The Trouble With Principle — Quotes and Lessons from Stanley Fish

Introduction:

  • Neutral principles: “would I reach the same result if the substantive interest were otherwise”
  • Machiavelli: “there is no general rule, for everything varies with circumstances…Were he to have heard heard of Wechsler’s (neutral principle) question, Machiavelli would have relied by saying something like I hope not, for such rigidity would sacrifice the values and interests at stake in a particular moment to a formal consistency that valued nothing but internal consistency, in short, of neutral principle”
  • “As a general thing, anyone who is not your friend will advise neutrality, while anyone who is your friend will you ask you to join him weapon in hand. Taking sides, weapon in hand, is not a sign or zealotry or base partisanship; it is the sign of morality; and it is the morality of taking sides, of frank and vigorous political action, that is celebrated (not urged; it is inevitable)”
  • “No good reason to set aside ones beliefs aside in favor of some higher order impartiality or ethic of mutual respect unless these abstractions are what you believe in, unless that is, they are substantive and available to challenge as such”
  • “I am tempted to to turn this into an imperative — perhaps “always politicize” but the imperative would be unnecessary for that is what we do all the time, whether we choose to or not”
  • Being “results driven” is considered unprincipled

At the Federalist Society

  • Context and history is what distinguishes a bad outcome from a good one, not neutral principles (would you say that killing in self defense is the same as killing for money because in either case it’s killing you are doing?) — failing to distinguish between the purpose/intent/desired effect of an act and it’s underlying form is the worst sin that the law commits.
  • “Merit is just a word for whatever qualifications are deemed desirable for the performance of a particular task, and there is nothing fixed about those qualifications”
  • “Merit is not one thing but many things, and even when it becomes a disputed thing, the dispute is between different versions of merit and not between merit and something base and indefensible”
  • “Sometimes the principles reasons people give for taking a position are just window dressing, good for public display but only incidental to the heart of the matter which. Is the state of their hearts”

Sauce for the Goose

  • Liberalism: regards all differences as superficial and therefore as an inappropriate basis for the unequal distribution of goods or selective allocation of rights
  • “The question is always the same: is the difference real and therefore something that should be acted on, or is the difference cosmetic and therefore something we should not pay attention to (as we don’t pay attention to eye color) or celebrate (as we celebrate styles in clothing or art)”
  • Problem: “rhetoric of even-handedness, open-mindedness, neutrality in the face of substantive conflict”
  • Religious expression → good/protected
  • Regions belief/action → bad/condemned
  • Academic freedom: requires us to be ok to agree to disagree: “it all sounds fine and highly moral, but in fact it displaces morality by asking you to inhabit your moral convictions liberally and be ready to withdraw from them whenever pursuing them would impinge on the activities and choices of others” “it requires us to suspend those uregencies that move us to act in the world” “moral stances are turned into individual preferences”
  • Academic freedom: “evacuates morality by making all assertions equivalent” “empties history of its meaning so that actions proceeding from entirely different motives and agendas become indistinguishable as instances of individual presence and free choice”
  • “Forced inability to make distinctions that would be perfectly clear to any well informed teenager…between a welcome mat and a no entry sign”
  • “Liberal neutrality does political work so well because it had managed to assume the mantle of being above political work”
  • “The debate is never between the inclusive university and a university marked by exclusions; the debate is always between competing structures of exclusion”

Boutique Multiculturalism

  • “We may never be able to reconcile the claims of difference and community in a satisfactory formula, but we may be able to figure out a way for these differences to occupy the civil and political space of !this! community without coming to blow”
  • Case by case adjudication → abstract principled adherence to precedent
  • “I would not be misunderstood as recommending adhocary; my point, rather, is that adhocary will be what is going on despite the fact that the issues will be framed as matters of principle”
  • Hate speakers and religious fundamentalists have in common: refusal to respect the boundaries of what one can and cannot day in the public form. Both declared ineligible before the fight begins.
  • Liberalism: an openness defined by what it peremptorily excludes
  • Not saying liberals are not open enough. Rather, that our desire to be open is the problem because it prevents us from taking the measure of what we recognize as an evil

Procedural History / Rhetoric of Regret

  • The goal: a law that is procedurally pure, unadulterated by substantive biases, a law that is truly blind: color blind, gender blind, race blind, ideology blind, sexual orientation blind
  • Law school: “you must continue to be a person of substance and at the same time reach the supposedly higher value of setting his values aside in the name of procedural purity”
  • You know you are hearing the rhetoric of regret when a judge tells you that he hates the activity he is about to allow, has contempt for those who are engaging in it, and profound sympathy for those who are its victims…but nevertheless”
  • Any decision should be made on empirical grounds, on a calculation of likely outcomes, and not on the grounds of principles thought to be indifferent to outcomes
  • Is it more harmful for governments or individuals to regulate speech? Free market place of ideas” “individuals are not free but socially constructed by the same forces and pressures embodied in their governments”

Mission Impossible

  • Issue: “in a system of tolerance and diversity there has to be some exclusions → how best to package the exclusions so they appear to have been dictated by universal principles.”
  • Institute a regime of tolerance and face the difficult of a system of government without the power to constrain and punish what it thinks wrong
  • Institute a regime of power and recommend it as the alternative to the chaos everyone fears
  • Institute a regime of power but dont identify it as such (liberals choose this option)

Wolf in Reason’s Clothing

  • A fanatic is a person who holds to his position with an inappropriate degree of certainty, and believes something too strongly, and more importantly, believes the wrong thing (wouldn’t call a scientist a fanatic)
  • Racists and religious zealots are lumped together (both deemed irrational)
  • You can’t “tolerate” something unless you would seriously be ok with its ascendency as the orthodox position or view

Playing Not to Win

  • There is a tension between religion convictions and secular liberalism (and you can’t just tolerate. Look above)
  • “Problem of persons who religious premises direct them to put every proposed public policy to the test of theological doctrine)
  • People don’t like this b/c u can’t “reason” with them
  • Religion is only tolerated to the extent that it is seen as a private choice that doesn’t/can’t influent public life or politics writ large
  • Liberals dissuade people from taking conflicts too seriously because the right answers are continually shifting, so it is best not to insult too strongly on the values you happen to favor. But he argues that if we live In a world where nothing is fixed or permanent and the relationship between present urgencies and ultimate ends is continually changing, one must take ones positions more seriously, not less
  • Embedded in this view are the assumptions of fallibilism and epistemological uncertainty → so don’t hold any strong opinions. Have humility
  • He is arguing for us to accept that we don’t tolerate every view, and to have open debates about which positions we tolerate and which we exclude rather than trying to hide the fact that we are exclusionary. We need to embrace exclusion rather than push it away or disguise it as tolerance
  • Conclusion: liberalism cannot succeed without embracing illiberal views that it abhors (exclusion)
  • “Politics, after all, is what is usually opposed to morality, especially in the texts of liberals theorists. Politics, interest, partisan conviction, mere belief — there are the forces that must be kept at bay” (federalist papers)

Why Can’t We All Just Get Along

  • “Most men admire virtue, who follow not her lore” — Satan in paradise regained
  • A reasonable person: is someone who believes what I believe. Therefore, a reasonable mind a is a kind that refuses to open
  • But Mill argues that a reasonable man is someone who tolerates all views
  • A “religion deprived of the opportunity to transform the culture in ever detail is hardly a religion at all”
  • “We already had the enlightenment and religion lost”

Faith before Reason

  • what is and isn’t ideological is itself determination of ideology, of that agenda or vision in the happy position of getting to draw the lines — some truth are given common sense status, some are respectfully disagreed upon, others are disputed, and others are excluded”

Beliefs about Belief

  • what we believe determines what we notice, and what we notice determines what we do. And what we believe emerges historically and in relation to toe her beliefs that are already the content of our consciousness
  • “Theory abstracts always particularity and makes it impossible to address real life problems”
  • “Justice as fairness, mutual respect, autonomous self government, these may be the prizes triumphantly offered to a waiting world at the end of a still another interminable analysis of the conditions of the good life, but if you hold them in your hand and wait for them to tell you what to do next, they have nothing to say; rather they say something only when they have supplemented by the very local historical concerns it is claimed they transcend
  • Judges just piece together evidence from the sedimented history of precedent to present a “legitimate” argument for a position they support based on “respectable” evidence we’ve seen before
  • Over Reliance on theory and principles tends to deny or diminish the force of facts and history and context

Truth and Toilets

  • “if you say something is wrong, you will be asked to provide a basis for your judgement that is independent of the social political and biographical circumstances in which it was formed. The thesis of this has been that no such basis is available and that the ordinary resources that come along with your situation, education and personal history are both all you have and all you need”
  • “No result in philosophical investigation will undermine the working standards by which we assess claims based on evidence and argument

Epilogue

  • we look at individual moments cut off from the context that gives them meaning
  • “This strategy of — first segmenting resorts and then placing all the weight in individual bits of it — is useful whenever you want to deflect attention away from the big picture”
  • “Either a particular personal at a particular moment did it or no one did…persons can only be discriminated against one by one and not by the massive effects of longstanding structural racism”

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