Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Wednesday, June 25, 2014

Irony and Tragedy: Practicalities

This is the second of two posts responding to Tom's post below about irony and tragedy. In the first, I tried to lay out what I perceive as some of the conceptual differences between a tragic and an ironic approach generally with some application to more theoretical issues in the interpretation of the religion clauses. In this one, I try to address some of the challenges that Tom poses about the resources (or lack thereof) that tragedy might draw on for practical purposes.

Tom argues that irony has various practical advantages over tragedy inasmuch as it provides a resource for issuing challenges and for striking deals. He raises the arguments that he and others have been making on behalf of religious exemptions as examples of the critique from irony. And he suggests that a tragic view may not offer the same kind of practical resource because it often denies that the values advocated by one side in a conflict are commensurable with the values championed by the other side.

These are all fair points. Tom is right that tragedy opens up the domain of incommensurable values. Tom is also right that the tragic view will be far less amenable as a resource for the sorts of critiques that he argues have been important.

But I wonder very much whether the ironic critique is…true.


I doubt that each side in these conflicts is really making the same sort of liberty claims or equality claims against the other, and so I doubt that the ironist’s argument in chief can make much headway. The opposing sides are not making the same sorts of claims, because the claims they make about liberty or equality are grounded in very different views of the human good and of the moral life. Liberties of various kinds (religious, sexual, and so on) are valuable not in the abstract, but because they allow people to access and live out a particular moral life, and because they enable them to be the kind of people that they aspire and hope to be. The same thing may be said of communities of people.

And once one scratches below the surface of the similarity between the identitarian claims being made on each side of so many of these disputes--whether those that Tom describes, or those involving the contraceptives mandate, or those at issue in a case like Wisconsin v. Yoder, or those at stake in Lee v. Weisman, or Hosanna-Tabor (I discuss the tragic conflicts in the three preceding cases at length elsewhere), or Town of Greece, and so on--one sees the vast expanse of very different living traditions and moral lives stretching outward and away from one another. The other side’s success inevitably detracts from the larger moral vision. So while it may be true, as Tom says, that the opponents are uttering the same words (liberty, equality, identity, etc.), they are speaking totally different languages.

That is why (to repeat), while I am in deep admiration of Tom’s and others’ policy work in this area, I believe that the greatest success that could come of it is a temporary, unsettled, and evanescent truce. Already that would be an enormous achievement indeed. But my tragic instincts tell me that such settlements are nothing more than unstable political deals. They say little about the underlying values or their commensurability.

As an aside, that is also why I have been somewhat skeptical about the political strategy of sympathetic reciprocity for which Tom has argued so eloquently. The sympathy extended by opposing parties in these battles extends no further than their true or real commitments will allow. It does not reach very far if all one has to bargain with is the surface parallelism of a liberty claim, or an equality claim. Politics ain’t beanbag, and you don’t reach a deal (let alone a semi-permanent modus vivendi) by pointing out surface ironies to the other side.

Does this also mean that tragedians are without political resources to deal with conflict? I don’t think so, though I do believe that the arguments they need to make are even more difficult than those of the ironist. They need to persuade people that commitments to truly conflicting values are characteristic of many rich and admirable human lives. They need to persuade people that protecting a range of distinctive moral outlooks and ways of life is something desirable in a plural democracy like ours. They need to turn the permanent conditions of value conflict somehow to their advantage—to convince people that a state of social disharmony and disagreement about the deep issues is a far better thing than a state of harmony and agreement. Difficult work, to be sure. But work that reflects the tragedian’s sense of the problems.

Thanks again to Tom for engaging with me on these questions over the years, and now here.

ADDENDUM: John Inazu let me know about this interesting (and recent!) comment by Stanley Hauerwas, in which he writes: "Niebuhr's political realism can, at best, give you an account of common interests." 


DeGirolami, Marc | Permalink