Tuesday, March 4, 2014
Marc's and Kevin's postings on pragmatism and judicial restraint as dispositions toward judging, rather than directly usable theories, remind me of a parallel argument in Christian social ethics (there probably is one in secular ethics as well). In the early 1980s, Catholic theologian Dennis McCann (DePaul) wrote a book called Christian Realism and Liberation Theology: Practical Theologies in Creative Conflict. In it McCann was appreciative but also critical of the long-dominant (though declining) tradition of Christian realism as exemplified by Reinhold Niebuhr and those following--a tradition that, overlapping with pragmatism, emphasized the complexity and irony involved in many moral/social disputes in a fallen world and the need in many cases to balance conflicting values. McCann concluded that Niebuhrian realism failed to provide more than "disposition" toward social questions. I've always thought that one could draw more from the Christian realist approach than McCann said; but in previous work I've admitted that perhaps the main value of the approach may be to describe and defend a disposition. However, dispositions are important. Good dispositions are virtues, and virtues--the qualities with which we approach intellectual and moral challenges--may be more powerful and determinative than the precise logic of analysis. In an earlier, 1995 law review article on "church-state relations and [Niebuhr's] social ethics," I went through this:
[McCann] argues that after Niebuhr rejected Marxism, he failed to articulate a new “critical social theory” that would guide the choices between conflicting political ideologies; instead, he constructed “not much more than a 'dispositional ethic’ for politicians and social activists.” In other words, Niebuhr beautifully taught activists how to combine vigorous advocacy with deep humility, but left little guidance (other than context-specific judgments) on what actual goals they should seek....
[But] the “dispositional ethic” that Niebuhr sketched for religious and political activists [is] important. Niebuhr vividly taught how to combine vigorous advocacy with deep humility. Achieving that balance is not an easy task in law and politics, but it is one that is crucial. It is especially crucial if, as I have argued, one cannot sidestep the dangers of religious zeal in politics by trying to separate religion strictly from public life. We must look to religious views themselves, as well as secular views, to find reasons to be humble and tolerant even as we engage in political conflict. Humility inculcates the willingness to reach proximate solutions, because we realize the potential for truth in our opponents' perspective and the potential for partiality and complacency in our own. And even when vigor demands that we not compromise, humility inculcates a “sense of pity and forgiveness for those who contend against our truth and oppose our action.”The combination of vigor and humility is too often lacking in debate concerning the issues of the current “culture wars,” including the issue of how to relate religion and politics. On one hand, citizens who are wary of the certainties proclaimed by activists too often despair of reaching any solutions to intractable social problems. On the other hand, activists on both sides of the culture wars too often display little humility. Both sides need internal voices to do for them what Niebuhr did for his own community of political and religious liberals: to reconstruct their basic commitments while working to purge them of false certainties and utopian illusions.
I think that the recent intensification of the culture wars has shown again the relevance of these points.
So back to Marc and Kevin. Is there an analogous line of thought for their project on judging? I.e. that pragmatism and judicial restraint cannot fill in for substantive analysis of the purposes of the Constitution (or more broadly, of our system of constitutional democracy, or less broadly, of a particular constitutional clause or doctrine). But nevertheless pragmatism and judicial restraint--to the extent that they are correct accounts of judicial virtues--can still be vital and central.