[Discussion] Philosophy and Literature 26.1 (2002) 224-238

[Paksoy, Hb]

Philosophy and Literature 26.1 (2002) 224-238 
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Bookmarks
A Hanging Judge 
Denis Dutton 

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"CORNERING THE MARKET ON CHUTZPAH," blared the headline on one review, and
in tone it wasn't alone. It's not often that a book by a public intellectual
has received as much media attention-mostly vilification and scorn-as
Richard A. Posner's Public Intellectuals: A Study of Decline (Harvard
University Press, $29.95). Three reasons for this stand out. First, there's
the sheer audacity of including a list of the top hundred public
intellectuals, drawn from a larger list of 546 names. This invites endless
dispute over how the list was generated, who is on it, who is left off,
where each one stands, and why. Second, there is the fact that Posner has
managed in the book to offend half of the public intellectuals you'd expect
to be called on to review it-almost as though he made a list of potential
reviewers and worked in a swipe at each. Finally, he has tapped into the
deep antipathy humanist intellectuals have to seeing a beloved topic treated
quantitatively, with statistics and applications of social and economic
theory, replete with graphs and algebraic formulae. And after all, what
topic is more beloved by the intellectuals than they themselves? That Posner
would actually treat such important people as a demographic type, sorting
them in terms of race, age, field, politics, sex-why, he even asks why so
many are Jews. It's outrageous . . . and delicious. 
Definitions first. The idea of an intellectual, Posner says, should not be
identified merely with having highbrow, cultivated tastes, being especially
creative, or having high intelligence. All of these things are possible
without being an intellectual, which Posner thinks ought to denote the
application of the mind to "political matters in the broadest sense of that
word, a sense that includes cultural matters when they are viewed under the
aspect of ideology, ethics, or politics (which may all be the same thing)."
There is therefore a vague redundancy in the term "public intellectual,"
since the placing of ideas in a larger public context, acting as social
critic, is what the intellectual most essentially does. In our age of vast
communication media, it is also done conspicuously in public, through
op-eds, public radio interviews, and on TV clips with the regulation
public-intellectual bookcase as a backdrop. This concern with larger moral
issues means that for Posner paradigm individuals would therefore include
the likes of John Dewey, Bertrand Russell, Hannah Arendt, Arthur Koestler,
Edmund Wilson, Susan Sontag, and most powerfully in Posner's mind, George
Orwell: people who write about literature, art, science, and so forth from a
broadly political or ideological perspective. For example, when Allan Bloom
writes about rock and roll, he is not doing so as a music critic but as a
philosopher who sees it as a symptom and source of social degradation.
That's echt public intellectual work (and rather bad work in this particular
case, Posner believes). That it is done for a broader public is also a crux
for Posner, who leaves John Rawls off his list his list, because as
influential as Rawls is as a philosopher, he does not address a larger
public in the way that Richard Rorty and Martha Nussbaum do. 

The decline referred to in Posner's title is a decline in the actual worth
of public intellectuals' work, not in their media celebrity, which has grown
roughly inversely to the value of what they do. This invidious situation has
followed, in Posner's view, the proliferation of academics in the ranks of
public intellectuals. From the nineteenth century, with such names as
Thoreau, J.S. Mill, Herbert Spencer, Matthew Arnold, and Tocqueville, to
well into the twentieth, with the likes of Max Eastman, Edmund Wilson, H.G.
Wells, and Dwight Macdonald, the great tradition of public intellectuals had
its life outside of universities. Although there remain nonacademic public
intellectuals today-Susan Sontag, Roger Kimball, Tom Wolfe, Gore Vidal-they
are a severely diminished species. Universities, which have expanded so
enormously in the twentieth century, offer "to anyone who wants to embark on
a career as a public intellectual" the requirements for the job: "leisure,
credentials, and financial security." For academics who otherwise keeps
their noses to the scholarly grindstone, and even for those who don't, there
is but small cost for entering into the market as a public intellectual,
small cost for doing bad work there, and small cost for withdrawing from the
market. The media for their part have column space and air time to fill, and
they are all too willing to give a platform to public intellectuals to
pontificate, predict, warn, scold, handwring, entertain, and occasionally
inform their audience. 

Posner's discussion is wide-ranging and digressive, animated by a skepticism
that never quite falls into cynicism: dour amusement is more his style than
bitter condemnation (besides, since Posner is himself the preeminent public
intellectual in the American judiciary, he can ill-afford to dismiss
everyone else who is doing what he does). The public intellectual is selling
credence good, ideas and arguments that solicit agreement, and therefore
demand some kind of authority in order to be accepted. This authority is
attained through having academic credentials indicting a high degree of
specialized knowledge: being an academic expert in astrophysics, aboriginal
peoples of Tierra del Fuego, copyright law, or Latin poets. Since this is
accompanied by being "professor" so-and-so at a university, and since the
specialty is beyond the grasp of the lay audience, it helps to have one or
two further warrants: celebrity and commitment. Celebrity is understood here
as an intrinsic value: being familiar face on the television screen or
regular name on the op-ed page is a value in its own right. Commitment is
perhaps more substantial, and can contribute to both celebrity and
authority: it means that the public intellectual has stood behind a cause or
position in a way that requires a sacrifice or risk of some kind. Posner
mentions eco-catastrophist Paul Ehrlich's decision to be sterilized after
fathering a single child, therefore putting the fight against
overpopulation, as he then saw it (about 1970), into his personal life. This
commitment seems at least a real, if not major, sacrifice (many people
choose anyway to have one child, or none at all, without worrying about
world population). On the other hand, Posner treats as fatuous the
well-known photograph of Edward Said throwing a stone, risk free, at Israeli
soldiers, who were not responding. As risk-takers, public intellectuals like
Ehrlich and Said, Posner remarks, "are our Havels and Solzhenitsyns, writ
small." 

Commitment and sacrifice are issues Posner alludes to more than once in
Public Intellectuals: for the individuals who partake in public-intellectual
work in the media today, the performances have the quality of a risk-free
lark. I know that in New Zealand the self-image of many an academic is of a
brave battler who "speaks truth to power." In fact, here as in the United
States, academics, far from being marginalized outsiders are, in Russell
Jacoby's phrase, "consummate insiders." They are the very ones with the
power-and the security of having well-paid jobs from which they can be fired
only with the greatest difficulty. Yet they often flatter themselves that
they are lonely Socrates-types, independent seekers of truth, living at the
edge. An American example Posner gives is that of Cornel West, who in
self-pity calls himself "isolated," caught between "an insolent American
society and an insouciant black community." Of course, Posner remarks, it
doesn't help his recognition in the black community that this wealthy
Ivy-League professor seems more at home talking about Hegel, Gramsci,
Lyotard, and Jameson than formulating practical social policy (Posner's book
predates West's recent rap CD). In any event, most academic intellectuals
take no risks whatsoever in expressing conventional left-leaning (or
politically correct) views in the public arena, which is undoubtedly part of
the reason their pronunciamentos are not regarded with much seriousness by
the public. 

There is another point Posner makes in connection with public indifference
to public intellectuals. The image of the independent outsider calls on the
academic to display overt originality-academics are expected to avoid
spouting "conventional wisdom." At the same time, the media find more
entertainment value in talking heads that express unusual or jarring ideas
of any stripe. The result of these two factors is to drive the opinions of
public intellectuals to extremes, or at least to present mostly the
extremes, in order to up the drama of public debate. Posner observes:
"Because there is no correlation between the originality and the political
and social utility of an idea, the academic emphasis on originality, and the
superior marketability of extreme positions in the market for
public-intellectual work, are frequently at war with the accuracy, utility,
and practicality of the academic public intellectual's predictions and
recommendations." After all, the best sense that might be expressed on a
public issue might well turn out to be boring, and boring is not what the
media want. The overall effect for public intellectuals' extreme
pronouncements is that they tend to be received with about as much alarm as
the predictions of Chicken Little. 

This is not a dumbing down that can be laid at the feet the media. As Popper
and Kuhn understood, bold, risky hypotheses are, infotainment demands aside,
at the heart of great advances in the sciences and scholarship generally.
Posner points out, however, that bold and risky propositions are not
something that usually have much merit in the realm of the social and
political. In fact, it's the more frequently the reverse: the best
public-intellectual work in the past "has consisted in seeing through the
big new economic and political nostrums." In this respect, George Orwell
remains exemplary for Posner. Orwell may not have been a genius in the sense
of having a prodigious memory, "lightening-fast analytical capabilities, a
taste for theory, or bold new ideas." But he was able to see what was
plainly before him and describe it in "unforgettably vivid prose." "These
are not," Posner dryly adds, "typical academic gifts." Rather than being
captivated by big ideas, Orwell was skeptical of them, especially when there
were purported solutions to problems in the public realm. Typical academics,
on the other hand, are not oriented toward political reality: "They tend to
be unworldly. They are, most of them anyway, the people who have never left
school. Their milieu is postadolescent." They often work alone, without
developing the social skills and sensibilities that would give them
political insight. Here is how Posner summarizes the academic public
intellectual: 

A proclivity for taking extreme positions, a taste for universals and
abstraction, a desire for moral purity, a lack of worldliness, and
intellectual arrogance work together to induce in many academic public
intellectuals selective empathy, a selective sense of justice, insensitivity
to context, a lack of perspective, a denigration of predecessors as lacking
moral insight, an impatience with prudence and sobriety, a lack of realism,
and excessive self-confidence. The "on the one hand, on the other hand"
approach to politically or ideologically charged issues-the kind of approach
that can understand slavery in its historical context, that sees the bad
along with the good abolitionists, that seeks a functional explanation to
(for us) bizarre practices such as clitoridectomy and infibulation, that
acknowledges that Nazis were fervent environmentalists and public-health
fanatics, and that Bill Clinton was the consolidator of the Reagan
Revolution-this approach is uncongenial to the academic temperament. The
typical academic is a Platonist, not an Aristotelian. 
In enumerating examples of poor performance by public intellectuals, Posner
is devastating. One of his themes is that the public and journalists have a
short memory; he remedies this by reminding readers of predictions made by
public intellectuals in the past. While there is amusement how often the
pontificators have fallen on their faces, Posner's point is also positive:
the quality of public intellectual work might actually improve if better
score were kept of their prophetic utterances. His ultimate recommendation
of websites to record academics' predictions might be itself unrealistic
(though independent webloggers are beginning to keep track of these things).
But surely Posner is right in principle. Tabloid news organizations
typically solicit predictions from psychics and clairvoyants at the
beginning of the year; almost none will publish a results-rundown at year's
end. If they were to do so, like financial magazines that rate stock funds,
it might not stop readers from believing in clairvoyants, but it at least
would begin to put paranormal authority in perspective. Posner is only
suggesting that we treat our public intellectuals with the same common-sense
skepticism. The point isn't that they will never be wrong-that would be an
unreasonable demand. But if we find that they are even less accurate than
whatever we'd expect from chance, then we are justified in doubting the
value of their opinionizing. 

Public intellectuals' stock-in-trade is prediction. They tend to be trendy
in the literal sense that much of what they foretell is extrapolated from
trends. Paul Ehrlich's famously wrong predictions of ecological disaster are
good examples of this. Ehrlich backed one of his "coming scarcity"
predictions in his famous bet with economist Julian Simon over the price of
industrial metals. Ehrlich was relying on the inflation of metal prices in
the 1970s; Simon won by taking into account the longer, three-hundred-year
downward trend in all commodity prices. In general, those who would
extrapolate scarcity from production and consumption trends underestimate
the limitless and unknown ingenuity of humans in dealing with problems that
become acute (replacements are found for expensive industrial metals, new
recovery techniques are introduced, etc.). Ehrlich, who also predicted
massive worldwide famine in the early 1980s, where optimistically "only"
half a billion people would starve to death, was out of his depth and in any
event motivated by a catastrophist ideology. 

More curious was the almost complete inability of credentialed experts to
foresee the fall of the Berlin Wall and the ultimate end of the Soviet
Union. Again, Posner notes, lacking any real grasp of the brittle
instability of the Soviet system, the best the experts could do was predict
that the future of the Soviet Union would continue as pretty much like its
past, i.e., the trend would persist. Safe, it seemed, but spectacularly
wrong. Other predictions, from people Posner terms variously Declinists and
Jeremiahs, look even more ridiculous. Sociologist Robert Bellah's
predictions of economic disaster for the 1990s seem quaint, as do Lester
Thurow's prognostications about Germany, and especially Japan, overtaking
the United States as the economic powerhouses of the twenty-first century.
The left-liberal Paul Krugman takes it in the neck from Posner, as does
Daniel Bell, who argued for years that in the late twentieth century
has-been America would no longer be a "hegemonic" world power, but would be
overtaken by a more vital socialism. 

But Posner is just as critical of right-wingers. He points to the
conservative Jeane Kirkpatrick, who predicted that "communist regimes,
unlike right-wing autocracies, would never evolve into democratic
societies." Another conservative commentator on political and economic
affairs, Edward Luttwak, proclaimed the Soviet invasion of Afghanistan a
success in 1983. He later worried that Gorbachev's glasnost and perestroika
would strengthen the military power of the Soviet Union. In 1992 he
predicted that the United States was likely to become a third-world country
by 2020, having been overtaken by superpower Japan. Naturally, he predicted
that the use of American ground forces in Operation Desert Storm against
Saddam Hussein would not be effective, leading to thousands of U.S.
casualties. Since Posner's book was published just before the September 11th
terrorist attacks, I regretted that Posner was unable to report on Luttwak's
pronouncements on the recent situation in Afghanistan. But searching the
Web, I turned up a Boston Globe article in which Posner recounts some of the
absurdities committed by public intellectuals in the aftermath of the
attacks, including further bad guesses by Edward Luttwak. The parade of
false prophecy marches on, and it's a pleasure to see a Judge of the Seventh
Circuit Court of Appeals standing at the edge of the crowd of spectators
throwing spitwads. 

Posner analyzes the question of whether public intellectuals pay a price for
making erroneous predictions. He takes eight public intellectuals who have
been seriously wrong in predictions to see how their media mentions stacked
up in 1999 compared to 1989. For his list of false prophets the weighted
average increase in mentions was 40%. The damage Edward Luttwak suffered for
a decade and longer of wrong predictions and analyses was 44 media mentions
in 1989 and 398 in 1999, while Robert Bork, another wrong intellectual, was
the only one whose media mentions actually declined. This sounds like no
damage at all, except that statistician that he is, Posner sets it against a
larger control group of public intellectuals: their weighted average
media-mention increase in the same period was 108%. There is a price to be
paid, though it is not high. 

Why do such modest consequences attach to bum predictions by public
intellectuals? Posner suggest that in the first place, public intellectuals'
forecasts are, unlike scientific hypotheses, not intended to be tested.
Public intellectuals usually appear in print and on TV screens as
representatives of an ideology or stereotyped position-conservatism, welfare
liberalism, feminist victimology, libertarianism, and so forth. By
representing a position they create public solidarity with it, confirming
prejudices of that segment of the audience that already agrees with them.
This affects the attitude toward public intellectuals of their ideological
confreres: like-minded academics will tend to rally around each other-you'll
not see fellow environmentalists criticizing Paul Ehrlich no matter how daft
his forecasts (even when the predictions are alarmist and wrong enough to
damage the Green movement). A second reason, as mentioned earlier, is that
there is no system by which the predictions of public intellectuals can be
collected in one place and evaluated. And finally, Posner adds that the lack
of scorekeeping shows that the views of public intellectuals are just not
important to most people anyway. 

In these respects, Posner's account of public intellectuals in their
relation to audience and media looks to me like a more literate and educated
version of what the checkout-line tabloids and women's magazines do with
psychics and clairvoyants. The predictions of these seers are often
outrageous prophecies about the doings and sufferings of celebrities, or
public disasters of high entertainment value and higher improbability. The
predictions are never later on checked or recorded as falsified by the
publications in which they appear. Neither do the readers who take an
interest in such predictions seem to be concerned with verification or
falsification. The interest centers mostly on the amusing character of the
prediction itself: NASA scientists will discover the actual Garden of Eden
on satellite photos! An infestation of rattlesnakes will make downtown San
Diego uninhabitable! Bill Clinton will divorce Hillary in order to marry a
black woman-who will turn out to be his cousin! These kinds of predictions
are little more than downmarket versions of, to site some instances from
Posner and elsewhere and add exclamation points, Residual DDT in the
environment will reduce Americans' average life expectancy by ten years!
(Paul Ehrlich in 1970.) Time is on the side of the Soviet Union in its
struggle with the West! If there is any hope for us, it lies in the Third
World! (Richard Rorty in the 1980s.) The Soviet Union has already won in
Afghanistan! (Edward Luttwak in 1983.) The United States is doomed in its
war against Saddam Hussein (Robert Fisk in 1991.) The United States is
doomed in its war in Afghanistan! (Robert Fisk in 2002.) Japan is destined
to become the world's economic superpower, and will trample United States in
the coming century! (Lester Thurow almost any time). And just as Madame
Omniscia of the Weekly World News missed Princess Diana's car crash, the
expert Sovietologists missed the fall of the Soviet State. 

Beyond questions of prediction, Posner's argument is arranged around many
other digressions on the contributions or foibles of individual public
intellectuals. The scattered nature of these digressions is an
organizational problem. Carol Polsgrove in The American Prospect was
reminded of her grandmother's attic: "here an elephant table brought home
from Africa; there a cuckoo clock." One reviewer complained of the inclusion
of a separate chapter on ethical criticism and one on Orwell and Aldous
Huxley. As both of these superb chapters were originally published in the
pages of PHILOSOPHY AND LITERATURE in 1998 and 2000, I'm not complaining.
Posner also indulges his pet obsessions, particularly the failure of the
liberal intelligentsia to appreciate the real nature and magnitude of
Clinton's misconduct in the Lewinsky scandal (Ronald Dworkin is the target
here), or to understand the essential issues involved in the subsequent
impeachment trial, or to grasp the constitutional legalities and
implications of the aftermath of the near-tie vote between Bush and Gore in
Florida. These discussions have annoyed many reviewers, and they do have
about them a sense of score settling. On the other hand, the book's more
central systematic pretensions have also drawn fire: for instance, using
Lexis/Nexis mentions to establish public intellectual notability does
produce odd results. Sidney Blumenthal, who happened to be in the White
House during the Lewinsky scandal, comes in at number 8, with Jean-Paul
Sartre at 64 and John Kenneth Galbraith at 69. But haggling over placements
on the list is as pointless as taking it as a wholly reliable tally of who
counts intellectually today: the list is derived mechanically to avoid being
anybody's personal preferences. Posner himself comes in at 70, just ahead of
Solzhenitsyn and Camus. No one should gripe: he is in fact the most cited
sitting judge in the United States. 

The chapter on the "Jeremiad School" of public intellectual traces the
varieties of public pessimism back to The Education of Henry Adams and
Spengler's Decline of the West. Posner identifies the jeremiad as showing up
on both the right and left sides of the political divide, although it is
primarily a right-wing phenomenon, where it assumes that (1) the 1950s were
America's last echo of a golden age, (2) the 1960s began the slide into
barbarism, that (3) the present is an era of decadence, and (4) the future
is bleak. The blame of course rests with modern liberalism and the
permissiveness it instilled, along with feminism, multiculturalism, and so
forth. Much of the rot is traced back to John Stuart Mill's On Liberty,
while the proof for our fallen (and falling) state derives from "telling
anecdote and selective statistic." Posner says, "Declinist works get much of
their rhetorical force from contrasting an idealized past, its vices
overlooked, with a demonized present, its virtues overlooked." His main
targets are Gertrude Himmelfarb and Robert Bork, though he cites liberals or
leftists such as Robert Putnam (Bowling Alone), Jeremy Rifkind, Christopher
Lasch, and even Richard Rorty as falling into the category. Irving Kristol
and Jacques Barzun also cop flak. 

In many respects Posner has what could be considered conservative political
and economic views, but right-wingers of the declinist camp obviously drive
him crazy. He begins a pan of Robert Bork's Slouching towards Gomorrah by
pointing out the faulty use of Yeats in the title, which refers to a messiah
of some unknown stamp, whereas Bork thinks culture is slouching into
unredemptive decadence, which is a rather different notion. The seeds of our
decay were already sown by the men who drafted the Declaration of
Independence; On Liberty was just a landmark on the slide toward the dreaded
1960s. Posner notes Bork's idea that "a sign of our decay, our loss of
romance and gravitas" was the fact that in World War I soldiers sang into
combat, whereas in World War II they wisecracked a lot, and admired
informal-nice-guy Eisenhower over stuffed-shirt MacArthur. 

Posner objects to Bork's casual way of using evidence, which, considering
that Bork is a former acting attorney general and federal appeals judge,
surprises Posner (at least he affects surprise). The worst example of this
for Posner is the way Bork chooses to disregard prevailing scientific
opinion on evolution and treat creationism as a new shift in science, rather
than a rejection of science itself. Part of what makes this so deplorable is
that Bork elsewhere in his book is willing to accept what science has to
offer when it proves, in Posner's description, "ineradicable inequalities
among people." This is just another example of the general tendency of
public intellectuals to pick and choose among conveniently appropriate
scientific theories: "The Left believes steadfastly in evolution and in the
statistical evidence linking cigarette smoking to lung cancer and other
diseases, but turns skeptical when confronted with the application of the
theory of evolution to differences between the sexes and to homosexual
orientation, or with statistical evidence indicating differences in
intelligence." (Earlier in the book, Posner had damned the late Stephen Jay
Gould's critique of the concept of IQ in The Mismeasure of Man and in his
later attacks on The Bell Curve, by Richard J. Herrnstein and Charles
Murray. In fact, Posner shows that Gould and Herrnstein and Murray have much
more in common than Gould wanted to admit; their differences are matters of
emphasis and degree.) Finally, Posner gives over considerable space to
criticizing Bork's views on abortion, including late-term partial-birth
abortions, always as ugly in description as they may be unavoidable in life.
Bork is quoted as saying that "the systematic killing of unborn children in
huge numbers is a part of a general disregard for human life that has been
growing for some time." But Posner points out that there is nothing
"systematic" about it; the government is not requiring abortions, simply
permitting them. Moreover, Posner observes, given "his concern for the
disregard of human life, Bork might have been expected to discuss America's
continued employment of capital punishment at a time when almost all the
nations that we consider our peers have abolished it." Posner wants to know
why capital punishment isn't as much as sign of cultural callousness for
Bork as abortion or assisted suicide. And on Posner goes, pointing out
Bork's comparison of white males in universities with Jews in Nazi Germany
(just a shade exaggerated), his call for censorship of the media, and his
apparent hope that a "deep economic depression" or maybe a nice "cataclysmic
war" could bring about the spiritual regeneration he thinks we so badly
need. 

Richard Rorty is another public intellectual who suspects that only "a
great, huge recession" will lift the veil from the eyes of "the masses" and
enable them to see that it's not bureaucrats who are the enemy, but "the
bosses." An attractive idea, perhaps, though we have only to think of the
Weimar Republic to remind ourselves that when you impoverish a people, you
can't always guarantee they'll vote for the most sensible solution to their
problems. (There's something so charming about prophets who fantasize vast
disasters for the world in order that their theories may yet be validated:
this is how Jerry Falwell and Pat Robertson came so idiotically to grief on
September 11th, and it represents the psychology of many a Green
catastrophist, as well as the likes of Bork.) In any event, Posner is more
indulgent with Rorty than with other members of the accredited left, since
Rorty's skepticism about principles appeals to him. To call Rorty "our
Orwell" is overstatement, as Rorty seems so solidly an establishment
insider; but then maybe Orwell could have ended as establishment, had he
lived to become wealthy off the royalties of Nineteen Eighty-Four and had
snagged a lucrative writer-in-residence post at an Ivy-League college. What
makes Rorty our Orwell is that he combines "an unreflective egalitarianism
based on sympathy with human suffering and hostility to fat cats with a
strong dislike of the unpatriotic Left, and in expressing his views in
beautiful prose, at once limpid and passionate." Nevertheless, Rorty is an
academic whose sheltered life has known none of the hardships-war, bad
health, poverty, communism and colonialism-that Orwell experienced at first
hand. Rorty's technical philosophy is far beyond the public and his
public-intellectual criticism has an unworldly air to it. Posner mentions in
particular his criticism of the unpatriotic Left, which he finds
commendable, except that what Rorty is attacking "is not the intellectual
manifestation of a totalitarian world power but a comical sliver of
university life, the raw material for academic novels and fevered
conservative denunciation." The actual Left Rorty commends to us is merely
nostalgic, while his view of history is "pessimistic, almost Spenglarian,
cursory, and wholly without practical suggestions." When he does come up
with something practical, such as his suggestions about Social Security in
an op-ed piece in the New York Times, he gets it wrong in ways that Posner
convincingly shows. Richard Rorty may call himself a pragmatist, but that
doesn't mean he has much of anything practical to recommend. 

On the other hand, he is refreshingly unprincipled as well, and I think this
in the end is why Posner prefers Rorty to the philosopher he uses as a foil
for him, Martha Nussbaum. Both are welfarist liberals, but unlike Rorty she
is prone to support her opinionizing with references to illustrious dead
philosophers such as Aristotle. Posner regards this as a rhetorical ploy to
give weight to views that ought to be the province of sociology or
economics, areas where, he claims, she has no real competence. It can also
get her into trouble, as it did in the Colorado homosexual-rights trial,
where she tried to tie her enthusiasm for homosexual rights to her
understanding of Greek views of homosexuality. It did not turn out well.
Posner analyzes that case, and also makes pertinent remarks on some of
Nussbaum's recommendations to improve the lot of women in the Third World.
Always the realist economist, he dissects some of the practical constraints
on women's education in poor countries. Equal education for boys and girls
everywhere is an unexceptionable idea in the rich West, but in a poor
country where all resources are stretched to the limit, money must come from
somewhere to fund extra places in an education system, and the costs have to
be weighed against the benefits. It is ghastly to even raise such questions,
but ghastly is something Posner is willing to face: what if higher education
for some girls means less lower-level education for everyone else,
particularly girls and boys at the worst-off levels of society? What about a
society that because of economic or customary constraints has little scope
for employing better-educated girls, or is structured so that they are
needed at home? Posner says that as far as he can see, more education for
girls in the Third World is in fact a positive good, especially in affecting
birth rates, but he notes that he can arrive at this conclusion without any
of the philosophical paraphernalia Nussbaum employs to drive to the same
conclusion. 

Posner also suggests that the West must at least consider the functional
foundations for customs we may well deplore in foreign societies, such as
female genital mutilation. Here, as in the earlier discussion of education
for girls in the Third World, his short digression on genital mutilation is
peppered with footnotes to empirical sociological and ethnographic studies
that place the issues in their actual indigenous context. At the end of his
paragraph on genital mutilation he even cites a 1992 study by Pia Grassivaro
Gallo and Franco Viviani suggesting that in Somalia the practice has a
functional use in making women who herd sheep and goats less disturbing to
their flocks. Sounds far-fetched to me, but Posner does not endorse the
study. His only point is to remind readers that even something as bizarre
and repellent as genital mutilation could conceivably have a functional base
in a remote culture, and though this may not justify a practice, it could
well explain it. (In fact the anthropological literature is strewn with
theories to explain the existence of slavery, warfare, or cannibalism in
this society or that.) Yet in the TLS review of Posner (January 25, 2002),
Thomas Nagel uses this citation as a stick to beat Posner over the head. In
criticizing Nussbaum, Nagel says, Richard Posner strikes his "favourite
pose, that of the cool realist, immune from sentimental moralism. He is
scornful of those who would denounce the subordination of women without
considering whether it is 'functional' . . . ." Nagel then quotes the
passage about female sexual odors in such a way that Posner is made to look
as though he approves of the explanation. Little surprise then that not long
after the appearance of Nagel's review, Kenan Malik shows up in the New
Statesman (April 22, 2002) with the following: "There is also much here that
is as sloppy and as rotten as the arguments of those [Posner] seeks to
chastise. Take, for instance, his upbraiding of philosopher Martha Nussbaum
for her demand that the practice of female genital mutilation (FGM) be
banned. Nussbaum, Posner claims, is not up to scratch with the latest
anthropological theory that suggests that FGM plays a functional role in
third world societies. 'It has been conjectured,' Posner writes, 'that among
Somali herders . . . the practice is designed to reduce the emission of
female sexual odors, which are disturbing to the herds of sheep and goats,
for which the women are chiefly responsible, and also attract predators.'
One can but take a deep breath and admire Posner's chutzpah." So begins, no
doubt, a chain of citations which will eventually have Posner cast into the
role of would-be mutilator of women, down on the floor, rusty razor blade in
hand. 

Posner, it should not have to be said, is against female genital mutilation
and is in favor of education for Third World girls. He emphatically does not
"upbraid" Nussbaum for disapproving of it. At the same time, he thinks it's
unwise for the liberal West to dogmatically or unreflectively apply its
standards and norms to remote cultures. What counts as dogmatism here will
be open to dispute, but one might have thought that such an open and
inquiring attitude was a basic precept of any study that involves
cross-cultural evaluation. Posner is not being woolly or amoral or
relativist. He is only advising caution in making moral judgments. But he
takes his thinking on this issue deeper in remarks he makes about the idea
of tragedy in relation to the writing of both Nussbaum and Rorty. He argues
that a sense of tragedy is alien to both of them. There is no feeling for
the losses that inevitably accompany social gains. Tragedy knows there are
no pat solutions to the profound problems that afflict the human condition. 

Not to harp on examples raised by Nussbaum, I'll illustrate the point with
an item of personal experience. I have an abiding love and fascination for
the arts of New Guinea, especially the carving that comes out of the Sepik
river region of northern New Guinea. I've gone so far as to do fieldwork
among carvers of the Sepik in order to learn for myself a little of their
craft and to gain direct familiarity with their indigenous aesthetic values,
their ways of judging works of art good and bad. Prodigious carving talent
flourishes in those parts of Melanesia, as it has for a long time. And yet,
though it is uncomfortable to say it, the quality of Sepik carving is not
today what it once was: the extraordinary, haunting carvings collected by
early Europeans (uncollected carvings from a century ago have long since
perished in the insect-infested tropical Sepik) are a long way from the
bland, vapid, kitschy, but technically excellent carvings sold to tourists
today. Why? The answer is that the early carvings of New Guinea peoples
express the values of a darkly passionate, animist, headhunting society. The
intense and deadly culture of headhunting in New Guinea resulted, in my
opinion, in some of the most powerful art ever made. Some outsiders,
especially Catholic missionaries, have tried with modest success to keep
alive the New Guinea carving tradition. But the only way really to recapture
the somber spirit of old New Guinea carving would be to bring back
headhunting. Now headhunting society, for those who know its practices and
history, is one of extreme cruelty and brutality; no one in his right moral
mind would seek a return to such barbarity. But there, staring us in the
face is the tragedy of the situation: the greatest art of Sepik peoples
seems to have been contingent on the existence or organized murder. I offer
this simply as an observation; the observation contains no implicit
recommendation, and the general point is not unique to New Guinea: if it
could be shown that the architectural wonders of the ancient world, the
Parthenon, for instance, depended on a slave system, no one would ask for a
return to slavery to revive the art. What I think Posner finds lacking in
the social programs of Rorty and Nussbaum is any analogous sense that making
an indisputably better world can entail losses. Headhunting is terrible, but
so the disapperance of headhunting arts. Nevertheless, the colonial powers
knew what they had to do for the sake of New Guineans, and the loss of the
arts is tragic. 

All this talk of tragedy is far from the overall spirit of Posner's book,
which I find infectiously contrarian and enjoyable in its arrogant, odd,
admirably upbeat manner. The means that he finds for skewering scholarly
pontificators, deflating abstruse theorizing, and knocking puffed-up
philosopher-pundits off their perches make Public Intellectuals: A Study of
Decline a rare pleasure. I'm not sure where he stands on capital punishment
(his critique of Bork's pro attitude leads me to suspect he's anti). But
when it comes to intellectual pretension, Richard A. Posner is a hanging
judge who prefers a short drop: don't snap the neck immediately-let 'em
writhe for a while. And yet, don't we academics deserve this treatment from
such a fearsomely smart and independent thinker? Yes, in the name of
justice, we do. 

  


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University of Canterbury
New Zealand