Introduction II: Feldman and Others
Professor William R. Long
September 2, 2004
These notes consist of the things I think are especially important for you to have learned from the previous class as well as highlights of the reading for today. In addition, I will present my way of organizing the material, which differs somewhat from Feldman's treatment, though his basic structure of pre-modern, modern and post-modern is helpful. NOTE--this first week of class is a broad sweep of history; I normally do not treat history this way because the "overview method" is so impressionistic. And, I won't do so after today. Yet, I think it is helpful to try to get the "big picture" before we descend into more focused questions.
I. Review. Let me state the focus of my approach to Jurisprudence in different words than I used on August 31. It is to understand significant people, movements and ideas in the history of Western thought and the Anglo-American legal tradition that help us give shape to the definition of jurisprudence I worked through with you. Tuesday's class was an introduction, only. Along with the class on 9/2 it will introduce leading terms and people whom we will revisit in more detail as the semester progresses.
In that regard, the eight things I think you ought to know about from class on 8/31 are: (1) the three-pronged definition of jurisprudence, with illustrations for each of the three prongs; (2-3) the two significant movements in American thought which Patterson points to (Langdellian formalism, American legal realism); (4-6) the three important people whom Patterson identifies as providing the intellectual contect for post-modernism to emerge (Kuhn, Quine and Wittgenstein); (7) the division of Western history into the basic structure of pre-modernism, modernism and post-modernism, and (8) Patterson's attempt to apply his ideas to the illustration he gives from Karl Llewellyn. When I say you should "know" these 8 things, it means you should be able to write a paragraph on each of these things/people.
II. Feldman's Characterization (pp. 11-48). In my judgment, both Patterson's article and Feldman's chapters lend indirect, though unwitting, support to my notion that mini-essays are the way to go. They write longer than mini-essays and get tied up in their words or their ideas. Feldman's basic structure is sound, but his treatment of pre-modernism is miserable, his work on modernism is passable and his treatment of post-modernism is exceptionally good. I even shuddered a bit when I read him for the first time in 2002 (the book was publishsed in 2000) and saw his mention of terrorism as the way the world might go (pp 47-48). I think he reads terrorism incorrectly, as the gasp of post-modernists who have abandoned the quest for meaning, rather than as a religiously and culturally-inspired phenomenon, but his insights there are, nevertheless, striking.
A. Feldman (and Prof. Long) on Premodernism. Feldman is quite unhelpful. He is operating off scholarship from the 1950s here that tried to characterize the difference between the "Greek" and "Christian" worlds as the difference between a cyclic view of history and a telelogical (or eschatological) view. It needs to be more nuanced than that. Suffice it to say for our purposes that I would like you to know about Plato (whom we will study at length) and Aristotle (three of whose works I will introduce). The important point to note from ancient Greece is the positing of an eternal and unchangeable realm, called the Forms, which provide the basic categories for thought. There will be the Forms of Justice, of Beauty and the Form of the Good, which the philosopher, for Plato, views and then communicates to the world. Aristotle is more willing to see the instantiation of the Forms in the actual processes of life, which caused him to be more interested in things like natural history and actual state constitutions than Plato.
Christianity does bring it its wake a major change in Western thought. It is messianic, it posits a personal God rather than either wily Olympian divinities or abstract philosophical principles, and it has a hope for a Kingdom of God which Augustine (354-430) articulates in a passage Feldman quotes. What he doesn't say is that the history of Christian thought in "pre-modern" times is rife with efforts to try to integrate Christian theology and Greek philosophy. For example, Augustine was a Neo-Platonist before he becomes a Catholic Christian, taking his inspiration from the works of the 3rd century Alexandrian philosopher Plotinus. Aquinas, however (1225-1274) tried to integrate Aristotelian philosophy and Christian faith, and is a chief mover in the rediscovery of Aristotle in the West which began in the early 13th century.
Let's say that pre-modernism is the period before the Protestant Reformation (when was that, by the way?), that posited not simply the existence of God but believed that principles of justice, law and all thought should be derived from the Scriptures and Plato and Aristotle's metaphysical writings. The attempt to relate all life to a religious center is, I would argue, not just a "pre-modern'" phenomenon; it finds its current-day expression not necessarily in those who want to consider religion central in their lives but who want to take seriously the use of their religious traditions (usually Christianity or Islam) to shape their legal theory.
III. Feldman (and Prof. Long) on Modernism. Since he is getting better here, I only want to indicate where he and I differ in emphasis and which people are particularly important for you to know. Feldman posits the beginning of modernism in the Protestant Reformation and especially in Calvinist theology (John Calvin--1509-1565). Though he muddles his treatment by appealing to paradox a bit too often, I think four points of significance in the Protestant Reformation are: (1) the questioning of authority--religious and, eventually, political; (2) the emphasis on other sources of authority residing in the human mind, either through principles of reason (Descartes) or empirical investigation (Locke); and (3) the secularization of the idea of progress; and (4) the growing emphasis on the significance and sacredness of the individual (culminating, perhaps, in the Declaration of Independence). That is, characteristic of modernism is a sense of movement or direction to history, fueled by human achievement rather than divine revelation or the inevitable course of history toward the Kingdom of God. I would place more emphasis on the Enlightenment of the 18th Century, especially in France, as the source for most of these ideas, though certainly it is true that the Calvinisitic emphasis on the uncertainty of salvation (I will mention this in class--the treatment of which Feldman botches) probably did have a large influence in developing a worldliness and secularity that influenced the 18th century thinkers. Calvinistic influence is especially evident in that most Calvinist (and rich, because of the Dutch East India Company) country or region, 17th century Holland, and the tension between the beauty of the secular and the allure of the sacred is most present (and this is my insight) through a comparison and contrast of two 17th century Dutch artists, Vermeer and Rembrandt.
This is taking us a bit far afield from law, though it does give us insight into why the first treatise on international law is by the Dutchman Grotius and the first discussions of rights in law only comes in the 18th century.
III. Feldman (and Long and Litowitz) on Post-modernism. I really cannot improve on either treatment, other than to note that I think the work of Werner Heisenberg in the 1920s, rather than the Holocaust or simply the three influences identified by Patterson, was responsible for creating in the Western mind a sense that the seemingly mechanical certainties of a Newtonian science needed to be replaced with a system of relativistic dynamics. I think Feldman's identification of Gadamer and Derrida and his eight features of Post-modernism are worth learning. In addition, I will call on those of you who read Litowitz to go through his features and then we can compare the two to get a sense of what they both mean by the term "post-modernism" which, by the way, was only introduced into the English language in 1979.
IV. Long on an Additional Issue. I think that Feldman's treatment of post-modernism, though helpful, is itself too teleological. It seems to buy into the model that the world, which has become secularized (that is, the officials and respected professions of our world look for non-divine causes of things, and gives explanations that are not derived from theology), inevitably must become more so. I believe that we are such a culture, but that the staying power of religion has been underestimated not only by Feldman but by most other jurisprudential thinkers. They still are operating off a model of gradual secularization, which comes out of the post-WWII scientific culture. What is happening is, I believe, much more complex, and will bear jurisprudential fruit increasingly as certain forms of religion (especially Protestant Evangelicalism) want to assume a more central role on the public stage.
Phew....enough for a day.
Copyright © 2004-2007 William R. Long