A Reply to Peter Gabel and John Schlegel

After all these years and at a point in our shared, isolated experience when the 1960s seem only marginally more substantial than Middle Earth, what a pleasure it is to find the Eeyore and imp of critical legal studies—Peter Gabel and John Schlegel—still dancing a tango.

This meta-dance of struggle and of tears—a dance that in a Feiffer cartoon might be entitled, “a dance to The Dance”—proceeds, I think, from a source they share: the belief that how things turn out has some bearing, should have some bearing, on what we do.

Gabel’s commitment to this belief is expressed most directly in his coda:

To fully realize a spiritual alignment of law and justice will eventually require a post-liberal transformation of our entire legal culture, in which the fostering of empathy, compassion, and mutual understanding among human beings becomes central to what our Constitution and laws and legal processes are meant to help bring into being.

But it took 400 years of gradually transforming consciousness to bring about the liberal revolutions of the eighteenth century, and there is no reason we cannot begin the next evolutionary transformation of legal consciousness in our lifetime.

Schlegel’s is captured in his powerfully evocative central image:

And so for me the truth of the myth of Sisyphus implies that the best that we humans can expect is that, when tired from endlessly rolling the rock back up the hill, we may gather together at the River Jordan and weep.

Perhaps we might step back just one step, however, and challenge this assumption. Perhaps the struggle, the work, is not diminished by the fact that at the end of the day the boulder rolls inexorably back down the hill. Perhaps we may observe instead that pushing it back up is honest work, good work, our work. And at least we have a job.

From this perspective, I have three responses to Peter’s call to action and to the several thoughtful responses it has fueled.

First, both “the arena of the law” and “the movement” are vessels, containers for values, and in particular the definitions of “the good,” that the individuals who participate in them bring to bear on them.

Second, it is perhaps a mistake to critique a cat for not being a dog. Movements and the law serve fundamentally different goals. They are different in quality and in kind, not just in content and effectiveness.

And third, the distinctive and separate natures of law and of movements are not just different—they are also linked, even joined to each other. They are in, under, and through each other, notwithstanding the fact that they are in opposition to each other.

They are expressive of the duality of our selves: our desire—even need—for mutual recognition, for love (thank you, Peter!), and our ultimate and foundational reality of isolation (curse you, Schlegel!).

Seeking to subordinate one to the other is not simply a regrettably lost cause, as Schlegel suggests. It’s just plain wrong; it’s a denial of an aspect of our selves, of the complexity of our universe, of the dance itself.

And yet, Gabel’s essay and the responses to it shine light on a core understanding that for many of us—including both Gabel and Schlegel (whom I know personally and with whom I have engaged in occasional parallel play over the decades), and apparently James P. Gray, Bruce Peterson, and Gary Peller as well (whom I know exclusively through their words)—share as a personal call to action, to vocation, to life.

Among the competing notions of what makes life worth living, we each feel commitment to, and humility about, values that yield personal satisfaction by pursuing collective good.

I. There are Schmucks in Every Subculture

(With a tip of the hat to Rob Goldston)

Setting aside the fact that I’m not entirely certain what Gabel means by “movement,” “progressive movement,” “legal arena,” or  “the liberal paradigm” (a demonstration of an aspect of my isolation), I’m willing to assume that what they evoke for me is close enough to what they mean to him for it to make sense to continue the conversation (an expression of my urge to connect).

That said, Gabel’s exploration of the social metamorphosis of movements into activist stakeholders within the legal arena are two quite distinct sets of observations about the interplay of the urge to connect with the reality of isolation.

First, Gabel draws a meaningful distinction between movements on the one hand, and legal systems on the other. If I reverse-engineer Gabel’s assumptions (and my own), movements are volitional social congregations that base their connection on a shared commitment to act, and arise from a shared sense of values (or, at least, the belief that those values are shared).

We can commit to a movement, and we can rescind that commitment. We are drawn to it only as long as it remains expressive of something we care about. Movements express our urge for mutual recognition, and they are a stage on which social connection plays out.

On the other hand, law is universal, coercive, and enforced. Law applies to everyone in the polity; we are born into a legal system or accept it as an essential prerequisite for a form of entry into the polity. We cannot repudiate it or withdraw from it except by withdrawing from the polity itself.

So movements are, by nature, different from legal systems. And they differ in a manner that matters to Gabel — movements are about the urge for mutual recognition, while legal systems are about managing the consequences of our isolation.

Second, neither movements nor legal systems are themselves normative vectors, but rather vessels into which a range of different values can be poured. Gabel seems to want to establish movements as virtuous, and therefore, as marching under a banner of righteousness in a struggle to remake the law.  But to do this he must swiftly shift from talking about ‘‘social movements’’ to talking about ‘‘progressive social movements’’; from talking about ‘‘the legal arena’’ to talking about the “framework of American law … based on … what we often call liberal political theory.”  When he does so, he acknowledges, at least implicitly, that both movements and legal systems can range across a very broad spectrum of foundational values.

Although I’m neither a historian nor a political scientist (nor a philosopher), it’s worth noting that National Socialism in Germany in the early 1930s was a movement, even if we accept Gabel’s observation that:

morally inspired life force is actually what gives social movements their “movement” character. What moves is our collective being itself, awakened through our new recognition of each other’s transcendent and beautiful humanity.

Based on accounts in both fiction and non-fiction, the Nazis came together around shared communitarian efforts to connect with others like themselves. They shared an urge to exclude, and, for some, even eliminate those whom they sequestered outside their movement.

Similarly, movements like Jobbik in Hungary today, or the Tea Party in the United States, are movements both in that they are shared and volitional efforts to build a community based on a perception of shared principles and/or values, and they arise from a deep urge for mutual recognition, albeit recognition within and by a finite community surrounded by tall electrified fences with razor wire keeping others out. This is more or less the sort of thing that Europe and Israel seem to be building around themselves (and that Donald Trump is trying to sell to the United States and Mexico).

To say that “[s]ocial movements gain momentum and transformative power when they succeed at tapping into and affirming our deep and collective yearning for mutual recognition,” requires either a palliative redefinition of what counts as a ‘‘social movement,’’ or a willful blindness to the Dark Side of The Force (an acknowledgment of that would drive us to end Gabel’s assertion three words earlier).  The slide from ‘‘movements’’ to ‘‘progressive movements’’ does the trick.

Law, similarly, can run a gamut, from the repressive and isolating to the healing and unifying, with our classically liberal legal system likely somewhere in the middle. But surely the sort of restorative justice that Gabel seeks, the law that fosters healing rather than isolation and stratification, means to be no less the law than its liberal antipode. Truth and reconciliation commissions surely were and are entitled to stand proud and demand, “Ain’t I a law?”

In sum, the human species is so cunning and tenacious that it has managed to transcend labels, philosophies, political theories, and structures in its effort to achieve connection and isolation in both movements and legal arenas.

II. Alchemy: Oh, Why Can’t a Movement Be More Like a Law?

(with apologies to Lerner & Loewe)

A vast amount of time, money, spirit, and soul have been expended by our species in efforts to turn lead into gold, both literally and figuratively. Untold numbers of tears have been wept, garments rent, hairs pulled out at their roots in frustration, and lamentations moaned when the effort proved intractable. All perhaps better devoted to other aspirations, especially since it would seem that there are actually a far wider and more basic range of uses for lead than there are for gold, and that on a functional level, neither is irreplaceable.

By contrast, when Oliver Sacks was asked which element was his favorite by a reporter for the New York Times, “[a] look of bemusement tinged with anxiety spread across his face. ‘I love them all in different ways,’ he said.”

Movements and law are not simply better or worse tools to achieve a common social end; their divergent nature arises from divergent ends, and perhaps we may aspire to love them in different ways.

Movements, morality, mercy, revolution, religion, and even the free market are like vitamins; they seek to maximize various sorts of good outcome (although the definition of ‘‘good’’ can vary widely and deeply among and even within each of these).

Law, conversely, like bureaucracy, justice, ethics, and our various social Maginot lines, is closer to medication, especially vaccination; all strive to minimize bad outcomes.

Movements are like engines, straining to get us where we should be going; legal systems are like speed limits, working in counterpoise to get us there in one piece.

Each is entitled to be critiqued, but on its own terms, not simply because it does not achieve the other’s goals.

So, when Gabel writes:

[W]hat do we do about this? How do we change law so that this most “binding” of our cultural institutions affirms the spiritual dimension of our common existence rather than obscuring its presence? What can we do to transform the liberal paradigm so that we can build a vision of, for example, the U.S. Constitution that emphasizes the importance of community rather than the importance of protection of the individual against the other, and that emphasizes the other as the source of our completion rather than as a threat against which we must guard ourselves?

he encourages us to believe in a view of law that springs not from its own nature but from that of movements. He urges us to strive to bring the two together, to make law expressive of movements’ recognition of the human urge to connect rather than its own response to the consequences of our isolation. He argues in the manner that free market aficionados do when they castigate government for being inefficient maximizers of wealth.

And when Schlegel responds:

In the end, though maybe not an individual’s own end, it is likely that these things will all fail, that the rock will roll down the hill. To be human is to recognize that likelihood, and yet act again and again and again before gathering at the River Jordan to weep together, perhaps to dance.

he joins Gabel there, in the conflation of these two very different social expressions into a single aspiration for transcendence.

At this level it doesn’t matter whether one yearns while the other regrets; they both agree that, having failed in changing the lead of isolation into the gold of connection, our next step should be to try again.

There’s nothing wrong with that conclusion; I share it and embrace it. But I fear that grounding it in the belief that both movements and the law serve the same social function inevitably takes us to places where we may let go of our aspiration, where we may find that frustration or despair replaces patience and resignation. Where we just let the damn boulder lie there at the bottom of the hill.

A utopian vision has a half-life of about twenty years; within a human generation after its full articulation, significant erosion has almost always already set in—and for structural reasons sounding in both success and failure, in the undertow of the mundane and the inevitable fatigue of vigilance, to borrow an observation from our friend Sisyphus: it’s all downhill from there.

The challenge is to find a basis for our continuing commitment to such a vision, notwithstanding our certainty that it will, well within our lifetimes, fall victim to entropy and die.

III Without Contraries there is no Progression

(with gratitude to William Blake)

Progressive movements and liberal law may be in tension, but they are connected precisely through their opposition.

In writing that, “[h]umans find themselves in the gap between the fundamental alterity of the Other and the possibility of a grace that would transcend it: this is the human condition,” Schlegel acknowledges the universality of what Gabel calls, “the desire for mutual recognition, the desire to see and be seen by the other in a relation of true mutual presence.” And when Gabel writes, “[a]lthough we each silently long for ‘unarmed love,’ to again use a phrase of Dr. King’s, we spend much of our lives encapsulated in private, separate spheres, living out our private destinies in a kind of mutually imposed spiritual prison,” he approaches, if he does not quite reach, Schlegel’s hunch that we can never “overcome the otherness of the Other, except briefly, randomly, undependably.”

If both are right, and they certainly seem to be, then the human condition is characterized both by a universal urge to connect and a universal reality of isolation.

When my son Max, who is now himself a lawyer (and no less prone to railing against the legal arena than Gabel, Schlegel, and I), was thirteen, his bar mitzvah parsha was the passage of Exodus that describes the plagues, and in particular iterates the cycle: each plague causes Pharaoh to relent, in turn causing God to intervene and harden Pharaoh’s heart, in turn causing Pharaoh to renege, in turn causing God to fling down the next plague.

So I asked Max why he thought the all-powerful God would do that. Why cause the Egyptians to suffer further, to endure one plague after another, when s/he might just have left Pharaoh chastened after the recoiling from the water-into-blood?

And Max thought and asked in return, “Who says God has to be good?”

He was right of course: only if we presuppose a good God is the parsha a puzzle.

Language is surely one of the most deeply felt and heroically acted upon expressions of our need for mutual recognition. It is a bridge we build to span our isolation, an all-in effort to understand and be understood. It struggles to maintain balance between the interwoven needs for precision and for allusion; for conveying cognition and expressing affect. And yet, while my wife and I can point at an object and agree that it is “pink” we actually have no idea whatsoever what the other’s experience of pinkness is, or of color, or even of what the other experiences as vision. And yet we manage to say, and accept, and reciprocate, complex language-based intangibles like, “I love you.”

As Roman Jakobson observed, not only do we have a need for metaphor and synecdoche—for connecting this thing to that thing directly, as well as for doing so loosely and connotatively—we actually appear to allocate separate halves of our brains to each.

Movements are to law as poems are to textbooks, as connotation is to specificity, as connection is to isolation.

At the level of our lives: transcendence, shmancendence, we require them both.  As Woody Allen says, we need the eggs.

IV Committed Humility

(with apologies to Rick Abel)

It’s not pilpul; it is not an extended effort to reconcile two seemingly disparate understandings of our world, two implacable forces in our universe. It is not either/or, but both/and, and we need neither strive nor mourn. We might simply accept.

And yet the words of Gabel and Schlegel are far from spilled ink.

If it is hopeless to expect, even in 400 years, that we can transform the inherited legal system into something more humane, something more expressive of our need to connect and to share; if it is pointless to weep over milk that was only poured in order to be spilt, why bother to struggle at all?

Game Theory is rich with lessons that teach strategies for rational decision-making in competitive social settings. The Prisoner’s Dilemma, for example, is defined by a payout matrix—one that mimics fraught but relatively common situations in markets and polities—that rewards each party individually for not cooperating with the other (not according one another the mutual recognition that Gabel argues we all crave), but that globally would have rewarded them even more, taken together, if they had in fact treated the other as they would have wished to be treated themselves. It renders clear that there are circumstances in which we would all be better off if we just worked together, even though we may legitimately fear that the other can obtain a free ride paid for in the coin of our altruism.

The dilemma highlights that if we keep our eye on our own best interests we may in some situations wind up less well off than we would if we took others’ into account as well. It can be viewed in this light to be a selfish argument for acting altruistically, for acting ‘‘irrationally’’ and trusting that the other will do so as well. This is a tension between individual and collective definitions of what counts as a good outcome. But there are deep flaws with that takeaway, all of them derived from the commitment to keeping one’s eyes on the prize.

For one, it requires that we have faith in the altruism of others. Even if we believe deeply in the trustworthiness of humans in general, such a strategy would still encourage us to collect data about each human individually so that we could refine our calculus about when it is in our personal interest to embrace the other versus when we will be better off if we act from isolation.

For another, there are, of course, plenty of other payout matrices, at least some of which will always favor isolation over outreach. In a world created by my son’s God—the world familiar to us, the world in which the tribulations of the Book of Job seem more intuitively descriptive than its fairy tale ending, a world in which bad things happen to good people—we would be ill advised to forget that shit floats.

But more importantly, among the differences between these games and real life, we have to admit that we haven’t a clue what the payout matrices for most of our decisions look like. Most of the time the task of calculating the odds of each player’s likely strategy far exceeds our actuarial skills, and we often are not only in a state of enforced Rawlsian uncertainty with respect to which of us will be least well off based on the options available to us, we don’t even have a clear understanding of what it means to be ‘‘well off.’’

Arguing, as Gabel seems to, that we should embrace one another because, in the 400 year haul, we may be able to change our legal culture for the better, is vulnerable to all of these payout-matrix-based general counter-arguments, as well as to arguments like Schlegel’s that the species’ collective experience and history call for a less hopeful prediction.

In letting go of Gabel’s sour optimism, Schlegel’s cheerily pessimistic response is to weep over the payout matrix. He looks back with Lot’s wife as much as he keens forward with the psalm.

But perhaps we might shift our gaze away from both Sodom and the river and look down instead, at the path itself, away from the projected output of our work, and inward toward our own choices and commitments.  Perhaps—being the post-lapsarian humans that we are, we are aware of good and evil, experiencing our roles in a determined universe to be expressions of our free will—we might nevertheless turn away from a concern about what we singly and collectively might achieve—change, its lack, the position of the boulder on the hillside at this particular moment—and ask instead about our relation to the social webs in which we are caught, the social tools we wield, and the social structures we inhabit.

Perhaps we may argue that the Prisoner’s Dilemma directs us to think deeply about what counts internally as rationality in our species, and to wonder whether concern for the hive is not more ‘‘rational,’’ for some of us at least, than feeding the hungry bee. The collective good as personal well-being.

There are some things one does simply because one thinks, one believes, they are right; not because they work.  We are, Gabel, Schlegel and I, in our varying ways, all children of the ’60s. And while the spirit of the 1960s arose from a collection of disparate but intertwined real world events, the period is, for me, bounded to some degree by two films that (coincidentally or not) echo one another at critical cinematic moments.

In Easy Rider, the open parenthesis of the era, the lyrical acid-trip sequence in which the characters in some sense come to terms with the determined paths that lead from their hedonistic past to their Sodom-and-Gomorrah future, is interrupted when the panning camera abruptly stops and focuses on, to take a biblical liberty, the handwriting on the wall:

Death only closes a man’s reputation and determines it as good or bad.

And the film Saving Private Ryan (closing that parenthetical normative era), ends with Ryan, who, decades after World War II, visiting the cemetery where the bodies of his band of brothers, those who gave their lives to rescue him, are buried. He speaks first to the tombstone of Captain Miller, the officer who led the squad that brought him out:

My family is with me today; they wanted to come with me. Every day I think of what you said to me that day on the bridge [“James... earn this. Earn it.”] and I’ve tried to live my life as best I could. I hope that was enough. I hope that at least in your eyes I’ve earned what all of you have done for me.

To his wife, who accompanied him to the graveside, Ryan says, “Tell me I’ve led a good life. Tell me I’m a good man.”

It is possible to engage in a life that is expressive of one’s values without either expecting that, in the long haul, the universe will be a better place by virtue of our having walked this path, or grieving that it won’t. Commitment does not require the certainty, or even the expectation, that, in the face of others’ commitments to opposing values, we are right about the choices we make. Humility calls us to acknowledge the radicalness of our personal choices as we express them in the context of others’.

I have for decades believed that I first came across the articulation of this secular notion—committed humility—in a draft of an essay by Rick Abel, and have for decades attributed, and continue to attribute, its healing formulation to him. But he has no recollection of it, and I lost the essay that I thought contained it sometime in the early 1980s.  That’s perhaps the most ineffable form of communication, of connection in the context of isolation.

I guess it’s just something I take on faith.

John Farago is professor emeritus at CUNY School of Law.
 
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