The heaven of legal concepts

The opening of Felix S. Cohen, “Transcendental Nonsense and the Functional Approach” (1935):

Some fifty years ago a great German jurist had a curious dream. He dreamed that he died and was taken to a special heaven reserved for the theoreticians of the law. In this heaven one met, face to face, the many concepts of jurisprudence in their absolute purity, freed from all entangling alliances with human life. Here were the disembodied spirits of good faith and bad faith, property, possession, laches, and rights in rem. Here were all the logical instruments needed to manipulate and transform these legal concepts and thus to create and to solve the most beautiful of legal problems. Here one found a dialectic-hydraulic-interpretation press, which could press an indefinite number of meanings out of any text or statute, an apparatus for constructing fictions, and a hair-splitting machine that could divide a single hair into 999,999 equal parts and, when operated by the most expert jurists, could split each of these parts again into 999,999 equal parts. The boundless opportunities of this heaven of legal concepts were open to all properly qualified jurists, provided only they drank the Lethean draught which induced forgetfulness of terrestrial human affairs. But for the most accomplished jurists the Lethean draught was entirely superfluous. They had nothing to forget.

Von Jhering’s dream has been retold, in recent years, in the chapels of sociological, functional, institutional, scientific, experimental, realistic, and neo-realistic jurisprudence. The question is raised, “How much of contemporary legal thought moves in the pure ether of Von Jhering’s heaven of legal concepts?” One turns to our leading legal textbooks and to the opinions of our courts for answer. May the Shade of Von Jhering be our guide.

Conducted behind their backs

A striking methodological salvo from the opening chapter of James C. Scott, Two Cheers for Anarchism:

The populist tendency of anarchist thought, with its belief in the possibilities of autonomy, self-organization, and cooperation, recognized, among other things, that peasants, artisans, and workers were themselves political thinkers. They had their own purposes, values, and practices, which any political sys­tem ignored at its peril. That basic respect for the agency of nonelites seems to have been betrayed not only by states but also by the practice of social science. It is common to ascribe to elites particular values, a sense of history, aesthetic tastes, even rudiments of a political philosophy. The political analysis of nonelites, by contrast, is often conducted, as it were, behind their backs. Their “politics” is read off their statistical profile: from such “facts” as their income, occupation, years of schooling, property holding, residence, race, ethnicity, and religion.

This is a practice that most social scientists would never judge remotely adequate to the study of elites. It is curiously akin both to state routines and to left-wing authoritarianism in treating the nonelite public and “masses” as ciphers of their so­cioeconomic characteristics, most of whose needs and world­ view can be understood as a vector sum of incoming calories, cash, work routines, consumption patterns, and past voting behavior. It is not that such factors are not germane. What is inadmissible, both morally and scientifically, is the hubris that pretends to understand the behavior of human agents without for a moment listening systematically to how they understand what they are doing and how they explain themselves. Again, it is not that such self-explanations are transparent and nor are they without strategic omissions and ulterior motives—they are no more transparent that the self-explanations of elites.

The job of social science, as I see it, is to provide, provision­ally, the best explanation of behavior on the basis of all the evidence available, including especially the explanations of the purposive, deliberating agents whose behavior is being scruti­nized. The notion that the agent’s view of the situation is ir­relevant to this explanation is preposterous. Valid knowledge of the agent’s situation is simply inconceivable without it. No one has put the case better for the phenomenology of human action than John Dunn:

If we wish to understand other people and propose to claim that we have in fact done so, it is both imprudent and rude not to attend to what they say. . . . What we cannot properly do is to claim to know that we understand him [an agent] or his action better than he does himself without access to the best descriptions which he is able to offer.

Anything else amounts to committing a social science crime behind the backs of history’s actors.

This is an especially pernicious flaw in a great deal of historical writing, where motives and explanations for large-scale social transformations—say, the American Revolution—are often identified solely and unreflectingly with the motives and explanations of elites (intellectual, social, political). Writing history is very hard, at least if one wishes to be truthful. One way to characterize the error Scott discusses is to say that it turns all history into intellectual history: the history of what intellectuals have said and done. (I am reminded that when I expressed an interest in intellectual history to one of my math professors at MIT—a world-famous algebraic geometer—he mused, skeptical of the need for the adjective and with all the false confidence of the naif, “Isn’t all history intellectual?” He meant something banal rather than provocative—isn’t historical work intellectual work?—but I still wince at his reflex to dismiss what he found unfamiliar.)

I am struck by this passage in part because it helps to illuminate one dimension of the academic debate—never mind the more general culture war—about Nikole Hannah-Jones’s claims for the revolution in the 1619 Project (the most contested being that “one of the primary reasons” the United States fought the war was to preserve slavery): there is a historiographic contest over whose reasons for revolution matter—Ben Franklin’s and James Madison’s, your salt-of-the-earth antislavery New Englander’s, or that of the scale-tipping planter Virginian who had not yet gone over to the Patriot cause but was spurred to do so after Lord Dunmore’s Proclamation threatened to free his slaves.

The problem is not always political or ideological, or a residue of Great Man history writing (though it sometimes is, more than it ought to be). At bottom, the temptation to ignore the reasoning and views of nonelites is material and methodological: we typically have more records, more documents, more texts—or even if not numerically more, at least more easily accessible ones—from elites than from the masses. This is a lesson the full significance of which I have learned only gradually myself, not least because of my absorption in intellectual culture and my interest in the history of ideas. It is far easier for the graduate student, the journalist, or the researcher to reach for a popular book still in print, or a volume only an interlibrary loan away, or the carefully preserved archives of prominent or simply well-remembered members of society, than to try, painstakingly, to piece together a more faithful portrait of the full range of opinion from the vastly more unorganized mass of materials that record what the mass of most of us think. There is always more being said than what the most prominent or visible members of a society are saying. (And not only is there more being said; it matters, as a force of history. The conflation of history with elite history both rides on and reinforces the conceit that power only resides with elites—that only their beliefs and actions make anything happen.)

To put it more succinctly, this is just another example of selection bias. More than a half-century after the first broadsides in the new bottom-up social history of the 1960s were published, and forty years after the title of Howard Zinn’s A People’s History of the United States inaugurated a new formula for restoring agency to the Rosencrantzes and Guildensterns of history, the evidence historians choose to adduce remains predominantly elite, and the overblown conclusions they draw remain trained on a remarkably limited set of data. We like to criticize data scientists for analyzing whatever information just happens to be available, however biased, however unrepresentative a sample; we too readily forget that historians are data scientists, too, of a sort. All of them: even the ones who don’t do Franco Moretti–style quantitative social science or digital humanities. This is not to say that to write history one must do statistics. Historians just have a more capacious, less numerical notion of what counts as data. And when they choose to read whatever data is readiest to hand—off the shelf, in popular memory, national mythology, or other received wisdom—they almost inevitably distort the richness and complexity of the period they study. (As Sontag said in an interview for BR, “The main mistake people make when thinking about something, whether an historical event or one in their private lives, is that they don’t see just how complicated it is.”)

I say almost inevitably, because a few conscientious objectors at least take care to cast their conclusions in sufficiently modest language, acknowledging that their limited datasets do not license grand claims. (The price we often pay for this modesty is tedious prose: we sacrifice the stylistic thrill of a breezy narrative, propelled by the easy causation of a story, for more insipid accuracy. The pressure to oversimplify that no writer can escape is perhaps above all stylistic, even more than cognitive. It is not so hard to think about complexity. It is very hard to express it elegantly.) “My goal isn’t to portray the full complexity of this period, but only this very tiny part of it” is always a way out of this trap. But even these more responsible projects—the best kinds of micro-history, now the dominant mode of so much academic work, which has forsaken the writing of Bigger History precisely for some of the reasons I’ve given here—must be subjected to scrutiny: why not do the harder work of writing the history that is not so easily told (whether because it is the history of elites, or because it is the history of terrain so narrowly drawn that only very few readers will be interested)? We must always be on guard against only writing the history that is easiest to write, just as we must be on guard against only thinking about those things that are easiest to think about.

Double, triple, quadruple hypothesis

from the first chapter, “Parole, Parole, Parole,” of Tobias Jones’s The Dark Heart of Italy (2003):

As I began studying postwar Italian history, it became obvious that surrounding any crime or political event, there are always confusion, suspicion, and “the bacillus of secrecy.” So much so that dietrologia has become a sort of national pastime. It means literally “behindology,” or the attempt to trump even the most fanciful and contorted conspiracy theory. Dietrologia is the “critical analysis of events in an effort to detect, behind the apparent causes, true and hidden designs.” La Stampa has called it “the science of imagination, the culture of suspicion, the philosophy of mistrust, the technique of the double, triple, quadruple hypothesis.” It’s an indispensable sport for a society in which appearance very rarely begets reality. Stendhal wrote about it in The Character-house of Parma: “Italian hearts are much more tormented than ours by the suspicions and the wild ideas which a burning imagination presents to them.”

Consider, as counterpoint, Moravia’s short story “Non approfondire” (Don’t delve too deeply). Compare, of course, the “hermeneutics of suspicion.”

There is an interesting discussion of the word at the Language Log, and it’s the subject of a column in the Economist from 2011.

Cannot one say what is true?

Stanley Cavell, The Claim of Reason, pp. 205–206:

“[…] Are you suggesting that one cannot sometimes say what is true?” What I am suggesting is that “Because it is true” is not a reason or basis for saying something; and I am suggesting that there must, in grammar, be reasons for what you say, or be a point in your saying of something, if what you say is to be comprehensible. We can understand what the words mean apart from understanding why you say them; but apart from understanding the point of you saying them we cannot understand what you mean.

A community of the ear

The final paragraph from the preface of Frank Kermode’s The Genesis of Secrecy (1979):

This book consists, then, of a number of approaches to general problems of interpretation. They seem to be problems of importance, for broadly conceived, the power to make interpretations is an indispensable instrument of survival in the world, and it works there as it works on literary texts. In all the works of interpretation there are insiders and outsiders, the former having, or professing to have, immediate access to the mystery, the latter randomly scattered across space and time, and excluded from the elect who mistrust or despise their unauthorized divinations, which may indeed, for all the delight they give, be without absolute value. The world, to the outsider, is obscurely organized and it is a blessing, though possibly a delusive one, that the world is also, to use Whitehead’s expression, “patient of interpretation in terms of whatever happens to interest us.” What always interests us is the sense concealed in the proclamation. If we cannot agree about the nature of secret, we are nevertheless compelled to agree the secrecy exists, the source of the interpreter’s pleasures, but also of his necessary disappointment.

From the first chapter, “Carnal and Spiritual Senses”:

It is of course true that individual acts of interpretation are rarely if ever performed in full consciousness of these meta-interpretive considerations. And although we are aware how much any interpretation must depend on a tacit form of knowing acquired from institutional training, we tend to reserve our highest praise for those interpretations that seem most intuitive, most theory-free, seeming to proceed from some untrammeled divinatory impulse, having the gratuity, the fortuity of genius.The possibility of such divinations may explain why Hermes once laid claim to a share in the lyre of Apollo. We admire their natural violence or cunning, or their lyric force, and only later do we reason about them, and see how, in spite of everything, the institution helped to shape them. The best psychoanalysts are admired by their colleagues not for their theoretical mastery or correctness, but for their powers of divination, for the acuteness of their third ear. That these powers were partly created by, remain under the control of, and derive their high value from, the historical institution of psychoanalysis is a truth that emerges in subsequent discussion. So it is with the interpretation of written texts. The discovery of latent senses may appear to be a spontaneous, individual achievement; but it is privileged and constrained by the community of the ear, whether tertiary or circumscribed.

The teat of interpretation

Andrea Long Chu in the Chronicle of Higher Education:

Structural problems are problems because real people hurt real people. You cannot have a cycle of abuse without actually existing abusers. That sounds simple, which is why so many academics hate it. When scholars defend Avital—or “complicate the narrative,” as we like to say—in part this is because we cannot stand believing what most people believe. The need to feel smarter is deep. Intelligence is a hungry god.

In this way, Avital’s case has become a strange referendum on literary study. Generations of scholars have been suckled at the teat of interpretation: We spend our days parsing commas and decoding metaphors. We get high on finding meaning others can’t. We hoard it, like dragons. We would be intellectually humiliated to learn that the truth was plain: that Avital quite simply sexually harassed her student, just as described. Sometimes analysis is simply denial with more words. Sometimes, as a frustrated student in a first-year literature course always mutters, the text just means what it says it means.