in their legal philosophy. A Dew, though, raises the very important question as to whether or not the Court should be deciding anything as to the legitimacy of the legislature’s actions. This sense of skepticism towards any claim of a specifically valuable legal mode of authoritative constitutional interpretation is something Dews have in common with Holmes. Indeed, both a Dewian judge and Holmes in his dissent invert a central claim of the majority opinion and hold that it is the Lochner Court that is indulging in pretext rather than rooting it out. As a Pose does, a Dew will find economic reasoning important to utilize as a tool of analysis though a Dew will be much more sensitive to the limits inherent in such a reductionist analysis. First, as noted above, a Dew will not accept any form of natural law theory as dispositive. This prohibition includes any theory that would see social Darwinism or laissez faire ideas as natural and inevitable. Dews are pluralists and therefore expect multiple values to be present and important to weigh. In this sense Dews have more in common with Dworks than Poses who seem to think that all values can be mapped on to one metric. Further, Dews are cognizant of the shifting issues that create the need for various publics, and are suspicious of any conception of “Law” supposedly able to structure a solution to every need, or to any need in a once-and-for-all fashion. Dews therefore defer to more empirically effective and sensitive branches of government unless they have overwhelming reasons. Once again, all this leads to the conclusion that a Dew will find much in common with the Holmes dissent. So how would a Dew decide Lochner? From the above analysis it is clear that a Dew cannot accept the analysis offered by Peckham or Harlan because they both trade in essentialist arguments about the place of law and liberty of contract in American democracy. A Dew cannot accept this because it naturalizes and treats as inevitable and timeless social institutions that are properly seen as a contextually specific social constructs. The Dew judge has much more in common with Holmes in that both have a healthy skepticism towards the purported “reasoning” of traditional law, as well as the naturalized base-line that advocates of common law accept as neutral. Dews, though, are not actual skeptics about values moral, political or otherwise, and believe that there are ways in which society can be improved through experiments in legislation. What the best means are to the ends in view are, though, not to be found a priori but rather through careful inquiry and sensitive experiments in governance. Therefore, a Dew would most certainly uphold the New York Bakeshop Act’s

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limit on employee hours and agree with Holmes that there may be room for further labor legislation. That is, if a Dew did not deny the Court’s jurisdiction in the matter at all. 5. Conclusion The above analysis shows that the legal theories of Dworkin, Posner and Dewey would entail drastically different conclusions in the Lochner case. This is not to say that the results of the Dews, Dworks, and Poses argued for above map on to the personal beliefs of Ronald Dworkin, Richard Posner, or John Dewey. Indeed, all three theorists find Peckham’s majority opinion to be a mistake. For instance Dworkin argues that Hercules “would not have joined the Lochner majority” and this is “because he would have rejected the principle of liberty the Supreme Court cited in that case as plainly inconsistent with the American practice and anyway wrong and would have refused to reexamine the New York legislature’s judgment on the issues of policy that then remained.”108 As to reasons why Hercules would find this, he cites the “superior constraint of integrity.”109 Later he argues that “Overruling was absolutely necessary in order to protect the coherence of constitutional law as a whole.”110 From the analysis offered in this paper, though, it seems that Dworkin’s own philosophical tools would have Hercules, and therefore a Dwork, ruling opposite of Dworkin’s own personal conclusions. The reasons he gives against the actual Lochner result, that it is inconsistent with the American practice and incoherent (not integral) with the constitutional law of the time, actually all point to the opposite conclusion. Indeed, Tribe, Nedelsky, and Gillman all offer compelling arguments as to why Lochner was consistent with precedent, principled and founded upon a coherent moral reading of the Constitution. Given the more coherent and principled nature of Peckham’s opinion a Dwork would decide Lockner as the majority did, despite Dworkin’s own belief to the contrary. Indeed, it is difficult to imagine how a Dwork would get from attachment to the conception of law as integrity anything but Lochner’s actual result. As to Posner, he thinks Holmes’s dissent in Lochner is the greatest judicial opinion of the last 100 years.111 He also accepts that Holmes was correct in describing the Lochner decision as guilty of deciding the case upon “an economic theory (that of laissez-faire) that much of the nation did not accept.”112 But his own analysis sounds much more like Harlan’s than Holmes’s; “Most economists ... believe that limiting hours of work by law is inefficient. If workers are willing to work long hours, presumably for more pay than if they insisted on shorter hours, then that is the efficient employment contract and refusing to enforce it can only impair the efficiency of the labor market and make the workers themselves worse off.”113 Posner, though, has to balance his attachment to free market ideals with an analysis of the institutional limitations of the court; “Yet there is a pragmatic argument against the result in Lochner.

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The case was decided in 1905, when social legislation of the kind at issue in the case was in its infancy. No one could be confident at so early a date that a maximum-hours law was inefficient. The effect of the Court’s decision was thus to stifle, for a time, potentially worthwhile social experimentation.”114 Therefore, because there is room for debate the Court should defer to the legislature. Of course the other side of this statement is the assumption that today’s economist with new superior knowledge would be justified in seeing the law as inefficient and therefore unlawful. This would have a Pose largely agreeing with Epstein and Bernstein on the virtues of the Lochner decision. Ironically, therefore, Posner can be plausibly read as arguing that Lochner was wrongly decided in its time, but given superior contemporary economic knowledge if the current Court decided a case factually identical to Lochner, it should decide as Peckham and the majority did. This, of course, inverts the conclusion Balkin offers (though it does accept that the meaning of the Constitution changes due, at the very least, to changes in fact or knowledge). It is interesting to note that Posner reads Holmes’s dissent in Lochner as a “Deweyan approach” because “In Dewey’s intellectual universe, invalidating a statute is not just checking a political preference. It is profoundly rather than merely superficially undemocratic” because (a point “missed by many of Dewey’s current avatars in the legal academy”) this gets in the way of “intellectual natural selection” and “democratic experimentation.”115 In this description Posner is largely correct. Indeed, Dewey in the 1932 edition of Ethics uses Lochner as the specific example of the Court contracting state police power. Dewey follows this with a statement that “In the case of legislation affecting wages the issue is between the older individualistic principle of freedom in the wage contract, on the one hand; and on the other the more recently affirmed principle that in the interest of social welfare it may be wise for a state to protect its members against exploitation.”116 This description, it should be noticed, anticipates the ideas adopted by the Court in West Coast Hotel v. Parrish (in effect overruling Lochner) four years later. That Dewey uses Lochner as the example of narrow police powers jurisprudence also leads one to question Bernstein’s own libertarian morality tale wherein a revisionist liberal, Laurence Tribe, highlights a relatively obscure case, a case unnoticed in its own time, and creates a new narrative justifying the New Deal with Lochner at the center. Elsewhere, there is further evidence that Dewey thought Holmes’s dissent in Lochner to be important; such as when he observes that Holmes was properly against an absolutist use of the Fourteenth Amendment because that would prevent social experimentation under a delusion of “exactness.”117 Also, in Liberalism and Social Action Dewey notes approvingly that in the Lochner opinion “Justice Holmes found it necessary to remind his fellow justices that, after all, the Social Statistics of Herbert Spencer had not been enacted into the American constitution.”118 Therefore, all the evidence from Dewey’s own writings is perfectly consistent with the decision a Dew would make. This also maps on to the analysis offered by Sunstein and

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Nedelsky. For them, as for Dewey and a Dew, appeal to neutral baselines is incoherent and factually false. Analyzing Lochner through Dewey, Dworkin, and Posner’s philosophical systems highlights the powerful assumptions that each uses in constructing their theory of law and its relationship to democratic governance. If one accepts the premise that a small group of democratically unaccountable judicial elites are the best protectors of democratic government the Dworkin’s theory of law might be convincing. Yet, if one believes that Chicago school economics has a necessarily privileged spot in governance and democracy is largely useful as a safety valve, then Posner’s work exemplifies a correct theory of law. Alternatively, if democracy is to be the central guiding principle, then neither of the above theories will do. Dewey offers a theory of law that is indeed humbling compared to the other two. This theory places law among other democracy enhancing institutions, not at the top as the organizing principle. It notes that the traditional form of decision-making is attached to a picture of reasoning that is misleading and often falsifying as to the actual process. And it argues for a prospective rather than retrospective form of inquiry. Through analyzing how each theory would affect the outcome of Lochner, Dewey’s theory offers a picture of law that is empirical, non-dogmatic, prospective and compatible with vigorous democratic government. Dewey’s philosophy of law offers an attractive conception of law for a democratic society. NOTES 1. In just the last Supreme Court session two of the most significant and somewhat unpredictable cases, one on takings, Stop the Beach Renourishment v. Florida Department of Environmental Protection, 560 U.S. __ (2010), and another incorporating the current Court’s idiosyncratic take on the Second Amendment right to bear arms through the due process clause of the Fourteenth Amendment onto the states, McDonald v. Chicago, 561 U.S. __ (2010), are notable for the back and forth accusations whereby variously Scalia (Stop the Beach majority opinion, p. 16), Thomas (McDonald concurrence p. 7), and Stevens (McDonald dissent p. 22, 37) accuse the other justices of various types of “Lochnering.” 2. Laurence Tribe, American Constitutional Law (New York: Foundation Press, 1988), p. 564. 3. Ibid., p. 1. 4. West Coast Hotel v. Parrish 300 U.S. 379 (1937). 5. Tribe, American Constitutional Law, p. 564. 6. Ibid., p. 569. 7. Miller v. Schoene 276 U.S. 272 (1928). 8. Tribe, American Constitutional Law, p. 577. 9. Ibid., p. 584. 10. Paul Kens, Lochner v. New York: Economic Regulation on Trial (Lawrence: University Press of Kansas, 1998).

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11. Ibid., p. 100. 12. Ibid., p. 180. 13. William H. Marnell, Man-Made Morals: Four Philosophies that Shaped America (New York: Anchor Books, 1966), p. 257. 14. David A. Strauss in “Why Was Lochner Wrong?” University of Chicago Law Review 70 (2003): 373–386. 15. This analysis is supported by Sunstein’s narrative tracing such an “activist” stance both forward through Roe v. Wade (1973) and backwards to Dredd Scott v. Sanford. Cass R. Sunstein, Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America (New York: Basic Books, 2005), pp. 82–86. 16. Strauss, “Why Was Lochner Wrong?” p. 375. 17. Jack M. Balkin in “‘Wrong the Day It Was Decided’: Lochner and Constitutional Historicism,” Boston University Law Review 85 (2005): 677–725. 18. Bruce Ackerman, We the People 1: Foundations (Cambridge, MA: Harvard University Press, 1991), pp. 64–65. 19. Howard Gillman in The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham, N.C.: Duke University Press, 1993). 20. Ibid., p. 10. 21. Ibid., p. 205. 22. Perhaps the clearest version of this type of argument is offered in Cass R. Sunstein, “Lochner’s Legacy,” Columbia Law Review 87 (1987): 873–919. 23. Ibid., p. 880. 24. Ibid., p. 889. 25. Jennifer Nedelsky, Private Property and the Limits of American Constitutionalism: The Madisonian Framework and Its Legacy (Chicago: University of Chicago Press, 1990), p. 228. 26. Richard A. Epstein, Takings: Private Property and the Power of Eminent Domain (Cambridge, MA: Harvard University Press, 1985). 27. Richard A. Epstein, Supreme Neglect: How to Revive Constitutional Protection for Private Property (Oxford: Oxford University Press, 2008). 28. Ibid., p. 166. 29. David E. Bernstein, “Lochner v. New York: A Centennial Retrospective,” Washington University Law Quarterly 85 (2005): 1469–1528. 30. Ibid., p. 1472. 31. Ibid., p. 1473. 32. Ibid. 33. Lochner v. New York, 198 U.S. 45 (1905), p. 53. 34. Ibid. 35. Ibid. 36. Ibid., p. 54. 37. Holden v. Hardy, 169 U.S. 366 (1898). 38. Atkin v. Kansas, 191 U.S. 207 (1903), Knoxville Iron Co. v. Harbison, 183 U.S. 13 (1901). 39. Jacobson v. Massachusetts, 197 U.S. 11 (1905), Lochner, p. 55. 40. Ibid., p. 56. 41. Ibid. 42. Ibid., pp. 56–57. 43. Ibid., pp. 58, 61. 44. Ibid., p. 64.

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45. Ibid., p. 65. 46. Ibid. 47. Ibid., p. 66. 48. Ibid., p. 68. 49. Ibid. 50. Ibid., p. 72. 51. Ibid., p. 75. 52. Ibid., pp. 75–76. 53. Ibid., p. 76. 54. Ibid. 55. Ronald Dworkin, Taking Rights Seriously (Cambridge, MA: Harvard University Press, 1978), p. xi. 56. Ronald Dworkin, Freedom’s Law (Cambridge, MA: Harvard University Press, 1996), p. 6. 57. Dworkin, Freedom’s Law, p. 17, see also Is Democracy Possible Here? (Princeton, N.J.: Princeton University Press, 2008) pp. 9–11, 133. 58. Ibid., p. 31. 59. Ibid., p. 75. 60. Ibid., p. 38. 61. Ronald Dworkin, Law's Empire (Cambridge, MA: Harvard University Press, 1986), pp. 187–188, 211. 62. Ibid., p. 90. 63. Ibid., p. 214. 64. Ibid., p. 399. 65. Richard Posner, Law, Pragmatism, and Democracy (Cambridge, MA: Harvard University Press, 2003), p. 188. 66. Ibid., p. 385. 67. Ibid., p. ix. 68. Ibid., p. 182. 69. Richard Posner, Overcoming Law (Cambridge, MA: Harvard University Press, 1995), p. 26, see also Posner, Economic Analysis of Law (New York: Aspen Law & Business), pp. 773–774. 70. Posner, Law, Pragmatism, p. 31. 71. Ibid., p. 173. 72. Ibid., p. 3, 26. 73. See Richard Posner, The Problematics of Moral and Legal Theory (Cambridge, MA: Harvard University Press, 1999), p.7. 74. John Dewey, The Public and Its Problems, in The Later Works of John Dewey, vol. 2, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1984), p. 325. 75. John Dewey, Freedom and Culture, in The Later works of John Dewey, vol. 13, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1988), p. 187. 76. Dewey, “The Public,” pp. 244–245. 77. Ibid., p. 255. 78. Ibid., p. 256. 79. Dewey, “Freedom,” p. 175. 80. Indeed, it is surprising the number of claims to the effect that Dewey underestimates the kind and amount of social conflict. This is absurd. First, Dewey does not feel the need to “prove” there is social conflict – this is accepted as a given. Second,

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Dewey does not claim that all conflict is, in the end, eliminable. What is claimed is that if it is eliminable in a manner that harmonizes interests, his proposed form of government is best placed to find the solution. 81. Dewey, “The Public,” p. 364. 82. John Dewey, “My Philosophy of Law,” in The Later Works of John Dewey, vol. 14, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1988), p. 117. 83. Ibid. 84. Ibid., p. 118. 85. John Dewey, “Austin’s Theory of Sovereignty,” in The Early Works of John Dewey, vol. 4, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1971), p. 73. 86. John Dewey, “Nature and Reason in Law,” in The Middle Works of John Dewey, vol. 7, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1979), p. 63. 87. Dewey, “Austin’s Theory,” p. 87. 88. John Dewey, “Review of Carleton Kemp Allen’s Law in the Making,” in The Later Works of John Dewey, vol. 3, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1984), p. 327. 89. Ibid. 90. John Dewey, “Anthropology and Law,” in The Early Works of John Dewey, vol. 4, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1971), p. 40. 91. Ibid., p. 40–41. 92. Dewey, “My Philosophy of Law,” p. 117. 93. Ibid., p. 117. 94. John Dewey, “Review of H. Krabb’s The Modern Idea of the State,” in The Later Works of John Dewey, vol. 17, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1990), p. 102. 95. John Dewey, “Force, Violence and the Law,” in The Middle Works of John Dewey, vol. 10, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1980), p. 212. 96. Ibid, p. 214. 97. John Dewey, “Force and Coercion,” in The Middle Works of John Dewey, vol. 10, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1980), p. 246. 98. Ibid., p. 247. 99. John Dewey, “Nature and Reason,” in The Middle Works of John Dewey, vol. 7, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1979), p. 59. 100. Ibid., p. 59. 101. John Dewey, “Logical Method and the Law,” in The Middle Works of John Dewey, vol. 15, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1983), p. 68. 102. Ibid., p. 69. 103. Ibid., p. 71. 104. Ibid., p. 73. 105. Ibid., p. 75. 106. John Dewey, “Psychology and Justice,” in The Later Works of John Dewey, vol. 3, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1984), p. 190.

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107. Dewey, “Social realities v. Police Court Fictions,” in The Later Works of John Dewey, vol. 14, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1988), p. 243. 108. Dworkin, “Law’s Empire,” p. 398. 109. Dworkin, “Freedom’s Law,” pp. 82–88. 110. Ibid., p. 125. 111. Posner, “Overcoming Law,” p. 195. 112. Ibid., pp. 401–402. 113. Posner “Law, Pragmatism,” pp. 78–79. 114. Ibid., p. 79. 115. Ibid., p. 122. 116. John Dewey, Ethics, in The Later Works of John Dewey, vol. 7, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1985), pp. 414–415. 117. John Dewey, “Justice Holmes and the Liberal Mind,” in The Later Works of John Dewey, vol. 3, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1984), p. 180. 118. John Dewey, Liberalism and Social Action, in The Later Works of John Dewey, vol. 11, ed. Jo Ann Boydston (Carbondale: Southern Illinois University Press, 1987), p. 16.

Brian E. Butler Associate Professor of Philosophy Philosophy Department University of North Carolina at Asheville 215 New Hall, CPO #2830 One University Heights Asheville, NC 28804-8520 United States

Contemporary Pragmatism Vol. 7, No. 2 (December 2010), 45–69

Editions Rodopi © 2010

Our Country Right or Wrong: A Pragmatic Response to Anti-Democratic Cultural Nationalism in China Sor-hoon Tan

Since Deng Xiaoping came into power, China has been described as pragmatic in its approach to politics and development, and in the nineties there has been a revival of interest in Chinese cultural tradition. What is the relation between these two phenomena? Do they coexist, separately in mutual indifference, or in tension? Has there been constructive engagement, or at the very least does the potential for such engagement exist? More specifically, what roles, if any, do they play in China’s quest for democracy? Does Dewey’s pragmatism have any relevance to China in the twenty-first century? The issue of cultural tradition was central in the historical encounter between Dewey’s pragmatism and Confucianism in the New Culture movement of early twentieth century. It is still salient in the debates about China’s future and whether it would or should follow the democratic path. This essay will examine anti-democratic tendencies in the rising cultural nationalism in China and, through a philosophical exploration of John Dewey’s views about tradition, it will suggest how Chinese pragmatists today might defend democracy against attacks by cultural nationalists who reject the democratic path as alien and therefore wrong for China.

1. Liberal-Democratic Iconoclasm: May Fourth to June Fourth Although both Communist Party cadres and Chinese scholars have been anxious to draw a line between Marxist emphasis on practice, which is the source of CCP’s “pragmatism,” and the philosophical pragmatism of John Dewey, William James, and C. S. Peirce, some scholars have been arguing that there are significant resonances between Dewey’s pragmatism and Chinese traditions, especially Confucianism.1 A skeptical pragmatist such as Richard Rorty could ask, “Why look to such ancient stuff for solution of present problems? Shouldn’t we be more concerned about the stories present-day Chinese are telling about themselves and the world, if we wish to understand China or influence its

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future?”2 Confucius and Dewey seem to have very different attitudes to cultural tradition, if nothing else. The Master said, “I transmit but do not innovate. I am truthful in what I say and devoted to antiquity.” (Analects 7.1) Traditional ideas are more than irrelevant. They are an encumbrance. (Dewey, Individualism Old and New, LW5.86)3 This difference was central to the historical encounter between Dewey’s pragmatism and Confucianism in early twentieth century China. Dewey’s closest associates during his China visit (1919–1921) were prominent figures in the New Culture movement, known for its iconoclastic attacks on Confucianism and other aspects of traditional Chinese culture.4 Although its aspiration was to bring “science” and “democracy” to China through radical cultural transformation, the New Culture movement has been blamed for destroying Chinese tradition in such a way as to create a “vacuum” that paved the way for the Communist victory. Some might even view the Great Proletarian Cultural Revolution as a perverted outcome of the idea of China needing radical cultural transformation in order to free itself from traditional Chinese culture, which some Chinese Communists consider an obstacle to socialism. Certainly Confucianism was a target of the Cultural Revolution, just as it was attacked during the New Culture Movement. Chinese intellectuals who were most closely associated with John Dewey at the beginning of the twentieth century, including those who actually called themselves pragmatists, were often also perceived as cultural iconoclasts determined to destroy Chinese traditions, to demolish “the Confucian shop,” in order to modernize China. Hu Shih (1891–1962), Dewey’s most famous Chinese student and foremost advocate of pragmatism in Republican China, was involved in several debates with cultural conservatives throughout his career.5 Hu was among several Chinese students who studied with Dewey in Columbia University and the Teachers College in the first two decades of the twentieth century. Some of these students arranged a visit to China for Dewey when he was spending a few months in Japan in 1919. What was intended to be a visit of weeks stretched into more than two years, during which Dewey traveled to several provinces, lectured in well-known educational institutions, and gave public lectures attended by thousands of Chinese. His visit coincided with one of China’s most turbulent period of history, as Dewey arrived in Shanghai a few days before the student demonstrations that became the center-piece of the May Fourth Movement.6 The demonstrations were triggered by the events of the Peace Conference in Paris, but Hu Shih saw them as an important milestone in the New Culture Movement, the beginning of which may be traced to the publication of the New Youth (originally titled Youth Magazine) in 1915. Hu Shih published a series of

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articles in this journal in 1917, which started the baihua or vernacular language revolution central to the movement. Disillusioned with the results of the 1911 revolution, New Culture intellectuals argued that China needed a cultural transformation that would replace its obsolete traditions, especially its Confucian legacy, with science and democracy, which epitomize modern civilization.7 Together with articles critical of Chinese traditions, a prime example being Chen Duxiu’s articles attacking Confucianism as antithetical to modern life, the New Youth also published many articles introducing Western ideas, including a whole special issue on pragmatism, just before Dewey’s visit. Hu Shih not only played a key role in the movement’s promotion of vernacular language that transformed China’s literary scene and, from a pragmatic point of view, improved the communicative means for education and other social purposes, but also, after his return from the United States in 1917, was often involved in public debates over traditional ideas and practices in China. Hu and his New Culture friends attacked many Chinese traditional social norms and practices – such as those of chastity and filiality – for destroying or stultifying individuality, which Hu considered the greatest crime in society.8 Traditionally, chastity was considered the highest womanly virtue. Song dynasty Confucian, Cheng Yi, maintained that “starving to death is a small matter, losing one’s chastity is a great matter.”9 Hu Shih was outraged to read Chinese newspaper articles praising a widow who drowned herself as an act of chastity, and a woman who attempted to starve herself to death upon her fiancé’s death.10 The Guomindang government even had rules for official commendations of such acts. While sympathetic to anyone who out of genuine love chose to remain faithful to their dead spouse, Hu attacked those unconscionable views about chastity that encouraged sacrifice of lives as well as criticized their inherent gender inequality, since Chinese men were not held to the same norms of fidelity. By exposing the social ills arising from blindly following tradition, Hu Shih attempted to draw his fellow citizens’ attention to the nature of the problems plaguing China, to draw them into studies of such problems, the solution of which would transform Chinese society into a modern society. Applying what he learned from Dewey, Hu Shih argued for the use of scientific method in criticizing traditions and solving social problems. It is difficult to assess how successful he was in using the scientific method in his own practice more generally. There was, however, at least one specific experiment of reforming tradition which he conducted and wrote about. Upon his mother’s death, Hu Shih did not follow strictly the traditional mourning rituals.11 He reflected that rituals should evolve from the complex to the simple as the increasing complexity of daily life made it impractical to follow every complicated detail of traditional rituals. Moreover, science had revealed certain beliefs to be mere superstitions, while modern thought had enlightened people about the inhumane character or harmful effects of certain actions. Hu Shih argued that rituals such as those for mourning should express genuine and

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appropriate emotions and eliminate all superstitious, harmful, and inhumane elements. In rituals as in any other actions, one should ask “Why?” and seek the answer by critically examining actual experience, instead of blindly following others or obeying tradition (HSQ 1: 674–687). Beyond Hu Shih’s personal practice, the most important experiment of the first encounter between pragmatism and China was the experiment to create the cultural conditions for Chinese democracy through education reforms. Assessment of the role of Dewey’s pragmatism in the modernization of education in China has been generally positive, and Dewey remains a topic of frequent discussion in journal articles and monographs on education in China.12 However, the “Dewey experiment” was not merely an experiment in education, but an experiment in democratizing China. If actual democratization is the criterion by which we measure its success, then the “Dewey experiment” remains a failure. Contrary to historian Barry Keenan, who argued that its failure was due to the inherently flawed “pragmatic method” which advocated political change through education reforms, I have argued elsewhere that the jury is still out on the pragmatic experiment of democratizing China, since it is an unfinished experiment.13 Dewey had seen America as a “great social experiment” in “the ideas of federation and of the liberation of human interests from political domination” (MW11.72), ideas which he believed should be America’s contribution to “world reconstruction” after the First World War (MW11.71). His Chinese students invited him to China as part of their experiment to liberate China from its burden of the past so that it could become a modern nation, epitomized in the ideas of science and democracy. And in this they were more than willing to take America as their model. It is not surprising that during the first encounter between pragmatism and China, the replacement of traditional culture with a new culture was often bound up with the question of Westernization, as New Culture intellectuals generally identified Western culture with the modern. Hu Shih believed that China should learn wholeheartedly from the West, given the latter’s lead in scientific development and democratization. In New Culture intellectuals’ assessment, previous attempts to “learn from the West” had been half-hearted and superficial, limited by a lingering superiority complex, a conviction that the Western imperialistic powers’ strengths lie only in their command of military and industrial technology; and even if their institutions had some strong points, Westerners’ knowledge and practices should not replace the ancient Chinese teachings on personal cultivation, social and political life, that had served the Chinese for more than two millennia. The New Culture movement advocated a more thorough attack on traditional culture and a more comprehensive approach to Western learning. Hu Shih sided with the Westernizers in resisting reactionary defense of Chinese tradition and culture in a series of public debates over Chinese culture in relation to the future of China itself and became known for advocating “wholesale Westernization.”

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A similar cultural iconoclasm and Westernizing orientation was evident also in the Chinese democracy movements of the 1980s. Student demonstrators in the days leading up to June 4th in 1989 explicitly drew on the May Fourth movement for inspiration and wore T-shirts with the old slogans of “Science” and “Democracy.” In an interview in 1989, published in the China Youth, Yan Jiaqi emphasized the relation between science and democracy and their importance for China’s future.14 Earlier, Li Zehou noted the similarity in ideas popular in the 1980s and those of the May Fourth movement.15 Just as the May Fourth movement drew inspiration from the European Enlightenment, many Chinese intellectuals of the eighties saw themselves as Enlightenment intellectuals.16 An argument similar to that of the New Culture movement, that Chinese traditional culture is an obstacle to China’s modernization and Westernization is required to solve China’s problems, lies at the center of a very influential television miniseries, The River Elegy. Those who scripted it self-consciously saw themselves as carrying on the May Fourth intellectual and cultural mission.17 The River Elegy was the center-piece of the nineteen eighties’ “cultural fever” (wen-hua-re 㠖▥䍼) in China, which has retrospectively been dubbed the “new Enlightenment,” referring to the earlier comparison of the May Fourth period with the Enlightenment.18 This “new Enlightenment” which led to June 4th, 1989 inherited the liberal and democratic iconoclasm of the “Chinese Enlightenment” of the May Fourth movement of 1919. 2. Turning the Cultural Tide against Liberal Democracy Not all participants in the “cultural fever” of the eighties were iconoclasts; some took the opposite tack of resisting Western influences and advocating preservation of Chinese “national essence,” understood as China’s cultural heritage or traditions. The debates over what constitutes “national essence,” Chinese tradition or cultural heritage, and its possible roles in the future of China gave rise to a re-evaluation, and then promotion, of Confucianism, reinterpreted to serve the present needs of China. In recovering their Confucian heritage, some Chinese scholars aimed “to promote the democratic essence of Confucianism and fight against its feudal dross.”19 Overseas New Confucians – so called because of their efforts at modernizing Confucianism by learning from modern Western thinking while maintaining the primacy of Chinese culture (with Confucianism as its core) for China and its relevance for other societies in this age of globalization – played a key role in the revival of interest in Confucianism. In the early twentieth century, Liang Shuming (1893–1988, sometimes identified as a New Confucian but not without controversy) rejected the Western liberal democratic path for China’s political development because cultural differences rendered it irrelevant, and proposed an alternative political system based on “rural reconstruction.”20 However, at least one Chinese scholar has

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argued that Liang Shuming actually combined Confucianism and democracy, and that his understanding of democracy was influenced by John Dewey.21 Xiong Shili (1884-1968), another first generation New Confucian, maintained that democracy and science are functions (yong 䞷 ), which in the Chinese context are best served by developing Confucianism, which constitutes the substance (ti ⇢) of Chinese culture. However, the Confucian political system Xiong advocated is closer to a form of moralistic democratic socialism which abolishes private property and wherein everyone behaves like a Confucian gentleman (shijunzi ⭺ ⚪ ⷟ ), rather than capitalist liberal democracy which considers individuals’ morality a private matter.22 Second generation New Confucians, Mou Zongsan (1909–1995), Tang Junyi (1907–1978) and Xu Fuguan (1902–1982), who left mainland China after the Communist takeover, continued Xiong’s line of thought, arguing that, despite the absence of democratic systems, the “seeds of democratic thought” were already present in the teachings of Confucius, Mencius, and Huang Zongxi (1610–1695), in the ideas of “the world being shared by all” (tianxia weigong ⮸ 23 ₚ⃉⏻ ) and individual equality (renge pingdeng ⅉ㫋㄂䷘ ). They were less friendly to socialism than Xiong, and outright hostile to communism, in some cases more or less advocating the values and system of Western liberal democracy (such as individual freedom and human rights); but some of their writings were also critical, or at least highlight the practical difficulties, of liberal democracy such as the common weaknesses of electoral systems.24 Tu Wei-ming, whose visit to the PRC in 1985 was hailed as the landmark event signaling “the return of New Confucianism to its homeland,” has been presenting Confucianism as “global philosophy” to an international audience for a few decades. Tu rejects the characterization of Confucianism as Chinese imperial state orthodoxy, which he labels as “politicized Confucianism.”25 Instead, he views Confucianism as an all-encompassing humanism with personality ideals which can be realized more fully in liberal democratic societies than in either traditional imperial despotism or the modern authoritarian regime in China. Tu looks forward to a “New Confucian Humanism [which], though rooted in the East, draws its nourishment from the West as well as from Asia.”26 While arguing for compatibility between Confucianism and liberal democracy – e.g. on human rights – he also recognizes the tension between Confucian tradition and the Enlightenment mentality which underlies Western modernity. In his studies of East Asian modernization, he examines the post-Confucian thesis – that Confucian ethics has contributed to East Asia’s impressive economic growth, and offers an alternative development model for modernization – and concludes that its cultural resources enable Confucian East Asia to achieve different modernities that are less adversarial, less individualistic and less self-interested than their Western counterparts. According to Tu, Confucianism testifies to the role of cultural traditions in shaping the modernization process and defining the meaning of modernity:

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modernization is culturally differentiated, and there are multiple modernities rather than a singular modernity defined by the West.27 New Confucianism, one of five major phenomena distinguishing the “cultural fever” of the eighties, laid the groundwork for the “national studies fever” (guoxuere ⦌ⷵ䍼) in the subsequent decade, when the changing global and geopolitical situation gave rise to a surge in Chinese nationalism. Theoretically, nationalism may be liberal and democratic, or authoritarian, conservative and xenophobic. Historically in China, it has tended towards the latter, because “nationalist consciousness in China first emerged not in association with liberal or democratic ideas, but was triggered as a painful reaction to foreign invasions.”28 According to Baogang He and Guo Yingjie’s historical study of the clash between nationalism and democracy in China, the CCP government used Confucianism as the basis of a state nationalism to replace Marxism as the party’s ideological prop in the nineties.29 However, the rise of nationalism and the revival of interest in traditional culture are not merely the products of government propaganda. John Makeham has shown that there has been genuine revival of academic interest and a lively discourse and debate among scholars in mainland China, and overseas Chinese scholars, fighting over the “lost soul” of Confucianism.30 Beyond Academia, Confucianism has been popularized (and some would say vulgarized) in various ways to re-package the master’s ancient wisdom for modern consumption. The most famous of such popularisers is Yu Dan, whose book, Reflections on the Analects, has sold nearly ten million copies; she has appeared on national television in the PRC to lecture to huge audiences on the everyday use of Confucian values.31 This indicates a certain level of interest in Confucianism among the Chinese population. Perception of state sponsorship, or worse, orchestration, tends to have a dampening effect on popularity, as witnessed by the way that state promotion of a film on Confucius (starring Hong Kong movie star Chow Yuen Fatt, released in January 2010) alienated a large section of the population, who refused to watch the movie simply because was seen as an “official” film. The new nationalism in China is a combination of state nationalism, popular nationalism, pan-Chinese nationalism and civic nationalism, and many nationalists do not accept the CCP’s claim that the party represents the nation’s will and interest.32 As Prasenjit Duara points out, “nationalism is never fully subsumed by the nation state,” and China’s neo-nationalism has “a plurality of sources of identifications ... which do not necessarily harmonize with one another.”33 Intellectuals generally look toward the “mainstream Chinese culture,” usually understood as Confucian, instead of ethnicity for the basis of nationalism. It is not just state nationalism which is against democracy. Even the apparent “depoliticization” of traditional culture evident in popular appropriation could work against democracy by refusing to question the undemocratic political status quo. In intellectual discourse, cultural nationalism has also been linked to neo-authoritarian and neo-conservative thinking, which is highly

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critical if not outright opposed to democratization, because of the historical association of Confucianism with authoritarianism. The “return to traditional culture” in China was part of a wave of “Asian exceptionalism,” dating back to the eighties, arguing that Asian civilizations have values which render Western ideas of liberal democracy unviable and undesirable for Asian societies. Even though attempts have been made to reconcile Confucianism with democracy theoretically, Confucianism remains a convenient tool in what Zheng Yongnian calls “the politics of civilization,” in which it is deployed in resistance to democratization.34 Ben Xu criticizes the “new national studies” as a manifestation of intellectuals “retreating from the public” in the 1990s and argues that cultural studies in China in the 1990s have abdicated its responsibility to democratization.35 This may be too pessimistic. Rather than total “disenchantment with democracy,” what we witness in China over the past two decades may represent a deeper understanding of the variety and complexity of democratic theories and practices, in an ongoing inquiry rooted in their own problems, with their own unique contexts. Rather than the facile assumption that Western liberal democracies have the blue print for progress or success, there has been a realization among those who still hope to see democracy in China that the process will take much longer, requiring efforts in many dimensions. The path ahead is by no means clear, and it remains to be seen what role Chinese traditional culture will play in the future. 3. Chinese Pragmatism in the Nineties The “return to tradition” has not precluded growing interests in a wide variety of Western ideas and theories, including pragmatism. Liu Fangtong’s article “Reassessment of Pragmatism” and the National Conference on Pragmatism in Chengdu in 1988, “signified an important turn in the Chinese philosophers’ appreciation of pragmatism.”36 Study of pragmatism in China has made significant progress in the last two decades. Politically correct Marxist posturing has all but disappeared from the more scholarly works. Several new editions of Dewey’s translated works and new translations have been published since the eighties. The Center for Dewey Studies established in 2004 at Fudan University in Shanghai has undertaken to translate the critical edition of Dewey’s Collected Works. Several contemporary Western studies of John Dewey, and works by Western pragmatists and neopragmatists have been translated.37 Conferences and articles on Dewey and pragmatism in Chinese academic journals have increased significantly in recent years. In addition to the perennial interest in his philosophy of education, discussions of Dewey have become more varied in subject matter, including his naturalism, individualism, liberalism, aesthetics, ethics, anti-dualism, concept of social democracy, philosophy of value, under-standing of truth, exploration of the future of American capitalism, and even his view of religion. Besides

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inclusion in survey works on Western philosophy, several monographs on Dewey’s philosophy and pragmatism have also been published by Chinese academics.38 Before we rush into the conclusion that “the political and philosophical pendulum in China has clearly swung from Marxism to pragmatism in recent years,”39 it should be noted that most of what passed in public discourse under the description of “shiyong zhuyi ⸭ 䞷 ⃊ ⃘ ,” the preferred translation for “pragmatism,” has little to do with Dewey’s philosophy. The term has been used to describe Chinese consumers’ car purchasing pattern, to mean “follow the crowd,” preference for old to new models, and listening to others’ opinions rather than use one’s own observation.40 It was linked with “fast food mentality” as signs of the decline of the reading habit and attention to the “serious life.”41 The “new pragmatism” that Zhang Fa, Zhang Yiwu, and Wang Yichuan identified as one of three major tendencies in cultural discourses of the 1990s “emphasizes daily life and individual satisfaction,” which “provides legitimacy for consumer culture and maintains ‘a necessary indifference’ to ideology and utopias.”42 A “caricatured” pragmatism has become what Wang Xiaoming called the “new ideology of the 1990s.” In the 1990s, reform seemed merely to mean the creation of an economic system whose only standard would be profit. All it now aimed for was efficiency, competition and wealth, and all it promised was improvement of material welfare. Nothing else – not political democracy, environmental care, ethical norms, cultural education – lay within its scope.43 In addition to social malaise such as unscrupulous pursuit of wealth and power, and the various forms of corruption involving abuse of power and other immoral or criminal behavior, Pragmatism has been held responsible for university students’ neglect of theory in their studies, and for nihilism and pessimism replacing idealism among the young.44 David Kelly observed that “China is often caricatured as a nation of quintessential pragmatists, absorbed in the pursuit of material interest at the expense of any other.”45 But serious scholarly interest and understanding of Dewey’s philosophy remain limited to a very small minority in China. While cultural nationalism is a major intellectual trend in China since the nineties, most studies of the Chinese intellectual scene of past few decades do not pay attention to “pragmatism,” and the revival of “pragmatism” is also affected by the prevailing nationalistic attitude towards cultural encounters. Even those who understand and appreciate Dewey’s pragmatism would not take “American democracy” as a model for China today. Whereas President Wilson’s promise to “make the world safe for democracy” had enthused Chinese intellectuals looking West for “science and democracy” to save China, President George Bush’s certitude that American democracy offers a global model, to be imposed on other countries by force if necessary, has alienated many. Sun

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Youzhong’s critique of the Bush Administration’s unilateralist strategy of globalizing democracy points out that it is reductionist “to equate American liberal democracy with democracy itself.”46 Sun’s view on democracy is probably representative among Chinese pragmatists. ...democracy as a universal ideal of human civilization is not a closed, fixed or uniform political system of any existing type applicable to all nations, but a “way of living,” the nature and implications of which are to be cooperatively constructed and constantly ameliorated by peoples of all nations according to their particular conditions, needs, and wishes as defined by their particular historical, economic, cultural, and political contexts.47 Pragmatic democratization would not impose a universal norm in the sense of prescribing fixed absolute political norms for all to follow, and Dewey himself would be sympathetic to the Chinese people’s desire to have a distinctively Chinese democracy growing out of their experience and best suited to the unique conditions of their communities in different ways at different times. However, in the midst of rising cultural nationalism, Chinese pragmatists who share Dewey’s commitment to democracy as a way of life have to address the challenge of anti-democratic culturalism, which either asserts that China cannot democratize because of its traditional culture, or argues that China should not democratize because democracy is incompatible with its cultural traditions. Such culturalism is often “pragmatic” in a crass instrumentalist sense of using “culture” as a tool in the “politics of civilization,” to serve a purpose which has very little to do with the Deweyan understanding of culture as a dynamic, changing way of life, consisting of ideas, practices, and artifacts shared and transmitted in a process which at its best develops the imagination, refines tastes, and deepens intellectual insights. I have argued elsewhere that anti-democratic culturalism tends to adopt a reductionist, essentialist, static, totalizing, and hegemonic conception of culture, which results from seeing culture as the answer to questions rather than an ongoing ever-changing problem that needs solving. My reconstruction of the concept of “culture” based on Dewey’s works attempts to show that democracy is a cultural problem, not in the sense that some universal (Western) culture must be imposed on all, but rather that the different components of each particular culture and their interconnections need to be reconstructed to create a democratic national-and-global culture, which does not yet exist.48 The cultural problems that need to be solved in any pragmatic experiment of democracy in China are about the way traditions connect past, present, and future. What would be a pragmatic approach to the role of tradition in China’s on-going search for democracy?

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4. Dewey’s Lectures in China on Tradition According to one commentator, in the hands of New Culture intellectuals, “Dewey’s pragmatism undoubtedly hastened the disintegration of traditional culture and values.”49 Although often modestly claiming ignorance about China to his Chinese audience, Dewey occasionally provided examples drawn from Chinese life and thought as he learned about China from personal observation and from his association with the Chinese, and he sometimes referred to the local situation when lecturing in China and published several articles on China in American journals during and after his visit. Did Dewey share his Chinese students’ iconoclastic views about Chinese tradition? Dewey did not speak or read Chinese. Although he spoke to many people through interpreters, it is not surprising that his closest Chinese associates had a strong influence on his understanding of the situation in China, including its traditions and philosophies. When lecturing on social and political philosophy in Beijing, Dewey remarked that theory producing stability “may conduce either to good or evil,” and gave a Chinese example of the latter possibility. Many Chinese institutions, under the aegis of Confucianism, have remained unaltered and unchallenged for more than two thousand years. When theory results in rigidity rather than in stability, it interferes with progress, and can thus prove dangerous. (LC 1973, 50) He saw Confucius as a conservative who “held that all institutions had their ideal standards, and that if men would rediscover and act upon these ideals there would be no need to destroy or replace institutions” (LC 1973, 52). Dewey’s lectures on Ethics at Peking University included a comparison between Western and Eastern thought. He found Eastern thought more concrete and practical and Western thought more abstract and intellectual. While the concrete and practical approach facilitates comprehension, “it lacks the flexibility needed to enable it to meet the demands of changing situations.”50 Though mainly based on Western experience, Dewey’s discussion of “the bad effects which old-fashioned theories of knowledge had on education” used “quoting from the Shih Ching or Confucius” as an example of “making the sayings of the ancients the basis of criticism ... without even asking about the regards in which the needs of the past and of the present are the same and the regards in which they are different” (LC 1985, 176). With or without local examples, Dewey’s discussion of the bad effect of “developing a predisposition to obey the ancients” as well as treating knowledge as an already constituted product that could be transmitted through memorization, recitation and examination, and “breeding an aristocracy of learning,” would have struck a familiar chord among his Chinese audience at the time. In another lecture at the National Peking Academy of Fine Arts, Dewey identified two great dangers confronting “the Orient,” one of which being “the people who feel threatened by

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a materialistic civilization, and want to resist it. They want to preserve the thought and habits of a conservative society, and hope that it will not be affected by materialism” (LC 1985, 191). While admitting that “preoccupation with material progress” is among the defects of Western civilization (LC 1985, 190), Dewey emphasized that the West had more to offer than mere technology. To him, “the development of the scientific spirit and the cultivation of a new attitude toward life are far more important” (LC 1973, 235). He advocated applying the scientific method to social problems in place of the traditional method, which “depends too much on conventional customs and prejudices” (LC 1985, 49, 60, 66). Quite a few of Dewey’s lectures in China were about science and the scientific method, and its relevance to social and moral problems. “The Authority of Science” was the topic of one of his lectures on social and political philosophy. He also lectured on “Science and the Moral Life” and “Science and Education” (LC 1973). He was more than willing to help his Chinese students with their efforts to promote science and democracy against the superstition and tyranny of tradition. Dewey’s writings and letters for the American audience also mention the conservatism of the Chinese and their attachment to tradition as obstructing progress. He identified the “inelastic system of memoriter education” as a cause of conservatism in China, which was “not native or natural” (MW12.25). Dewey described the fight over the use of vernacular language instead of the literary language of the Chinese Classics, “the speech of two thousand years ago, adorned and frozen,” merging “into one between conservatives and liberals in general, between the representatives of the old traditions and the representatives of western ideas and democratic institutions” (MW12.25). He observed in the Chinese disregard for foreigners’ opinion a complacency and conceit which “has enormously retarded the advance of China and made for a conservative hugging of old traditions, and a belief in the inherent superiority of Chinese civilization in all respects to that of foreign barbarians” (MW11.209). In the only article he ever published on Chinese philosophy, he described the Daoist “doctrine of the superiority of nature to man” and “the doctrine of non-doing” as congenial to habits of life associated with China’s long history and unparalleled success as an agrarian society, for many centuries able to continue producing without depleting the soil, which “helps explain the conservatism of the Chinese, their laissez-faire reverence for nature and their contempt for the hurried and artificial devices of man’s contriving” (MW13.222). According to Dewey, The general point of Confucianism is the opposite of that of Taoism ... Yet in many respects the actual effect of Confucianism has been like that of Taoism. In inculcating reverence for the classic literature of the past as the well-spring of wisdom, it supplied intellectual reasons for conservatism. (MW13.224)

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Dewey found the conservatism of the Chinese people worthy of deeper inquiry, as it has been blamed for China’s backwardness. Conservatives they doubtless are. But nevertheless their history is not a history of stagnation, of fixity, as we are falsely taught, but of social as well as dynastic changes. They have tried many experiments in their day. (MW12.52) Instead of materialist or idealist explanations, Dewey’s analysis offers a relational or interactionist alternative by locating the cause of Chinese conservatism in “the extraordinary and long-continued density of population” (MW12.53). Such living conditions meant that every little action by one individual could affect others, and therefore could and would be watched by others, perhaps attracting undesirable counter-actions. This bred a mentality of “Don’t rock the boat” (MW12.55). Mistakes are often costly, and therefore, “Mind your own business, don’t interfere, leave things to those whose express business it is to look after them, is the rule of living” (MW12.57). Dewey did not condone or excuse such conservative attitudes. His analysis led him to point out that, given its cause, such conservatism cannot be “remedied by expostulation, exhortation and preaching.” In Dewey’s view, a change of environment through introduction of industrial production is required. Increase of wealth and of constructive appliances, that is modernization in the form of economic and scientific development, would enable the Chinese to discover a way “to turn personal friendliness, unfailing amiability and good-humor into general channels of social service” (MW12.59). What China needed was not merely improvement in material life. The notion that, by the mere introduction of western economy, China can be “saved,’ while it retains the morality, the old set of ideas, the old Confucianism – or what genuine Confucianism had been petrified into – and the old family system, is the most utopian of sentimental idealism. (MW13.103) Like his students active in the New Culture movement, Dewey believed that China can adjust to the impact of the West “only by a readjustment of her own age-long customs, that she has to change its historic mind and not merely a few of her practices” (MW11.205). The real problem of China, Dewey wrote in 1921, was “that of adapting Old China to new world conditions” (MW13.98). “A new mind must be created” (M13.95). Dewey believed that the New Culture movement, as an intellectual movement, would help to unify China’s mind, just as better means of communication would unify and strengthen the country. “It also makes a great deal of difference whether the mind when unified looks to the past or is in sympathy with modern thought in the rest of the world”

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(MW13.119). Dewey is in sympathy with the New Culture movement in believing the latter to be the right path for China. 5. Dewey’s Critique of Western Traditions Lest anyone thinks that Dewey was recommending complete Westernization of China, Dewey’s China lectures were also critical of Western traditions. Dewey would maintain that blind following of tradition obstructs moral growth in both East and West. If we were always to behave exactly as people before us behaved, our conduct would be mechanical and without life, like an automobile or a locomotive. How could we, in such case, claim that our conduct was moral? The social situation changes from day to day. If morality is to fit the demands of society, we should consciously seek new experience and develop new concepts to meet the needs of the new situation. We cannot afford to follow blindly traditional modes of behavior. (LC 1985, 70) His critique of traditional morality, as accidental and prone to misuse by “men of evil intent ... to seduce the people and gain control of society” (LC 1985, 119) since it does not encourage or even permit independent reasoning, was based on Western experience (using examples of the Romans and Greeks, and American Indian tribes). Such morality, deriving their standards from prevailing social norms, also ignores the individual will and motive, judges actions solely by external consequences, and “serves to solidify the social system and render it impervious to change” (LC 1985, 121). It was with regard to formal schooling and education for literacy in the West that he warned of the danger of “becoming overly preoccupied with the conservation and transmission of the cultural heritage, to the exclusion of other matters with which it ought also to be concerned” (LC 1973, 186). Dewey believed that among the benefits of democracy is “a radical change in outlook, namely that rational legislation should replace the ‘legislation’ of tradition, custom and habit” (LC 1973, 147). However, despite Western experience with democracy for a few centuries, “the most pressing social problem in the modern world is that of replacing the authority of tradition with the authority of science” (LC 1973, 167). The selection of these topics and problems to focus on in his lectures indicates which areas Dewey and his Chinese advisors believed Western experience could serve as lessons for China during the nineteen-twenties. Dewey was critical of tradition long before his visit to China. Writing about logical theory in 1891, he maintained that “any theory which somehow presupposes a first-hand contact of mind and fact (though it be only in isolated, atomic sensations) is surely preferable to a theory which falls back on tradition, or on the delivery of dogma irresponsible to any intellectual criticism”

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(EW3.130). His textbook on Ethics was critical of customary or traditional morality (Ethics, MW5 and 2nd edn LW7). Those who approach religion and education from the side of unconstrained reflection, not from the side of tradition, are of necessity aware of the tremendous transformation of intellectual attitude effected by the systematic denial of the supernatural; they are aware of the changes it imports not merely in special dogma and rites, but in the interpretation of the world, and in the projection of social, and, hence, moral life. (MW4.167) Placing “the authority of tradition in place of the authority of natural facts and laws” would “reduce the individual to a parasite living on the secondhand experience of others” (LW8.307). The hold of tradition on education in a rapidly changing and expanding world leads to a failure “to educate [the student] for the present, and then when the future comes upon him leave him either stranded or wrecked” (EW5.220). According to Dewey, “schools are so peculiarly subject to the power of tradition and of uncriticized custom that they embody the subjects and ends of the past” (LW13.264). Dewey’s philosophy of education advocated treating the school as “an experimental station in education” to counter the weight of tradition – it will then “permit and encourage freedom of investigation; that will give some assurance that important facts will not be forced out of sight; conditions that will enable the educational practice indicated by the inquiry to be sincerely acted upon” (MW1.68). Dewey insisted that instead of blindly following traditional practices, education should be approached as a scientific, intellectual and philosophical problem. Experimental education requires a new understanding of psychology, a new psychology bringing the new method of experiment to supplement and correct the old method of introspection (EW1.53). Dewey played a key role in challenging pre-scientific traditional psychology in his efforts to approach education and other social problems scientifically. The “conflict of scientific conceptions of the world with beliefs hallowed by tradition and giving sanction to morals and religion” is one reason why a philosophy of education is needed (MW7.299). “Philosophy was born out of the inability of custom to maintain itself as a final standard of life, and out of the attempt to do by reflection the work previously done by tradition” (MW6.23). But philosophy as a human endeavor has its own traditions, and Dewey was critical of various philosophic traditions (e.g. that which separate theory and knowledge from practice, body from mind) in several of his works, especially Reconstruction in Philosophy (MW12), Experience and Nature (LW1), and The Quest for Certainty (LW4). Dewey often contrasted tradition with reflective thinking or thoughtful inquiry, intelligence, pragmatic reason, and science. “Science is a name for knowledge in its most characteristic form ... knowledge is distinguished from opinion, guesswork, speculation, and mere tradition” (MW9.196). He noted that

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during the Enlightenment, “humanists and scientists had often set themselves against dogma and tradition” (MW5.154; LW7.145) – and agreed with Francis Bacon that “like deceitful images or obsessions the ‘idols’ of the tribe, of the cave, of the market, and of the theater – due to instinct or habit, to language or tradition – prevent reason from doing its best work” (LW7.145). In Dewey’s view, tradition, instruction, imitation – all of which depend upon authority in some form, or appeal to our own advantage, or fall in with a strong passion – are responsible for [thoughts which] are prejudices, that is, prejudgments, not judgments proper that rest upon a survey of evidence” (MW6.184; also LW8.116). Reflection sets us free from tradition to pursue genuine knowledge that pays attention to evidence (LW8.277). Traditions in social and political life often have been aristocratic and authoritarian; they have reinforced the power of vested interests (LW9.107); “despotism while it lasts has sanction of tradition and general custom” (MW15.270); and “dominant class interests” were often “the chief force that maintained the tradition against which the new method and conclusions in physical science had to make their way” (LW9.108). The modern age marks a liberation from “the heavy hand of precedent, tradition and government” (LW1.357). It is as true of the history of modern science as it is of the history of painting or music that its advances have been initiated by individuals who freed themselves from the bonds of tradition and custom whenever they found the latter hampering their own powers of reflection, observation, and construction. (LW11.142) Such liberation can never be complete. Even in the most scientifically advanced and modern Western societies, “There is always a rearguard of ignorance, prejudice, dogma, routine, tradition, which fights against the spread of new ideas that entail new practices” (LW6.146). The application of science to moral and social life advocated by pragmatists has been retarded not just in China, but even in Western societies which, despite “extensive and precise control of physical energies and conditions, ... leave the social consequences of their operation to chance, laissezfaire, privileged pecuniary status, and the inertia of tradition and old institutions” (LW6.59). Keeping the social field “as a preserve sacred from the free use of experimental procedure” ... has resulted in “unbalance, distortion, and the misuse of the physical fruits of science” (LW8.67). Even as Dewey worried about the partial view the Chinese had of science as mere technology, he saw his own society, with much less excuse, similarly afflicted. In an address delivered

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in 1934 at the University Club, Boston, Dewey had this to say about the situation in the United States: There are, indeed, courses in science installed in high schools and colleges ... the scientific attitude, the will to use scientific method and the equipment necessary to put the will into effect, is still, speaking for the mass of people, inchoate and unformed. (LW9.99) 6. A Pragmatic Approach to Old and New, Past, Present, and Future Despite his frequent critique of tradition(s), Dewey is not an iconoclast. There can be no total rejection of tradition. As a fact, tradition has always been operative (MW7.357). Our responses to others, the basic forms of nurture and care so critical to the continuation of our species, are themselves dependent upon tradition, custom and social patterns (LW2.243). “Tradition and custom, especially when emotionally charged, are a part of the habits that have become one with our very being” (LW9.11). In Dewey’s understanding, tradition is custom – a habit which is common to the members of a society – regularized, systematized, and consciously insisted upon (LC 1973, 85). Tradition, as a conscious principle of organization, continuity and evaluation of experience, is indispensable to human existence. Referring to the “truth-function” of the university, Dewey recognized that “At one time it may be more concerned with the tradition or transmission of truth, and at another time with its discovery. Both functions are necessary, and neither can ever be entirely absent” (MW2.55). Dewey maintained that “knowledge is a function of association and communication; it depends upon tradition, upon tools and methods socially transmitted, developed and sanctioned” (LW2.334). Tradition is part of the context of our thinking and acting. There is no thinking which does not present itself on a background of tradition, and tradition has an intellectual quality that differentiates it from blind custom. Traditions are ways of interpretation and of observation, of valuation, of everything explicitly thought of. They are the circumambient atmosphere which thought must breathe; no one ever had an idea except as he inhaled some of this atmosphere. (LW6.13) In fact, Dewey wrote, “The things which a man experiences come to him clothed with meanings which originate in custom and tradition” (LW1.383). In the education of artisans through their work, “the customs, methods and working standards of the calling constitute a ‘tradition,’ and that initiation into the tradition is the means by which the powers of learners are released and directed” (LW2.57). In art,

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Tradition can be an enhancing and liberating tool; but if it becomes a fixed and absolute constraint, if it loses its reflective and creative capacity, then it turns restrictive and enslaving. To advocate wholesale rejection of tradition would be to fall into a dualism of old and new, of past versus present and future. Iconoclasm is unpragmatic. The pragmatist sees the world and human existence as “a conjunction of the precarious and the assured, the incomplete and the finished, the repetitious and the varying, the safe and sane and the hazardous” (LW1.66– 67). These general traits of experience are manifested in a series of polarities, such as “structure and process, substance and accident, matter and energy, permanence and flux, one and many, continuity and discreteness, order and progress, law and liberty, uniformity and growth, tradition and innovation...” (LW1.67). Pragmatic philosophy is concerned with “the choice and administration of their proposed union,” because “the issue of living depends upon the art with which these things are adjusted to each other” (LW1.67). Iconoclasts view the old and new, past, present, and future in dualistic opposition, rejecting one totally in favor of the other; pragmatists recognize their continuity and interdependence, and that each specific context decides which should be emphasized. The iconoclastic approach treats tradition as purely static and passively received, something “currently accepted in a community which is handed down from generation to generation, being accepted on the authority of its past currency rather than because of any independent examination and verification” (MW7.356). The pragmatic approach recognizes that such static traditions obstruct progress in their tendency “to create the closed and dogmatic mind” (LW11.573), to obscure our “observation of what is actually going on” (LW13.102), and to deceive us into believing that all information is here and all the evidence known. However, the pragmatic approach also realizes that tradition is indispensable as a process “used to cover the entire operation of transmission by which a society maintains the continuity of its intellectual and moral life” (MW7.356). Tradition looks forward as well as backward. To transmit the powers and achievements of our own day to the future is as important as to transmit the past to the present. Indeed, the more aware we are of the fact that we are builders of a future world, the more likely are we to be intelligent in

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our attitude to the past and in our estimate of the values we inherit from it. (LW14.271) The forward-looking meliorism of pragmatic philosophy is inseparable from an intelligent appreciation of the past as an instrument to help us deal with present problems and future possibilities, although the past is not merely an instrument for Dewey (LW11.573). We need to reorganize our heritage from the past and the insights of present knowledge into a coherent and integrated imaginative union (LW10.340). Dewey approached his own cultural heritage not as an iconoclast, but as a “critic and reconstructor of tradition” (LW14.8). He was convinced that the “vital cultural problems – which ultimately decide important philosophical problems – now centre about the reworking of traditions (institutions, customs, beliefs of all sorts), to bring them into harmony with the potentialities of present science and technology” (LW14.8). In Dewey’s view, the philosopher cannot ignore traditions. “If he ignores traditions, his thoughts become thin and empty. But they are something to be employed, not just treated with respect or dressed out in a new vocabulary” (LW3.131). Dewey did not advocate demolishing tradition in toto, an impossibility in any case; he was only against unexamined and uncritical traditions (LW13.273; LW15.26). The iconoclast’s complete rejection of tradition also errs in treating tradition as if it is an indivisible whole, whereas Dewey insists that tradition is, or rather traditions are, pluralistic in composition. Moreover, “There are bad traditions as there are good ones: it is always important to distinguish” (LW2.20; also LC 1985, 73). Getting the distinction right is vital to achieving the best balance between old and new, to ensuring progressive continuity between past, present, and future. Although the earlier sections focus on his critical remarks about Chinese and Western traditions, Dewey did find good traditions in both. The “great American tradition,” for him, is the democratic tradition, and his stand on sociopolitical problems “frankly accept the democratic tradition in its moral and human import” (LW8.76; LW13.299). While there is much in China’s past, in her traditions, that hobbled her efforts to cope with new conditions, Dewey recognized that there were also many good things in the old order (MW13.94). Dewey approved of “the traditional concept of the state’s obligations to protect its people, as this was propounded by Mencius” (LC 1973, 154). He found the modes of life of the Chinese masses democratic (MW11.197, 212). There are, so to speak, three Chinas. There is the China which generates friction and antagonism among the nations, the China of international relationships. There is domestic China, torn, distracted, factional, largely corrupt in government. And there is the China of the Chinese people, populous, patient, industrious, self-governing by nonpolitical methods, solid, enduring and persistent beyond the power of the Western

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Dewey did not side with the Chinese radical who “is not interested in improving what exists, but advocates replacing it with something entirely new and different” (LC 1973, 51). Instead he recommended a “third philosophy” that avoids the “dependence on sweeping generalizations” common to both conservatism and radicalism (LC 1973, 53). This third philosophy, which looks for particular kinds of solutions by particular methods for particular problems which arise on particular occasions, is concerned with “the ways in which human behavior can be controlled and guided by human knowledge and intelligence” (LC 1973, 53), and intelligence is “the power of using past experience to shape and transform future experience” (MW11.346). Revolution, cultural or political, is not the only means to social progress; Dewey preferred developing “a system of habits, customs, conventions, traditions, and institutions flexible enough to permit adjustment to changing environments and conditions” (LC 1973, 87). In education, what is needed is “to conserve and transmit the best of our traditional cultural heritage, and ... to cultivate personalities which can cope successfully with their environment. ... We must reconstruct the traditional aims, methods, and subject matter of education so that it may adequately serve the needs of our age” (LC 1973, 188; see also 212). Although sometimes overly optimistic, Dewey was well aware that unfortunately for China, the old and new were sometimes mixed in a social chemistry that yielded an explosive or poisonous compound, and “the task of reorganization, of transformation, of union of old and new, is so vast, so appalling in its complexity, that neither any wholesale forecast of the future nor any simple remedy is worth the paper it is written on” (MW13.95). Written in 1921, these remain words of wisdom today, even though China’s circumstances have changed tremendously. Instead of the iconoclasm at the beginning of the century, we see a revival of Confucianism and other Chinese traditions in China towards the end of the twentieth century and into the new millennium. Iconoclasm of the last century and the social and political upheavals have significantly loosened the hold of traditional practices and beliefs in Chinese society, to the extent that we are talking about deliberate recovery rather than preservation of certain traditions. Not all that were lost were bad, and not all that are bad have been discarded. The balance between old and new, tradition and novelty, remains an important problem that must be grappled with in charting the future course of China. To some observers, revival of traditions, especially Confucianism, still has a tendency to ally itself with political conservatism, even authoritarianism, certainly if the Chinese Communist party were to appropriate such a revival, but even in the hands of those who sought an alternative to the current Communist regime.51 However, if traditions have an indispensable part to play in the continuity of spiritual and moral life, rejecting all traditions out of hand, even

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polemically or as a matter of strategy, is not the best method for dealing with the problem. A pragmatist would expose attempts to appropriate traditions for purposes hostile to improving associated living, warn of the dangers of combinations of the old and the new that will not work, and propose alternative combinations and modifications that would ensure the vitality of particular traditions in meeting the needs and characteristics of a new age. NOTES 1. Examples of works which found resonance between the pragmatist and the Confucian traditions include: David Hall and Roger Ames, Democracy of the Dead: Dewey, Confucius and the Hope of Democracy in China (Albany: State University of New York Press, 1999); Robert Cummings Neville, Boston Confucianism: Portable Traditions in the Late Modern World (Albany: State University of New York Press, 2000); Warren Frisina, The Unity of Knowledge and Action: Toward a Nonrepresentational Theory of Knowledge (Albany: State University of New York Press, 2002); Sor-hoon Tan, Confucian Democracy: A Deweyan Reconstruction (Albany: State University of New York Press, 2004); Hai-ming Wen, Confucian Pragmatism as the Art of Contextualizing Personal Experience and World (Lanham Md., Lexington Press, 2009). 2. Richard Rorty made this remark about the recovery of Confucianism at a Conference in Shanghai in July 2004 on “Rorty and Chinese Philosophy.” Selected papers from that conference are published in Rorty, Pragmatism, and Confucianism, ed. Yong Huang (Albany: State University of New York Press, 2009). 3. Standard references to John Dewey’s work are to The Collected Works of John Dewey, 1882-1953, Jo Ann Boydston ed. (Carbondale: Southern Illinois University Press, 1969–1991), in three series as The Early Works (EW), The Middle Works (MW) and The Later Works (LW). LW5.86 refers to The Later Works, vol. 5, p. 86. 4. Barry Keenan has given an in-depth study of the Chinese pragmatists’ efforts at education reforms and cultural transformation in The Dewey Experiment in China (Cambridge, MA: Harvard University Press, 1977). See also Sun Youzhong, “Dewey in China: Yesterday and Today,” Transactions of Charles Sanders Peirce Society 35 (1999): 69–88. A more recent discussion of Hu Shih’s pragmatism and reevaluation of the “Dewey experiment” is Sor-hoon Tan, “China’s Pragmatist Experiment in Democracy: Hu Shih’s Pragmatism and Dewey’s Influence in China,” Metaphilosophy 35 (2004): 44– 64; and Richard Shusterman, ed., The Range of Pragmatism and the Limits of Philosophy (Malden, Mass., Blackwell, 2004). 5. For a sympathetic yet critical intellectual biography of Hu Shih, see Jerome Grieder, Hu Shih and the Chinese Renaissance (Cambridge, MA: Harvard University Press, 1970); also Min-chih Chou, Hu Shih and Intellectual Choice in Modern China (Ann Arbor: University of Michigan Press, 1984). 6. The best study of the May Fourth Movement remains T’se-tsung Chow, May Fourth Movement: Intellectual Revolution in Modern China (Cambridge, MA: Harvard University Press, 1960). 7. For a study of the iconoclasm of New Culture intellectuals, see Lin Yu-Sheng, The Crisis of Chinese Consciousness: Radical Anti-Traditionalism in the May Fourth Era (Madison: University of Wisconsin Press, 1979).

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8. Standard references to Hu Shih’s works are to Ji Xianlin (ed.), Hu Shi Quanji (Hu Shih’s Complete Works), (Hefei, China: Anhui Education Press, 2003), 44 vols., henceforth referred to as HSQ, followed by volume and page numbers. 9. Cheng Yi (1033–1107). Er Cheng Quanshu (Complete Works of Cheng Brothers), Sibu beiyao 161 (Shanghai: Zhonghua, 1935), juan 22B, p. 3a. 10. Hu Shi, “Problem of Chastity,” The New Youth (1918), HSQ 1: 633–642. 11. This was not undertaken lightly, as Hu Shih was a very filial son and had great respect and affection for his mother, who was widowed when Hu Shih was only five years old. 12. Su, Zhixin, “A Critical Evaluation of John Dewey’s Influence on Chinese Education,” American Journal of Education 103.3 (1995): 302–325; Zhou Hongyu and Xiang Zongping, “The Spread of Dewey’s Educational Thought in China and its Influence,” Journal of Hebei Normal University, Educational Science 3 (2001): 59–65, at p. 64; Wu Jianmin, “Influence of Dewey’s Educational Thought on Education Reforms in Twentieth Century China,” Critical Review of Education 6 (2001): 58–60; Dong Yunchuan, “Dewey and Scholarship,” Academic Exploration, series 1 (2001): 182–184; Peng Jianbiao and Fan Kai, “Dewey’s Pragmatist Educational Thought and the Direction of Reforms in China’s Education,” Journal of Gansu Education College, Social Sciences 18.1 (2002): 78–82. 13. Keenan, op. cit., p. 76, p. 150; Tan, “China’s Pragmatist Experiment,” pp. 44– 64. For other assessments of the “Dewey experiment,” see Chow, May Fourth Movement, p. 241; Nancy Sizer, “John Dewey’s Ideas in China, 1919–1921,” Comparative Education Review 10.3 (October 1966): 390–404; Maurice Meisner, Li Ta-chao and the Origins of Chinese Marxism (Cambridge, MA: Harvard University Press, 1967), p. 10;, John E. Smith, “Pragmatism at Work: Dewey’s Lectures in China,” Journal of Chinese Philosophy 12 (1985): 231–259; Julia Ching, “China’s Responses to Dewey,” Journal of Chinese Philosophy 12 (1985): 261–281; Liu Fangtong, “Pragmatism and its Destiny in China,” in Reflections on May Fourth (Shanghai: Huadong shifan daxue chubanshe, 1988), pp. 31–39; Robert B. Westbrook, John Dewey and American Democracy (Ithaca, N.Y.: Cornell University Press, 1991), pp. 249–250; Zhang Rulun, “Dewey’s Fate in China,” Reading no. 7 (2003): 126–132. 14. Yan Jiaqi, Moving Towards Democratic Politics (Taipei: Shibao chuban, 1990), pp. 29–36. 15. Li Zehou, “The Double Variation of Enlightenment and National Salvation” in On the History of Chinese Thought, 3 vols. (Hefei, China: Anhui wenyi chubanshe, 1999), vol. 3, 823–866, at p. 859. 16. Vera Schwarcz, The Chinese Enlightenment: Intellectuals and the Legacy of the May Fourth Movement of 1919 (Berkeley: University of California Press, 1986); Xu Jilin, Another Kind of Enlightenment (Guangzhou: Huacheng chubanshe, 1999), p. 257. 17. River Elegy, Documentary produced by China Central Television (China: Zhongguo dianshi guoji fuwu gongsi, 1988); Su Xiaokang et al., ed., From May Fourth to the River Elegy (Taipei: Fengyun shidai chuban, 1992), p. 420. 18. Xu, Another Kind of Enlightenment, pp. 8–9, pp. 250–262. One of the many journals founded in that period was The New Enlightenment. Xu singled out 1984 as the beginning of the “new Enlightenment” of the 1980s (ibid., p. 254). In his survey of contemporary Chinese thought, Wang Hui held up “new enlightenment” thought as the “most dynamic intellectual current of the 1980s.” Wang Hui, “Contemporary Chinese Thought and the Question of Modernity,” in Whither China? Intellectual Politics in

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Contemporary China, ed. Xudong Zhang (Durham, N.C.: Duke University, 2001), pp. 161–198. 19. Song Xianlin, “Reconstructing the Confucian Ideal in 1980s China: the ‘Culture Craze’ and New Confucianism,” in New Confucianism; A Critical Examination, ed. John Makeham (New York: Palgrave, 2003), pp. 81–104, at p. 85. The efforts to modernize Confucianism could be traced back to the nineteenth century. See Sor-hoon Tan, “Modernizing Confucianism and ‘New Confucianism,’” in The Cambridge Companion to Modern Chinese Culture, ed. Kam Louie (Cambridge, UK: Cambridge University Press, 2008), pp. 135–154, at pp. 135–141. 20. Liang Shuming, Key Elements of Chinese Culture (Taipei: Zhengzhong, 1977); Theory of Rural Reconstruction (Shanghai: Shanghai Shudian, 1992); See also Guy Alitto, The Last Confucian (Berkeley: University of California Press, 1979). 21. Gu Hongliang, “Liang Shuming’s Conception of Confucian Democracy and John Dewey,” in Confucian Life World (Shanghai: People’s Press, 2008), pp. 111–118, a paper presented at a 2006 workshop on “Democracy as Art, Belief, and Culture,” held at the National University of Singapore. Liang definitely had read Democracy and Education, gave a lecture on it, and cited from it in his works. Liang also visited the Xiaozhuang Experimental Village Normal School, established by Tao Xingzhi, one of Dewey’s students who tried to apply Dewey’s ideas of “Life is education” and “Learning by Doing.” 22. Xiong Shili, Tracing Confucianism (Shanghai: Longmen lianhe shuju, 1953); Main Points in Reading the Classics (Taipei: Guangwen, 1960). 23. Chang, Carsun, Development of Neo-Confucian Thought (New York: Bookman, 1962), vol. 2. The “Manifesto for a Reappraisal of Sinology and Reconstruction of Chinese Culture,” signed by Carsun Chang, Mou Zongsan, Tang Junyi, and Xu Fuguan, is often considered the landmark document of New Confucianism. 24. Xu Fuguan, Confucian Political Thought and Democracy, Freedom, Human Rights, ed. Xiao Xinyi (Taipei: Student Press, 1988); Tang Juniyi, “Realization and Objective Value Consciousness of Democratic Thought,” in Complete Works, 8:102–141, at p. 138. 25. Tu Wei-ming, Confucianism in Historical Perspective (Singapore: Institute of East Asian Philosophies, 1989), p. 3. 26. Tu Wei-ming, ibid., p. 39. 27. Tu Wei-ming, Confucian Ethics Today: The Singapore Challenge (Singapore, Curriculum Development Institute of Singapore, 1984); “Core Values and the Possibility of a Fiduciary Community,” in Restructuring for World Peace, ed. Katharine and Majid Tehranian (Cresskill, N.J.: Hampton Press, 1992), pp. 333–346; Confucian Traditions in East Asian Modernity (Cambridge, MA: Harvard University Press, 1996); “Human Rights as a Confucian Moral Discourse,” in Confucianism and Human Rights, ed. W. Theodore De Bary and Tu Wei-ming (New York: Columbia University Press, 1997), pp. 297–307; “Multiple Modernities: A Preliminary Inquiry into the Implications of East Asian Modernity,” in Culture Matters: How Values Shape Human Progress, ed. Samuel P. Huntington and Lawrence E. Harrison (New York: Basic Books, 2000), pp. 256–267. 28. Suisheng Zhao, ed., China and Democracy (New York and London: Routledge, 2000), pp. 255–257. 29. Baogang He and Guo Yingjie, Nationalism, National Identity and Democratization in China (Brookfield, Vt.: Ashgate, 2000), pp. 28–30.

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30. John Makeham, Lost Soul: “Confucianism” in Contemporary Chinese Academic Discourse, Harvard-Yenching Institute Monographs 64 (Cambridge, MA: Harvard University Asia Center, 2008). 31. Daniel Bell, while positive about Yu’s efforts in some ways, calls it “a Daoistinspired effort to depoliticize” Confucianism. See Bell, China’s New Confucianism (Princeton, N.J.: Princeton University Press, 2008), p. 170. Bell’s use of the term “New Confucianism” has little to do with the well-known movement in Chinese intellectual history discussed above, but simply refers to the many new forms Confucianism has taken in discourse and practice, in PRC today. 32. He and Guo, Nationalism, p. 112. 33. Duara, Prasenjit, “De-Constructing the Chinese Nation,” in Chinese Nationalism, ed. Jonathan Unger (Armonk, N.Y.: M. E. Sharpe, 1996), pp. 31–55, at p. 32, p. 44. 34. Yongnian Zheng, Will China Become Democratic? Elite Class and Regime Transition (Singapore: Marshall Cavendish, 2004), chap. 3. 35. Ben Xu, Disenchanted Democracy: Chinese Cultural Criticism after 1989 (Ann Arbor: University of Michigan Press, 1999), p. 80. 36. Liu Fangtong, “Reassessment of Pragmatism,” in Modern Foreign Philosophy, 10 (1987): 1–23. The 1988 conference was the direct result of interest generated by Liu’s article when it was first presented at a conference in Guiyang in 1986. See Zhan Xufang, “Changes in the Attitude of Chinese Philosophical Circles towards Pragmatism,” Studies in Soviet Thought 38 (1989): 99–104, at pp. 102–103. 37. Including works by Beth Singer, Richard Rorty, Richard Shusterman, Larry Hickman, James Campbell, Thomas Alexander, Robert Westbrook, Steven Rockefeller, and Steven Fesmire. Explorations of affinities between pragmatism and Chinese philosophy, such as the translated works of David Hall and Roger Ames, have also drawn considerable attention. 38. Some examples are Liu Fangtong’s New Explorations of Pragmatism, Yang Wenji’s New Discussions of Pragmatism, Zou Tiejun’s Master of Pragmatism: Dewey, Gu Hongliang’s Misreading of Pragmatism: Influence of Dewey’s Philosophy on Modern Chinese Philosophy, and Sun Youzhong’s The Symbol of the American Spirit: a Study of Dewey’s Social Thought. 39. Su, “Critical Evaluation of John Dewey’s Influence on Chinese Education,” p. 314. 40. “Pragmatic Chinese-style care purchase” at http://news.xinhuanet.com/auto/ 2009-04/07/content_11141706.htm (accessed on 9 July 2009) 41. “Serious living in an era exalting fast-food spirit and pragmatism” at http://www.showchina.org/zixun/200902/t259852.htm (accessed 10 July 2009). 42. Zhang Fa, Zhang Yiwu, and Wang Yichuan, “From ‘Modernity’ to ‘Chineseness’,” Wenyi Zhengming 2 (1994): 10–20, at p. 17. 43. Xiaoming Wang, “A Manifesto for Cultural Studies,” in One China, Many Paths, ed. Chaohua Wang (New York: Verso, 2003), pp. 274–291, at p. 284. 44. Qiu Zhongxin, “Analysis of the Wave of Pragmatist Philosophical Thought and its Influence in Reality,” Songliao Journal 65 (1994): 102–106, at p. 106; Jiang Chuangang, “We Must Overcome Pragmatists’ Attitudes Toward Seeking Truth from Facts,” Theory 2 (1999): 33–35, at p. 34; Qi You, “Emphasizing Consequences and Pragmatism,” Frontline 8 (2003): 59–60, at p. 60; Luo Bingseng, “On Seeking Truth from Fact and Pragmatism,” Journal of Philosophy and Social Sciences, Yunnan Normal University 27.5 (1995): 1–5, at p. 1; Ni Ke, “Pragmatism Influences and Guides

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Contemporary University Students,” Journal of Guangxi Youth Leaders College 12.2 (2002): 19–21, at pp. 20–21. 45. David Kelly, “Philosophers Revisited,” China News Analysis 1453 (1992): 1–9, at p. 1. 46. Sun Youzhong, “Globalizing Democracy: A Deweyan Critique of Bush’s Second-Term National Security Strategy,” in Democracy as Culture: Deweyan Pragmatism in a Globalizing World, ed. Sor-hoon Tan and John Whalen-Bridge (Albany: State University of New York Press, 2008), pp. 53–62, at p. 58. 47. Ibid., p. 53. 48. Tan and Whalen-Bridge, chap. 3. 49. John Dewey, Lectures in China, 1919–1920, trans. Robert W. Clopton and Tsuin-chen Ou (Honolulu: University Press of Hawaii, 1973), p. 13, henceforth referred to as “LC 1973” in the text. Some may find Dewey’s China lectures crude and simplistic compared to his other philosophical writings, but the translations from detailed records taken in Chinese show that these lectures, intended for a general educated public rather than professional philosophers, are clearly Deweyan in direction, and constitute an important link between Dewey’s early philosophy and the social and political philosophy he developed after his China visit. 50. John Dewey, Lectures in China on Logic, Ethics, Education and Democracy, trans. Robert Clopton and Tsuin-chen Ou (Taiwan: Chinese Culture University Press, 1985), p. 132. Henceforth referred to as “LC 1985” in the text. 51. This is true of Jiang Qing’s “Political Confucianism” which understands the “kingly way” to limit political responsibility (and therefore power) to the true king “who has an awakened sense of moral consciousness,” and thereby avoiding the problem of “granting political power to the amoral masses.” His program, including a national “Chinese morals revival movement,” popularizing recitation of canonical texts at various levels, establishing a new civil service examination system, a rujiao university and ruxue colleges, rujiao newspapers, journals, publishing houses, radio and television channels, internet websites, as well as propaganda overseas offices, and church-like “lecture halls” at local, provincial and national levels, has led one commentator to call it “a utopian vision that is tantamount to return to the middle ages (or even earlier!).” Jiang’s work has not been translated in to English, but has been discussed in Makeham, Lost Soul, pp. 271–275, and Bell, China’s New Confucianism, appendix 2, pp. 175–191. The evaluation that Jiang’s proposed Confucian political system is authoritarian in tendency is my own and may not be shared by Bell and Makeham.

Sor-hoon Tan Associate Professor of Philosophy Philosophy Department National University of Singapore Singapore

Contemporary Pragmatism Vol. 7, No. 2 (December 2010), 71–89

Editions Rodopi © 2010

Antifoundationalism and the Commitment to Reducing Suffering in Rorty and Madhyamaka Buddhism Stephen Harris

In his Contingency, Irony, Solidarity, Richard Rorty argues that one can be both a liberal and also an antifoundationalist ironist committed to private self creation. The liberal commitments of Rorty’s ironists are likely to be in conflict with his commitment to self creation, since many identities will undercut commitments to reducing suffering. I turn to the antifoundationalist Buddhist Madhyamaka tradition to offer an example of a version of antifoundationalism that escapes this dilemma. The Madhyamaka Buddhist, I argue, because of his careful analysis into the unsatisfactory nature of existence, is motivated to adopt only identities that are committed to eliminating the suffering of self and others. Therefore, his compassion for others is not in tension with a commitment to private self-creation.

In his Contingency, Irony, Solidarity (CIS), Richard Rorty argues that one can be both a liberal, and an antifoundationalist ironist committed to private self creation. In the first section of this essay, I highlight a tension implicit in Rorty’s development of the liberal ironist. On the one hand, as a liberal, she is committed to reducing the suffering of others. On the other, as an ironist, she desires to recreate herself, a process requiring redescription of what Rorty calls our final vocabulary, the value terms we use to understand ourselves and our projects. Such redescription, I will argue, endangers the ironist’s liberal commitment to removing suffering, since as Rorty himself acknowledges, redescribing another’s final vocabulary can inflict the suffering of humiliation on others. Further, her commitment to refashioning her identity may often conflict with her commitment to liberalism, since some of the identities we might adopt may actually be committed to increasing the suffering of others. In the second section of this essay, I examine how an antifoundationalist tradition committed to removing the suffering of others, that of Madhyamaka Buddhism, avoids this dilemma. Like Rorty, the Madhyamaka does not believe we can appeal to language independent reality as a way of deciding what values we ought to accept. Like Rorty, the Madhyamaka places great emphasis on

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reducing the suffering of others. However, Buddhists would claim that Rorty’s own analysis of pain is impoverished. If we pay close enough attention, we will see that all of our ordinary experience is a subtle form of suffering. As a result of this insight, for the Madhyamaka, the dilemma of Rorty’s liberal ironist does not arise. This is because she is not tempted by the siren call of private self creation. The Bodhisattva is not tempted to adopt private identities conflicting with her commitment to removing suffering because she realizes all such identities would be permeated with suffering themselves. 1. The Divided Liberal Ironist Throughout much of his writing, Rorty has argued that the idea of accurately describing essences, either of the world, or of human nature, is misguided. Rather, we should “become reconciled to the idea that most of reality is indifferent to our descriptions of it, and that the human self is created by the use of a vocabulary rather than being adequately or inadequately expressed in a vocabulary” (CIS, 6). Truth is made rather than found, since “languages are made rather than found, and that truth is a property of linguistic entities, of sentences” (CIS 6). Investigating the nature of truth is unprofitable (CIS 30). Rather, we should accept that “anything could be made to look good or bad, important or unimportant, useful or useless, by being re-described” (CIS, 7).1 Although language does not describe language transcendent reality, Rorty claims that every human has his own set of what he calls final vocabulary, “a set of words which they employ to justify their actions, their beliefs, and their lives” (CIS 73). Our final vocabulary, words like “true”, “good”, “right”, “beautiful”, “decency”, “kindness”, “progressive”, “rigorous”, “creative”, are used to explain and evaluate our world (CIS 73). They are final “in the sense that if doubt is cast on the worth of these words, their user has no noncircular argumentative recourse” (CIS 73). The terms of our final vocabulary, then, are the bedrock we hit, beyond which inquiry can go no further. Our final vocabulary does not accurately represent the world, and the world will never act as mediator among various final vocabularies. (CIS 9) A final vocabulary is anchored in societal institutions, and is restricted only by our interactions and conversation with other humans. Rorty, however, is insistent that passionate commitment to our values does not require a belief that these values correspond to mind independent reality. Even if we acknowledge that our ideas of justice and virtue are socially constructed, Rorty believes, we can care about them with enough passion to die for them. In his own writing, Rorty often defends two commitments one gets the sense he would be willing to die for. First, he affirms the Romantic tradition’s emphasis on the importance of creation of one’s own idiosyncratic identity, a process which requires modifying the final vocabulary one has inherited. I will refer to this as the goal of autonomy. Second, he affirms the liberal values of reducing cruelty and increasing personal freedom. I will refer to this as the goal of liberalism.

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Closely tied to the goal of autonomy is Rorty’s conception of the ironist. An ironist “has radical and continuing doubts about the final vocabulary she currently uses,” and “she realizes that arguments phrased in her present vocabulary can neither underwrite nor dissolve these doubts”(CIS 73). She accepts that there is no metavocabulary to mediate between final vocabularies, and “does not think that her vocabulary is closer to reality than others” (CIS 73). Ironists accept that “anything can be made to look good or bad by being redescribed”, and are never able to take themselves seriously, since they are aware “the terms in which they describe themselves are subject to change” (CIS 73–74). Essentially, an ironist realizes that all terms of value, including the ones she has adopted, might be made to look bad by redescription. Irony is essential to the goal of autonomy, because being autonomous, for Rorty, means choosing one’s own final vocabulary, and this requires escaping from the final vocabulary one inherits. Rorty invokes Coleridge in suggesting that an ironist seeks to “create the taste by which he will be judged” (CIS 97). Ironists “are afraid that they will get stuck in the vocabulary in which they were brought up”, so they recreate themselves by experimenting with alternate final vocabularies, redescribing their situation by playing one final vocabulary off against another “to make the best selves for [themselves] that [they] can” (80). To the extent that she accepts the terms of an inherited final vocabulary, then, the ironist will give them a radically new sense. She is the revolutionary who reconfigures the past to conform to her own idiosyncratic fantasies. Rorty invokes figures like Heidegger, Nietzsche, Derrida, and Hegel as prototypical ironists, persons who radically reconceptualized the history of Western thought.2 Irony is essential to the goal of autonomy, then, because creating a new final vocabulary requires rejecting or reconceiving the final vocabulary one inherits. If Picasso had not doubted his inherited artistic norms, he would not have developed Cubism. If the ancient Athenians were not ironic about their inherited government, Democracy would not have developed. Rorty’s goal of liberalism, by contrast, requires accepting some final vocabulary with little modification. Rorty follows Mill in holding the purpose of government is to balance preventing suffering with leaving people alone to live their private lives. (CIS 63)3 However, liberal institutions depend upon a subset of a final vocabulary to function, terms like “justice”, “liberty”, “human rights”, “impartiality”, and a liberal conception of what it means to be prosperous.4 An ironist realizes the liberal final vocabulary is socially constructed, and her quest for autonomy tempts her to redescribe these terms. For liberal values to prevail, then, the ironist must be prevented from redescribing such vocabulary in ways that would undermine the functioning of liberal governments. However, being autonomous requires redescribing inherited final vocabulary. Rorty’s commitments, it seems, preclude each other. Rorty acknowledges the potentially corrosive effects of irony on public institutions.

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STEPHEN HARRIS I cannot go on to claim that there could or ought to be a culture whose public rhetoric is ironist. I cannot imagine a culture which socialized its youth in such a way as to make them continually dubious about their own process of socialization.5 (CIS 87)

Rorty’s solution is to suggest “that the ironist’s final vocabulary can be and should be split into a large private and a small public sector” (CIS 99–100). The public sector contains the final vocabulary relevant to the welfare of others, including the vocabulary necessary for the functioning of a liberal democratic government. Such vocabulary is off limits to any redescription which would inhibit its effectiveness at promoting the liberal goals of reduction of cruelty, and personal liberty.6 The rest of a person’s final vocabulary, what is grouped under the larger private area, is up for grabs. An ironist artist, for instance, may reconceive the meaning of terms like “beauty” and “harmony” however she sees fit, and the ironist novelist may reinterpret norms of narrative structure.7 Let us pretend that Thomas Jefferson was an ironist, and believed that nascent American ideals arose as a result of historical contingencies. As an ironist, Jefferson would possess lingering doubts about whether his final vocabulary of “rights,” “liberty,” and “equality,” would really prove better than alternatives at promoting worthwhile human lives. Nevertheless, the ironist Jefferson would believe such values provide the best shot we have at founding a worthwhile society. In asking the ironist Jefferson to privatize his irony, Rorty is pointing out that we cannot interweave public self doubt into our political institutions without inhibiting their ability to function. Consider the beginning of the Declaration of Independence: We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. Imagine if Jefferson had supplemented these lines with a moment of public irony, adding, “but of course we can’t be sure that these values will turn out to be worthwhile in the long run, and besides our nascent democracy will probably end up marginalizing a lot of people.” Instead of a declaration upon which a country may be founded, we would have an ineffectual piece of waffling. In the same way, ironist poll workers must not turn away voters from the polls as a result of lingering doubts about the final vocabulary of universal suffrage. Privatizing irony is motivated by an acceptance that certain liberal rhetoric is necessary to enable governmental functioning. If we affirm values like the reduction of cruelty promoted by liberal democracies, then we must be willing to protect liberal final vocabulary from irony that would undermine its effectiveness.8 A number of critics have argued that dividing our final vocabularies into public and private realms is unrealistic. Nancy Fraser, for instance, claims

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Rorty’s position is flawed, since “it stands or falls with the possibility of drawing a sharp boundary between public and private life” (Fraser, 264). However, this is impossible. “Many cultural developments that occur at some remove from processes officially designated as political are nonetheless public.” Further, “cultural processes help shape social identities which in turn affect political affiliations” (Fraser, 264).9 Fraser is correct in pointing out that private experience can influence public policy. Attending a liberal church may make one more likely to expand voting rights to marginalized persons. Likewise, reading a biography of a lesbian may make us more likely to advocate gay rights. However, it is implausible to interpret Rorty as conceiving of the public private divide as an airtight line that must never be crossed. According to Rorty, the public final vocabularies of liberal governments were themselves the result of past private idiosyncratic fantasy. Political revolutionaries, for Rorty, are strong poets who found “words to fit their fantasies, metaphors which happened to answer to the vaguely felt needs of the rest of the society” (CIS 61).10 Public final vocabulary, then, is private final vocabulary that catches on with a society.11 For this reason, I think it better to conceive of the distinction between public and private as a boundary protecting certain final vocabulary, including that upon which the functioning of liberal governments depends, from the effects of corrosive ironic redescription. Moreover, Rorty need not deny that private creation can help us modify our liberal final vocabulary. Harriet Beecher Stowe’s Uncle Tom’s Cabin, and the writing of Charlotte Perkins Gilman, for instance, helped us see that our conception of human rights and suffrage was impoverished, and needed to be expanded.12 However, these core liberal commitments of kindness and toleration themselves should not be subjected to public irony; rather, we should modify concepts like freedom and dignity to more closely align with them. A related complaint often brought against Rorty is that the private public distinction will not do the work it is introduced to do, because there are some private identities that are simply incompatible with liberal values. Rachel Haliburton, for instance, suggests Rorty’s claim that we can be “Nietzsche in private and J.S. Mill in public” is “both bizarre and implausible” (Haliburton, 61). If we adopted some Nietzschean attitudes, Haliburton points out, we would presumably act on them, thus undermining our commitments to public liberalism. (Haliburton, 61) In a similar vein, Robert Foelber argues that one could not “be both a private Dahmerian torture ([or] rabid anti-Semite racist) and a good liberal democrat” (Foelber, 34).13 Such objections are similar to a complaint against his position Rorty himself considers: [This] is a suggestion that the public-private split I am advocating will not work: that no one can divide herself up into a private self-creator and a

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STEPHEN HARRIS public liberal, that the same person cannot be, in alternate moments, Nietzsche and J. S. Mill (CIS 85).

He suggests this objection is identical to the following: [It] is psychologically impossible to be a liberal ironist – to be someone for whom “cruelty is the worst thing we do,” and to have no metaphysical beliefs about what all human beings have in common. (CIS 85) However, these objections are distinct. The second is the claim that it is impossible for an individual to be committed to liberal values unless she believes there is transhistorical support for these values. According to this objection, one could not be psychologically committed to removing pain unless one believed, not only that all humans suffer, but also that by nature all humans ought to care about the suffering of others. CIS as a whole may be taken to be Rorty’s response this charge. Rorty’s claim, in brief, is that one can believe one’s values are contingent upon historical circumstances, and still be willing to die for them.14 The first objection, which is essentially the one made by Haliburton and Foelber, highlights the tension of affirming both the goal of autonomy and the goal of liberalism. Autonomy, for the ironist, means redescribing yourself in terms that reject the final vocabulary you have inherited. Autonomy means creating a new private identity for yourself. However, some of these identities will be incompatible with liberal values. A Neo-Nazi rejects the final vocabulary of equality for a fantasy of ethnic superiority. Above, I suggested we view the public private distinction as marking a boundary around liberal final vocabulary that should not be subjected to irony. Here, it becomes apparent that some private identities provide no reason to respect this boundary. If the Neo-Nazi’s private identity is committed to the overthrow of liberal democratic government, then he will want to make public liberal final vocabulary look as ridiculous as he can. These objections, then, point out that some private identities will be incompatible with public liberal final vocabulary. This does not mean autonomy is incompatible with liberalism. There are many private identities that one may create for oneself, and many idiosyncratic fantasies one may pursue, that would not interfere with one’s liberal commitments. However, a commitment to liberalism acts as a constraint on our pursuit of autonomy. If we want to keep our liberal commitments, there are simply some identities we cannot choose.15 How then does the liberal ironist choose when her commitment to private self creation interferes with her commitment to liberalism? Rorty believes there are no non question begging reasons that can be given to choose one position over the other:

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[Liberal Ironists give] up the idea that liberalism could be justified, and Nazi or Marxist enemies of liberalism refuted, by driving the latter up against an argumentative wall – forcing them to admit that liberal freedom has a “moral privilege” which their own values lacked. (CIS, 53) Further, there is no causal explanation of why we have the values that we do that will give us moral ground over our opponents. We cannot look back behind the processes of socialization which convinced us twentieth-century liberals of the validity of this claim and appeal to something which is more “real” or less ephemeral than the historical contingencies which brought those processes into existence. (CIS, 198) Moreover, Rorty acknowledges that there will be times when private attempts at self creation conflict with our public obligations. In such cases, our commitments to liberalism have no automatic priority over self creation. Another central claim of this book, which will seem equally indecent to those who find the purity of morality attractive, is that our responsibilities to others constitute only the public side of our lives, a side which competes with our private affections and our private attempts at selfcreation, and which has no automatic priority over such private motives. Whether it has priority in any given case is a matter for deliberation, a process which will usually not be aided by appeal to “classical first principles.” Moral obligation is, in this view, to be thrown in with a lot of other considerations, rather than automatically trump them. (CIS 194)16 The liberal ironist, then, must negotiate between her desire to recreate herself and her desire to remain a good liberal.17 Moreover, her ironist urges may tempt her to recast her liberal values. Nietzsche, for Rorty, provides the epitome of a commitment to private self creation. To fail as a poet – and thus, for Nietzsche, to fail as a human being – is to accept somebody else’s description of oneself, to execute a previously prepared program, to write, at most, elegant variations on previously written poems. So the only way to trace home the causes of one’s being as one is would be to tell a story about one’s causes in a new language. (CIS 28) These causes that must be retold, presumably, would include inherited liberal values. The urge for self creation, then, would provide a constant temptation to redescribe the inherited values of social progress, justice and liberalism18.

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In this section, I have shown that Rorty’s conception of the liberal ironist who divides her vocabulary into public and private domains is not incoherent, but is dangerously unstable. On the one hand, her commitment to liberalism entails that she protect the final vocabulary upon which liberalism depends from ironic redescription. On the other, her desire for autonomy tempts her to reject her identity as a liberal and reconceive all inherited vocabulary. The liberal ironist, then, teeters on the edge of a precipice. One way to rescue the liberal ironist from her dilemma would be to return to metaphysics, to attempt to locate a transhistorical non question begging ground which she may appeal to as justification for her liberal commitments. This, of course, is a solution Rorty would never accept. Further, it is not the only solution to her dilemma. In the concluding section, I will examine the case of the antifoundationalist Bodhisattva, the ironic saint of Madhyamaka Buddhism, who both rejects intrinsic essence of reality, and remains firm in his conviction that the elimination of suffering is the only thing worth striving for. 2. Why the Ironic Bodhisattva is not Divided Central to Rorty’s conception of liberalism is his insistence that for a liberal, cruelty is the worst thing you can do. Pain, for Rorty, is nonlinguistic, and the ability to experience pain is shared amongst humans and animals. (CIS 88, 94,177) However, human beings have our own distinctive kind of pain, which Rorty calls humiliation. Humans can be “humiliated by the forcible tearing down of the particular structures of language and belief in which they were socialized (or which they pride themselves on having formed for themselves)” (CIS, 177). Rorty offers the example of a small child who takes delight in his toys, but then realizes his possessions look ridiculous next to those of a rich child. (CIS, 89) Humiliation occurs when our final vocabulary is made to look ridiculous by another’s redescription. All humans and animals, then suffer, and humans can suffer from the distinctive pain of humiliation. However, there is no transhistorical reason why we must infer from this fact that we ought to care about the suffering of others. For Rorty, “feelings of solidarity are necessarily a matter of which similarities and dissimilarities strike us as salient, and ... such salience is a function of a historically contingent final vocabulary” (CIS 192). One is a liberal, then, because one has adopted a final vocabulary which recognizes the suffering of others as important to us, words such as “equality” and phrases like “universal human rights.” However, we could have focused on other similarities as being the morally significant ones. Romans, for instance, focused on Roman citizenship as the distinguishing factor for who was worthy of legal protection. Foreigners, by contrast, might be fed to lions without moral compunction.19 As we have seen in the last section, the liberal ironist’s commitment to reducing suffering must also compete with her desire for private self creation. Irony requires redescribing final vocabulary, and redescribing final vocabulary

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of other persons often humiliates them. Further, some private identities require inflicting physical and psychological pain on others. Not only the sadist and the boxer, but also the comedian and satirist inflict pain and humiliation on others for their own satisfaction. The Madhyamaka Buddhist, like Rorty, would affirm both that pain is nonlinguistic experience, and that there is no transhistorical essence that can be appealed to as grounds for our ethical commitments. However, a Buddhist would claim that Rorty’s analysis of pain is impoverished. For the Buddhist, if we pay close enough attention, we will see that all of our ordinary experience is a subtle form of suffering. As a result, for the Madhyamaka, the dilemma of the liberal ironist does not arise. This is because she is not tempted by the siren call of private self creation. The Bodhisattva is not tempted to adopt private identities conflicting with her commitment to removing suffering because she realizes all such identities would be permeated with suffering themselves. I next briefly analyse Madhyamaka antifoundationalism, and then pass to a more detailed treatment of the Buddhist analysis of suffering, and finally to an account of how this analysis undercuts the desire for private self creation.20 3. Madhyamaka Antifoundationalism One of the most famous Madhyamaka arguments against essence (svabh
va) is given by the 7th century Buddhist master Candrak
rti. In the argument, Candrak
rti argues a chariot has no essence, or intrinsic existence (svabh
va), that is it does not exist independently of its relations with other things. Instead, it exists only as a result of conceptual labeling by a mind in accordance with its purpose for human affairs. The conclusion is that chariots have no independent essence; “chariot” is merely a term we label a certain configuration of chariot parts that serves our purposes. This result is generalized to all other objects, including persons. 6: 151 We cannot claim a chariot is other than its parts, Nor that it is their owner, nor identical with them. It is not in its parts; its parts are not contained in it. It’s not the mere collection of the parts nor yet their shape. 6: 158 Thus this sevenfold reasoning reveals, In ultimate or worldy terms, that nothing is established. But if phenomena are left as found, unanalyzed, They are indeed imputed in dependence on their parts. (Padmakara, 89–90)

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The underlying assumption of Candrak
rti’s analysis is that if an object has an essence (svabh
va), we should be able to locate it under conceptual analysis. Another way of stating this point is to claim that there must be sufficient and necessary identity conditions of being a chariot. However, no such essential nature of the chariot can be located. Candrak
rti makes this point by considering the relation between the chariot and its parts. If an object had an intrinsic identity/essence, then we should be able to state the relation between this essence and its parts. However, he argues, this is impossible. Verse 151 considers the seven possibilities, assumed to be exhaustive, of the relation between the chariot and its parts. First, we cannot claim a chariot is other than its parts, for then the chariot would exist independently of its parts, which is absurd. Nor does the chariot own the parts, nor is it identical to them. If it owned the parts, there would have to be something that could be named “chariot” that stood apart from its parts as their possessor. However, no such item can be located. If the chariot were identical to its parts, then when a part was removed, the chariot would cease to exist. But this obviously is not the case. If the chariot was contained in its parts, then it could be located somewhere amongst the parts, but on analysis no such chariot can be found. Nor can the parts of the chariot be contained in the chariot, for we can identify no independently subsisting chariot in which chariot parts are locatable. The chariot cannot be said to be simply a collection of chariot parts, for simply throwing the requisite chariot parts in a heap does not create a chariot. Finally, the shape of the chariot is not the chariot, since a cutout of a chariot also has the shape of a chariot.21 If the chariot had an essence, a whatness that it was independently of our purposes, then we should be able to specify its relation to its parts. However, such a relationship cannot be specified. In verse 158, Candrak
rti draws his conclusion. Logical analysis reveals the objects of our everyday world have no intrinsic essence. However, such phenomena continue to function in everyday life. We should conclude, therefore, that such phenomena are merely imputed in dependence upon their parts, as an aid to our practical activity in the world. The term “chariot” names a useful configuration of chariot parts that may be used to engage in the function of rapid movement. Moreover, each of the chariot’s parts can be subjected to a similar analysis. The relation between the wheel of the chariot and its spokes and hub, for instance, cannot be specified, and therefore the term “wheel” also is merely a useful designation to label an arrangement of parts that has a useful function. The argument by which the inherent existence of the chariot was deconstructed could be applied to any other entity, including persons. All entities exist only by convention, in dependence on their parts, and conceptual labeling motivated by pragmatic purposes.22 A comprehensive evaluation of the similarities and differences between Madhyamaka and Rortian antiessentailism is beyond the scope of this essay. However, we can briefly note that Candrak
rti joins Rorty in insisting that any

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view of language mapping onto a mind independent universe is ill conceived. Instead, Candrak
rti insists language is used only for pragmatic effect: Words are not like policemen on the prowl: we are not subject to their independence. On the contrary, their truth lies in their efficacy (akti); they take their meaning from the intention of the one using them. (Sprung, 38) Like Rorty, then, for Candrak
rti arguments do not attempt to obtain a translinguistic truth, but rather are used for practical purposes. The wise do not give a reasoned account of the everyday experience of the ordinary man. Rather, adopting for the sake of enlightening others, and as a means only, what passes for reasoning in the everyday world, they work for the enlightenment of the ordinary man. (Sprung, 50–51) Madhyamakas like Candrak
rti, then, are antifoundationalist about language in holding the universe will not mediate between competing truth claims. Rather, language is used as a tool to convince others of one’s own views. So like Rorty, the Madhyamaka claims no transhistorical essence of humans or the universe need be appealed to as grounds for our ethical commitments. Further, like Rorty, the Madhyamaka is passionately committed to the welfare of other beings. Rorty’s humanism takes the form of political liberalism, a commitment to reducing suffering and increasing individual liberty. By contrast, the Madhyamaka does not focus on individual liberty, and as a monastic order, places relatively little emphasis on social reform. However, like Rorty, the Madhyamaka emphasizes the importance of removing suffering. In fact, the Madhyamaka’s commitment is much more radical than that of Rorty. Consider two of the concluding verses of the 8th century Madhyamaka, ntideva’s Bodhicary
vat
ra: 10: 55: For as long as space endure and for as long as the world lasts, may I live dispelling the miseries of the world. 10: 56: Whatever suffering there is for the world, may it all ripen upon me. May the world find happiness through all the virtue of the Bodhisattvas. (Wallace and Wallace, 144) The Bodhisattva is a Buddhist saint who is reborn countless times, working to lead all other sentient beings from suffering. In verse 55, ntideva prays to take rebirth until all suffering is eliminated. In verse 56, he strengthens his conviction, asking to take on all suffering of all sentient beings. Sentient beings for the Buddhist include all animals.23 So the Bodhisattva radicalizes Rorty’s liberal commitments. Rorty wants to raise sensitivity to the suffering of

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others as a means of reducing cruelty. The Bodhisattva wants to do this as well, but she is sensitive to the suffering of all living beings, commits to removing all suffering whatsoever, and accepts an expansive view of human potential, including the possibility of multiple rebirths in which this can be done. Of course, Rorty would not share the Buddhists belief in rebirth, nor her optimism that suffering may be completely removed. However, Rorty would certainly endorse ntideva’s commitment to increasing our sensitivity to the suffering of others. 8: 90: One should first earnestly mediate on the equality of oneself and others in this way: “All equally experience suffering and happiness, and I must protect them as I do myself.” (Wallace and Wallace, 100) Here, ntideva urges us to open ourselves to the realization that the pain experienced by other persons is like our own, in feeling negative. Rorty might well add the Bodhicary
vat
ra to the list of texts he affirms as being efficacious in sensitizing us to the suffering of others. I concluded the first section of this essay by highlighting the precarious position Rorty’s liberal ironist finds herself in. On the one hand, she is committed to the goal of liberalism, including reducing suffering. On the other, she affirms the importance of irony, of redescribing one’s inherited values and conceiving one’s identity anew. The ironist’s desire for autonomy, I suggested, will tempt her to abandon the final vocabulary upon which liberalism depends. Like the liberal ironist, the Madhyamaka Bodhisattva is an antifoundationalist; she realizes her final vocabulary, terms like compassion (karun
), liberation (nirv
na), and altruistic intention to liberate others from pain (bodhicitta), are adopted for pragmatic purposes, and are not grounded in the transcendent nature of the universe. The ironic Bodhisattva, however, is not tempted to abandon her commitment to freeing others from pain by temptations to indulge in personal self creation. This is because her analysis of suffering runs much deeper than does Rorty. The Buddhist understands the nature of ordinary human experience to be suffering; idiosyncratic private fantasies are not alluring to her, for she realizes any such desire merely continues the unending cycle of pain. For the Madhyamaka Buddhist, the only identity worth affirming is one in which the public and private come together: that of the spiritual saint working tirelessly to eliminate the suffering of all beings. 4. The Buddhist analysis of Suffering (duhkha) The Sanskrit word duhkha is often translated suffering, but this is somewhat misleading, since duhkha can also refer to much subtler unsatisfactory experience. The traditional Buddhist analysis of duhkha (suffering) is divided into three types. First, there is the suffering of suffering (duhkha duhkha), intense

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physical or mental pain, the kinds of experiences we generally refer to as suffering. Second, there is the suffering of change (viparinama duhkha), the suffering we experience as a result of losing something we care about. In this sense, even things experienced at the moment as joyful are also unsatisfactory (duhkha), since they are the conditions for suffering in the future. Ice cream tastes good, but it can lead to cavities. Close relationships bring joy, but such happiness is unstable, since all relationships must end in separation, or ultimately death. The final type of suffering, sankhara duhkha, is the most subtle. Often translated as the suffering of conditioned existence, this is the unsatisfactory condition of existing in a universe that is transient and unstable.24 This is the sense in which, for a Buddhist, all existence is suffering (sarva duhkham). Consider this verse from the early Pali cannon: 555: It’s only suffering that comes to be Suffering that stands and falls away Nothing but suffering comes to be, Nothing but suffering ceases. (Samyutta 230)25 Our experience of the world is one of objects that serve our needs. However, ultimately the elements which make up these objects are all unsatisfactory (duhkha), because they are unstable and give way. This is true of all the events, persons, and objects that we naively believe bring us joy. 25: It is as with a hungry dog who gnaws a bone; Thought tasted, never give they satisfaction. Since they are thus a mass of dry, old bones Who, self-possessed, would take delight in sense-desires? 29: Gained at the price of many bitter efforts, They are destroyed here often in a moment. Since thus they are mere dream-enjoyments, Who, self-possessed, would take delight in sense-desires? (Conze, 85–86) We think pursuing empirical enjoyments will bring satisfaction, but the nature of existence is that temporary satisfaction will always give way to future craving. To use a modern example, ordinary beings are like heroin addicts. When she has the drug she needs, an addict goes through periods of bliss and rapture (viparinama duhkha) followed by the agony of withdraw from the drug (duhkha duhkha). However, from an outside perspective, the whole series of seeking and taking the drug all shows up as a horribly impoverished way of existing (samsk
ra-duhkha). Likewise, all of our experience is contaminated by

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a subtle clinging towards inherently transient elements of experience that can never bring real satisfaction. The ironic Bodhisattva, then, is not tempted to indulge in private self creation, because she knows that acting out novel identities will be saturated by suffering. The only project that is truly worthwhile is that of removing suffering. The Madhyamaka author, ntideva often explicitly invokes the inevitability of death and the unsatisfactory nature of human existence as ways of undercutting motivation to undertake any project other than those conducive to liberating oneself and others from suffering. 2: 60: What of value has remained with me from earlier experience which have disappeared, and engrossed in which I neglected the counsel of spiritual mentors?” (Wallace and Wallace, 30) 6:59: Even though I have acquired many possessions and have enjoyed pleasures for a long time, I shall depart empty-handed and naked as if I had been robbed.” (Wallace and Wallace, 68) Pleasure and satisfactions experienced are transient, and do not bring lasting joy. Further, death, always, approaches. 8: 33: A person is born alone and also dies alone. No one else has a share in one’s agony. What is the use of loved ones who create hindrances? (Wallace and Wallace, 93) In the following verses, ntideva asks us to imagine ourselves in a charnel ground, contemplating the rotting corpse of our beloved. 8: 46: Jealous one, why do you not protect what was guarded from the glances of others, as it is being eaten now? 8: 51: You had this passion for it even when it was covered, so why do you dislike it when it is uncovered? If you have no use for it, why do you caress it when it is covered? 8: 52: If you have no passion for the impure, why do you embrace someone else, who is a skeleton of bones tied by sinews and smeared with a mire of flesh? Rorty claims that humans are susceptible to a certain type of pain, humiliation. We are humiliated when the final vocabulary we have inherited, or chosen, is made to appear worthless. (CIS 90) The final vocabulary of most humans includes terms like romantic love, marital fidelity, and passion. Here, ntideva offers a redescription of romantic love intended to humiliate us, in

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Rorty’s sense. Romantic love is seen as a farce, since it is conducted between two beings that will soon perish. Putting our happiness in social institutions like marriage, ntideva points out, is relying on bodies and minds that will soon be eaten by worms in a graveyard. Although such humiliation causes suffering, ntideva is trying to humiliate us to reduce our pain in the long run. It is only when we accept that the desires of ordinary existence can bring no lasting happiness that we can focus on the Buddhist path to salvation which can remove all pain. Rorty and the Madhyamaka both accept that pain is nonlinguistic experience. However, for Rorty, the fact that we suffer offers relatively little constraint on the final vocabulary we can adopt. Pain experienced is balanced out by the pleasure of privately pursuing idiosyncratic fantasies. By contrast, the Madhyamaka understands all ordinary experience to be pervaded by suffering. Such an understanding humiliates, in Rorty’s sense; it strips away the significance of most of the final vocabulary upon which private pursuit of satisfaction depends. His understanding of suffering, then, constrains the Madhyamaka in the final vocabulary he accepts. Only terms relevant to eliminating this pervasive suffering, terms like compassion and desire for liberation, can be seen as worthwhile once the unsatisfactory nature of our experience has been understood. We can understand, now, why, unlike the liberal ironist, the Bodhisattva is not divided. She does not alternate between her commitment to the welfare of others, and desires for novel self creation, because she understands all such indulgences take place within the cycle of suffering characterized by continual birth and death. The only private identity worth affirming, for the Bodhisattva, is the public identity of working to remove the suffering of all sentient beings. Rorty can respond that the Buddhist account is nihilistic, overestimating the unsatisfactory nature of existence, and underestimating the aesthetic joy of ironic redescription. Candrak
rti and ntideva, in turn, will reply that Rorty has not paid enough attention to suffering, that belonging to others and his own.

NOTES 1. See Philosophy and the Mirror of Nature for a detailed description of how Rorty came to accept these views. 2. Although Rorty is not explicit about this, it’s helpful to identify two levels of the goal of self creation. For many people in a liberal society, this means for the most part, choosing amongst identities offered to one by society. A student might study to become a lawyer, or a teacher, and in his free time might take up established recreational activities like bowling or going to the movies. Generally, such persons would not be ironists, and would not pursue the goal of autonomy, since to a large extent they accept the final vocabularies they inherit. Such persons would still benefit from the liberal’s commitment to allowing persons to choose their own identities. The ironist, by contrast, is not content with fitting into the mold she has inherited; she creates a new mold for her

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identity. This distinction allows us to make sense of Rorty’s claim that “in the ideal liberal society, the intellectuals would still be ironists, although the nonintellectuals would not” (CIS, 87). 3. Another major influence on Rorty’s conception of Liberalism is Judith Shklar, whose definition of liberals as “people for whom cruelty is the worst thing” he cites with approval. See CIS, 74. 4. Rorty’s commitment to the value of personal self creation, and his commitment to the liberal values of democracy are tightly linked. Liberalism is a means of ensuring everyone has the opportunity to develop their identities as they choose, constrained only by an agreement to let others also develop as they choose. “The social glue holding together the ideal liberal society described in the previous chapter consists in little more than a consensus that the point of social organization is to let everybody have a chance at self-creation to the best of his or her abilities, and that that goal requires, besides peace and wealth, the standard “bourgeois freedoms” (CIS, 84–85). 5. Rorty goes on to claim “Irony seems inherently a private matter.” (CIS, 87) For reasons that will become apparent as we progress, I think this must be interpreted as an overstatement. For the liberal ironist, irony needs to remain a private matter, but there is no reason it cannot be applied to the public sector. 6. As Rorty puts it, “What binds societies together are common vocabularies and common hopes.” What characterizes modern liberal societies is “the hope that life will eventually be freer, less cruel, more leisured, richer in goods and experiences, not just for our descendants but for everybody’s descendants” (CIS 86). The ironist realizes these hopes can be made to look bad by redescription. Nietzsche offered descriptions wherein lessening cruelty was a sign of humanities retrogression, rather than its progress. A liberal ironist, then, must ensure her redescriptions do not corrode public liberal hope. 7. Rorty offers Proust as the prototypical example of the private ironist. See CIS, 98–103. 8. In CIS, Rorty places great emphasis on Mill in support of his belief that liberal government should be concerned with reducing cruelty and respecting private freedom. Therefore, it would be easy to assume that Rorty intended, by the public sphere, the sphere of politics. Nancy Fraser, amongst others, has taken this to be his meaning. See Fraser (1988). However, in later works, he explains that by public he means anything “having to do with the suffering of other human beings.” (Rorty 1998, 307–308, footnote 2). I think that such a broad understanding of the public realm is problematic, since it would seem that most ironizing would, to some extent, contribute to the suffering of other humans. Rorty’s exemplar of privatized irony, Proust’s novel Remembrance of Things Past, might well have created considerable suffering amongst those who felt humiliated by their depiction within. Privatizing irony, then, would be, for the most part, impossible. Perhaps the most charitable way of viewing Rorty’s proposed distinction, is to hold that we ought to minimize the suffering our ironizing does to others. This means that final vocabulary important to others should be respected, to the extent this is possible. This would, as I have argued in this essay, mean that a liberal ironist would not undermine socially useful political final vocabulary. 9. See also Koopman (2007), O’Neill (2000), and Marsonet (1996) for similar complaints. 10. Cf. CIS 77. “[The ironist] thinks of final vocabularies as poetic achievements rather than as fruits of diligent inquiry according to antecedently formulated criteria.” 11. Cf. CIS 37–38.

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12. Likewise, Rorty conceives of the writing of Nabakov and Orwell as serving to sensitize us to the suffering of others. See CIS chaps. 7–8. 13. Cf. Marsonet, 395. 14. See here especially CIS chaps. 3 and 4. One of Rorty’s arguments for this view is that abandoning our belief in God has done nothing to corrode our liberal commitments. Our metaphysical beliefs, presumably, could also be abandoned without ill effect. See CIS 85–88. Although I am sympathetic to Rorty’s views in this regard, it is not the purpose of this essay to evaluate them. Rather, I am interested in the tension arising between Rorty’s merely historically contingent commitments to both liberal ideas and private Romantic self creation. 15. Rorty makes this point by developing the contrast between the private ironist novelist, and the ironist theorist. The ironist theorist wants “the sublime and ineffable, not just the beautiful and novel – something incommensurable with the past, not simply the past recaptured through rearrangement and redescription.” They are not satisfied with “the effable and relative beauty of rearrangement,” but instead desire “the ineffable and absolute sublimity of the Wholly Other; they want Total Revolution.” The ironist theorist will reject the final vocabulary upon which liberalism is founded. By contrast, the ironist novelist is “content with mere difference.” They realize that “private autonomy can be gained by redescribing one’s past in a way which had not occurred to the past. It does not require apocalyptic novelty of the sort which ironist theory demands” (CIS, 101). For the sake of liberal values, then, Rorty asks ironists to take the ironist novelist as an exemplar, and refrain from the corrosive public irony of the theorist. 16. See also CIS 197. 17. Also helpful here is Rorty’s account in “Trotsky and the Wild Orchids” in Philosophy and Social Hope, esp. 12–13. 18. See also CIS, 73–74. “The ironist spends her time worrying about the possibility that she has been initiated into the wrong tribe, taught to play the wrong language game. She worries that the process of socialization which turned her into a human being by giving her a language may have given her the wrong language, and so turned her into the wrong kind of human being.” 19. This, also, provides the answer to the objection sometimes made that Rorty contradicts his anti-essentialism by construing the ability to experience pain and humiliation as the essence of humans. For Rorty, all humans do experience pain, but it is merely a result of historical contingencies that we focus on this fact as being morally significant. Saying there is no essence to being human, for Rorty, does not mean there are no features all (or almost all) humans share. Rather, it means there is no transcultural reason we must focus on any one of these shared features as being particularly significant. See Garland, 212–213 and Haber, 70, for versions of this objection. 20. Rorty acknowledges that there will be some persons “for whom the search for private perfection coincides with the project of living for others” (CIS, 49). Rorty’s own example is that of the Christian saint. However, the Christian saint is not an antifoundationalist: he grounds his commitments to others in the transcendent. The Bodhisattva, by contrast, is an antifoundationalist. One purpose of this section, then, is to illustrate how one’s private and public lives may be unified, even without resorting to foundationalist assumptions. 21. Candrak
rti and Rorty are alike in rejecting the distinction between intrinsic and extrinsic properties. As Rorty puts it, we need to reject the “distinction between intrinsic and extrinsic – between the inner core of X and a peripheral area of X which is constituted by the fact that X stands in certain relations to the other items which make up

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the universe. . . For pragmatists, there is no such thing as a nonrelational feature of X, any more than there is such a thing as the intrinsic nature, the essence, of X. So there can be no such thing as a description which matches the way X really is, apart from its relation to human needs or consciousness or language.” (Rorty, 1999, 51). To say an entity has no nonrelational features is to say, with Candrak
rti, that is has no intrinsic existence (svabh
va). 22. The Madhyamaka, therefore, is antifoundationalist. However, it is not clear that a Madhyamaka is an ironist exactly in Rorty’s sense. For Rorty, the ironist must have continuing doubts about the effectiveness of his final vocabulary. A Bodhisattva, certainly, seems to have no doubts about whether her commitment to liberating all beings from suffering is a worthy goal Nevertheless, as already argued, the Madhyamaka does not think the terms of her final vocabulary correspond to any mind independent reality. Further, she is willing to adopt alternate final vocabulary when to do so will help liberate other beings. The Buddha, for instance, is held to have offered teachings contradicting core Buddhist tenets as a skillful means for the sake of his audience. See Hungtington (1989) for a Rortian inspired reading of Candrak
rti. 23. Rorty points out that humans share with animals the ability to feel pain. He suggests that we can either extend moral vocabulary to cover animals, or identify a distinctive kind of human pain to act as the morally relevant factor. Rorty chooses the second option, identifying humiliation as a kind of pain experienced only by humans. Buddhists, in contrast, choose the first, extend