Pingree, Gregory C.

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Afterword: Toward Stable Principles and Useful Hegemonies

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Chicago-Kent Law ReviewVolume 78Issue 2 Symposium: Law and Cultural Conflict Article 14June 2003Afterword: Toward Stable Principles and UsefulHegemoniesGregory C. PingreeFollow this and additional works at: https://scholarship.kentlaw.iit.edu/cklawreviewPart of the Law CommonsThis Article is brought to you for free and open access by Scholarly Commons @ IIT Chicago-Kent College of Law. It has been accepted for inclusionin Chicago-Kent Law Review by an authorized editor of Scholarly Commons @ IIT Chicago-Kent College of Law. For more information, pleasecontact dginsberg@kentlaw.iit.edu.Recommended CitationGregory C. Pingree, Afterword: Toward Stable Principles and Useful Hegemonies, 78 Chi.-Kent L. Rev. 807 (2003).Available at: https://scholarship.kentlaw.iit.edu/cklawreview/vol78/iss2/14AFTERWORD: TOWARD STABLE PRINCIPLES ANDUSEFUL HEGEMONIESGREGORY C. PINGREE*These papers reflect a larger, ongoing conversation about the re-lationship between law and culture, a relationship that, for its com-plex open-endedness, eludes any fixed definition. In attempting tosketch the shape of that relationship, Robert Post examines withcharacteristic insight some of the jurisprudential lineage of the law-culture conversation, reminding us that the notion of legal neutralityis illusory, and that culture itself is neither stable nor coherent.1 Thepapers that ensue are emblematic of many conversations -academic,political, and other- taking place along the broad spectrum of criticalmethodologies and historical topics that constitute the "law andculture" discourse.2 Yet if these symposium papers' diverse perspec-tives invoke any point of unity, it is, to paraphrase Sartre, the searchfor a method-for a coherent framework in which to evaluate theconflicts and judgments of human society. This normative enterpriseis a fundamental part of legal history and theory, of course, but thecritical protocols and disciplinary contours of the enterprise haveevolved along with the ambient culture. In light of both the constant"search for a method" and the evolving relationship between law andculture, the modest point I want to make in reflecting on the discus-sions of this symposium is that they further demonstrate the uniqueframework that the law provides for understanding cultural conflict.What is unique about the legal take on cultural conflict? Essen-tially, that the law must concern itself to an unparalleled degree withboth its internal coherence and its external implications. That is, thelaw focuses on standards of judgment and conduct not only to achieve* Assistant Professor of Law, University of the Pacific, McGeorge School of Law, and co-organizer of the symposium.1. Robert Post, Law and Cultural Conflict, 78 CHI.-KENT L. REV. 485, 492 (2003).Several symposium authors assert the impossibility of legal neutrality. See, e.g., Nancy E.Dowd, Law, Culture, and Family: The Transformative Power of Culture and the Limits of Law,78 CHI.-KENT L. REV. 785 (2003).2. For an excellent brief discussion of the growing field of law and culture studies, seeAustin Sarat & Thomas R. Kearns, The Cultural Lives of Law, in LAW IN THE DOMAINS OFCULTURE 1 (Austin Sarat & Thomas R. Kearns eds., 1998).CHICAGO-KENT LAW REVIEWsatisfactory philosophical and moral consistency, but to establish alsoworkable, pragmatic social frameworks. This necessary balanceyields a particularly grounded kind of thinking about cultural conflict,one which must (a) at least take seriously the useful fiction thatcultural conflict can be mediated from a place of deliberate, princi-pled neutrality, and (b) remain attentive to the invariably social,experiential ramifications of its judgments. These symposium pro-ceedings address both points.IAs to the problem of neutrality, the law's concern is not whetheranyone believes neutrality is fully possible (if anyone ever did),3 butrather that the law must choose from among many defensible argu-ments that enlist the ideal of neutrality in the service of other inter-pretive and ideological ends-say, Justice Scalia's rage fordistinguishing judicial involvement from judicial judgment,4 or JusticeStevens' need for "a way to express an ambitious moral agenda interms that convey the impersonal authority of fundamental law."5 As3. To view skeptically the dogma of pure legal neutrality is crucially different fromrecognizing, relying on, even embracing the ideal of neutrality (along with other jurisprudentialideals such as objectivity, truth finding, etc.) as a necessary fiction for purposes of achieving asocial order that is as just, fair, and democratic as possible. Vital to consequential legal analysis,it seems to me, is the quality of one's self-consciousness about this difference-a pointexemplified variously in this symposium. And because the ideal of legal neutrality is, after all,part of our basic sense of the common law, it should be neither surprising (nor necessarilydistressing) that such idealism persists in animating both adjudication and legal scholarship.What matters is to maintain critical vigilance about the powerful mediating influence of thatidealism. Peter Goodrich remarks, for example, that this conceptual idealism tends to divert usfrom a sensitivity to legal language as an index of culture:Despite the linguistically dubious nature of the assumptions regularly made by formal-istic (deductive) theories of adjudication, lawyers and legal theorists have successfullymaintained a superb oblivion to the historical and social features of legal language, andrather than studying the actual development of legal linguistic practice, . . . have as-serted deductive models of law peculiar to the internal development of legal regulationand legal discipline. What has been consistently excluded from the ambit of legalstudies has been the possibility of analysing law as a specific stratification or "register"of an actually existent language system, together with the correlative denial of theheuristic value of analysing legal texts themselves as historical products organisedaccording to rhetorical criteria.PETER GOODRICH, LEGAL DISCOURSE: STUDIES IN LINGUISTICS, RHETORIC AND LEGALANALYSIS 1 (1987). Similarly, in his general symposium introduction, Robert Post draws upon"the analogy of language" to illustrate the relativity of cultural stability: "Just as language isconstantly changing despite the fact that a functioning language requires relatively stable andshared meanings, so cultural understandings are always shifting despite the fact that a function-ing culture requires relatively stable and shared perspectives." Post, supra note 1, at 491.4. Post, supra note 1, at 498.5. Robert F. Nagel, Six Opinions by Mr. Justice Stevens: A New Methodology forConstitutional Cases?, 78 CHI.-KENT L. REV. 509, 511 (2003).[Vol 78:807AFTERWORDseveral commentators observed during the symposium discussion, thisrhetorical struggle for the neutral high ground may be framed as oneof competing hegemonies, or better still as a continuous dialectic ofhegemonies and counter-hegemonies. But whatever one's angle, itseems clear that to achieve meaningful traction in the legal conversa-tion about cultural conflict requires the relatively stable footingprovided by interpretive schemes that assert some kind of principledneutrality.6This insight does not necessarily (if at all) lead to legal solutionsfor cultural problems, insofar as resolving cultural conflict is an aim ofthe law. Still, the process of clarifying both the ideological stakes andthe interpretive strategies involved in legal analysis of, for example,polygamy or homosexuality reframes our collective preoccupationwith the regime of neutrality and enables us to explore more thought-fully what all agree is a convoluted, symbiotic relationship betweenlaw and culture. The philosopher Honi Fern Haber has characterizedthis perspective shift as a kind of enlightened compromise, withimportant implications for understanding culture:There is no view from nowhere. We can never leave all our preju-dices behind and operate from a wholly disinterested standpoint,but our prejudices become dangerous only when they are dogmatic,kept hidden from view and not open to discussion.... We cannotthink or speak, much less act, in any purposeful manner withouthaving structured our world and our interests in some heuristicallyuseful way. Without some notion of structure (unity) and some al-lowance for a legitimate recognition of similarities between our-selves and others, there can be no subject, community, language,culture.7I agree with Haber that recognizing the impossibility of neutralstandards, rather than undermining our attempts at useful dialogue,actually frees us to consider more realistic avenues for evaluatingcultural conflict. This position of "stable relativity," resonant ofinnumerable postmodern voices, is thus more than a resigned posturetoward the proverbial question whether neutral legal standards arepossible for the proper interpretation of culture and hence desirablefor the just regulation of cultural conflict. While these symposium6. See, e.g., Mark D. Rosen, Establishment, Expressivism, and Federalism, 78 CHI.-KENTL. REv. 669, 707 (2003) (arguing that "the Rawlsian-based approach to [Establishment Clause]sizing developed here is more neutral than the approach found in the contemporary Establish-ment Clause doctrine").7. HONI FERN HABER, BEYOND POSTMODERN POLITICS: LYOTARD, RORTY,FOUCAULT 1, 5 (1994) (emphasis added).20031CHICAGO-KENT LAW REVIEWdiscussions answer that question with a qualified "no" on both counts,these papers more importantly emphasize that it is the practicalsubstance of that qualification that matters.IIIndeed, most of the authors included here gesture toward a morenuanced paradigm for understanding the relationship between lawand culture by centering their discussions on the concrete texture ofsocial and cultural conflict. For example, Sarah Barringer Gordon'srhetorical analysis of nineteenth-century American public debatesover Mormon polygamy draws attention to the cultural complexity ofthat controversial practice, suggesting the difficulty of any whollysatisfactory legal response. 8  Mark Rosen develops some of theconstitutional questions of cultural integration and homogeneityimplicit in Gordon's analysis of Mormon polygamy and explores thescope of those concerns in Establishment Clause debates aboutdiverse American religious practices.9 And Nancy Bentley, examiningAmerican interracial marriage law, argues that the "cultural force ofintimacy.., lies in the shared sense that it originates somewhereoutside of either culture or law, in the immediacy of individualfeeling." 10Although these papers demonstrate distinct kinds of culturalanalysis, each conveys its own sense of another indispensable dimen-sion of law's relationship to culture-what Martha Nussbaum calls"empathetic imagining," "an essential ingredient [along with a focuson stable principles] of an ethical stance that asks us to concernourselves with the good of other people whose lives are distant fromour own."" Nancy Dowd devotes part of her analysis to this narrativeaspect of the law; reflecting on the legal impact of 9/11 on prevailingstructures of family law, she reasons that "[slympathy perhaps openedthe door to understanding the lived realities of families as consciouslyplural. With that understanding may come another incremental shifttowards accepting, even valuing, actual relational ties. 1 2 In this and8. Sarah Barringer Gordon, A War of Words: Revelation and Storytelling in the CampaignAgainst Mormon Polygamy, 78 CHI.-KENT L. REV. 739 (2003).9. Rosen, supra note 6.10. Nancy Bentley, Legal Feeling: The Place of Intimacy in Interracial Marriage Law, 78CHI.-KENT L. REV. 773, 774 (2003).11. MARTHA C. NUSSBAUM, POETIC JUSTICE: THE LITERARY IMAGINATION AND PUBLICLIFE xvi (1995).12. Dowd, supra note 1, at 805.[Vol 78:807AFTERWORDother ways, these papers emphasize that the law must stand rooted inconcrete social experience even as it reaches for coherent principlesby which to regulate that experience; this is essentially what generatesthe law's unique relationship to cultural conflict. In this sense,cultural conflict is the law's raison d'.tre, for the law presupposeshuman community and the intrinsic conflicts of human interaction.1 3Although this symposium set as its subject the law's relationshipto cultural conflict, then, the discussions here implicate also the flipside of that coin-what is, as Haber suggests, the possibility of unity,of a shared sense of cultural understanding."4 But whether thespecific focus is cultural conflict or cultural unity, the point is that thelaw is inexorably linked to culture; accordingly, we who theorize therelationship between law and culture must consider the role that thelaw plays in constituting culture itself." In so doing, we, as mem-bers-elements-of that culture, function as though we were fishtheorizing water; in Sarat's formulation, "we come, in uncertain andcontingent ways, to see ourselves as law sees us; we participate in theconstruction of law's 'meanings' and its representations of us even aswe internalize them, so much so that our own purposes and under-standings can no longer be extricated from those meanings."' 6IIIThe relationship between the localities of cultural practice andthe fashioning of coherent legal principles, and the role of the self-conscious, liberal subject in theorizing that relationship, are familiarconcerns in contemporary critiques of law and philosophy. Toconsider one, Stanley Fish, a critical voice in attendance at thesymposium, has recently declared that there exists no necessaryconnection between metaphysical thinking and practical conduct. 7After arguing that both Jirgen Habermas and Richard Rorty fallprey, in their respective forms of pragmatism, to the naive belief that13. Steven Shiffrin echoes this syllogism at the close of his discussion of the EstablishmentClause. Invoking Justice Holmes, Shiffrin concludes that "there are times when experience isworth more than logic." Steven H. Shiffrin, Liberalism and the Establishment Clause, 78 CHI.-KENT L. REV. 717, 728 (2003).14. HABER, supra note 7.15. See Post, supra note 1, at 489.16. Sarat & Kearns, supra note 2, at 7-8.17. Stanley Fish, Truth but No Consequences: Why Philosophy Doesn't Matter, 29CRITICAL INQUIRY 389 (2003).2003]CHICA GO-KENT LA W REVIEWsocial good invariably issues from well-conceived philosophicalvisions, Fish seeks to demystify with signature flourish:Decency, like all other virtues invoked in discussions like these-tolerance, straightforwardness, sincerity, accuracy, reliability, hon-esty, generosity, objectivity, truth telling-is a quality independentof the metaphysical views you happen to hold, if you hold any. In-deed, everything, except for your profile in the narrow world ofhigh theory, is independent of the metaphysical views you happento hold. 18This agnostic view of practical-to-metaphysical correspondence seemsa corollary to Steven Shiffrin's observation here that "there is noprinciple in the sky which can be invoked in the style of politicalgeometry to resolve difficult questions about church and state."'19 Fishclaims that even those pragmatic theories that avoid the hegemony ofneutral principles or moral correctness nonetheless subscribe to thefalse belief "that normative philosophy is not [itself] a local, prag-matic practice like any other, but is a special practice in which thelocal and pragmatic have been left behind."20  In Fish's view, thisbroad fallacy, which obviously affects even the most sophisticatedthinkers, leads one right back to the original sin of the myth ofneutrality: one becomes, "in short, a theologian, maintaining himselfthe disciplinary task of relating a historical, mundane occurrence toits contingent and multiple causes."',Taken as a whole, these symposium papers raise related ques-tions, in the context of cultural conflict, about the possibility ofconnecting theory to practice. Whether these discussions manage toavoid the epistemological blindness that Fish decries remains to beargued. But by emphasizing historical concreteness and practicalargument, as well as offering careful, reasoned perspective on thepresent climate of secular and religious fundamentalism, thesepresentations make a realistic contribution to the public conversationabout what is at stake when the law regulates cultural conflict.18. Id. at 417.19. Shiffrin, supra note 13, at 728.20. Fish, supra note 17, at 403. Steven Heyman nicely characterizes this seductive will-to-hermeneutic-transcendence in his discussion of the First Amendment: "Amid all this contro-versy, there is a strong temptation to appeal to an idealized version of the First Amendment-one with a clear meaning that stands above cultural conflict." Steven J. Heyman, IdeologicalConflict and the First Amendment, 78 CHI.-KENT L. REV. 531, 533 (2003).21. Fish, supra note 17, at 394.[Vol 78:807AFTERWORDIVNotwithstanding that (in Habermas' famous phrase) "[o]ur firstsentence expresses unequivocally the intention of universal andunconstrained consensus," 22 the discussions presented here movetoward engaging Fish's most compelling interrogatory: "How, then,do you get to a place where the partisan and parochial visions thathave so immediate an appeal for embedded subjects can be counteredby a vision that belongs to no one but includes everyone?" 23 That"place" of satisfactory equipoise between practice and theory is itselfan unreachable ideal, but the image of diverse minds aspiring to reachsuch an elusive destination may be as apt a metaphor as any for thesetting that the law provides for analyzing cultural conflict. To worktoward that ideal is to practice what Nussbaum describes as "ahumanistic and multivalued conception of public rationality that ispowerfully exemplified in the common law tradition. ' 24 This affirma-tive vision of the law may crowd Fish's "parsimonious and minimal-ist" 25 argument, or it may hold out something of an antidote-arendering of the same glass as half-full.Post's concluding remarks would appear to identify scantcommon ground: "The only abstract truth seems to be that we cannotescape the risks and responsibilities of practical judgment. '26 Yetrather than be "disappointed by the relentlessly contextual nature ofthese conclusions,"27 we might see substance and possibility in thismodest appraisal. Insofar as we are mindful of the core limitations ofthinking legally, we may benefit considerably from the idiosyncraticperspectives of the law: philosophically inconsistent and ideologicallyinterested, to be sure, but anchored in and accountable to actualexperience. There is no view from nowhere, but here, in the law, arean empathic "public rationality," a fundamental commitment to "therisks and responsibilities of practical judgment," and a rich discoursethrough which to explore our always contested place within thematrix of culture.22. JURGEN HABERMAS, KNOWLEDGE AND HUMAN INTERESTS 314 (Jeremy J. Shapirotrans., 1971).23. Fish, supra note 17, at 398.24. Nussbaum, supra note 11, at xv.25. Fish, supra note 17, at 417.26. Post, supra note 1, at 508.27. Id.20031

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Afterword: Toward Stable Principles and Useful Hegemonies

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