Wednesday, June 25, 2014
Thanks to Tom for his post and his very good questions. Tom and I have been having this discussion for a good while and it is a pleasure to talk together again. Several years ago, Tom put together a wonderful conference on Niebuhr, Christian realism, and law at the University of St. Thomas. I wrote a paper for that conference that I never published on the differences between tragedy and irony, and Tom’s post made me look back at it.
My thoughts about Tom’s post are in two posts. The first post concerns the conceptual difference between tragedy, comedy, and irony as I understand the terms. The second post addresses some of the more concrete practical challenges and questions Tom poses.
This post is long, as is the next one. For the impatient reader, the quick version is that I am a tragedian and not an ironist because I believe that tragedy better describes the nature of conflict in the world, or at least in that corner of the world that Mirror of Justice contributors sometimes think about, the law of religious freedom. Deep and true conflict, and not simply the appearance of conflict that awaits the ironist’s clever harmonization, is our condition. The tragic perspective helps us to appreciate the true breadth of the chasms that separate us—chasms that, in our day, are expanding. And that is why, much as I appreciate the virtues of the ironist, and much as I admire the efforts of Tom, Rick, Doug Laycock, Robin Wilson and others to reach the sorts of agreements Tom mentions, I believe that those agreements are at best temporary, pragmatic settlements. That is not to denigrate them at all: indeed, I believe that Niebuhr himself took little more than a series of pragmatic micro-deals to be the concrete political expression of his ironic Christian realism. Negotiating conflict sensibly is no small feat. But, to the extent they have been achieved (which is, regrettably, not often enough), those agreements are not larger victories of principle. They do not tell us much at all about the commensurability of the clashing values. And their fragility and evanescence is some evidence that tragedy, not irony, is the deep force at work. Though I do believe that the tragic view has something to say about conflict resolution—something different than what the ironist says—the reason to be a tragedian is not to resolve conflict but to perceive as completely as possible the nature and depth of our divisions. They are very great.
Concepts. What are we talking about in using these terms? Let me focus first on Niebuhrian irony, and then contrast it with a tragic view.
A. Irony. Niebuhr is not often given to defining irony in precise terms within his general political outlook but here is something helpful from Robin Lovin in his volume on Niebuhr and Christian realism:
Given the complexities of the human situation, a moral ideal alone cannot dictate what we ought to do and will not settle the outcomes of history . . . . Realism implies recognition of the limits of purely moral solutions to political problems and calls for attention to the realities that shape social, political, and economic conflicts.
The ironic position that characterizes Christian realism thus contrasts with what Niebuhr describes as political idealism: “Idealism conceives the self primarily as reason and reason primarily as God . . . . Consequently, [idealism] finds a premature security for the freedom of man in the inner coherence of reason[.]” I Nature and Destiny of Man: Human Nature 76, 112 (1943). Since the relationship of irony and religious liberty is unmanageably large, it will help to narrow the focus to certain of Niebuhr’s reflections in the book that Tom has already mentioned—his relatively late collection of essays about the United States, The Irony of American History. There, irony is presented as an intermediate position: it “depends upon an observer who is not so hostile to the victim of irony as to deny the element of virtue which must constitute the ironic situation; nor yet so sympathetic as to discount the weakness, the vanity and pretension that constitute another element.” IAH 153.
If we extrapolate from these passages, the difference between an ironic and a comic approach to religious liberty might be that the ironist knows better than to place his full confidence in his own ideas of constitutional perfection and to trust instead to the local and particular “resources of community,” including “religious humility”:
Such resources of community are of greater importance in our nation today than abstract constitutional schemes, of which our idealists are so fond. Most of these schemes will be proved, upon close examination, to be indifferent toward the urgencies and anxieties which nations, less favored than we, experience[.] IAH 139-140.
In a very fine essay, Tom himself has shown how the insights of Niebuhrian irony might be used to critique the dominant views of religious liberty. First, Niebuhr advanced an early argument against the elevation of formal neutrality as the single value of religious liberty, an argument that other critical scholars developed in later decades. Second, Niebuhr identified the danger of political cynicism that derives from strict separationist approaches to religious liberty—a danger which, Niebuhr claimed, the separationists cannot see precisely because of their ironic situation. Third, Niebuhr challenged the belief that a fully secularized “naked public square” would necessarily lead to a more developed and rational culture of public deliberation. This, too, is a theme that has been repeatedly debated by religious liberty scholars in later years. In all of these ways and others, Niebuhr’s ironic Christian realism offers an influential and lasting critique of the predominant approaches to theorizing about religious freedom.
Yet the distance between the ironic and the comic is not as great as may first appear. There is a distinct sense in the ironic that history is a series of steps toward gradual, unmistakably increasing wisdom and illumination, provided that one approaches that progress with a properly diffident frame of mind. Thomas Shaffer once described irony as “what you might entertain if you saw two young lovers standing in a downpour and saying it’s a lovely day.” The observer smiles wryly at the scene, but he stands outside it and senses himself to hover above it. He appreciates the incapacity of the lovers to see what is obvious enough to him—he knows better than they do. It’s raining.
Niebuhr shares this perspective. Tom has already mentioned Niebuhr’s view that the “Christian view of history passes through the sense of the tragic to a hope and an assurance which is ‘beyond tragedy.’” “Irony,” Niebuhr writes, “prompts some laughter and a nod of comprehension beyond the laughter; for irony involves comic absurdities which cease to be altogether absurd when fully understood.” IAH 2. There is a clever detachment about the ironic disposition, a knowing, worldly wink that bespeaks savvy and a fullness of understanding acquired through long experience. Ironic cleverness implies the holding of better, more accurate information, as well as comprehending judgments about those who are not in the inner circle.
Niebuhr’s metaphor of “passing through” tragedy to reach irony in turn is reflected in a certain type of political program that counsels cautiously optimistic calculations. The name for this political program has often been “pragmatism” or “prudentialism,” and it has achieved a certain reputation in modern law and politics. Niebuhr describes this political outlook as bringing with it a sense of both hope and reassurance. Pragmatism is notoriously difficult to define (this is believed by some to be its virtue—see this paper Kevin Walsh and I have written), but here I want to emphasize two of its features in legal interpretation: (1) pragmatism subscribes to an all-things-considered methodology that, as Dan Farber and Suzanna Sherry have put it, “weigh[s] text and history, precedent and policy, principle and consequences” until the result somehow reflects “a blend of statesmanship and workmanlike lawyering”; and (2) pragmatism celebrates the serenity—that is, Niebuhr’s “assurance”—that follows from the therapeutic relinquishment of the aspiration to any master theory. Thus, Niebuhr can say that the ironic element in American history can be “overcome” if one is able to come to an honest reckoning with “the limits of all human striving”—achieving a kind of careful balance of idealism and realism. IAH 133. Niebuhr’s image is that of the masterful gamesman—the patient chess player engaged in a perpetual contest with “the recalcitrant forces of human destiny”—a battle which the gamesman is destined to win.
The power that stems pragmatism’s natural tendency to descend into thoroughgoing relativism is, for Niebuhr, an undercurrent of universal moral obligation—an altruistic and self-abnegating love for humanity—that is exemplified in the Christian gospel. As Lovin puts it, “The New Testament completely sets aside the requirements of self-interest and the coincidental convergences of group interests, to envision an ultimate harmony of life within life.” One consequence of this type of Christian side-constrained pragmatism is the belief that human history does not itself make claims on political morality. While the ironic cast of mind appreciates concrete situational predicaments, Christian realism is not especially attuned to the normative force of history. Instead, it measures any historical belief or practice against the moral claims of a universalized trans-temporal, cross-cultural standard. The human faculty of “conscience,” Niebuhr says, “is an expression of the Christian feeling that history must move from the innocency of Adam to the perfection of Christ.” Niebuhr, The Christian Church in a Secular Age (1986) (emphasis mine). In Niebuhr’s hands, the ironic position ultimately strives for a Christian harmony beyond history as well as tragedy—a perfection which is in some way predestined.
B. Tragedy. It is the sense of the inevitability of worldly conflict that most sharply separates the ironic from the tragic view. The ironist augurs the end of comic theory. But he is still beguiled by the comic quest. The ironist recognizes that the way in which the comic theorist pursues his end is self-deluding; but in place of monistic reductions, the ironist substitutes pragmatism or “what works” or “keeping one’s eye on reality,” or in the case of Christian realism, what is perceived to be an expression of agape.
The tragic theorist rejects this substitution, pressing instead a very different sort of metaphysical speculation: in this life, it is of the essence of the plural values that vie against one another in hotly contested areas like the law of religious freedom that they resist the incursion and domination of other rival values. Each of them struggles in perpetuity to avoid absorption and subordination by the others. And this means that decision making in this area will forever be burdened by tragic outcomes, results that sacrifice important values whose loss cannot be compensated by the triumph of other values. In this life, there is, against Niebuhr, no “recalcitrant force” to be “overcome”; there is no ironic serenity to be enjoyed. Whatever choice is made, whatever decision is arrived at, will render our practical approaches defective, incomplete, and fundamentally lacking.
Confronted with this swirl of conflict, the tragedian and the ironist part ways. In the law of religious freedom, the tragedian will be guided by the belief that the historical force of tradition and legal precedent has an intrinsic value because it represents the collected wisdom of the past in managing the tragedies of the conflicts of religious liberty. Whether he decides for the believer or for the state, the tragic judge will ensure that his opinion presents as thorough an accounting of the rivalrous claims as can be accommodated. And, as I put it in the book, he will face backwards—toward the litigants and the history that precedes them—for guidance in moving forward.
The ironist will place no intrinsic weight on the claims of history. Ever the clever and detached pragmatist, the ironist will argue that constitutional traditions, and the social customs on which they are founded, deserve deference only and to the extent that they are more likely to conduce to the “right” or “best” result in any given case than any alternative approach. The tragedian will reject this conclusion, denying that cases are decided “rightly” or “best” solely in virtue of their greater or lesser achievement either of an underspecified (in Niebuhr’s case, at least) Christian ethic of love or, in the case of secular pragmatists, of an unspoken cost/benefit welfarist criterion of “what works.”
In sum, the tragic position is that a sense of history is intrinsically valuable for religion clause jurisprudence because it offers perhaps the only moderately reliable point of reference against which the tragedies of the conflicts of religious liberty may be managed. As I say in the book, the past is a beacon. It is a consolation, sometimes effective, other times not, against the ravages of conflict, incommensurability, sacrifice, and loss. In contrast, the ironist believes that conflict is an opportunity for a pragmatic or “second-best” approach, the presumption being that some “first-best” account is out there, somewhere, elusive, always tantalizingly just beyond the grasp of our ironical interpretive mistakes and institutional limitations—an answer that would deliver us from suffering. That is why the recognition of irony is, for the Christian realist, second-best to God’s perfection. For the tragedian, precedent and custom are sources of renewal and refreshment in the face of the law’s irrepressible pragmatic and a-historical instrumentalism. But for the ironist, instrumentalism is more centrally the point. Custom and precedent are tools to be utilized for strategic contrivance and maneuver. “So it must be,” says the ironist, “this side of heaven.”
And on that side? I should pause briefly to consider whether a belief in both tragedy and Christianity could be compatible. One danger of tragedy as an approach to legal and political theory is that it might unravel into despair or quietistic resignation, either of which would be difficult to reconcile with any Christian ethic. My friend Patrick Brennan has his doubts. But it need not be so. I hope it is not so.
Whether it is characterized as fatalistic or providential, a tragic view of the idea of religious liberty and legal theory more generally might well be consonant with certain strains of Christian thinking—that of Pascal, for example, or, on certain readings, Augustine. As I have written before, the tragic view of our time in this world and of our experiences in this life is distinctively Christian at least in this way. It expresses something true about the difference between this life and the next. It reflects better the conflicts of human aspirations and the limits of human reason in attaining them than can a comic or an ironic view. It marks better the difference and the distance between humanity's conflictual universe and God's harmonious universe. And it accounts better for the reasons for valuing the plurality of human institutions and attachments that Christians, with good reason, hold dear than can a comic or an ironic approach. But I will have to reserve further reflection on that issue for another time. I still have Tom’s questions to address in the post to follow.