January 07, 2005,
The conventional wisdom is that liberalism went off the rails in the 1960s. Before then, liberals were a robust, confident breed. They talked like Jack Kennedy, occupied the "vital center," and fought both Communism abroad and the "McCarthyite" excesses of anti-Communism at home (the quotation marks around McCarthyite are mostly intended to annoy). Before the throngs of long-hairs, Bra-burners, and dashiki-clad activists capsized the movement into a sea of moral relativism, liberalism was about ironclad traditional values.
Obviously, there's a lot of truth here, otherwise the cliché wouldn't be so commonplace. But there's also a lot of amnesia at work here too. A full generation before the 1960s, no less a liberal saint than Charles Beard was complaining about the New Deal liberals: "These people are talking the relativism which will ruin liberalism yet. Don't they know that the means can make the ends? Don't they realize that their method of arguing can justify anything? I wish we could find some way of getting rid of conservative morality without having these youngsters drop all morality." And nearly 20 years before that the once-renowned progressive J. Allen Smith complained of Wilson-era progressives: "The real trouble with us reformers is that we made reform a crusade against standards. Well, we smashed them all and now neither we nor anybody else have anything left."
Smith and Beard were complaining about the logical and inevitable consequences of Pragmatism. Now, please note the capital P. One of the great annoyances of the small club of He-Man Pragmatism-haters (I'm assistant treasurer) is that it is the only philosophical school that gets a free ride on the good PR value of an every day word. When we call a politician a "pragmatist" it's invariably a compliment. Not so when we call him a cynic, a sophist, a Nietzschean, etc. And while you're free to call some pol an "Aristotelian," most people don't really know what that means. Everyone understands what a pragmatist is. It's someone who isn't too beholden to dogma, ideology, cant, and hidebound "theory." The problem is that capital-P Pragmatism is itself a deeply ideological approach to philosophy and life. Louis Menand, in his wonderful book The Metaphysical Club (which I'm relying on quite a bit), praises Pragmatism as a "razor" that attempts to "strip problems of metaphysical irrelevancies." The trouble is that what is one man's "metaphysical irrelevancy" is another man's reason for getting out of bed everyday.
The Unreasonable Reasonable ManThere are probably better examples of what I'm getting at. In fact, I know there are. But I'm saving them. But one good one is Oliver Wendell Holmes, the legendary Supreme Court justice. While not a great guy, he was a brilliant legal theorist and idiosyncratic Pragmatist (who rejected the term). It is mostly thanks to him that we have what lawyers and the rest of us call the "reasonable man" doctrine. He didn't invent the phrase, but he's undoubtedly the reason we all know it. Holmes's understanding of the reasonable man comes out of civil-liability law, an area I am no expert on and I have no intention of changing this fact so lawyers can simply grind their teeth as I truncate a century's jurisprudence into a few lines. Basically, Holmes like all Pragmatists was dogmatically anti-dogmatic. His particular bugaboo in terms of liability was the importation of moralistic language and sentimentality into the law. Why talk about "guilt" and "fault" when you could simply refer to "recklessness"? Whether a storeowner was delighted an old lady slipped on a banana peel in his store or whether he was heartbroken about it is irrelevant. All that matters (for a judge) is whether the law considers the storeowner somewhat responsible for her injuries. Various individuals are going to be wacky, weird, wicked, saintly, dumb, smart, clumsy, graceful, and a thousand other things. The law cannot get overly concerned with such things. What matters is what is reasonable to expect of him in his public behavior. "A man may have as bad a heart as he chooses," Holmes said, "if his conduct is within the rules."
How does one determine what is reasonable? By in effect taking a statistical average of the community's standards. Early Pragmatists were deeply enamored with statistical techniques like the law of errors, which held sorta kinda that you could find the true answer to a problem by averaging out the wrong answers. For example, a room full of people any people will be better as a group at guessing how many jellybeans are in a jar than any individual in that group over time. Joe Blow may guess better than most, but given a series of opportunities the average answer of the whole group will be more accurate over time than Joe Blow's. The basic rule is that wrong guesses will cancel each other out. For every one that is too high, there will be one that is too low. The average therefore will be very close to accurate. This nod to the reality of collective intelligence so evident in markets permeates Pragmatic thinking in all sorts of areas, particularly arguments in favor of free speech and the "marketplace of ideas" (Holmes's phrase).
What Holmes wanted was a standard set by "an intelligent and prudent member of the community," not a specific person. A particular person might have too many idiosyncrasies. He might be too smart or too dumb or too this or too that. What he wanted instead was a group standard that could be applied to everyone. "When men live in society," Holmes explained, "a certain average of conduct, a sacrifice of individual peculiarities going beyond a certain point, is necessary to the general welfare." In other words, we all have our quirks and our crazy motives, but we need to check at least some of them at the door when we enter a community. One person might think public urination is fine, while another may think that everyone should be forced to wear rubber gloves and surgical masks to protect his neighbors from germs. Both are disappointed with the community standard that falls somewhere in the middle. But the point is that there's an "external standard" Holmes's words that every one must hew to. In the courtroom, he thought the best way to apply this standard was to get a random sampling of the society a.k.a. a jury and have them come to a consensus. But the important point is that the jury was merely a vessel for illuminating the external standard which existed in the community outside the courtroom.
Now, because Holmes subscribed to a certain kind of conservatism, he argued that these external standards were already written into the law and that all the moral language they were couched in only confused the issue. He wanted to strip the moralism, historicism, and sentimentality from the law and leave the cold steel of rationality and realism. It is astounding how prominently "efficiency" played in the hearts and minds of liberals at the beginning of the 20th century. This is why Holmes predicted in The Path of the Law that the traditional lawyer may be the best equipped to make law now but "the man of the future is the man of statistics and the master of economics." One can almost imagine Richard Posner visiting Holmes in a dream.
The Fat is the Best PartHolmes used the Pragmatic razor to trim the law's useless fat of morality off, leaving only the efficient muscle and sinew. But as any cook will tell you, it's the fat gives the flavor to the meat, the theme to the pudding. While it would be no surprise to a Hayekian that the common law was already efficient and useful, as Holmes argued, a conservative would also note that morality plays an important role in the law: It communicates to the average citizen that right and wrong is more than a matter of simply playing the odds. It may well be marginally more efficient to make the law into nothing more than a set of efficient rules for the efficient conduct of commerce (and Holmes's jurisprudence certainly greased the wheels for America's industrialization), but by doing so you undermine the role of law as an institution that teaches right from wrong. Sure, societies outlaw murder in part because societies that condone it fall apart. But simply because there's a utilitarian case for banning homicide doesn't mean the only case for banning it is utilitarian. Moreover, if you tell people that we ban murder solely because it's efficient to and not because it is immoral you offer no guidance to people who care not a whit about societal inefficiency (which is most of us).
How many people consider "whatever you can get away with" to be the moral standard today? Answer: too many. What Holmes took for granted were the reasons people tried to cluster around the "external standard." A more Hayekian heck, a more reasonable man would understand (or in Holmes's case, care) that men have good manners and good values not because they are taught good manners are more efficient (though surely they are) but because good manners and good values are simply right. A good mother might very well explain to her children that proper manners and respect for others will make their lives easier. But, a good mother will surely explain that proper manners and respect for others is the right thing to do even if it makes your life more difficult. As the saying goes, character is what you do when no one's looking.
But here's the larger problem. The law can never be perfectly neutral; it can never be value-free. The only question is which values will triumph. I'm not arguing for "theocratic" norms or any such thing. But since we are talking about how we should organize a vast and diverse society, it's important to ask which general rules will apply. Holmes wanted to strip the law of that thick gauze of morality surrounding the efficiency-conducting rules underneath. Unfortunately, that morality wasn't gauze, it was more like insulation. Stripping away insulation may make the wiring more efficient in the short term, but it guarantees corrosion over the long term.
Deviation StandardToday that corrosion takes a predictable form: the overthrow of the reasonable man. Now, I'm not talking about liability or torts or any of that stuff, because I don't know much about it. I'm talking about the larger societal standards that come with the erosion of authority and how they creep into our law and our culture. The reasonable man was a composite, a statistical average of the aggregate human decency necessary to sustain a society. The reasonable man's behavior was the group average of moral conduct in a very moral country. Today, all of our arguments are about how much the society must bend to the behaviors and attitudes of the man of the fringe, the outlier, the arrow that sails farthest from the bulls-eye. Schools are paralyzed by the question of what to do about the atheist, the homosexual, the handicapped, while the average kids i.e., most of them are given short shrift. Abortion has stalemated the political system for a generation because the debate must be over what to do in the extreme circumstances; the famously horrible trinity of abortion legalizers everywhere: rape, incest, and the life of the mother. Roughly 90 percent of Americans celebrate Christmas in one way or another, but every year we must haggle about what to do for the thin-skinned atheist who withers from the glare of a nativity scene.
Take free speech. Holmes defended free speech on the grounds that more voices in the marketplace of ideas would be more likely to yield a more concrete answer to the central problems of life (think of a billion monkeys banging on typewriters: the more monkeys you add, the more likely it is they'll write something worthwhile). Hence, the debate used to be about how much regulation and censorship we should allow at the periphery. The logic was simple: the more you protect at the fringe, the safer our core freedoms would be. Like setting-up outposts on the frontier, we would police the barbarians at a distance so they would never make it to our homes and temples. So we would debate how much pornography the society could tolerate, on the assumption that a society that debates the legality of hardcore gay porn won't even think of touching the right to criticize the government. But that's been turned on its head now. Free speech for the deviant (be that in a statistical or moral sense) is total and the only debate now is how much we should regulate political speech during political campaigns. Today Thomas Paine's Common Sense if published 30 days before an election would spark infinitely more legal controversy than the showing of Deep Throat on HBO.
Books and movies were once very concerned with the plight of normal men average men, "reasonable men" in abnormal circumstances. I don't simply mean that they were dull men thrown into crazy situations. We've always admired heroes. Rather, the protagonists were men who represented the "external standard" of morality recognizable by the community as the desired norm. Today, the protagonists at least in the fashionable films are the victims of that external standard. For example, in 2000, every major Oscar-winning film hinged on variations of this theme. Don't even get me started on Pleasantville. The events since 9/11 have distracted this trend for a while, but who can doubt that the liberal elite's dismay with Bush and the war is in part an effort to restore the cultural status-quo ante.
Now none of this should be interpreted as a stirring defense of conformity or a denunciation of anyone who might be a square peg in my ideal society of round holes. What a decent, prosperous, historically Christian Anglo-Saxon liberal society should do to accommodate gays, atheists, Jews, Muslims, foreigners, the handicapped, et al. are entirely appropriate questions to spend time and resources on. After all, there is no American who perfectly incarnates the external standard of the average American. We are all scattered plot points on the cluster graph. Groups are made richer by their diversity.
But, as liberals are wont to do, they are once again smashing their own accomplishments. The story of liberalism, after all, is the story of intellectuals building castles and then destroying them a generation later because they believe something new and therefore more exciting and "better" can be made with the rubble. Today's heirs to the Pragmatists want nothing to do with "reasonable men" and "community norms." For Holmes the norm and the ideal were roughly synonymous. For today's liberal they are antipodes. The deviant are the role models, the outliers the heroes. And we never could have replaced the old morality with this new stuff if we hadn't thought we could do without fatty, flabby morality in the first place.