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Tuesday, July 11, 2017

"Positive Pluralism Now": A Review of John Inazu's "Confident Pluralism"

I'm grateful to Rick for the mention of my piece Positive Pluralism Now, a review of John Inazu's fine and very well- and widely-noted book Confident Pluralism: Surviving and Thriving Through Deep Difference. As a book review, my just-published piece suffers from the usual potential SSRN black hole: my experience, at least, is that SSRN is inconsistent in its treatment of book reviews but generally prefers not to put them on the main, searchable "list". What's more, it lacks even a Solum-ready abstract. So I want to offer a summary of the review, which is an attempt to use the book as a vehicle to think about issues that have interested and worried me for some time, both before and after the election. 

First, although this is a critical review of John's book, it's not a dismissive one. I write: 

If a new literature of pluralism emerges in this culture-war cycle, Professor John Inazu’s Confident Pluralism: Surviving and Thriving through Deep Difference is likely to be one of its key texts. Inazu’s book is blissfully short, clearly written, aimed at educated general readers rather than academic specialists, and underwritten by personal experiences that cross standard culture-war lines. Confident Pluralism is necessary reading for anyone who is frustrated by the belligerence and inflexibility of the current discussion and looking for ways for different deeply held perspectives and tightly knit communities to survive and thrive. . . . Confident Pluralism is a good and valuable book. 

What I find especially important about the book is

the fact of Confident Pluralism. Like other expressly pluralist interventions, it comes at a moment, during one of our recurring culture wars, in which debate hardens around the poles and those poles move ever farther apart. The culture-war cycles tend to subside. . . . But they always come back. In or around each cycle, a pluralist intervention also occurs, and these interventions have provided some of the richest and most inspiring literature, offering a welcome alternative to the tedious trading of blows between left and right, even if they have made relatively few converts.

Those are the positives, and they are sincerely meant. I am a strong believer in pluralism not just as a social fact, one to be "managed" as if it were a nice but dangerous demographic incident, but as a good in itself. As the review makes clear, and as my friends Rick and Marc DeGirolami pointed out in tough comments on a draft, whether there is such a thing as pluralism as an end in itself and whether it is a good thing in itself are difficult questions, and I only make some headway on these questions, despite having tried to address it at least once before. This is my stab at it here:

I believe there is something to the possibility of arguing for pluralism as a distinctive positive good rather than a mere “claim of descriptive sociology” to be managed. There is a real difference between an approach that treats equality (or liberty) as the good to be realized, leaving pluralism to be slotted into or reconciled with that master value, and an approach that starts with pluralism as a positive feature of our society and treats liberty and equality as factors to be weighed and considered as means of helping pluralism itself flourish. At the least, it moves away from the “logic of congruence” and an overly state-centered approach to our social and political structure. And it demands suppleness about the different meanings of “liberty” and “equality” themselves, and about the possibility that the “official” legal versions of these values do not apply everywhere or with equal strength or meaning in different legal and non-legal contexts.

That said, I have two questions or criticisms about the book, one specific to John's project and one more general, although the two are clearly related and both are related to current events. The first is substantive. I argue--against my own intuitions and desires, to be sure--that "pluralism as a positive approach—as a good in itself, rather than a descriptive fact or a “technical problem . . . to be managed”—faces serious questions and difficulties. . . . [T]hese questions remain largely unanswered in Confident Pluralism because of Inazu’s strategic refusal to stake out a more distinctive and forceful theoretical position on pluralism itself." On the one hand, that strategic (if I am right to call it that), least-common-denominator approach has been a success: More so than most law professors' books, John's book has received a wide, enthusiastic, and eager reception--although one may worry that it has reached only the kind of "reasonable" audience that already believes in its principles rather than made new converts to pluralism. On the other, it leaves many questions about both the basis for and the application of the "confident pluralism" he describes.

The second question, one that in fairness was beyond his doing, is one of timing. I write:

From an optimistic perspective, Confident Pluralism is perfectly timed, coming when the culture war is at its height and a solution is all the more welcome. A more pessimistic reading of our situation, however, is that the book is already too late. To be effective, pluralist interventions in a culture-war cycle require a very specific hospitable environment. The intervention must come when there is enough heated disagreement to make an alternative to the shouting seem attractive. But it must also occur while both sides agree that there is a war, and think of either side as having a serious chance of winning it, leaving them amenable to compromise and coexistence. That is a pretty small window—and it may already have closed. . . .


A big part of this question of timing, and a phenomenon that has wreaked havoc with all general articles about constitutional law and theory written between last summer and this one, is what I call "one final, crucial data point[:] the short-fingered data point whose swift political rise so rudely interrupted our good old-fashioned on- and off-campus culture wars. Its name, of course, is President Trump." Trump, in this view, is both an exemplar and beneficiary of the culture wars and a disruption to the routine course they were taking in locations like university campuses, which might in time have led to the usual drop-off in interest in those fights. Now I am left uncertain about what will happen next, but think it means that however needed Inazu's book might be now, it is less likely to find ready takers:

Trump’s victory suggests . . . [that] the urging of a liberal “hard line” and the rise of an anti-elite conservative populist movement [ ] are closely connected. That victory simultaneously disrupted and entrenched the culture wars. It suggested that neither side was interested in the kind of compromise and coexistence that Inazu advocates, at least as long as victory was in prospect. And now that the pre-election expectations of the elite culture warriors have been upset in ways that might counsel compromise, there is a good chance that both sides will either double down or head to the barricades on other and bigger issues rather than coming together. . . . Inazu’s book thus comes along at a moment when it is simultaneously most needed and least likely to make new converts to the pluralist cause.

There is a lot in the review about culture wars, "political correctness" (and debates over whether it exists), lumping and splitting, the cyclical nature of both culture-wars and pluralism as a response to them, the "meaning" (if any) of Trump's election, and the (short-lived?) recommendation to abandon "defensive crouch liberal constitutionalism." There are very few answers. I hope some of you read it and even enjoy it--and I hope many more of you take a look at John's excellent book.





Posted by Paul Horwitz on July 11, 2017 at 09:25 AM in Paul Horwitz | Permalink


!. Not so short-lived -- I have a short piece coming out In Indiana on "Utopian Constitutional Theory for Progressives."
2. I wonder about pluralism's value as such: "Surely" you don't think that cannibalism and human sacrifice are within the acceptable pluralist universe (and what about David Koresh and Jim Jones)? And, once you put some constraints on what's acceptable within the pluralist universe,I think you may well be in the world of technical management. [I haven't read the full review -- I damp down my SSRN reading when I'm not in Cambridge, and have been tapering off my reading generally, in contemplation of retirement.

Posted by: Mark Victor Tushnet | Jul 11, 2017 9:45:46 AM

Thanks for this. On 1, I'll look forward to reading the piece and not venture any predictions for now, other than the following: 1) defensive crouching *might* look more attractive after another Justice, if there is another Justice; 2) as I note in the review, it is *possible* that people might double down, reaching harder for hardcore audiences than trying to make new ones. Debates over what the DNC ought to consider acceptable candidates are one possible example of this; 3) I suspect that whatever happens, for most people the shift will be more responsive and unconscious than strategic or thought-through; the justifications will come after the fact and the likelihood of recognizing that there has been a shift in position will be fairly small.

On 2, I suppose you're right about my limits, although I did name my son Isaac and I am not unsympathetic to Abraham's obedience. And I agree not so much that this point eliminates the possibility of pluralism's value as such, but that one does inevitably end up in the realm of management. I suppose I'd still say I *think* it matters that one starts with it as a good and ends up with managerial issues, as opposed to thinking of it as a problem from the beginning and/or prioritizing particular individual values, such as equality or liberty, from the start and treating pluralism as the spanner in the works of those privileged values. I do think starting from pluralism as a good suggests more balancing and fewer categorical exclusions--and that the trend these days in my area (not without good reason other than the fact that many now prioritize equality so heavily) is toward categorical exclusions and not balancing. But these are tentative thoughts and I agree in any event that I have hardly made conclusive arguments for pluralism as a good in itself. As I noted above, Rick and Marc have both been excellent skeptics and interlocutors on this point.

Posted by: Paul Horwitz | Jul 11, 2017 11:49:03 AM

It is important to note, when you compromise truth, including the truth about the essence of the human person, who, from the moment of conception, Has Been Created in The Image and Likeness of God, equal in Dignity, while being complementary as a beloved son or daughter, Willed by God, worthy of Redemption, you will always end with error.
One cannot add, subtract, or change an element of truth without ending in error.

The General Law of applicability is that regardless of one’s status, or one’s desires, all persons have the inherent Right to be treated with Dignity and respect in private as well as in public.

The problem with a plauralistic society that denies that absolute truth exists is that often times truth becomes relative to one's own personal opinion. Subjective truth leads to moral indifference, as it is no longer God Who Declares what is Good.

When law becomes merely symbolic, more abstract, and less defined, those truths that are self evident, can easily go from being objective truths to subjective truths, that are no longer secured and protected.

"Since [the powers that be] do not admit that one can defend an objective criterion of good and evil, they arrogate to themselves an explicit or implicit totalitarian power over man and his destiny, as history shows… In this way democracy, contradicting its own principles, effectively moves towards a form of totalitarianism."- POPE JOHN PAUL II, Centesimus annus, n. 45, 46; Evangelium Vitae, “The Gospel of Life”, n. 18, 20

Posted by: N.D. | Jul 14, 2017 7:47:34 PM

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