Senseless Kindness: The Politics of Cost Benefit Analysis

This essay identifies a social phenomenon that the Russian-Jewish novelist and war correspondent Vasily Grossman calls senseless kindness. Emerging without prior warning from certain face-to-face encounters between human beings, the striking reversal of preferences that characterizes this phenomenon can be used to cast a critical light on the practices of Cost Benefit Analysis ( CBA ). Not only does senseless kindness highlight the troubling theoretical problem of determining the correct ex ante—the point in time at which CBA measures people\u27s preferences—it also points towards the possibility of a more general critique of CBA\u27s indifference to how preferences are formed and expressed. The essay shows that CBA ignores the concrete experiences of everyday human sociality and communicative action by modeling them in all instances as transactions costs to be reduced or avoided rather than celebrated, or at least studied for their meaning. Missing from CBA is any sense that the face-to-face encounter between human beings is, or can be, a moment of both individuation (of the participants) and transformation (of their preferences), in which genuine freedom and politics, in the largest senses of these words, are first made possible. Obsessed with what preferences are, CBA ignores the question of how they emerge. The result is not just a partial and partisan view of the possibilities open for human decision-making, but also a technique that puts the validity claims of individual preferences beyond all question and rational deliberation. Skeptical or afraid of government\u27s ability to change culture, certain scientistically-minded decision makers are happy to rely on techniques such as CBA that purport merely to reflect information about what the people want. However, CBA does not in fact reflect preferences as they are; instead, it constructs them as they would be if the entire meaning and value of human reason were reduced to purely instrumental (means-ends) calculations on the basis of correct technique, and if (per impossible) all contexts of people\u27s life histories in concrete forms of life were somehow removed. Purporting to be a descriptive science of what people just happen to prefer, in many instances CBA\u27s theoretical model actually produces a peculiarly asocial account of what their preferences ought to be

Pavčnik\u27s Theory of Legal Decisionmaking: An Introduction

Professor Pavčnik is one of the most prolific and interesting of those academics from the formerly communist states of Central and Eastern Europe who are currently writing on topics germane to legal philosophy. I had the privilege of co-teaching two classes with him at the University of Ljubljana in the fall of 1996-one on legal theory and the other on the philosophy of law-and in the course of our collaboration I acquired a great deal of respect for both the man and his work. The editors of the Washington Law Review, having had the excellent judgment to want to publish his essay, have asked me to furnish this introduction for the benefit of those who may find themselves feeling uncertain about the import of Professor Pavčnik\u27s ideas, or the context in which they were developed

The Many Meanings of Wherefore in Legal History

This essay describes the strategies that sometimes allow me to make sense of the answers that people give to the question Why? when it comes up in scholarly accounts of legal outcomes from the past. The essay is constructive, not deconstructive; programmatic, not polemical. I mean to sketch and recommend a way of thinking about legal history that I call methodological self-consciousness. Methodological individualism would be both inaccurate and accurate as a label for the essay\u27s approach to questions of causality. The label is inaccurate, because it fails to express the heavy emphasis that I place on the dialectical relationship between individual legal actors and the social context in which they are embedded: People cause law, but law, in many interesting ways, also causes people. On the other hand, the label is accurate, because the methodology I advocate pays close attention to the ways in which an observer imagines that individual legal actors experienced the production of legal outcomes. As far as my wherefores are concerned, chipmunks, rocks, and sunbeams don\u27t make law: people do (although this does not mean that people aren\u27t constrained and shaped by the physical world they inhabit). By the same token, classes, ideologies, and institutions don\u27t sign decrees and judgments ordering people to pay money or go to jail: individual judges do (although this does not mean that a judge\u27s perceptions are not shaped-even determined-by his connections with one or more of these collectivities)

A Philosophical Investigation into Methods of Constitutional Interpretation in the United States and the United Kingdom

Most constitutional theorists in America and Britain are primarily interested in the contents of their respective constitutions. They pay less attention (and in Britain far less attention) to the methods that judges employ to derive those contents, and almost no attention to the philosophical aspects of judges’ interpretive methods. This article attempts to redress this imbalance by giving a distinctly philosophical description of the principal methods of constitutional interpretation that judges are inclined to follow in these two countries, and by developing the important distinction between the interpretation and the reception of a constitutional text. The act of interpretation is active and rational; the event of reception is passive and pre-rational. In a sense, the phenomenon of reception makes every judge into a kind of “strict textualist” at some point in the interpretive process. Rather than seeking to criticize the many competing methods of constitutional interpretation, or to decide which one is “best,” this article merely seeks to understand them for what they are. The result is a comparative law exposition that is simultaneously legal and philosophical

The Tragic Foundations of Human Rights

The longing for a theoretical foundation to support the aspiration for universal (international) human rights always precedes the construction of any particular foundation. This essay examines the longing for foundations in its relation to the truth of universal human suffering. Using the phenomenological method, it uncovers a certain moment of distress that shows itself in the form of longing for the constant presence of an authoritative ground that would obscure universal suffering and give focus to the phenomenon of infinite ethical responsibility that attends the I’s encounter with the suffering of others. Thought hungers for a responsibility-relieving warrant (A) for action (B) that underwrites the movement “A to B.” The essay suggests, in compassion, that awakening to the real problem of human suffering requires a quasi-religious attention to the tragedy of universal human suffering, and a radicalized compassion that breaks free of all texts

The End of Technology: A Polemic

This essay is a philosophical polemic against the essence of modern technology. The piece does not advance a Luddite\u27s agenda, however, since it describes modern technology\u27s essence as technological thinking, rather than as the manifold of technical instruments and processes. Technological thinking is not just careful planning towards well thought-out ends. Rather, it is an entire orientation to life, and as such it is a monstrosity: it relentlessly and heartlessly transforms the world\u27s beings, including human beings, into measurable units of production and consumption that are constantly being judged for their contributions to productivity. Nature is thus made into a vast warehouse, and humanity into a standing reserve of human resources. Absent from technological thinking is any reflection on technology\u27s end, in the sense of its ultimate purpose. A synthesis of the thinking of Heidegger, Marcuse, Weber, and Sorel, this essay claims that the ultimate end of technology as such is, and ought to be, freedom for responsibility, and that freedom from necessity is both a condition and a consequence of this. It argues that there is a desperate need for thought and speech to break with technological thinking, and to begin bringing the means of modern technology into contact with its ultimate end

What Is the Rule of Law? Perspectives from Central Europoe and the American Academy

The title of my talk is What is the Rule of Law? —and its subtitle is Perspectives from Central Europe and the American Academy. I represent the American Academy part, and as I will make clear in a little while, the other part comes from my sustained engagement, over the past ten years, with legal theorists and political philosophers in the Republic of Slovenia. Slovenia, by the way, is a nation that was created twelve years ago as the northernmost of those breakaway republics of the former Yugoslavia