Burt, Robert A.

English

Penn Law: Legal Scholarship Repository

September 8, 1994Professor Susan P. SturmUniversity of Pennsylvania Law School3400 Chestnut StreetPhiladelphia, PA 19104-6204Dear Susan:Reading your commentary on my article reminded me of a lineof dialogue from Cool Hand Luke, a 1967 movie where Paul Newmanplayed a prisoner in a Southern chain gang; as I recall the line, inthe midst of one punishment after another inflicted on him byvarious guards and fellow-prisoners, Newman exclaims, "What wehave here is a failure of communication." You and I too, I think,have a failure of communication.For most of your commentary, I don't recognize the article thatI had written. You repeatedly say, in particular, that I claimscientists "can empirically demonstrate our fundamental common-ality"' and that this demonstration is "not about values [but] abouttruth,"2 whereas you maintain to the contrary that this is "a moraland political judgment, not an empirical one."' But there is nodisagreement between us on this issue. I make this same observa-tion several times in my article: for instance, I say,The proper question for the behavioral scientists was not whetherthese differences [between mentally disabled and other people]existed, but whether they should be underscored....From a strictly scientific perspective, there was no clearlycorrect answer to this question.... [C]ommonalities are notnecessarily more fundamental... [but] neither is the existence ofthe differences the scientifically more fundamental characteristic.4Again, in my conclusion, I say, "The choice in these matters ... isnot between truth and falsehood in behavioral science ....Scientists can justify accentuating the differences among people aswell as emphasizing human commonalities."5' Susan P. Sturm, Sameness and Subordination: The Dangers of a Universal Solution,143 U. PA. L. REV. 201, 203 (1994).2 Id. at 211.s Id. at 206.4 Robert A. Burt,Judges, Behavioral Scientists, and the Demands of Humanity, 143 U.PA. L. REV. 179, 187 (1994).5 Id. at 192.(195)196 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 143:195It may be that you were misled by my statement early in thearticle, when I was describing Judge Bazelon's and the BrownJustices' conjunctive use of moral beliefs and behavioral science,that the scientific descriptive claim that "all human beings arefundamentally alike" was "a logically correct proposition."' I cansee how the word "correct" here might mislead you. I did not meanto say, however, that this was an empirically "true" position; I meantthat it was a logically coherent position-not that it was right but thatit was not demonstrably wrong, not illogical, to take this position.I do think that the Law Review editors should change this one wordof mine from "logically correct" to "logically coherent" in order toforestall any misunderstanding of my position. But if this changeis made, doesn't that remove any basis that you might have had forreading my article as you did? Shouldn't you then revise youraccount correspondingly?You also misconstrue my views about the desirability of openlyavowed conflict in social relations. You claim that I believe weshould "avoid open acknowledgment and confrontation of...differences" and that "conflict is bad, irreconcilable, and to beavoided [because if] we acknowledge difference, conflict willinevitably lead to a Hobbesian resolution."' You draw this charac-terization not so much from what I say explicitly in the article asfrom your reading of the underlying implications of what I say.Perhaps there is some basis in my article, of which I was unaware,that supports this reading; but I do know that in other recentwritings, I have espoused exactly the opposite view from theposition you ascribe to me here. (See, in particular, my book TheConstitution in Conflict whose overarching theme is to criticize theSupreme Court for suppressing open conflict among polarized orpotentially polarized adversaries).'But though I do not believe-as you characterized my views-thatall "conflict is bad, irreconcilable, and to be avoided," I do believethat all irreconcilable conflict is bad: bad for the combatants, badfor the society in which these combatants live, bad for the possibilityof assuring a regime of mutual respect for the equal moral status ofthese irreconcilably hostile adversaries. In this article, as well as in6 Id. at 183.7 Susan P. Sturm, Sameness and Difference: The Dangers of a Universal Solution16 (Aug. 18,1994) (unpublished manuscript, on file with the University of PennsylvaniaLaw Review).8 See generally ROBERT A. BURT, THE CONSTITUTION IN CONFLICT (1992).LETTER FROM BURT TO STURMmy recent book, I maintain that the proper goal for all governanceinstitutions, and for the judiciary in particular, is not to suppressconflict but to encourage and guide the combatants to see oneanother as potentially reconcilable. In other words, governanceinstitutions should work generally to promote mutual recognitionamong adversaries of the commonalities that might unite them,notwithstanding the hostility that is dividing them.I agree with you that the insistence by one side (or by asupposedly neutral third-partyjudge) on the existence of commonal-ities can easily reflect nothing more than continued subordinationof one side by the other. This was the unacknowledged meaning ofthe "lily-white" version of the assimilationism that, as you point out,both of us criticize. But once again you misconstrue my positionwhen you say that, although I "recognize the 'internal contradic-tion'" in this version of assimilationism, I "embrace the samenesssolution nonetheless."9 To the contrary, this form of "same-ness"-that blacks and whites are really the same only if blacks wouldact like, and think of themselves as, whites-is a mockery of thepursuit of true commonality based on mutual respect, of thedemocratic ideal of equality.The fact that this kind of deception frequently arises as anobstacle toward the pursuit of the mutuality ideal does not supportthe conclusion that the ideal itself is flawed; this recurrent difficultyleads me to conclude that the impulse to subordination is astubborn element in social relations, and is not easily tamed byeliminating the most obvious forms of oppression-what you call"first-generation forms of exclusion.""0 As an abstract principle,I would say that the ideal progression in the elimination ofoppressive exclusion of pariah groups should come in two stages:first an acknowledgment by the oppressors that they are fundamen-tally not superior to, and in this sense no different from, theirvictims; and then appreciation of and respect for non-hierarchicallyconceived differences. As I understand your position, I believe youwould agree with this statement; this, I think, is what you mean indifferentiating first- and second-generation forms of oppression.But I believe that the first-generation forms are exceedingly difficultto dislodge in relations between oppressors and oppressed and thatunless and until these forms are expunged-unless and until the9 Sturm, supra note 7, at 7 n.14.10 Sturm, supra note 1, at 207.1994]198 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 143:195oppressors fully admit to themselves and acknowledge to theirprevious victims that neither group is inherently superior, that theirmoral status as human beings is identical and undifferentiated-thissecond step of mutual respect for acknowledged differences cannotbe reliably achieved.It is a complex business to translate this abstract formulationinto practical, concrete strategies for transforming oppressive socialrelations. This formulation does not lead me, for example, to theglib conclusion that some people have reached about the inherentwrongfulness of race- or gender-based affirmative action. Eliminat-ing affirmative action has the surface appeal of proclaimingeveryone's fundamental sameness; but so long as our socialarrangements patently belie this abstract proclamation-so long asmost African-Americans or women remain in positions of visiblysubordinated economic and social statuses-the "first-generation"oppressions have not been reliably undone but have only beendisguised and reiterated. But nonetheless-and here is the complexi-ty, as I see it-the race- or gender-based differences expressed byaffirmative action programs must be clearly and insistently under-stood only to be instrumental goals toward thoroughgoing mutualacknowledgment of undifferentiated moral status, rather thanrecognition of inherent, intrinsically valued differences as such.In this sense I am espousing a hierarchy of values, with mutuallyacknowledged commonality ranking above mutually acknowledgedrespect for differences-not as a matter of empirical truth but as amoral proposition. You were quite correct to insist that thisuniversalist position can readily become an instrument of oppres-sion-an empirically observable truth that I failed to acknowledge inmy article. Perhaps my failure arose from a generational differencebetween us-from the fact that my attention was focused on theassumptions of the 1950s, when the politically powerful reformerswere themselves inclined to this same failure. Perhaps it also arosefrom our differences in gender or other aspects of our personalhistories that might lead you to be more alert than I to thedeceptions and self-deceptions in protestations of common interestsfrom "superiors" toward their long-suffering subordinates. But Iwould hope that your justifiable suspicions do not lead you toabandon or subordinate the ideal of mutually acknowledgedcommonality, only because of the ease with which this ideal can bedistorted in practice. I hope you would see how insistence on theintrinsic value of human differences can itself easily, too easily,escalate into mutual incomprehension and irreconcilable conflict1994] LETTER FROM BURT TO STURM 199that feed the stubborn impulse toward social relations based onsubordination and oppression.I mentioned earlier in this letter the possibility that onesentence in my original article might be changed in order toeliminate what seemed to me a source of misunderstanding betweenus. Perhaps, however, it would be more useful for our readers if wewere to leave the original sentence as it was, and publish this letterinstead as an appendix to your commentary-as a small demonstra-tion of the way that although differences can become magnified,corrective understandings do come in a relationship based onmutual respect. What do you think?Bo

Letter from Burt to Sturm

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Letter from Burt to Sturm

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