Philosophy.Com

Edward Said: due consideration

Edward Said is dead.
A recent interview.

The debate Said launched about the relationship between the Western world and the East, and how the West sought to transform aspects of its imagination into power over the East through the process of Orientalism is still alive. Thus, our current Western understandings of Islam are structured by a history of racism, colonial interests and antipathy.

My intellectual relationship to Said's texts has less to do with his Palestinian writings, and more to do with his earlier texts on Orientalism. I sort of code Samuel P. Huntington's Clash of Civilizations thesis into Orientalism on the grounds that Huntington argues that the underlying problem for the West is Islam, not Islamic fundamentalism.

So I'm not that suprised by the conservative rejection of Said's work. It's pretty predictable, given that Said maintains that Orientalism is alive and entrenched in the culture of the Anglo-American liberal democracies. This enframes Islam as being responsible for bin Laden and other terrorists who hijack their religion whilst the sterotype of militant Islam is used as a justification for wars against Afghanistan and Iraq, and for threatening wars against Iran and Saudi Arabia. Hence, this conservative reaction at Winds of Change. The link is courtesy of Bargarz.

Winds of Change is hostile to Said. The text says that:

"Said was not interested in advancing scholarship, but only anti-Western polemical screeds, being mostly content with hurling vitriolic and malicious invective against past and present Orientalists, such as Silvestre de Sacy and Bernard Lewis."

Winds of Change gets to this point in 3 easy steps. First it defines scholarship in a quasi-Popperian manner. This is interpreted as:

"...pursuing knowledge in a systematic, scientific manner is good scholarship. There is an excellent reason for this - the frontiers of human understanding are advanced only by modifying or discarding theories that fail to explain reality in favour of those that do. In other words, it takes a theory to beat a theory. In intellectual circles, this has become the obvious standard against which the quality of scholarship is held."

Having set up the criteria for good scholarship Winds of Change then says that nowhere did:

"...Said introduce a new way of thinking about the Arab world; nowhere did he provide an alternative, superior theory and framework that contained none of the alleged defects of Orientalist theories."

And ipso facto Said was not doing scholarship. Hence it can only be politics or polemics. And that deductive argument proves what is assumed in the first place: namely, that the academic left has dumped scholarship for politics. Such is the way that academic gatekeeping works.

I say conservative because Winds of Change uses Popper to reject deconstruction (note the scare quotes) and the field of post-colonial studies (note the scare quotes again) without even considering whether the humanities work in a different way to the social sciences. Hence the humanities are reduced to a quasi-science without any attempt at providing a justification for the move. There is philosophical chasm here and it cannot be ignored or glossed over by gatekeeeping. The chasm needs to be addressed.

Keith Windschuttle is more aware of the philosophy involved in such a reductionist move. He sees the entry of the discourse of Orientalism into Australia through the art institution--Windschuttle mentions the Art Galley of NSW's exhibition Orientalism:- Delacroix to Klee. The exhibition was curated by an Australian scholar and a catalogue was produced that fits comfortably and easily into the literature on Orientalism and art.

So we can judge what Windschuttle has to say about the philosophical chasm. We will show that the chasm is not bridged at a philosophical level.

Windshuttle starts in a scholarly manner. He acknowledges that Edward Said looms large over the current cultural landscape due to Orientalism, and that he holds sway over the literary criticism of the nineteenth-century novel as a result of Culture and Imperialism. So he acknowledges that Said is an influential intellectual figure.

Windshuttle then says that in Orientalism Said makes three claims:

"The first is that Orientalism, although purporting to be an objective, disinterested, and rather esoteric field, in fact functioned to serve political ends. Orientalist scholarship provided the means through which Europeans could take over Oriental lands......

His second claim is that Orientalism helped define Europe's self-image. It has less to do with the Orient than it does with our world. The construction of identity in every age and every society, Said maintains, involves establishing opposites and Others.....

Thirdly, Said argues that Orientalism has produced a false description of Arabs and Islamic culture. This happened primarily because of the essentialist nature of the enterprise, that is, the belief that it was possible to define the essential qualities of Arab peoples and Islamic culture. These qualities were seen in uniformly negative terms, he says. The Orient was defined as a place isolated from the mainstream of human progress in the sciences, arts, and commerce."

Windschuttle acknowledges the antecendents of Orientialism. The content is there in the earlier texts of the French Coptic socialist author Anwar Abdel Malek and the notion of discourse in work of Michel Foucault, the French poststructuralist. Windshuttle also acknowledges that Said scores some hits. But none of these, says Windschuttle, "...are sufficient to sustain Said?s thesis. It is not difficult to show that each of his three main claims about Orientalism is seriously flawed."By seriously flawed Windschuttle means that the three claims are untenable. Orientalism is built on a house of cards. WindshUttle says that:

"Said's whole attempt to identify Oriental Studies as a cause of imperialism does not deserve to be taken seriously .... nowhere else does Said provide an analysis of the thoughts and reasons of the imperial decision-makers at the time they actually entered upon Europe?s Oriental adventures. At most, Said establishes that Orientalism provided the West with a command of Oriental languages and culture, plus a background mindset that convinced it of its cultural and technological advance over Islam. But these are far from sufficient causes of imperial conquest since they explain neither motives, opportunities, nor objectives...Apart from Foucault's grandiose hypothesis that knowledge always generates power, Said provides no support at all for his contention that colonial rule was justified in advance by Orientalism, because he fails to cite evidence about the actual causal sequence that led to the annexation of any of the territories occupied by England or France in the nineteenth century."

The assumption here is that Said is doing history as social science and providing causal explanations of particular events, namely European colonialism. But Said comes up short with empirical evidence and so he fails.

Is the assumption plausible? No. We return to the philosophical chams mentioned above. Said is concerned with meaning not explanation. He is constructing the interpretive meaning of a diverse range of texts into a particular discourse---what Windshuttle calls a background mindset---not citing evidence for the actual casual sequence. This is history as the interpretation of texts and not history as a postivist social science. There's the chasm.

Windschuttle says Said's second claim has just as little to recommend it. He says:

"The notion that Western culture has needed an ?Other? to define its own identity derives from the structuralist version of Freudian theory that became prominent in France in the 1960s...This is a central concept of Said?s thesis but, unfortunately, it leads him into a direct contradiction with one of his core methodological dicta: his rejection of essentialism. In the afterword to the 1995 edition of Orientalism, he ... says [his] own approach is ?explicitly anti-essentialist.? It is difficult, though, to reconcile this assertion with the way he characterizes Western identity. He argues that, from its origins, the West?s self-concept was defined by its opposition to Asia...the claim that every culture needs to be defined by an Other... is not an historical statement at all, but an epistemological assumption derived from structuralist theory... Europeans do not primarily draw their identity from comparisons with other cultures. Instead, identity comes from their own heritage... Western identity is overwhelmingly defined by historical references to its earlier selves, rather than by geographical comparisons with others. To claim otherwise is to deny the central thrust of Western education for the past one thousand years."

We encounter another philosophical divide. Said is not working with a a self-identity of a self-contained thing. He is working with a revised--non essentialist---Hegelian relational identity, in which identity comes through the ongoing development of relationships. The classic example is Hegel's old Master/Slave dialectic in the Phenomeology of Spirit. Wha this means is that the West defines itself in relation to Islam; ie., to what it is not. There is a long historical and mostly antagonistic relationship between Western nations and Islamic ones. Windshuttle is assuming the former analytic-empiricist conception of identity is the only conception of identity. Hence he is displacing continental philosophy from Hegel to Foucault, rather than engaging with it.

Windshuttle says that the third component of Said's thesis, the allegedly false essentialism of Orientalism not only contradicts his own methodological assumptions, but is a curious argument in itself. Windschuttle is making two points here. He says that it is a curious argument because going "back to the origins of a culture to examine its founding principles is hardly something to be condemned." True. But origins is not the only pathway since there is also the structural relationship between the West and Islam as civilizations. Maybe we can redescribe this origins/stucture conflict in terms of needing to work with the historical development of the relationship between the West and Islam and the Oriental discourse.

On the second methodological point Windschuttle says that:

"Said would be right to complain were Western ideas about Islamic peoples confined solely to stereotypes derived from their founding texts and early history. But it is simply untrue that the whole body of Oriental scholarship has made this kind of mistake....Anyone who takes the trouble to read the one book he favors, [Maxime Rodinson?s] Islam and Capitalism, will find it actually tells a different story... A large section of the book is a debate with, and critique of, those Western economists and their Muslim allies who do not, in fact, see the Arabs as having an inherent incapacity for trade, but instead regard these societies as capable of adopting capitalist commerce and industry. He discusses in some detail the work of six economic commentators who expressed views of this kind between the 1910s and the 1950s. Though Rodinson agrees there are many observers who share the assumptions identified by Said, and though his main aim is to see Islam adopt socialism, the evidence of his book is a clear refutation of Said's sweeping generalization about Orientalist economics. "

Now I have not read this section of Orientalism for a long time. But I read the effect of Rodinson's Islam and Capitalism differently to Windschuttle. I interpret Rodinson's text differently, in the sense that this text creats a rupture with the discourse of Orientalism---it transgresses the limits of this discourse by recovering the diverse voices that were contrary to the discourse of Orientalism. The power/knowledge regime of Orientalism creates resistance and different readings --it is not monolithic as Windschuttle assumes. That the field has always included a multiplicity of issues coming under the jurisdiction of many general disciplines does not negate the existence of a particular discourse of Orientalism.

What I have tried to show is the failure of a philosophical engagement across a philosophical chasm. It is an old and familiar story: both sides on either side shouting past each other. None of this is to suggest that one side is right and the other wrong: it is to show the lack of engagement at the level of assumptions: one that basically derives from Windschuttle's embrace of David Stove; his empiricist conception of the accumulation of knowledge based on bits of empirical data to counter the relativism of truth; and his disdain and contempt for a "subjective" hermeneutics.

And, in the last part of his article, Windschuttle does not go on to engage at a philosophical level. Instead he turns his attention to attacking Said's politics. But he has another go at Said herein relation to Culture and Imperialism for those interested.

It really feels like the revisiting the 1960s all over again with this conservatism. Windschuttle has gone back to there to find the tools to fight the academic left and more particularly the poststructuralist enemy who killed history and are now engaged in a total critique and indictment of Western culture.

Meditations#2

This post relates to this one.

In this passage by Marcus Aurelius is from Bk 6 of The Mediations. He is reflecting on who he as a Roman emperor and giving himself a warning not to be fooled by the trappings of public office.

"Take care that thou art not made into a Caesar, that thou art not dyed with this dye; for such things happen. Keep thyself then simple, good, pure, serious, free from affectation, a friend of justice, a worshipper of the gods, kind, affectionate, strenuous in all proper acts. Strive to continue to be such as philosophy wished to make thee. Reverence the gods, and help men. Short is life. There is only one fruit of this terrene life, a pious disposition and social acts. Do everything as a disciple of Antoninus. Remember his constancy in every act which was conformable to reason, and his evenness in all things, and his piety, and the serenity of his countenance, and his sweetness, and his disregard of empty fame, and his efforts to understand things; and how he would never let anything pass without having first most carefully examined it and clearly understood it; and how he bore with those who blamed him unjustly without blaming them in return; how he did nothing in a hurry; and how he listened not to calumnies, and how exact an examiner of manners and actions he was; and not given to reproach people, nor timid, nor suspicious, nor a sophist; and with how little he was satisfied, such as lodging, bed, dress, food, servants; and how laborious and patient; and how he was able on account of his sparing diet to hold out to the evening, not even requiring to relieve himself by any evacuations except at the usual hour; and his firmness and uniformity in his friendships; and how he tolerated freedom of speech in those who opposed his opinions; and the pleasure that he had when any man showed him anything better; and how religious he was without superstition. Imitate all this that thou mayest have as good a conscience, when thy last hour comes, as he had."

This is a different way of looking at public office than many professional politicians in liberal democracy. They see political power in term of a career, hunger for the trappings of Ministerial office, enjoy being surround by courtiers and prone to abuse their power by humiliating others. More often than not they give vent to their anger, use their power to seek revenge for past wrongs, and seek self-aggrandisement.

Few of us would have any understanding of the spiritual exercises practiced by Marcus Aurelius, the Stoic philosophy behind the exercises, or the purpose of philosophy as a way of life.

becoming one people

One way to find our way into the thicket of the relationship between the Australian constitution and citizenship is with Chief Justice Murray Gleeson's recent Boyer lectures. What better guide than a Chief Justice, who understands the tensions between federalism, democracy and responsible government? What better place to look than a popular lecture series on the Constitution that addresses his fellow citizens on a text that structures our political being?

The second Boyer lecture is promising as it is entitled Becoming One People. In his account of the movement to federation in 1900 Gleeson mentions republican sentiment, Australia being part of the British Empire and the White Australia Policy. All these circle around citizenship

So we can ask: We became one people and a multicultural nation but did we become citizens? That is the question being posed to Gleeson's text. It is a reasonable question because this lecture is sketching a picture of greater changes in public policy over the 20th century. It is offering us an account of the history that has made us who are today.

And what does this text tell us?

It mentions the big public policy changes such as a less exclusive immigration policy and a national fiscal policy. But no citizenship. Yet somewhere in the 20th century we Australians shifted from being British subjects to Australian citizens. Is that not a momentous change in political language?

Gleeson does address one of the intractable problems of a written Constitution:

"It is designed and interpreted by people who know they cannot foresee all the changes in circumstances that will affect its practical operation. It is meant to last far into the future; and it is meant to be difficult to change. Insofar as it is expressed to reflect the values of its framers, or insofar as it is interpreted to reflect the values of its interpreters, those values, at least in some respects, are certain to be different from those of future generations. This makes it important to distinguish between values and fashions. Some values are enduring, and others change over time. Fashions alter rapidly. A constitution in some respects necessarily reflects the values of its time, and the legal capacity to interpret and apply it in a manner reflecting changed values may depend upon the flexibility of its language. But it can never be interpreted and applied according to fashion. Acts of Parliament may sometimes reflect a passing trend, but they are relatively easy to change. A Constitution is an instrument of a different order."

Citizenship is more an enduring value than a fashion. So we need to develop the capacity to be able to interpret and apply the language of the Constitutional text in a manner reflecting the changed values of becoming Australian citizens.

What then is this language? Gleeson does not explicitly say. He says that the process of federation:

"...was not simply a question of deciding to form a union. A federation requires formal written agreement upon the terms of a constitution. Important issues of principle had to be settled, and the settlement had to be expressed in a legal form that would constitute an instrument of government. As has been noted, it was to endure into a future that was certain to be different in many respects from the context in which it was being written."

Nothing about citzenship. It looks increasingly like it is the hollow centre.

However, Gleeson promises that his future lectures will examine some of the terms upon which the people of Australia agreed to unite. Surely one of those terms would have to be citzenship? If the people of Australia agreed to unite were they not acting as good citizens? Consider this account of republican citizens:

"Civic republicans put an emphasis upon citizens exercising their public responsibilities or civic duties, and having concern with the public or common good. Ideally, civic republicanism is characterised by a strong sense of belonging to a political community in which individuals are encouraged to share in a common civic life. For civic republicans, an interest for the common good and one's civic duties tend to override one's private individual interests and the concerns of one's private life which are seen as secondary. In this tradition, citizenship is understood as direct participation in a self-governing community, along the lines evident in ancient Athens."

In federating did not Australian citizens citizens exercise their public responsibilities or civic duties, and have concern with the public or common good? Did they not express a strong sense of belonging to a political community and encourage one another to share in a common civic life?

The very process of federation is premised on the exercise of citizenship. Yet interpretors of that process, such as Chief Justice Gleeson, appear to be blind to the role of "the people" when they were acting to form a nation.

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Constitutional interpretation & power

The remarkable silence in the Australian Constitution about citizenship is important for the process of interpretation since citizenship brings the play of political power into the foreground. For Gadamer the historical process of interpretation leads to consensus and a fusion of horizons within a circle of interpretation. That process of understanding in the Constitutional debate from both the point of view of the various assumptions and situations of the framers of the Constitution, and the process education through the debates and the lead to citizenship being silenced in the Constitutional text. Silence on citizenship was the consequence of understanding as a consensus on meaning.

In his early paper on law and interpretation Lawrence Solum approaches the play of power on interpretation of Constitutional texts in terms of Habermas's criticisms of Gadamer. Lawrence says:

"Habermas acknowledges the validity of much of Gadamer's theory of hermeneutics. He argues, however, that Gadamer's view of the role of tradition in producing understanding has a conservative bias. While Gadamer is correct to see understanding as arising from a traditional consensus on meaning, he overlooks the possibility that the traditional consensus is the irrational product of systematically distorted communication. The argument that all traditions stand on an equal footing because no person stands outside of a tradition ignores the real difference between a tradition which achieves consensus through manipulation, force, or coercion, and a tradition in which consensus is based on reasoned discourse. Not all traditions can make equal claims to truth and right."

Habermas does have a point. Understanding as a consensus of meaning was influenced by ideology: the desire to exclude Indians and Chinese then resident in Australia from becoming citizens. Australian citizens were to be white. No coloured were wanted. In the language of Habermas the consensus of the framers was systematically distorted. The consensus was not the product of unihibited discussion; rather it was from maintaining a repressive status quo and unequal structure of political power. The constitutional silence masked a hierarchical power structure. So we need to move behind the manifest meaning of this constitutional consensus to the social and historical conditions that produced it.

As Lawrence says, this means that we need a critically enlightened hermeneutics that can differentiate between insight and blindness., between prejudice and ideology. The racism behind the constitutional silence about citizenship was more than prejudice as the bias of the framers. It was systematic.

Lawrence then makes a good point. He says:

"It is important to note that Habermas' notion that rational consensus can be achieved under conditions of unconstrained communication does not assume an Archimedean standpoint that is outside of any tradition. We begin the effort to forge a rational consensus from within our tradition and attempt to achieve a consensus with others who begin from within their traditions. The point is that an agreement is rational only if it is not the product of force or deception."

There is an acceptance that in moral, legal and political life our actions are guided by a public reason and knowledge that is different from natural and social science. Such a public reason is a practical philosophy that can deal with public issues that matter to us; and, as a public reason, it is constituted in dialogue--in the give and take of conversation.

It is at this point that we part company with Lawrence Solum since his concern is with systematic theory building and developing a method for differentiating between better and worse theories. As he says:

"If I can demonstrate through rational argument that existing theories are inadequate and that a superior theory exists, then the enterprise of theory construction is not doomed to failure by metatheoretical relativism.The relativist does not have an a priori argument that demonstrates the impossibility of producing the best theory of free speech."

We are quite happy to stay with the practical dialogic philosophy that is linquistically informed. We have enough to be able to make sense of the history of historical interpretations around the constitutional text, and to sift the the competing interpretations of citizenship that have been developed by the legal tradition to fill the lack in the Australian constitution.
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Constitutional Silence?

This text by Chief Justice Murray Gleeson is the Boyer Lectures of 2000. In the first part of the 6 lectures entitled, A Country Planted Thick with Laws, the Chief Justice is exploring ideas that connect up with our previous discussions about interpretation and the Australian Constititution.

For instance, Gleeson says that we can best approach the Constitution in terms of an understanding of the past and a concern for the future:

"Our Constitution also has a past and a future; it does not merely exist in the present. It was fashioned as a basic law, an instrument of government, by people whose concerns and values were in some respects different from our own. It will apply in the future to a society that will have undergone changes we can scarcely imagine. Disputes about constitutional interpretation sometimes concern the manner in which contemporary judges respond to its history and the future. Arguments occur about the meaning and effect, in our current circumstances, of various express provisions of the Constitution, and about the justification for finding implications in its terms. "

So interpretations over the meaning of the Constitution, as well as conflicts over these interpretation, play an important part in understanding the Australian Constitution.

That accords pretty much with what we have been arguing in our earlier posts. To put in more legal terms the emphasis on interpretation involves a rejection of formalism. This holds that a judge identifies the relevant legal principles, applies them to the facts of a case, and logically deduces a rule that will govern the outcome of the dispute. Interpretation is more aligned with legal realism, which holds that in most cases before courts present hard questions that judges must resolve by balancing the interests of the parties and ultimately drawing an arbitrary line on one side of the dispute.

How then do we undertake this interpretation? What guides our interpretations so that we do not wander off into the swampland? Do we not need guides to prevent philosophers with no legal training from stepping outside the constitutional legal tradition? How do we ensure good interpretations?

Gleeson suggests a guide in terms of political principles underlying the Constitution. He says that the certain unstated principles that underpin the text of the Australian Constitution:

"... breathe life into it, govern its interpretation, define the role of the nation’s political institutions, and guiding the evolution of the [Australian] system of government."

One of these principles is the rule of law. The rule of law means what?

Gleeson says that public law is not the enemy of liberty; it is its partner. He displaces the libertarian conception of law as a constraint upon freedom and creativity or a set of rules designed to stifle initiative and enterprise and moves towards a more republican conception of the law as restraining and civilising power. The rule of public law the rule of law vouchsafes to the citizens and residents of a county or state, a predictable and ordered society in which to conduct their affairs. It seeks to promote justice and individual liberty is in its function as a restraint upon the exercise of power, whether the power in question is that of other individuals or corporations, or whether it is the power of governments. He says:

"The basic law of Australia—the Commonwealth Constitution—limits legislative and executive and judicial power. When the jurisdiction of a court is invoked, and the court becomes the instrument of a constraint upon power, the role of the court will often be resented by those whose power is curbed. This is why judges must be, and must be seen to be, independent of people and institutions whose power may be challenged before them. The principle that we are ruled by laws and not by people means that all personal and institutional power is limited."

Gleeson identifies federalism as another unstated principle behind the Constitution. He says that federalism is the special characteristic of the Australian Constitution, which determines its legal and social importance. So what is the characteristic of federalism? Gleeson says:

"The word ‘federal’ takes its meaning from the Latin word for a treat. The self-governing colonies became, at Federation, states of the newly created federal union. The terms and conditions upon which the people of those colonies agreed to that course are set out in the Australian Constitution. ...The Constitution created—and is the basic law of—the Australian nation. One of its principal functions is to allocate governmental authority between the political entities which form the component parts of the Federation. A federal system of government requires a formal written agreement that divides functions and powers. Such an agreed and legally binding division of powers and functions is the essence of federation.

The people of Australia voted to unite in a federal union, upon certain terms. Those terms, which in many respects require interpretation, and which have to be applied to changing conditions and circumstances, define and constrain the powers by which we are governed. The Constitution is a specific and fundamental manifestation of the rule of law in our society."

Okay. To put in Hegelian terms the Constitution embodies a metaphysics. Hence there is scope for a philosophy of the law---jurisprudence.

So what about interpreting the Constitution in terms of citizenship? Does not citizenship have something to do with the rule of law and federalism? Do not citizens make the law? Did not citizens structure the political body in terms of federalism to prevent the concentration of political power. So would not citizenship be another unstated political principle underpining the Australian constitution. As we have seen the Constitutional text barely mentions citizenship. The text is notable for the lack of citizenship and yet liberal democracy is structured around citizenship.

Gleeson does not mention citizenship in this lecture. So we can come at it in terms of the current understanding of citizenship in liberal democracy.

The current understanding of liberal democracy is that representative democracy is a form of elitism. There are two considerations here.

First, ''liberal democracy'' is what the ancients called ''mixed government.'' Republicanism understands "mixed government" in the following way:---with monarchical elements in the Crown, aristocratic elements in the Senate and Supreme Court and democratic elements in the lower house. This structure was intended to be a balance of interests and so what we call ''representative democracy'' is what used to be understood as elective aristocracy.

So what about the democratic bit in the House of Representatives? How do we interpret that? Well, it is commonly understood in terms of a realism in which
democracy is a system in which would-be rulers compete for the people's vote. On the acount given by Joseph Schumpeter the number of voters does not greatly matter; what matters is that the government is the winner of a genuinely competitive election. Schumpeter emphasizes democracy is as competition between elites. In this conception there is a distrustl of ordinary citizens, whose views he thought irrational and ill informed. Hence we citizens can choose the competiting once every three years at election time. What should happen between elections was that the voters should not put pressure on government, but should simply allow it to govern.

A class of professional politicians as the elite and passive citizens is the realist understanding representative democracy. We are not citizens making our own laws or having a say in decision making on this account. And the House of Representatves is controlled by a dominant executive that makes many of its decisions behind closed doors.

Can we go then back to the Constitution and re-read it in terms of its unstated principles of citizenship? Why not re-read the Constitution in terms of the unstated principles of democratic citizenship. Suprisingly Gleeson appears to suggest caution at this point. He appears to place obstacles in the way. He says:

"One thing, however, is clear. Whatever room there may be for debate about the meaning of what the framers of the Constitution said, either expressly or by implication, and subject to the possibility of constitutional change, we are bound by their choice not to say certain things. We can interpret what they provided, and we can make implications from what they said where that is appropriate. But if they remained silent upon a matter, and legitimate techniques of interpretation cannot fill the gap they have left, then we are bound by their silence. In some respects, what the Constitution does not say is just as important as what it says."

Silence? Surely we need to intepret this lack? Does the silence mean that the rule of law is a restraining and a civilising of democratic power. Does it act to keep to citizens in their place? Are there legitimate techniques of interpretation to probe the silence. Gleeson does not say in this early lecture called A Country Planted Thick with Laws.

What we can say is that there are a lot of spaces in the law of the land for philosophy to probe as a public reason.
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Meditations

Marcus Aurelius:

"Often think of the rapidity with which things pass by and disappear, both the things which are and the things which are produced. For substance is like a river in a continual flow, and the activities of things are in constant change, and the causes work in infinite varieties; and there is hardly anything which stands still. And consider this which is near to thee, this boundless abyss of the past and of the future in which all things disappear. How then is he not a fool who is puffed up with such things or plagued about them and makes himself miserable? for they vex him only for a time, and a short time."
Mediations Bk. 5
Historical Background
Commentary
philosophy history

These links tell us that philosophy is an art and form of living not just a discourse or a system. The former was the philosophical tradition that Marcus Aurelius was working within; a tradition that had its roots in Socrates. Hence we can talk about a Socratic style of life. This is a philosophical life: a life guided by reason and the moral virtues.

The idea here is to transform one's life so as to live philosophically, rather than merely to study philosophyas a set of texts. Thus the Meditations are spiritual exercises, exercises of self-transformation. For Marcus Aurelius philosophy was a mode of existing in the world; a way of life. Since it is therapeutic, as it is intended to cure our anguish, so philosophical theories are in the service of a philosophical life whose goal is to transform ourselves.

It is this classical conception of philosophy that was lost once philosophy became a part of the university. It became a philosophical discourse conducted by professionals linked to the classroom and scholarship; a discourse constructed in technical jargon reserved for specialists. Philosophical discourse has a scholastic quality that has very little to do with what Nietzsche would have called the flourishing of our joy of existing.

As Nietzsche would say academic life was stifling and a hindrance to doing this kind of philosophy that is situayed in the lived experience of the concrete, living, perceiving and suffering subject. This concern for living well entails a community obligation---duties to my fellow citizens--- as it is linked to acting in service of the human community within the nation-state.

But we can no longer accept the "spiritual exercises" of antiquity of Chritianity that were designed to cure us of our sickness and pain caused by living a damaged (unjust) life. We have to devise new exercises to deal with the solidly-rooted prejudices that help to shape our conduct in our situation.

How do we do that?

Hermeneutics, free speech & democracy#2

In the previous post we rejected two ways of interpreting the meanings of the Australian Constitution as a historical text. These were the argument that meaning of the Constitution is a literal one and that its meaning is equivalent to the intentions of the framers of the Constitution. The circle of interpretation is an integral part of law and undermines Sir Owen Dixon's claim that legal reason is a method of high technique and strict logic.

We now come to the third argument mentioned byLawrence Solum The third argument, he says, holds that "because the meaning of the first amendment is relative to the many particular interpretive traditions in our pluralistic culture, there can be no single true theory of the first amendment."

Thus we have different interpretations of citizenship about which the Australian Constitution is silent. If we turn to the Kim Rubenstein article we discover two conceptions of citizenship. There is the legal formal notion that is primarily concerned with the legal status of individuals within a community. For instance, in Australia citizens are contrasted with permanent residents, temporary residents and unlawful non-citizens. The legal issues associated with the formal status include the acquisition and loss of citizenship; the criteria for citizenship by grant; dual or multiple citizenship; and discrimination based upon citizenship status.

In contrast, we have the normative notion of citizenship. This discusses citizenship in non-legal, normative frameworks in a variety of ways, primarily in terms that look to the material circumstances of life within the polity, and notably to questions of social membership and substantive equality In this way the normative notion is much broader than the legal notion, as it is concerned with how persons and the way persons should act and be treated as members of a national community.

Hence hermeneutics must grapple with the spectre of relativism given the absence of absolute knowledge. The above argument, that there can be no single true theory of the first amendment, implies that meaning is created by the reader (judges) so is specific to each reading or textual 'performance'.

A basic hermeneutic response to this argument about the relativity of many different reasons is that, in confronting other beliefs and other presuppositions about citizenship, we can see the inadequacies of our own and transcend them. Secondly, the very tradition of legal interpretation of the constitution establishes a set of canonical problems and incorporates standards of truth and legal justification. Over historical time, from the perspective of these standards, the interpretations provided by the legal tradition (the sum total of all readings, past, present, and future) will appear inadequate:----as is indicated by the High Court's shift to reading the Australian Constitution in tems of implied rights. What is happening here is that legal rationality is opened up to guidance that another tradition may provide. This implies a willingness to accept the posssibility of better options and interpretations; and a willingness to accept that one's knowledge and interpretation of the constitutional text is always open to refuation or modification from the vantage point of another perspective.

The emphasis here is on a critical approach that concentrates on the process of reading and interpretation rather than on the text as object. As Lawrence Solum states it, what develops is a tradition of interpretation that is embodied in the opinions and judgments rendered in cases that deal with the constitution.

What can we say of this process of law as interpretation? Though the Legal positivists were right in that legal rules are part of the legal system as H.L.A. Hart described it; the legal system is also part of a tradition that embodies principles and policies. So the judges, in being a part of this system, have a duty to continue the legal tradition and on the whole do so.

The tacit implication of this hermeneutical response is a rejection of the separation of law and morals, the view that the law is an autonomous discipline and that judicial method cannot legitimately be influenced by political, social or economic factors. The hermeneutic account presupposes that the liberal and democratic ideals of liberal society are also embodied, upheld and defended in Western systems of law. Hence public law is best understood as an interpretation of the political practices of a society. In deciding a legal case, judges decide in accord with the interpretation of the society's institutions and legal texts that best fits and justifies the society's history and practices.

What I have outlined above is Ronald Dworkin's theory of interpretation.Dworkin holds that:

"....judges should decide hard cases by interpreting the political structure of their community in the following, perhaps special way: by trying to find the best justification they can find, in principles of political morality, for the structure as a whole, from the most profound constitutional rules and arrangements to the details of, for example, the private law of tort or contract." (Dworkin 1982, p. 165).

On Dworkin's theory of judicial interpretation, there are two elements to a good interpretation of a constitutional text. First, insofar as an interpretation justifies the particular practices of a particular society, so the interpretation must fit with those practices in the sense that it coheres with existing legal materials defining the practices. Second, since an interpretation provides a moral justification for those practices, it must present them in the best possible moral light.

This gives us a way to probe the republican conception of citizenship that sits buried in the republican dimension of the Australian constitution and embodied the actual practices of the body politic.

Hermeneutics, free speech & democracy#1

The brief mapping out of my hermeneutical perspective in the previous two posts provides me with a position from which to engage with Lawrence Solum's early paper on hermeneutics and free speech in the liberal democracy of the USA. The engagement will probably be over several posts and I will more or less bounce off Lawrence's paper to develop a broader public reason that will include political and legal reason.

This connection between hermeneutics and free speech is an important one in Australia because the High Court has judged that there is an implicit right of free speech in the Australian Constitution. The argument behind the High Court's judgement and ruling was that a liberal system of government in Australia, which was based on a representative democracy and enshrined the right to vote, was meaningless without freedom of speech to discuss and debate "political and governmental matters" and to criticise and critique decisions of all levels of government - commonwealth, state and local. There is a lot of interpertation in that.

That judicial process of constitutional interpretation has been condemned by conservative politicians as amounting to a usurpation of parliamentary supremacy. The High Court has been accused of "stealing" power from the people of Australia. This dubious political argument (dubious because it is really a defence of executive dominance) implies a particular interpretation of the Constitutional text; it is one that implies the reading implications in relation to the Constitution is a radical move rather than the diversity of interpretations of the implications of the constitutional text being part and parcel of the constitutional landscape for over a century.

The Australian constitution is very a reified text. It is almost a sacred document--a bible. Only those who understand its mysteries----the priests---can comment. The lawyers are the priests. But not any lawyer mind you. It's really the province of the Constitutional lawyers who have access to, and can understand the arcane language of the expert commentaries.

Lawrence's paper is concerned with the search for an adequate theory of the first amendment freedom of speech. His concern is that a theory of free speech is required for the practice of judicial interpretation of the first amendment.
He argues that:

"...that Jurgen Habermas' theory of communicative action can serve as the basis for an interpretation of the first amendment that fits the general contours of existing first amendment doctrine and provides a coherent justification for the freedom of speech."

After briefly spelling out Habermas' theory Lawrence moves into considering the interpretation of free speech in the US Constitution. Why interpretation? Because there are competing interpretations in circulation. Hence there are problems associated with interpreting the first amendment to the Constitution of the United States, and we can add, the implied rights in the Australian Constitution Lawrence mentions them:

"The first argument is that the first amendment has a plain meaning that does not require a theory for its interpretation....The second argument is that the first amendment should be interpreted in accord with the specific intent of its framers.... The third argument is that because the meaning of the first amendment is relative to the many particular interpretive traditions in our pluralistic culture, there can be no single true theory of the first amendment."

The first argument has been called literalism in Australia. It has been deeply entrenched and it does not see the need for hermeneutics, since it presupposes that understanding the constitution is unproblematic. We can just read the plain words. Greg Craven defines it this way:

"The essence of Australian constitutional literalism is that the words of the Constitution are to be given their ordinary - that is their literal - meaning. What this means in simplistic terms is that the Constitution means what it says. The document is to be read as an ordinary piece of English language, and the words to be ascribed their every day meaning. The essence of literalism is thus that the Constitution may be read in much the same way as a telephone directory or the instructions to a model aeroplane kit, with the assistance of a dictionary, but not much else."

But what if the words were not clear or self-evident about the federal relationship between the states and the commowealth? What then? Do we not need some way of interpreting what they mean? Could there not be interpretations that misunderstand about this federal relationship? Historical understandings are situated in history and we approach the constitution from particular perspectives.

Lawrence quickly rejects the first argument---the 'plain meaning view of free speech--- on the grounds that it implies the self-interpreting constitutional text. Hence the meaning of the text can be gleaned without the aid of some interpretive method. Yet, as Lawrence, points out, some passages of the First amendment of the US constitution:

"..if considered in isolation, are ambiguous or obscure. Likewise, the text of the first amendment may be too indeterminate to be understood in isolation. What does speech mean? Are movies, radio programs, picketing, or campaign expenditures speech? The text refers only to Congress, but the first amendment has been interpreted to apply to state legislatures as well as executive and judicial action."

And in Australia, is the Townsville council's by-law 82E, which bans soapbox orators from its mall, an infingement on free speech? To understand the implications of free speech we need some understanding of the political philosophy that sits behind, and enframes the constitution. There are ambiguities here---eg., republican and liberal conceptions of citizenship--- that do need to be resolved. As Greg Craven argues the effect of literalism has been:

"...to de-emphasise the concept of federalism as a controlling consideration in constitutional interpretation. This follows inexorably from the fact that federalism is part of the basic frame of the Constitution, and suffuses that entire document, underlying as it does virtually all the dispositions of the Founding Fathers. The effect of literalism's exclusive insistence on the primacy of the words has been to drastically limit the use which can be made of this controlling constitutional principle in the interpretation of the Constitution."

Hence we misunderstandings. The intervening historical developments that have taken place have separated the framers of the Constitution and the interpreters. Ther has been a shift in focus and philosophy in that period, and this ha given rise to distorted constitutional understandings of a centralizing liberalism.

So literalism, the plain meaning conception of interpretation, is inadequate. As Greg Craven says:

"...the real problem for literalism in constitutional terms is that the Constitution has never been remotely like a telephone directory or a set of instructions for a model aeroplane. In fact, the Constitution is the product of a complex range of historic intentions, designed to produce a blue-print for an exceptionally evolved form of federal government. These intentions are those of the Founding Fathers, who haggled and wheedled for a decade over the exact type of Constitution which Australia was to possess. In this connection, what literalism inevitably means in practical terms is the de-emphasising of this historic constitutional intention. Literalism, with its exclusive emphasis upon the words as they appear in the text, must ultimately be destructive of any recourse in direct terms to notions lying at the heart of the Founders' vision, such as a broad concept of strongly decentralised federal government."

Interpretation is not something alien imposed on the text since the constitution is itself a historical interpretation of the political traditions of the British nation state and the US constitution. It is a distillation and reworking of these, and so the text needs to be understood historically, rather than as some foundational set of Euclidean axioms.

One popular approach to legal hermeneutics is the second argument that Lawrence mentions. We can go back to the intentions of the framers of the constitution. This sort of appeal is made by Greg Craven in a previously quoted passage when he says:

"In fact, the Constitution is the product of a complex range of historic intentions, designed to produce a blue-print for an exceptionally evolved form of federal government. These intentions are those of the Founding Fathers, who haggled and wheedled for a decade over the exact type of Constitution which Australia was to possess."

This return to what particular persons intended at a particular time gives us the touchstone that we require to resolve the ambiguities. The textual meaning of the Constitution is then equated with the author's intentions.

Lawrence approaches this argument in terms of the debates within the hermeneutical tradition, and Gadamer's criticism of the romantic hermeneutics of Schleiermacher. Lawrence says:

"Gadamer does not criticize Schleiermacher on the ground that intentions are irrelevant to interpretation. Rather, Gadamer observes that our understanding of original intent is necessarily conditioned by our own situation and concerns. Thus, our description of an author's original intent necessarily reflects our perspective."

We can go back and read the transcripts of the constitutional convention debates in which the constitutional issues were sorted through to discern the intentions of the framers; but we would interpret these texts from our own perspective. Understanding a text requires one to apply the text to one's own situation.

We do have difficulities here with intentions because, as Lawrence points out, the intentions of the framers were at the least ambiguous and complex. Thus there was little mention of citizenship in the Constitution. What does that mean? Does that mean that citizenship was of no import? How can you have a liberal nation state without citizens?

The meaning of the Constitutional text is not what it appears. As Kim Rubenstein points out:

"Citizenship concerned the drafters acutely and they made a conscious effort to exclude the term from Australia’s foundational legal document."

They did so in order to exclude the Chinese and Indian residents in Australia. Does that mean intentions are important? To the extent of trying to make sense of the silence about citizenship in the constitutional text. Lawrence highlights the difficulties in saying yes:

"...the notion that constitutional meaning can be constructed out of intentions is problematic for more general reasons. The difficulties can be illustrated in a series of questions: (1) Whose intentions are to count? This question suggests a host of possible answers: (a) the intentions of the drafters of the first amendment itself, (b) the intentions of the members of Congress who voted to propose it to the states, or (c) the intentions of the members of the state legislatures that ratified the Bill of Rights. Given the many different possible "authors" of the first amendment, subsidiary questions arise: What if there were conflicting intentions?

How should the conflicts be resolved? (2) What sort of intentions should be used? Again there are many possibilities: (a) abstract intentions about the principles underlying the first amendment, or (b) concrete intentions about the application in particular cases. What if more general intentions conflict with more specific ones? (3) What psychological states count as intentions? Are hopes, predictions, or convictions intentions?"

What we actually do here is to construct the intentions of the framers. We do this by constructing the historical background to the discussions on citizenship that took place during the Constitutional Conventions in order to understand the perspective of the framers’ intentions not to define citizenship in the Constitution.

mapping hermeneutics

This book review Of Don Idhe's Expanding Hermeneutics: Visualism in Science maps my starting point in hermeneutics. Don Ihde says that:

"....the dominant interpretation of hermeneutics, which is informed by the 'hermeneutics-positivism binary'. From this binary point of view, the natural sciences have a positivist (empirical-analytical) way of understanding and the humanities a hermeneutic (interpretative) one. The former is supposed to be dominated by realism, the latter by relativism: the sciences reveal reality 'as it really is', the humanities develop interpretations."

That is how I understand it. Hermeneutics is interpreting people's relationships with the world. Our world is 'interpreted reality' and our existence is 'situated subjectivity'. What the world 'is' and what subjects 'are', arises from the interplay between humans and reality.

An example. Link courtesy Bonyton

What sits in the background to this phenomenological description is a technology that constituted a new type of cultural system that restructured the entire social world as an object of control. Technology here is an environment and a way of life. As individuals the individual we adapt to life in a technological environment----"It took two elevators and an escalator just to grab coffee"---- and our subjectivity is shaped and formed by the technological mode of life.

Most of the people in the modernist World Trade Centre Towers were knowkedge workers. There's was a world in which information had gained the upper hand over raw materials, where software is more valuable than hardware, and where data bits are as important as atoms. Their information existed in a digital form of acquisition, processing, and distribution and they they merged into the computer world.

towards a post

Things are a bit hectic at home this weekend as I need to write a speech on renewable energy and mandatory targets over the next few days.

I am not a big fan of the capacity of the spontaneous free market to make the shift to renewable energy in Australia, as it has made a right mess of the national electricity market, and it prefers to stick by the old coal fired generators. Embracing ecological modernisation is not a strength of the free market. The state is required to intervene.

I've been mulling over hermeneutic, legal reason and legal positivism these last few days. I was going to post on an old paper by Lawrence Solum on hermeneutics, free speech and democracy that Lawrence linked to in response to reading philosophical conversations a week or so ago. That paper may be in Lawrence's deep dark past (his Frankfurt School days?) but I can relate to it more than H.L.A. Hart's The Concept of Law. That strikes me to be all about consensual binding and agreement in which the judge places his/her seal upon the consensual norms.

My interest develops out of the previous post on Gadamer and public reason where I used hermeneutics to fire a few arrows at legal positivism. In the background to this sits Carl Schmitt and his critique of legal positivism (in the form of Hans Kelsen) as a governing technology. Why Schmitt? Because my gut feeling that the effect of conservative Australian politicians criticising judicial activism (and their intense dislike for the republican separation of political power) is to demote judges to vending machines that mechanically dispense the law without intellectual reflection or active contribution.

I flick into Nietzschean mode at that and start thinking about judges as legislators and creators of the law. And what is more, my Hegelian suspicions are aroused. I smell the metaphysics of society as clockwork mechanism lurking in positivist jurisprudence. I reckon that this 'mechanization' of law enables the legal system to operate like a technically rational machine. What our neo-liberals are after is what Schmitt outlined in Political Theology: a legal system subsumed by, or incorporated into, the free market in such a way that the legal system is strictly "orientated towards calculability and governed by the ideal of frictionless functioning" for the sake of utility.

Yep that's Max Weber (of Economy and Society). And it's Frankfurt School. It's the thesis of the hegemony of instrumental rationality of technological reason that is common to Nietzsche, Heidegger, Schmitt, Adorno and Habermas. So hermeneutics is a way of opening the legal-economic machine up. Hence my interest in Lawrence's paper on free speech. That is a good place to get one's fingernails into the cracks in the machine; prise things----a law without gaps?---open a bit; and disclose different conceptions of public reason.

What Lawrence Solum is doing with his weekend offerings of classic works of (analytic) legal theory is to provide a little bridge for people like me to make contact with, and pick up on, the analytic understandings of legal reason as a public reason.

Gadamer, conversation, public reason

This is a review of a collection of feminist interpretations of Hans-Georg Gadamer.

You can sense the dogmatic feminism in there: ie. feminism is the unquestioned touchstone by which everything is measured. Since Gadamer was blind to gender and power, had little awareness of the body and was patriarchical to boot, so he has nothing to offer feminism. If you get past the politics of Gadamer being hostile to feminist values, then Gadamer has some fruitful ideas that those working within the humanities can 'play around with' to trangress the beyond the thoughtforms of modernity. It is the ideas that are important.

When Gadamer is approached from an American postmodern perspective (the emphasis is on rupture and alterity) his hermeneutics of trust is contrasted with a hermeneutics of suspicion. Gadamer is seen to over-emphasize harmony, consensus and unity due to his reliance on Hegel. Gadamer is a conservative modern.

I'd always interpreted Hegel to be a philosopher of difference myself, but then I guess it all depends on your account of difference. From this Hegelian perspective (dialectical) you can read Gadamer's hermeneutics as an opening up to postmodernity. Instead of the 'either hermeneutics or postmodernism', you can have hermeneutics and postmodernity

Gadamer's idea of dialogic consensus is that it requires us to take into account the positions of others when discussing an issue, or a particular subject matter with them. we are obliged to deal with their objections, considerations and counter-examples. We then see the worth of their considerations, approaches and understanding of the matter at hand; and begin to incorporate/integrate these into our account as well as defend ourselves against specific criticisms. So we are open to both the possibility of their being better options, and to our own perspectives and knowledge being open to modification from the vantage point of another participant working from a different perspective. To put it in Heidegger's terms language opens a world to us rather than closing us into a situation.

Gadamer is reworking Hegel. The process of coming to agreement---the reciprocal integration of the initially opposing views and opinions----in philosophical conversations is our old friend the process of sublation---or cancellation and preservation-----with the spin of absolute knowledge. The emphasis on continuity refers to the conversation continuing and flowing with the conventions of a dialogic rationality---what Hegel would call a bad infinity.

You can use Hegel against Hegel. Adorno did it all the time. It's a neat trick. Gives you plenty of ready made fire power.

Hence the recognition of cultural and historical plurality does not necessarily imply scepticism towards reason. What philosophical conversations implies is a conception of truth conceived as aletheia, that is, "unconcealment" or a disclosing insight gained through reading (interpretation) and discussion rather than in the text.

Some of the feminist philosophers in the book under review recoil from Gadamer's conservatism, which is to be found in his rehabilitation of authority, prejudice, and tradition. Yet there is a radical undercurrent. Gadamer's dialogic reason is a different form of public reason to the instrumental economic reason that is hegemonic in the world of public policy. The hegemony of instrumental reason over practical deliberation leads to an increase in social irrationality, which is initially expressed in the way the dogmatic economists dismiss their critics and the populist expression of suffering from the negative consequences of their economic reforms.

Another critical aspect of Gadamer is that his dialogic rationality opens up the diversity of public reason. What comes to mind here is the way that an interpretive legal reason is a form of dialogic rationality and a form of practical reasoning (phronesis). This highlights the matter of judging or evaluating in practical deliberation within the tension between past and present, the various meanings of the legislation, the recognition of changed circumstances, and understanding the law that is already in force.

We can now turn to those conservative categories of tradition, prejudice and authority. For Gadamer we always understand from within a tradition. The way the legal system goes about interpreting the law in historical time highlights the way that a tradition changes and determines itself from within. Within this process the interpreter's of a legal text bring their prejudices to the text, with these prejudices ranging from biases to presuppositions. The modification of these prejudices through ongoing dialogue can then be seen as an educative process. (Bildung)

We can also give an account of authority in terms of public law. One way to highlight law as authority is the legal positivism. Now I am naive about legal positivism as I am not a legal philosopher. I more or less intuitively connect legal positivism to Hobbes and Bentham as I know little about the work of H.L.A. Hart. I have not read The Concept of Law.

As I understand legal positivism, it presupposes that the system of public law is a form of social order that has its roots in the patterns of command and obedience of the Parliament as sovereign that are backed by force. This coercive face of public law is modified by the law-applying judicial system (the courts). I have assumed that the normative element in public law, which is embodied in the categories of authority, rights, obligations, is reduced to power of command and obedience of the political system. This is probably not a satisfactory account of legal positivism, but it suffices to indicate the need to work with some conception of authority. You need the category of authority to help make sense of the political.

So Gadamer's hermeneutics is fruitful in terms of public reason. How to show the fruitfulness? One way is push hermeneutics a bit further by making it do a bit of work on public reason through bringing it to bear on legal positivism.

The hermeneutical background is why I have difficulty with classic analytic texts in legal theory, such as the work of the legal positivist H.L.A Hart mentioned on Lawrence Solum's great Legal Theory blog.

As I understand it legal postivism holds that the law just is. It is in the sense that it is a social fact. This divorces public law from the merits as law. So what grounds the authority of public law? It cannot be simply power in a liberal society due to that society being premised on free subjects. Hart provides an answer. The Stanford Encyclopedia says that:

"For Hart, the authority of law is social. The ultimate criterion of validity in a legal system is neither a legal norm nor a presupposed norm, but a social rule that exists only because it is actually practiced. Law ultimately rests on custom: customs about who shall have the authority to decide disputes, what they shall treat as binding reasons for decision, i.e. as sources of law, and how customs may be changed."

Law is the customary social rules of the economic/political system.

My initial problem with this---along with many others---is that the connection between ethics and law is sundered with the concentration on the facticity of law. The sundering is misleading because the legislature does frame the rules that are embodied in legisation because the rules are seen to be good or worthwhile in some sense. Thus the recently passed "Environment Heritage Legislation Amendment Bill (no 1) 2002 was concerned with a heritage regime that would list matters of national and heritage significance in a National Heritage List in order to grant them some form of protection. Ethics is interwoven the rules.

Secondly, the facticity of the law as rules is blind to the law as public reason. The process of negotiating the various amendments of the Heritage legislation in the Senate was done in terms of appeals to various ethical principles about the nation and national identity. It was also done through extensive moral and political argument to reach some sort of consensus or agreement. The daily practices of the Senate and the judgements of the High Court embody a dialogic conception of understanding that is not captured by public law as rules.

My third concern is that the facticity of law does not allow for process of interpretation and understanding in relation to legal texts in the legislature and the judiciary system. This legal hermeneutics can be understood as an attempt to 'make explicit' the structure of the particular situatedness of us already being 'in' the world '(as Australians) along with' that which is to be understood (ie. heritage). The Senators and High Court judges are interpreters. This process of interpertation is made explict with interpretation of the Constitution both as a historical text and applying it to situations that the framers never considered.

These three concerns about legal positivism shows that Gadamer's hermeneutics incorporates a genuinely deconstructive strategy. That strategy can be understood as part of a tradition of a philosophical critique of the metaphysics of modernity. Yet Gadamer offers something more than deconstruction. His reworking of the Greeks (Plato and Aristotle), Hegel and Heidegger enables him to put some in place once the deconstruction has enabled us to stand in a clearing. If you follow the pathway of 'putting something in place' then you criss-crosses some interesting trails in cyberspace.

One is an opening to a legal hermeneutics, which argues that law is best understood as an interpretation of the political practices of liberal society. Thus, Ronald Dworkin holds that in deciding a legal case, judges decide in accord with the interpretation of the society's institutions and legal texts that best fits and justifies the society's history and practices.

Another opening is this. Very interesting Lawrence, very interesting.

an experiment

Things have been a bit slow in posting at philosophy.com the last week or so because I have been involved in setting up philosophical conversations to help nurture a philosophical culture in Adelaide. That culture has pretty much died in the 3 universities in Adelaide and exists only in the margins.

It has taken more time that I'd expected even though I've been more or less giving Trevor Maddock a hand. Trevor is an ex-colleague and we once taught Critical Theory (Frankfurt School) together.

The weblog is an attempt to help the philosophical discussion going on civil society that currently exists in the interlinkages of European Studies at the University of Adelaide, the cafe philosophy that has been going for five years and Experimental Art Foundation and Dark Horsey Bookshop. The latter has been running a forum on the aesthetics of narrative.

Hopefully the conversation that happens through various talks in, and around, French and German writers and philosophers will continue online and broaden out to take in people from other cities who are interested in or working in this continental philosophical culture. To facilitate that conversation an online library of relevant texts---many have been collected by Trevor and stored on his computer at home---- will be added.

This is necessary because a lot of work that is collected by an academic about a particular philosopher--e.g, Bataille---can simply disappear into a black hole. All that work just gone. I presume it happens when an academic moves university and the collected articles and writings are then taken down from the old server. There today gone tomorrow. In addition, texts don’t stay on the net the way they sit on library shelves. The virtual libraries that do exist cost a lot to access.

The other aspect of this is that not much philosophy is actually being published on the net. Unlike the legal institution, where a huge amount of work is published online (judging from Lawrence Solum's Legal Theory weblog), most philosophy is locked up in journals that present closed fronts to non-subscribers. Philosophers have been slow to embrace electronic publishing, academic journals have resisted it, and universities have pretty much given up facilitating the spread of scholarly knowledge for the common good. Academic publishing is about restricted access, intellectual property, business and reputation. The academic publishing world needs to change.

Philosophical conversations is an experiment. It is a way for philosophy to provoke and mobilise thinking and so help to open up diverse modes of thinking and writing. It is a way to learn to think differently.

doing philosophy differently?

Given this state of affairs in Canadia and Australia, then we can understand the attractiveness of this as one way for philosophy to engage with popular culture.

First the negative side. In response to the standard academic charges that it represents a dumbing down of philosophy, the defence of philosophy engaging with popular culture is that it is not an attempt at groundbreaking philosophy but rather to bring philosophy to an audience who might otherwise not have read it.

From the other side the view is that outside the academic context the “nonphilosophical understanding of philosophy” can be rather hard to pursue. The books can be difficult and hard going (eg. Deleuze), and people look for good introductions that make the philosophy text produced by philosophers in the academy accessible. It is true that people do not read the classical philosophical texts such as Kant's Critique of Pure Reason or Hegel's Phenomenology of Spirit. These are difficult texts and few ever read them.

But the defence overlooks that philosophy in embodied our everyday lives in the presuppositions of common sense that we make and often live, the categories we use to make sense of the flow of life, the way we challenge the views of others and our views are challenged in turn. The defence presupposes that philosophy is identical with the practice of academic philosophy.

That presupposition can be questioned.

In being critical of the spin of politicians the lack of analysis in the media, and the advertisements on free-to-air television we are reading texts critically and doing philosophy. This kind of critical thinking is something that we do everyday. We actually live philosophy without knowing that we do so.

Now the positive side of philosophy's engagement with popular culture. We can contrast texts such as Seinfeld and Philosophy, The Simpsons and Philosophy, The Matrix and Philosophy with this kind of engagement with popular culture. Here philosophy primarily engages with films that overlap with the philosophical tradition, such as Derek Jarman's film of Wittgenstein, and then dips it's toes into others including The Matrix This approach often pulls the material into the traditional concerns of philosophers and before long we are back discussing philosophical issues as understood by a particular philosophy school. It is a very safe way for academics to connect philosophy to the broader culture.

The Simpsons and Philosophy starts from the television programme and philosophy arises out of that programme. It is a much more adventurous way of working as it opens up philosophy to diverse and more experimental modes of writing and thinking. It enables philosophy to step outside the horizons of its academic confinement.

in passing

This article on Spinoza is an important one. On the way to showing the centrality of Spinoza to the development of modern European thought, it makes three points:

1. That we should see the Enlightenment tradition as a universal movement---part of a global Republic of Letters--rather than a variety of national traditions with their own source materials and secondary sources. It is a concrete or nationally clothed universalism.

2. That Spinoza was a materialist philosopher, who rejected Descartes dualism between body and soul and instead regarded the whole of nature, including mankind, as consisting of a single substance.

3. That there is a conection between revolutionary ideas in natural science and philosophy and revolutionary ideas in politics with their opposition to the ancien regime and that the absolute state and support for liberalism or democratic republicanism.

The significance of the three points? They open up the Enlightenment tradition beyond the narrow conception of its current defenders----as a instrumental economic reason that dismisses all difference and criticism of economic science as a form of irrationalism.

So what? Well, it is then possible to get something like this going. It begins by rightly highlighting the flaws of the empiricist understanding of science--the failure to acknowledge the metaphysical assumptions---and moves on. Maxwell says:

"Nevertheless, science as such is not the problem, but rather science dissociated from the pursuit of wisdom, the result of our failure to put right the structural defects in academic inquiry, inherited from the blunders of the Enlightenment. Hence my conclusion: we urgently need to bring about a third intellectual revolution, one which corrects the blunders of the Enlightenment revolution, so that the basic aim of academia becomes to promote wisdom, and not just acquire knowledge."

Wisdom is an old word. It is difficult to use easily with feeling a bit shamefaced, shuffle our feet and look to the ground.

We can say that introducing wisdom opens up the introduction of ethics in relation to science so that we think about the ends of sceince, of what we use scientific knowledge for. Hence we would have an ethically informed science. Maxwell says:

"It deserves to be noted, finally, that it is above all a philosophical blunder – a philosophical disaster one should perhaps say – that has overtaken academia. For it is a blunder about what the overall aims and methods of academic inquiry ought to be. The responsibility to make clear what is wrong, and what needs to be done to put things right, lies above all with philosophers. This indeed, in my view, is the fundamental task for philosophy today: to shout out, loud and clear, that we urgently need to bring about an intellectual and institutional revolution in the aims and methods, the whole structure and character, of academic inquiry, so that it takes up its proper task of helping humanity learn how to create a wiser world."

So wisdom means adjudicating between the conflicting aims/goals/ends of science that lie buried beneath the standard Enlightenment script of using science and technology to make social progress towards a civilised world. Conflicting ends?

Of course. The standard justification today is improving the standard of living of living through economic growth. Wisdom means introducing the words of ecological sustainablity.

There is no need to feel shamefaced, shuffle our feet or look to the ground.

Hegel, recognition, Croc Festivals

I have just come back from a few days in the Upper Spencer Gulf region of South Australia. I happened to attend the Croc Festival in PortAugusta on Wednesday night. This is a festival of primary and secondary school children in the region who come together for three days for a variety of daytime activities. They--a mixture of white and indigneous kids----also put on a performance in the evening. The performance is designed by the children with help by the school. The form of the performance was mostly dance to pre-recorded (American) music.

Though reconciliation is a contested word in our political institutions, the Croc Festival is reconciliation on the ground. The ethos of the children was one of a diverse people working together co-operatively for common goals, and having lots of fun doing so.

Whilst flying back to Adelaide early yesterday morning the sun was rising over the dramatic landscape. I could not but help think of Hegel and his conception of politics as a struggle for recognition. At the Croc Festival there was recognition of white by blacks and blacks by whites. At the festival recognition of the other was the condition for the possibility of individuality and freedom, since our subjectivity and self develops only in its interactions with the other.

On Hegel's account the formation of the self presupposes reciprocal relations between subjectsin that neither individual will achieve the status of autonomous agent until each is confirmed by the other as independent. Secondly, the process of the formation of our subjectivity within situations of disrespect, or the exclusion of individuals, leads to a struggle for recognition from the national community in order to confirm claims to autonomy. Structurally excluded individuals, such as indigenous people, want to be acknowledged as independent, self-respecting moral beings by the national community.

This model is appropriate to reconcilation on the ground in Australia for several reassns. For Hegel, the context in which the relations of intersubjective recogniton take place is the nation; relations of recognition requires some kind of dialogue between individuals; the struggle for recogntion takes place within a communal ethos that is already embedded in the national community---ie., an ethical life that has some form of social solidarity or shed values and goals.

Hegel's presuppositions were the presuppositions of the Croc Festival.

Did this also apply to the earlier more colonizer/colonized relationships between blacks and whites? Or was Hegel's theory of recognition an inadequate model for relations beween self and other in the colonial context of the nineteenth century?

philosophy and rhetoric

One of the ways that philosophy changes when it becomes a part of political life is that it becomes a form of rhetoric---the bare bones of argument are wrapped with the techniques of either persuading or dissuading others from taking a particular course of action, such as selling Telstra.

Rhetoric, within the philosophical tradition has a bad image. Ever since Plato's Gorgia rhetoric is seen as unethical: ie., as distorting the truth, as emotional manipulation and as demagoguery. Plato's negative image of rhetoric as the opposite of reason was reinforced by John Lock and Immanual Kant.

The echoes of that historical charge can be heard today. We hear it in the way neo-liberal economists dismiss their critics as scientifically ignorant and irrational. Today unethical also means expedient, by which is meant a selling out to an instrumental reason that governs the country. Hence deliberative rhetoric---the oratory and debate that takes place in our liberal political institutions---is seen to work within the horizons of instrumental economic reason that is transforming society into a marketplace.

The contemporary grounds for the negative image of rhetoric can be found in the elitist use of rhetoric by politicians in liberal democracy. These politicians must rely of ordinary citizens for support to get re elected and some of them see citizens as the public, as the people, as the mass. They presuppose a hierarchical relationship between politician and citizens based on a natural superiority of the elite professional politician to rule over the mass.

These politicians manipulate the people into doing what they want. The classic example is with the justification for the recent war on Iraq. The reason given were spurious: Iraq's possession of weapons of mass destruction, Iraq's connections to al Quaeda, Iraq's involvement in the September 11, Iraq constituting a subtantive threat to Australia. The speeches of the orator war politicians were primarily a manipulation of people's emotions to gain their support for the war. These orator politicians dominated politics through speech whilst the silent manipaulated listerners were denied their right political participation and autonomous s decisionmaking. Hence the street protests. These were then mocked by the orator politicians as anti-American and supporting the enemy. More emotional manipulation as a way of ensuring their hold on power.

It is therefore understandable that the supporters of deliberative democracy see rhetoric as morally suspect and so turn to the idea of conversation as being more democractic.

bioethics: philosophy meets the marketplace

A friend of mine gave me some back issues of London Review of Books. This article on bioethics byCarl Elliot caught my eye. You need a subscription to read it. But an interview with Carl Elliot can be found here.

I find this text interesting because bioethics is often heralded as the solution to philosophy's woes in academia: primarily, to avoid being an academic failure. The field of bioethics is one way for modern philosophy to remain philosophy, take the applied ethical turn, intervene into public policy and make some money. Philosophy could actually be something more than teaching and scholarship: it could help to change the world rather than just studying it.

So it is no surprise that bioethic centres have flourished. In Australia bioethics has pretty much meant medical ethics, and it gave a role for philosophy to function as moral criticism in the public sphere. Even if it was difficult for philosophers to work in the medical institutions without a medical degree bioethics enabled philosophers to assess genetic engineering, or the "cures"--ie., enhancement technologies--- that medicine offers us in response to our discomforts, insecurities and anxieties. A driving force behind the demand for these remedies is the medicalization of everyday life.

That was the promise. The reality has turned out to be otherwise. I am not referring to the conservative criticism of academic philosophy as arrogant philosopher kings wearing the mask of the professional expert; bioethics as a form of progressive liberalism (the patient as a person); or bioethics cuddling up to bio-medical and life sciences. My concern is with 'changing the world' meaning less Marx and more entrepreneurship in the form of for-profit consulting ventures with industry to supplement the university pay cheque. What I have in mind the way that bioethics has jumped onto bed with drug corporations: bioethicists acting as hired guns; bioethic centres being funded by the corporate dollars; and bioethicists moonlighting as corporate consultants. Ethics for hire is encouraged by the corporate university.

So the need for consultation guidelines that tacitly accepts for-profit bioethics consultation with industry but address conflict-of-interest policy by disclosing which corporations bioethicists have work for and how much money they have received. Philosophy does need to remain something more than straight market exchange protected by confidentiality agreements to remain philosophy. The the public assumes that 'the something more' would involve bioethics putting the brakes on questionable biomedical practices, rather than becoming a part of the academic/corporate wing of the advice industry.

Philosophy in the form of professional moral expertise becoming a tool of industry is the danger.

'Putting the brakes on' is necessary to sustain some measure of public credibility in the face of philosophy's embrace of market forces. Philosophy to surviving as philosophy rests on public trust that it is more than a tool for bio-medical or biotechnology industry or that bioethicists do more than act like lawyers and whisper a bit of prudent advice in the corporate ear about questionable practices.

That is the article.