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[I am phasing out D&I at typepad. This post was first published at: digressions.impressions.substack here. To receive new posts and support my work consider becoming a paid subscriber at <digressionsimpressions.substack.com>]
Ideals and Illusions, Susan Stebbing's (1941) moving wartime work, published while she and the Kingsley Lodge school for girls (of which she remained the principal in addition to being the first female British philosophy professor) had moved to the far end of Cornwall, aims to rectify the absence of an ideal that speaks to what one may call democratic and spiritual yearning in British public life.* In fact, Ideals and Illusions, deserves some mention in the history of political theory. While not wishing to ignore some of the limitations of the work, I list three reasons that, perhaps, invite you to read this book.
First, Ideals and Illusions decisively challenges an idea then promoted by political realists of her age (especially E.H. Carr) that debate between realists and democratic theorists within political theory is, and now I quote Hans Morgenthau (who explicitly cites Stebbing), "...tantamount to a contest between principle and expediency, morality and immorality." Morgenthau (1952) de facto concedes Stebbing point, and this led him to reformulate political realism (and its opposition to a kind of democratic idealism as follows): "The contest is rather between one type of political morality and another type of political morality, one taking as its standard universal moral principles abstractly formulated, the other weighing these principles against the moral requirements of concrete political action, their relative merits to be decided by a prudent evaluation of the political consequences to which they are likely to lead." (p. 988; see note 25) To what degree Stebbing would eschew paying attention to prudent evaluation of political consequences may well be doubted. (I return to that some day.)
But the important point here is that Stebbing's criticism of Carr shaped the development of the most influential articulation of post-war realism (in IR).+ And it it is worth noting that Ernest Nagel, who was a serious admirer of Stebbing (1885 –1943), was (in 1947) quite critical of Morgenthau's version of such realism. There is, thus, lurking in the relatively early history of analytic philosophy a polemic, from the perspective of a democratic and liberal theory, with (so-called) political realism that has gone largely unnoticed. (I have discussed Nagel's polemic a bit here. )
Be that as it may, as is well known, in his autobiographic manifesto Liam Kofi Bright writes: "There is something within us that takes joy in the happiness of others, sees their misery as something regrettable, and compels us to act in solidarity and friendship with fellows." In an accompanying footnote, Bright cites (rightly) the fourth chapter of Stebbing's Ideals and Illusions. This chapter articulates a democratic creed that is explicitly indebted to the preamble of the American declaration. Stebbing connects this creed eloquently to Bentham's and Mill's frontal attack on acquiescence in human suffering. Stebbing is by no means a utilitarian/Radical, but she recovers the enduring significance of the Radical program (which one wishes contemporary longtermists would heed).
But not unlike Jefferson, she inscribes her ideal in a republican political philosophy (while being more attentive to the ills of slavery). In fact, and this is my second point, she deserves to be re-inscribed in the genealogy of modern republicanism, for after claiming that her creed can be captured with the ethical principle, "all men alike ought to be free and happy," she writes:
The democratic ideal does not confine a man within the limitations of his own narrowly conceived self-interest; it widens his interests to include all men, so far as this is possible to the limited intellectual grasp and the groping imagination of a finite human being. To achieve this ideal we must make such political machinery as will enable every man to have his needs considered and to contribute to the working of this machinery according to his ability. No one must be slave to another nor subject to the arbitrary will of any of his fellows, whether he lead or be led. We must create such an economic order as to allow to every man the satisfaction of his primary needs and to permit the development of himself as an individual. (Chapter VII, "Conflicting Ideals," p. 157)
Stebbing clearly embraces the idea that being subject to the arbitrary will of another is a fundamental problem in political and economic life and should be combatted. While rejecting Marxist economics (and explicitly rejects Marx as "prophet"), she quotes The Communist Manifesto approvingly on the idea of "a community of individuals, each of whom counts, associated together in such a way that 46 the free development of each is the condition of the free development of all.” (pp. 144-145) Stebbing's republicanism was already visible, and (as I discerned) presupposed, in her (1939) Thinking to Some Purpose, but it is much more subtly and carefully developed in Ideals and Illusions not as a normative theory in a post-Rawlsian sense, but as a living faith apt for her times. (I return to that below.)
Third, one of the key theme among my friends in the ‘'bleeding heart’ wing of contemporary libertarianism is the insight that the closed border regimes of our age are not just a frontal attack on the rights of outsiders or non-natives, but are a very sly and insidious attack on the rights and lives of citizens/insiders who often don't realize initially that many of their own liberties are undermined (often due to aggressive policing of border zones, but not limited to this). I first learned the point from Jacob T. Levy, and it’s a very important theme in Kukathas' Immigration and Freedom. (Levy and Kukathas are, thereby, developing an insight lurking in Mises but not as well developed there as one would wish.) I don't mean to suggest it's only a libertarian talking point; many (Foucault-inflected) scholars in security/immigration studies have developed a similar analysis (and as a skeptical liberal I will make it my own).
Here's Stebbing's version of a related insight:
[D]uring the Victorian age and up to the outbreak of the 1914-18 war there was considerable advancement in the direction of the ideal of the American revolution. It is convenient to call this the ideal of a civilized democracy. This ideal is far from having been accomplished. That, however, is not the point that is of main importance for my present purpose. The point is that it was an ideal consciously held and, on the whole, deliberately pursued. The moral significance of this period lies in the fact that there was a widespread conviction that there was an ideal worth pursuing, that there were high aims to the achievement of which a man might fittingly devote his life; to live strenuously for an ideal is more difficult and exacting than to be prepared to die for it. During the last twenty years this ideal has not only been explicitly denied and vilified in certain countries, it has further faded as an ideal even in those countries where the citizens continue to admire the sound of the word “ democracy.” For, it must be remembered, the democratic ideal is founded upon the moral principle that all men alike ought to be free and happy. It requires a temper of mind free from suspicion of others, from hatred of the foreigner, and from intolerance. It requires further an active sympathy with those who are oppressed. In all these respects the last twenty years have seen a serious deterioration. Before the last war it was possible to travel from one end of Europe to the other without a passport; during the last twenty years it has not been possible. This may seem unimportant; in fact, it is not. Its importance is that it is a symptom of the change for the worse that has befallen us. Each State in turn has tightened its restrictions upon the entry of foreigners. In a world which is economically so interdependent that it may be said to be a unity, certain of the most powerful States strive to be wholly sufficient in their economic requirements. The growth of economic internationalism is in conflict with an emotionally sustained nationalism. Hatred of others is fostered. (Chapter VI, pp. 112-113 [emphasis added—ES.])
What I wish to highlight here is that Stebbing discerns that a closed border policy doesn't just restrict the inflow of people, commodities, and capital, it also transforms the very ideals, the pattern of thoughts, and even morals of one's own polity. For Stebbing a 'temper of mind' -- we might say ethos -- is rather important to democratic life. With this diagnosis she is rather close to the liberal-realists explored (recall) by Cherniss in his recent Liberalism in Dark Times: The Liberal Ethos in the Twentieth Century.
Okay, let me wrap up. I leave you to discover her fantastic genealogical analysis of conscience, and her excellent critique of Bradley's political theory amongst other gems. I have suggested before (recall here; here etc.) that the narrative that there 'was no political philosophy within analytic philosophy' before Rawls is a lie that keeps us in a self-imposed tutelage. To be sure, this fact is difficult to see as a consequence of the division of labor in which (inter alia) economics and philosophy split, and political philosophers became specialists in normative theory and judge each other accordingly. From the perspective of contemporary philosophy, Stebbing’s book would seem to lack something.
But in so far as political philosophy aspires to educate the thoughtful citizenry in the reasons for its commitments (it should hold), Stebbing's book is, warts and all (and I have not developed my criticisms here), without parallel in early analytic philosophy. (No, I am not ignoring Popper or Russell's political essays!) Neurath insisted on the very point in 1946:
*For a summary of the book, I recommend chapter 8 of Siobhan Chapman. Susan Stebbing and the language of common sense. 2013.
+For some further details see S. Molloy (2006) The Hidden History of Realism: A Genealogy of Power Politics, pp. 64-70. (Molloy treats Stebbing as a historian of science.) In a different work, Peter Wilson (2000) acknowledges the significance and cogency of Stebbing's criticism, but suggests she drew heavily from Leonard Woolf. (I have not been able yet to verify this.)
**This is also quoted in Chapman's book, p. 165.
Yet agreement between Hayek and the dominant strand of liberal theory may not be quite so easily secured. For a great deal turns on what is understood by a modus vivendi, and thought necessary to secure it. For Gutmann and Larmore, a liberal modus vivendi may well involve the growth of the mechanisms of participatory democracy, and need not compromise egalitarian ideals. A Hayekian conception of the liberal order as a modus vivendi, however, would not be of this nature. The conclusion he draws from his social theory is that a liberal order must be ruled by a limited government whose primary task is to maintain the framework within which individuals and groups may pursue their respective aims, regardless of the shape the resulting society assumes.
Rawls, however...explicitly rejects the idea of a modus vivendi. For him, what is needed is a political conception of justice which will command the allegiance of a diversity of moral viewpoints in a pluralist society. Only such a public philosophy which was able to sustain an 'overlapping consensus' of views would ensure social unity in 'long run equilibrium'. A modus vivendi would amount to little more than a temporary truce, in which time the more powerful interests would be able to marshall their forces, later to impose their own attitudes upon all. This contrasts with Hayek who sees social stability as possible only under political institutions which removed social justice from the agenda of politics.
This lack of agreement does not, however, reduce the interest of Hayek's contribution to liberal theory. Indeed, it suggests one way liberals may approach the problem of dealing with differences that divide them: by returning to issues in social theory. His work deserves examination because he draws attention to the need to consider the nature of society and the way in which this constrains our choice of political principles. For, if Hayek is right, many kinds of principles may be ruled out as unworkable. In other words, the circumstances of justice need much more careful investigation than they have been given.
Hayek's endeavours, while they have not succeeded in establishing a coherent liberal philosophy, do push contemporary liberal theory in a promising direction. For they show, first, that the defence of the liberal order need not assume that man is an isolated, asocial, utility maximizer: the defence of liberalism can, and should, be grounded in a more plausible account of man and society. And they suggest, secondly, that, while it will prove difficult to establish philosophical foundations for liberal rights, or a liberal theory of liberty, an understanding of the nature of social processes may offer a surer guide by telling us what kinds of rights and liberties cannot be adopted if the liberal ideal is to survive.-- Chandran Kukathas (1989) Hayek and Modern Liberalism, pp. 227-228. [Emphasis in original]
[If you are impatient you can skip the first four autobiographical paragraphs of today's digression.] Because I never went through a libertarian phase (and where I grew up these barely existed then), I am not quite sure when I first encountered Hayek's name and when I first read him. I do know that when I entered graduate school at age 24, I was aware of some of the features of Hayek's 'knowledge problem' because I briefly tried -- without success -- to get others in my graduate cohort interested in Hayek as an epistemologist in light of Hayek 1945. But I am really unsure how I picked this up. Between college and graduate school I read anything that happened to come my way or encountered in bookstores so I'll leave it to chance.
Because I ended up writing a PhD on Hume and Smith's philosophy of science, I did end up reading some of Hayek's writings on the Scottish Enlightenment. During my PhD, I also read the Road to Serfdom (which left me unmoved) and The Sensory Order (which was astonishing, and I was shocked nobody else I knew had read). But because I was not especially interested in spontaneous order or a deep dive into libertarianism (beyond Nozick) my knowledge of Hayek was superficial.
This started to change near the end of my PhD, around 2001, when the historians of economics, David M. Levy and Sandra Peart, started to invite me to their annual workshop on the preservation of the history of economics. Peart was working on her excellent edition of Hayek on Mill. David knew his Hayek and could easily make him philosophically interesting to me. (Recently David has been sharing his excitement about the development of modal logics by nineteenth century economists who moonlight as logicians!) Through them I met Erik Angner who was very interested in Hayek's theory of cultural evolution (a topic I was then very interested in), and I eventually read his wonderful monograph on Hayek and natural law.
I mention all of this because after I did start reading Hayek, I actually thought of Hayek as a weird Kantian or neo-Kantian. When I first mentioned this to people with a philosophical interest in Hayek this was often dismissed (such people treated him as more as a follower of Hume). So, I was quite pleased back when I read Kukathas' book the first time (about two decades ago) that Kukathas argues for Hayek's Kantianism in great detail (alongside Hayek's debts to Hume). And not surprised when decades later I read Foucault (who historically precedes Kukathas by a decade) on the significance of Kant/Kantianism to Hayek and other neoliberals in his biopolitics lectures.
Anyway, above I quote the final paragraphs of Kukathas' wonderful book, which manages to juggle quite a few balls apparently effortless at once: it is a careful study of Hayek as a systematic thinker; it locates Hayek in debates within liberalism (not the least through a detailed comparison with Rawls) and between liberalism(s) and its/their critics. Along the way, readers also get a judicious account of why it is misleading to treat Hayek as an (indirect) utilitarian. And while Kukathas is respectful of Hayek, as the quoted paragraph suggests, he argues at length that Hayek is incapable of reconciling the Kantian and Humean strands of his own theory.* Okay, so much for set up.
One important contribution of Kukathas' book is to illustrate the value of social theory to political philosophy even among those who think of political philosophy as an 'ethics first' or 'justice first' enterprise. Part of that use is hinted at in the closing paragraphs quoted at the top of this post: first, a social theory provides us with the content in a feasibility or aptness constraint. Let's call this a 'negative use of social theory' in which social theory is used (with a nod to 'ought implies can' perhaps) to rule out or block certain normative theories (or the principles on which they rely) because they are literally impossible for beings like us, once we're more informed about who we are (by social theory). Of course, unrealistic or unfeasible models or theories may still be useful in some way or another -- not the least as paradigms that discipline a field --, so one should not expect to use social theory (which often blends normative and empirical features in complex ways) as a hammer to destroy viewpoints one wishes to reject.
Second, and this is a positive feature, social theory can provide one with a philosophical anthropology that allows one to recast one's political vision and/or normative theories. In Hayek's case this also (third) means that many typical criticisms of liberalism (familiar, say, from Karl Polanyi (who goes unmentioned), Alisdair MacIntyre, various communitarians and Marxists (etc.) are disarmed in advance because the anthropology supplied by Hayek's social theory actually is not the Robinson Crusoe one -- "isolated, asocial, utility maximizing" -- usually criticized by critics of liberalism; if anything Kukathas' Hayek (and I agree) is not very far from Hegel, although as Kukathas notes with some key differences.
But, unless I missed it, Kukathas does not define what he or Hayek means by 'social theory' (something on my mind due to failed efforts to do so while teaching undergrads). Hayek does give us some material to work on this. For example, in (1967) in "Notes on the Evolution of Systems of Rules of Conduct: The Interplay between Rules of Individual Conduct and the Social Order of Actions," Hayek writes the following:
The whole task of social theory consists in little else but an effort to reconstruct the overall orders which are thus formed, and the reason why that special apparatus of conceptual construction is needed which social theory represents is the complexity of this task. It will also be clear that such a distinct theory of social structures can provide only an explanation of certain general and highly abstract features of the different types of structures (or only of the ‘qualitative aspects’), because these abstract features will be all that all the structures of a certain type will have in common, and therefore all that will be predictable or provide useful guidance for action.--p. 283 in The Market and Other Orders, edited by Bruce Caldwell.
On Hayek's view social theory is, thus, engaged in conceptual construction. And it aims to construct what he calls an 'overall order.' (There are distinct resonances here with the morphological project of the ordoliberal, Eucken.) These overall orders are "systems of rules of conduct" which "will develop as wholes" and on which a certain kind of "selection process...will operate on the order as a whole." Now, clearly this conception of social theory is, while capable of objectivity, itself partial to Hayekian projects (he goes on to claim that "of theories of this type economic theory, the theory of the market order
of free human societies, is so far the only one which has been systematically developed over a long period"), so I don't mean to suggest Hayek's idea of 'social theory' ought to generalize to all social theory.
Now, crucially, Hayekian social theory provides one with functional explanations of social order(s). Hayek is very explicit about this on the following page (p. 284). It may require auxiliary sciences to do so (Hayek is discussing the rule of evolutionary social psychology in context). And one way it offers such a functional explanation is to make clear the "interaction between the regularity of the conduct of the elements [or individuals] and the regularity of the resulting structure." (289)
I call it 'Hayekian' social theory because one of the other "tasks" he ascribes to it is to explain the "unintended patterns and regularities which we find to exist in human society." (from Hayek (1967) "The results of human action but not of human design." p. 294 in The Market and Other Orders.) Obviously, that may be incompatible with a social theory that has a different focus, although Marx is clearly interested in features of such a social theory.
So, why do I mention this? Before I answer that let's stipulate that Hayek's social theory is coherent. I have two reasons. First, even coherent, it is not entirely obvious what the status of the fruits of Hayekian social theory are. What kind of impossibility is proven by social theory if it has a Hayekian cast? This is not obvious. (In part this is not obvious because the empirical basis of social theory is not easily disentangled from its normative commitments.) I don't see how Hayekian social theory can rule out orders constructed on principles very different than Hayekian social theory, even if one can suspect that these will not be functional in the way that (say) spontaneous orders will be. This depends on plasticity of humans but also on the possibility of social structures with different kinds of social rules. I don't think this paragraph undermines Kukathas' particular argument because he shows how much Rawls and Hayek agree in their commitments.
Second, Hayekian social theory inherits from 19th century historicism (and some aspects of the Scottish Enlightenment) the idea of social wholes (that are constituted by their system of rules). Now, Hayek acknowledges that (say) a historian or social scientist may well do his or her job without embracing social wholes. His is not an organicist theory, and since social pluralism is -- as Kukathas reveals -- kind of bedrock in his theory it would be odd to attribute organicism to Hayek. However, it is not obvious why in a world constituted by social pluralism of different sorts -- and with non-trivial barriers that would facilitate differential and distinct selection -- we would find such social wholes even in (say) places that share non-trivial social commonalities. If human law or force is part of the selection process we should in fact expect greater diversity. In fact, I am echoing here Hayek's friend, Eucken, who clearly thought that Hayek's expectation of such social wholes was only so in theory, but that in practice one could find a rich diversity of social orders (based on a limited number of morphological elements).
Let me stop there. I don't mean to suggest these are fatal objections to Hayek's theory. But if we look forward to Kukathas' Liberal Archipelago it helps explain Kukathas' non-trivial distance from using Hayekian social theory despite Kukathas and Hayek sharing a deep debts to Hume.
*I should say while I agree with Kukathas' analysis of Hayek, there is wiggle room for a Hayekian. Kukathas acknowledges that Hayek is not especially interested in 'moral justification.' (p.3) But on my reading of Kukathas' argument the Kantian parts that cause trouble for the coherence of Hayek's system (those in his account of the rule of law that enter into his normative claims (p. 19)) all involve such justification.
First of all, it is important to recognize that the basic liberties must be assessed as a whole, as one system. That is, the worth of one liberty normally depends upon the specification of the other liberties, and this must be taken into account in framing a constitution and in legislation generally. While it is by and large true that a greater liberty is preferable, this holds primarily for the system of liberty as a whole, and not for each particular liberty. Clearly when the liberties are left unrestricted they collide with one another. To illustrate by an obvious example, certain rules of order are necessary for intelligent and profitable discussion. Without the acceptance of reasonable procedures of inquiry and debate, freedom of speech loses its value. It is essential in this case to distinguish between rules of order and rules restricting the content of speech. While rules of order limit our freedom, since we cannot speak whenever we please, they are required to gain the benefits of this liberty. Thus the delegates to a constitutional convention, or the members of the legislature, must decide how the various liberties are to be specified so as to yield the best total system of equal liberty. They have to balance one liberty against another. --John Rawls A Theory of Justice, p. 203. {Emphasis added--ES}
At one point, in his marvelous (1989) Hayek and Modern Liberalism, Chandran Kukathas quotes from Rawls' A Theory of Justice in order to illuminate the point that "conflicts among different pursuers of values are best regulated according to principles which respect (the right to) liberty." (p. 147) Kukathas quotes the part I have highlighted and italicized. I want to call this part Rawls' "ordered conception of free speech" stance. (One might also call it 'the rule governed conception of free speech' or the 'transcendental conception of free speech' etc.) And its that highlighted and italicized material that triggered this post.
While Rawls goes on to discuss Mill's On Liberty in the next sections (on freedom of conscience), he does not comment on the fact that the ordered conception of free speech is at variance with the more tumultuous conception of free speech that is usually ascribed to On Liberty. I put it like that because I don't want to perpetuate the error that Mill holds 'a free market in ideas that will lead to truth view' although the marketplace of ideas view is even more frequently (and, as Jill Gordon persuasively argues, mistakenly) attributed to Mill (recall this post); recall also see, for example, here; here, and here.)
One reason to call it Rawls' account an 'ordered conception' of speech is that the value he ascribes to it is articulated in functional terms. One might say that for Rawls the intelligibility of freedom of speech presupposes that it has a certain function namely to produce 'intelligent and profitable' speech (which he may have inherited from Knight--see the second picture). Leaving aside the elitist commitments on display here (and, if one wishes, the generosity toward profit if we read him over-literally), lots of emotionally significant expressive speech clearly is not like that even if it falls short of the vituperative speech that Mill worries about. In fact, this contrast between expression and discussion is explicit on p. 346 in Frank Knight's treatment of some such contrast, and is one of the heavily annotated passages in Rawls' copy of The Ethics of Competition.*
The following is from p. 352 in Knight:
Now, before I continue, I do not want to claim that Rawls thinks governments have very broad scope to regulate speech to make it 'intelligent and profitable' or to promote the ordered conception. He may well also believe that this would be imprudent or, that the enforcement of speech restrictions, would generate concerns about violations of other liberties (privacy, assembly, freedom of conscience, etc.). And he may also think that when the government regulates speech it really is interested in content and not order (and so cannot be trusted to get this right). In fact, in A Theory of Justice Rawls is by and large not that interested in freedom of speech. But one can see why the functional significance of the ordered conception lends itself well to the rather extensive speech restrictions (in selling financial instruments, in selling pharmaceuticals, in selling tobacco, etc. ) which are quite common in the contemporary administrative state (and often ignored in recent public debates over woke and freedom of speech).
As an aside, I don't mean to satirize the ordered conception of speech. It clearly has debts to Knight's and Buchanan's diverging conceptualizations of liberalism as involving "democracy as government by discussion" that was, as I have suggested above, have been familiar to Rawls. (I also think one can extract the ordered conception from Mill's writings on representation.) I am myself not immune to the pull of the ordered conception of speech in some contexts. For example, it informs my own views on academic freedom which fundamentally involves ordered speech of different kinds (in journals, the seminar room, etc.) I also tend to suspect (echoing Iris Marion Young) that advocates of deliberative democracy and (closer to Rawls' own heart) public reason tend to be (dangerously) enthralled by the ordered conception of speech.
Be that as it may, if one works with the revised (1990) edition of A Theory of Justice, the ordered conception is less pronounced. In fact, the passage is re-written in non trivial ways. Among the most significant changes, the revised version of the passage removes 'intelligent and profitable" and the distinction between rules of order and rules on content altogether:
First of all, one must keep in mind that the basic liberties are to be assessed as a whole, as one system. The worth of one such liberty normally depends upon the specification of the other liberties. Second, I assume that under reasonably favorable conditions there is always a way of defining these liberties so that the most central applications of each can be simultaneously secured and the most fundamental interests protected. Or at least that this is possible provided the two principles and their associated priorities are consistently adhered to. Finally, given such a specification of the basic liberties, it is assumed to be clear for the most part whether an institution or law actually restricts a basic liberty or merely regulates it. For example, certain rules of order are necessary for regulating discussion; without the acceptance of reasonable procedures of inquiry and debate, freedom of speech loses its value. On the other hand, a prohibition against holding or arguing for certain religious, moral, or political views is a restriction of liberty and must be judged accordingly. Thus as delegates in a constitutional convention, or as members of a legislature, the parties must decide how the various liberties are to be specified so as to give the best total system of liberty. They must note the distinction between regulation and restriction, but at many points they will have to balance one basic liberty against another; for example, freedom of speech against the right to a fair trial. The best arrangement of the several liberties depends upon the totality of limitations to which they are subject.--John Rawls A Theory of Justice, Revised edition, p. 178. {emphasis added--ES}
I suspect part of the change of wording is due to that it is easy to abuse a purported restriction on order as a restriction on content. For, while officially dropping the distinction, the revised version leans into denying the government any significant content restrictions, by adding the point that "a prohibition against holding or arguing for certain religious, moral, or political views is a restriction of liberty." But as the highlighted part suggests, even so, the crucial element of the ordered conception of speech does remain in the revised version.
Let me close with a sociological observation. Despite the fact that advocates of public reason and deliberative democracy, which lean heavily on conceptions of ordered speech, have thriving research programs (and the former is very indebted to Rawls), it is safe to say that Rawls' conception of freedom of speech has not been as influential as other parts of his project. I have three kinds of evidence for this claim: first, in Katrina Forrester's In the Shadow of Justice, freedom of speech barely figures. (Of course, civil disobedience does!) Second, the emphasized and italicized parts of the passages are quoted very rarely in the secondary literature (although I found it in a few dissertations especially). Third, it is my perception that in scholarly and more public intellectual discussions of free speech, Rawls' shadow has not, displaced Mill. Obviously my perception counts for nothing, but I would be amazed if data crunchers could show otherwise.
*PS After reading an earlier draft of the post, David M. Levy was kind enough to share some marking up of Rawls' personal copy of Knight's The Ethics of Competition (which has Knight's earliest use of 'government by discussion' as I learned from the paper by Ross Emmett linked above). The fact that Knight treats the rules of discussion as game is important evidence for Forrester's argument on the early Rawls' interest in what is now known as neoliberalism. For some other salient to the present post's passages see these pix:
From p. 343:
What, in short, we wish to do is to dispense with 'things'. To 'depresentify' them. To conjure up their rich, heavy, immediate plenitude, which we usually regard as the primitive law of a discourse that has become divorced from it through error, oblivion, illusion, ignorance, or the inertia of beliefs and traditions, or even the perhaps unconscious desire not to see and not to speak. To substitute for the enigmatic treasure of 'things' anterior to discourse, the regular formation of objects that emerge only in discourse. To define these objects without reference to the ground, the foundation of things, but by relating them to the body of rules that enable them to form as objects of a discourse and thus constitute the conditions of their historical appearance. To write a history of discursive objects that does not plunge them into the common depth of a primal soil, but deploys the nexus of regularities that govern their dispersion.--Michel Foucault (1969) "The Formation of Objects" chapter 3 in The Archaeology of Knowledge, translated by A.M. Sheridan Smith [1972], pp. 52-3 in the 2002 edition.
More than thirty years ago there was a buzz around Foucault and 'social constructivism' on campus. I don’t think I was especially aware of what this was about, but along the way I took a course in the ‘experimental college’ (a relic from the campus turmoil of an earlier generation) where I was introduced to the idea by way of the classic, The Social Construction of Reality: A Treatise in the Sociology of Knowledge by Peter L. Berger and Thomas Luckmann, then twenty five years old. (It was published in 1966.)
I never got around to reading Foucault as an undergraduate, but I was in graduate school studying with Martha Nussbaum when her (1999) polemic against Butler appeared. (I assume the essay was triggered by the second edition of Gender Trouble, but I am not confident about it.) This essay has a passage that nicely sumps up the general attitude toward Foucault that I was exposed to:
I was not nudged into reading Butler’s Gender Trouble during my graduate research (eventually when I became an instructor my own broad eduction started). However, I was confronted with the recent prominence of French postmodernist thought in works that now would be classified as foundational to STS, but that I was reading in virtue of my interest in the history of science such as Pickering’s The Mangle of Practice, which could generate heated debate among the PhD students. What made those debates frustrating was that we lacked distinctions so we often would talk passed each other.
A good part of those debates died down and were, subsequently domesticated after the publication of Hacking’s (1999) The Social Construction of What?, which we read immediately after it appeared. Hacking didn’t settle any debates for us, but allowed us to do more sober philosophy with it and while I do not want to credit him solely without mention of Haslanger, his book certainly contributed to the normalization and disciplining of the debate. Hacking and Haslanger also visited shortly thereafter, and so could ask for clarifications. Interestingly enough, in that book Hacking treats Foucault as a constructivist in ethical theory akin to Rawls, although he notes that others (Haslanger) treat Foucault as an ancestor to the idea that reality is constructed 'all the way down.'
As regular readers know my own current interest in Foucault is orthogonal to questions of construction. But I was struck by the fact that in his Foucault: His Thought, His Character, Paul Veyne treats Foucault fundamentally (not wholly without reason) as a Humean nominalist (and a certain kind of Nietzschean skeptic). And, in fact, the nominalism is itself exhibited by a certain kind of positivism about facts. (Deleuze might add quickly: a positivism about statements.) Veyne is not a reliable guide to matters philosophical, but I wondered if Foucault’s purported social constructivism was all based on a game of telephone gone awry in translation and academic celebrity culture.*
Now, if we look at the passage quoted at the top of the post, we can certainly why Foucault was treated as a social constructivist. The first few sentences in the quoted paragraph do look like a form of linguistic idealism. And this sense remains even if one has a dim awareness that the passage seems primarily directed against a kind phenomenology [“presentify” is clearly an allusion to Husserls [Vergegenwartigung]], even (perhaps) trolling Heidegger (“primal soil”).
However, the point of the passage is not ontology. It’s method. (No surprise because that is sort of the general aim of the Archeology of Knowledge.) And this, is in fact instructive of Foucault’s larger project. In the passage, Foucault is, in fact, explaining that he will try to leave aside questions of ontology in his own project. This is not to deny he is interested in what we might call epistemology. But the epistemology he is exploring is what one might call discursive authority. And the effect of such authority is “the regular formation of objects that emerge only in discourse.” (emphasis added).
In fact, Foucault here is not far removed from Quine (but in a way to be made precise). In one of the most Whitehead-ian passages of Two Dogmas, Quine writes: “The physical conceptual scheme simplifies our account of experience because of the way myriad scattered sense events come to be associated with single so-called objects; still there is no likelihood that each sentence about physical objects can actually be translated, however deviously and complexly, into the phenomenalistic language. Physical objects are postulated entities which round out, and simplify our account of the flux of experience.”
Now, don’t be distracted by Quine’s ‘sense events’ or empiricism. For, what Foucault is interested in is the manner by which (to quote Quine again) ‘myriad scattered sense events come to be associated with single so-called objects.’ In particular, (and now I am back to Foucault) “the body of rules that enable them to form as objects of a discourse.” This body of rules is characteristic of an authoritative discipline. And in particular, Foucault is interested in what the social effects are of simplifications produced by postulated entities in the human sciences on these sciences and larger society. I don’t mean to suggest this is Foucault’s only game. He is also interested in the social structures that stabilize the possibility of semantics across disciplines in a particular age.
To be sure, in Quine the epistemology of discursive authority is only treated cursory (in the context of regimentation). Whereas Foucault is focused on how the sciences acquire and constitute (even replicate) such authority. But that is compatible with all kinds of ontologies in Quine’s sense or, to be heretical for a second, a metaphysically robust realism; notice Foucault’s own hint of a ‘rich, heavy, immediate plenitude.' One will not get more than hints from Foucault on what his answers might be to the kind of epistemological or metaphysical questions we are trained to ask. That, of course, is a feature not a bug of his project.
*As an aside, we can see the shifting perspectives on Foucault's role in social constructivism in Philosophy Compass review articles. Back in 2007 Ron Mallon treats Foucault as a kind of fellow-traveller of social constructivism:
By contrast, Ásta, writing in 2015, treats Foucault (quite rightly) as a source for Hacking's account of the The looping effect which "is the phenomenon where X is being described or conceptualized as F makes it F." And then notes that "scholars disagree over whether Foucault himself allows for a role for epistemic reasons or whether the development of institutions and cultural practices is determined by power relations alone3 should not commit us to the view that the only force of human culture is power. " Here in a note Ásta cites not Foucault, but Habermas' famous criticism in ‘ Taking Aim at the Heart of the Present’. Cf. Nussbaum's hedged on this very point in the passage quoted above.
Especially early modern explanations seem to construe the mind as something that is tucked away in a body and thus inaccessible by other minds. If this is correct, how could we even begin to think of a way that my thoughts influence yours? Are there ways of transmission or other modes of influence between different minds? I would like to call this the contact problem. Intersubjective explanations, it seems, must specify ways in which one mind can affect another mind. As I will argue, at least some early modern philosophers addressed this problem and provided intersubjective accounts of the mind. What is more, they relied on different models of intersubjectivity. To present three different but crucial explanatory models, I will focus on Spinoza, Locke and Hume: Spinoza will be shown to opt for a metaphysical model, Locke as resorting to a linguistic model and Hume as relying on a medical model that combines assumptions about contagion and sympathy.
Before we take a brief look at these models, let us take a step back and look at the contact problem again. Taking human minds as individual units hidden inside a body suggests that a direct contact between minds is impossible. I can tell you what I think, but in doing so, it’s not my thought that is transmitted. Getting at the thought seems to require an inference on the part of the listener. By contrast, if I endorse a view of the mind that takes mental states to be ingrained in behaviour, such that my mental states are not hidden but part of behavioural patterns, then my mind does seem to be more directly accessible. It seems, then, that the contact problem poses an enormous obstacle for the former but not for the latter view of the mind. On this assumption, intersubjective explanations work well in a behavioural view of the mind but not on what has been called “mentalism”. Martin Lenz (2022) Socializing Minds: Intersubjectivity in Early Modern Philosophy (Oxford University Press), pp, 93-4 (emphases in original)*
I have to admit that when I first started to read Lenz's very entertaining Socializing Minds, I was a bit dubious about the so-called contact problem. It seemed to me, and sometimes still seems to me, an artifact of behaviorialism and some of Ryle's more dubious historiographic moves (which, alas, he was not immune to). But because Lenz's book is so much fun -- it mixes contemporary insights with very erudite and clearly written history of philosophy in refreshing ways easily moving between Avoerrism and memes-- I decided to revise my view. Reflecting on the contact problem is generative and so (by my lights) cannot be a mere artifact (which are sterile).
I have to admit that I don't understand why inference is thought to be a barrier to contact -- the contact problem seems to be rather the no unmediated contact problem --, but obviously for the contact problem to have real bite, by inference here (in this context) is meant something like 'not truth preserving' inference or distorting. And clearly it's true that many if not most early modern philosophers thought that language and other mechanisms of social contact are distorting of reality (and don't do full justice to our ideas of it). Lenz shows that despite this commitment, Spinoza, Locke, and Hume have different kinds of theories in which our minds are, de facto, dependant on other minds, although -- he may disagree with this -- the effect is that in interacting with others the vulnerability to embracing the false remains. (Perhaps, in Locke the vulnerability is also simultaneously the grounds for possibility of reaching some truths. About that some other time.)
Anyway, that the no contact problem seems so much an artificat of behavioralism made me wonder if one couldn't generate it in an alternative framework. This made me consider whether there are circumstances in which no contact is desirable. I immediately thought of Condorcet's Jury theorem which, formally, requires that voters do not communicate with each other and make up their own minds on a decision problem. Without such independence the result that (with rather weak assumptions about human nature) more folk do better than fewer would be unsurprising (and not so unsettling to the elitist and hierarchical mindset).+ Of course, the formation of Rousseau's general will also requires such independence.
Now, while Rousseau's account of the general will has non-trivial formal similarity with Condorcet's jury theorem -- and I would be amazed if it didn't shape Condorcet's thinking --, it is worth signaling that the nature of their independence pushes in different directions: (i) and skating over many interpretive disputes, in Rousseau's general will set up, independence is really designed to create a kind of impartiality not tainted by self-interest (and irrelevant personality features). And this is why this kind of independence is compatible with a kind of representative agent approach (familiar from, and perhaps an ultimate source of, Rawls' original position).
A representative agent approach would undermine the force of the Condorcet jury theorem; in it independence is really about a kind of authenticity of one's judgment. Other minds are corrupting (because they undermine independence). Now, I don't mean to deny that the previous two sentences are things Rousseau himself might say. I am just trying to track a conceptual distinction. (To be sure I think both directions have roots in Spinoza's debts to stoicism--but about that in a future post.)
That is, the no contact problem is no problem in two contexts: first, one requires or needs authentic judgments that give each of us weight. That is, if one takes democracy seriously. (And lurking here are also protestant ideas about conscience that I have not touched upon above.) Second, one is dealing with a decision problem that is best handled by an impartial agent that represents (the true interests of us) all. That is, if one takes a certain species of objectivity/impartiality seriously. Put like that the two sources of the desirability of no contact seem to be a feature and not a bug of a certain conception of modern political life. And so, to put it as a serious joke, Wittgenstein and Ryle are untimely.
*Full disclosure: I am one of the invited 'critics' to comment on Lenz's book in Budapest.
+I am not claiming here all the assumptions of the jury theorem are salient in real political life!
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