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Law as Violence

January 14, 2011

Few liberals understand America’s current predicament as well as Paul Krugman. Contrary to Obama’s Arizona speech, the deep partisan division in this country is not attributable to our collective lack of empathy or unwillingness to listen to the other side. Nor can it be overcome by bar graphs and smart policy prescriptions, as wonks like Ezra Klein and Jonathan Cohn tend to assume. Rather, as Krugman explains in today’s column, our dividedness is the result of incompatible notions of justice:

But the truth is that we are a deeply divided nation and are likely to remain one for a long time. By all means, let’s listen to each other more carefully; but what we’ll discover, I fear, is how far apart we are. For the great divide in our politics isn’t really about pragmatic issues, about which policies work best; it’s about differences in those very moral imaginations Mr. Obama urges us to expand, about divergent beliefs over what constitutes justice.

This is a point that the Scottish philosopher Alasdair MacIntyre has made repeatedly. MacIntyre traces this problem of “divergent beliefs” back to the Enlightenment. If moral reasoning for Aristotle always occurs within the context of the polis, and for medieval Christians within the tradition of the Church, the Enlightenment would insist that moral precepts be rendered asunder from time and place — that only those precepts which can be established always and everywhere be accepted. Here is an excerpt from Whose Justice? Which Rationality?:

It was a central aspiration of the Enlightenment, an aspiration the formulation of which was itself a great acheivement, to provide for debate in the public realm standards and methods of rational justification by which alternative courses of action in every sphere of life could be adjudged just or unjust, rational or irrational, enlightened or unenlightened. So, it was hoped, reason would displace authority and tradition. Rational justification was to appeal to principles undeniable by any rational person and therefore independent of all those social and cultural particularities which the Enlightenment thinkers took to be the mere accidental clothing of reason in particular times and places. And that rational justification could be nothing other than what the thinkers of the Enlightenment had said that it was came to be accepted, at least by the vast majority of educated people, in post-Enlightenment cultural and social orders.

Yet both the thinkers of the Enlightenment and their successors proved unable to agree as to what precisely those principles were which would be found undeniable by all rational persons . . . Nor has subsequent history diminished the extent of such disagreement. It has rather enlarged it. Consequently, the legacy of the Enlightenment has been the provision of an ideal of rational justification which it has proved impossible to attain.

The result was that rival and what MacIntyre calls “incommensurable” notions of justice and rationality emerge, so that arguments over such matters as taxes and wealth redistribution amount to little more than masks for self-interest. That was Nietzsche’s great insight, and MacIntyre agrees. In order to overcome Nietzsche, MacIntyre insists, we’ll have to recover the rationality of tradition. Toward the end of the same book, MacIntyre writes:

Post-Enlightenment relativism and perspectivism are thus the negative counterpart of the Enlightenment, its inverted mirror image. Where the Enlightenment invoked the arguments of Kant or Bentham, such post-Enlightenment theorists invoke Nietzsche’s attacks upon Kant and Bentham. It is therefore not surprising that what was invisible to the thinkers of the Enlightenment should be equally invisible to those postmodernist relativists and perspectivists who take themselves to be the enemies of the Enlightenment, while in fact being to a large and unacknowledged degree its heirs. What neither was or is able to recognize is the kind of rationality possessed by traditions.

According to the Aristotelian tradition to which MacIntyre belongs, morality is a matter of seeking out the telos of human beings — that which we are made for — within the context of the polis, and directing “untutored human nature” towards it. (See After Virtue.) Since the Enlightenment, we have retained the moral language passed down from Aristotle through Augustine and Aquinas, but abandoned the teleology and forgotten the tradition that rendered it coherent. As a result, morality has in practice become arbitrary and subjective.

Circling back to Krugman, the upshot of all of this is that the distinction he makes toward the end of today’s column between violence and the rule of law cannot be sustained. Writes Krugman:

It’s not enough to appeal to the better angels of our nature. We need to have leaders of both parties — or Mr. Obama alone if necessary — declare that both violence and any language hinting at the acceptability of violence are out of bounds. We all want reconciliation, but the road to that goal begins with an agreement that our differences will be settled by the rule of law.

In a society riven by incompatible notions of justice and rationality, the rule of law itself becomes an act of violence — a use of force to impose one’s morality on the other side, for whom it has not been rationally vindicated.

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