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Thursday, October 21, 2010

Sketchbook of Legal Pessimisms

I am about half way through Professor Bruce Ackerman's new book, The Decline and Fall of the American Republic, a very well written and passionately argued (as well as invitingly slim and artfully designed) monograph which deals primarily (though not exclusively) with what Ackerman perceives as the threat to the American republic posed by an overly potent presidency.  Throughout the book, Ackerman castigates the "triumphalist" character of constitutional thought -- he has special skepticism for "ancestor worship" but he seemingly repents his own contributions to the "Panglossian premises of legal scholarship."  He makes a number of predictions that he sees as dire for the continuing health of the republic, and he concludes with an appeal to "sustain the Enlightenment tradition in the twenty-first century" (I read ahead).

I want here not to examine Ackerman's substantive claims but instead to reflect more generally and in somewhat impressionistic terms on his style of argumentation -- or maybe better, the mood or orientation which he brings to this book.  I believe the book might be described as one kind of manifestation of a burgeoning style in legal, and particularly constitutional, scholarship, which I will call legal pessimism.  But Ackerman's is only one flavor of legal pessimism.  Other very different varieties are also to be seen (or about to be seen) in today's scholarship.  In fact, the mood of these other varieties may in some ways be exactly opposite to Ackerman's pessimism.

First, it's probably useful to pin down what I mean by legal pessimism in legal scholarship.  The core of legal pessimism is that the evaluation of legal materials -- particularly, but not only, constitutional materials -- ought to avoid the illusion that it is the legal scholar's role to aim at large-scale resolutions in which society greatly improves, let alone perfects, itself.  That does not mean that legal pessimism necessarily posits theories of decline (though some, like Ackerman's, do).   It also does not mean that legal pessimists need deny that over time society has in fact changed for the better in many ways (Ackerman notes such positive changes in the 20th century).  Legal pessimists call for a clear eyed view of today's legal problems and a bleak appraisal of the possibility that their own scholarship can result (or, in certain strains of legal pessimism, should result) in dramatic or large-scale social improvements.

Ackerman's view in The Decline exhibits various of these traits.  He dwells for long portions of the book on the deep structural and social problems that he associates with American constitutionalism and the American presidency.  He is skeptical that any particular suggestion he offers can cure what ails us.  And his is in some ways a backward looking vision -- preservationist and nostalgic for the republicanism of bygone days (though without that unhealthy hero worship): Professor Sandy Levinson describes it as "conservative," and I suppose it is, after a fashion -- an effort to conserve the ideas that progressive law professors from the 1970s forward have been advancing, to great acclaim for the last generation.

In beginning to sketch a taxonomy of legal pessimism, I want to start with two categories that Sandy Levinson develops in his discussion of Ackerman's book, the Cassandra pessimist and the Paul Revere pessimist.  Levinson describes these as different styles of pessimism, but I actually think that they are really only a single variety.  In his recent response to the commenters at Balkinization, Ackerman refuses the Cassandra label.  That's just as it should be, for there really is no Cassandra pessimist in legal scholarship -- and if there is, it certainly isn't he.  Almost nobody in American legal academia writes simply to proclaim the oncoming doom -- and the absolute horror of what is, without a hint of doubt, to come -- utterly without hope that someone (anyone?) will heed their unpleasant prognostications.  Maybe Sandy Levinson himself comes close, but I don't think even he is a pure Cassandra pessimist. 

At all events, Ackerman is instead squarely within what Levinson describes as the Paul Revere tradition: "warning fellow concerned citizens about an oncoming danger secure in the knowledge that they will respond if only informed."  In fact, there is a rich tradition of work that is, to a greater or lesser extent, representative of Paul Revere pessimism in constitutional law.  Examples in the field I am most familiar with -- Religion Clause law -- include Professor Martha Nussbaum's book Liberty of Conscience, which was explicitly intended as a kind of bracing wake-up call to citizens of good will to come to the defense of an "American tradition" under threat, as well as (from an entirely different angle) Professor Marci Hamilton's slightly older book, God vs. the Gavel, which was again offered in the spirit of the alarm bell as to the dangers of religion for the republic (I've started to read Amos Guiora's recent book, and it sounds similar notes in a different context).  Paul Revere pessimism diagnoses terrible dangers ahead and prescribes solutions that it takes to be rooted in some profound, and, it believes, comparatively uncontroversial American principle. 

The distinctive quality of Paul Revere pessimism is that it really isn't legal pessimism through and through.  Some might even say that in the end it isn't legal pessimism at all.  Ultimately its aspirations (which it fears deeply, and expects, won't be realized) are quite grand and transformative.

There is a different variety of pessimism that I think is emerging in legal scholarship today -- a more authentic pessimism.  We could call it mellow pessimism, as a contrast with the alarmist, Paul Revere variety.  This is a pessimism which accepts features of our social and legal makeup today as enormously complex, varied, and often irresolvable -- even by the keenest and most acute minds that legal academia can produce.  The mellow pessimist wants to investigate and reflect on these features of our common legal life, but he is much less apt to become agitated about our current situation.  Agitation often can result in overly ambitious diagnoses and prescriptions, which in turn can lead to illusions about the extent to which legal theorists can resolve (or dissolve) legal problems and challenges.  Steering clear of Paul Revere pessimism permits the mellow pessimist to think in entirely new ways about those challenges, and to offer different sorts of prescriptions.  Last, the prescriptions themselves, uninfluenced as they are by profound agitation about our legal and social condition, tend to respect the limits of what legal theory can and should do.  They do not oversell.  They are reserved, even reticent, in their recommendations, not because they are uninterested but because they tend to consider these questions in a mellow light.

Are there examples of mellow pessimism in legal scholarship?  My own view is that Paul Horwitz's forthcoming book on "constitutional agnosticism" in Religion Clause theory moves in the direction of a mellow pessimism (though he may disagree, and I won't say too much more about it), but I predict more mellow pessimism to come.

Posted by Marc DeGirolami on October 21, 2010 at 12:43 PM | Permalink


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Before getting too pessimistic about legal pessimism, perhaps there should be an exploration of past prescriptions that have been offered by legal scholars over the years to determine how such prescriptions have fared since their offerings, and even if eventually successful, how long it took. Looking ahead, do legal scholars fare any better than economists? Looking back, legal scholars can revision the past, such as the current efforts to revive the Lochner Error [sick!].

Posted by: Shag from Brookline | Oct 22, 2010 6:53:05 AM

Thanks, Paul -- I'm happy to bask in the refractive glow.

But I think that you hit on what may be an important difference in our approaches. The posture of the mellow pessimist might have implications for the "sweepingness" of the prescriptions being offered. One can think about the idea of a sweeping reform along a variety of different axes (e.g., great difference from the current legal rule, great difference from the current social practice, great difference from historical social practice, great difference from currently influential theoretical justifications, and so on) so that a mellow pessimist could indeed propose such reforms, but I think that mellow pessimists might well adopt an attitude of caution and reticence as to at least some of these, just in virtue of being both mellow and pessimistic with respect to the power of their own ideas.

Posted by: Marc DeGirolami | Oct 21, 2010 4:59:15 PM

Nice post, Marc. As usual, given the overlap in our interest, I've been thinking slightly similar thoughts, because I'm doing a review of Ackerman's book for CoOp at some point soon. I will accept the label of "mellow pessimist," given the important caveat, which you note, that a mellow pessimist is still willing to offer prescriptions for legal reform. They can even be pretty rhapsodic and sweeping prescriptions, as you know from reading my book. But they will rarely be especially overconfident about their own chances at succeeding, and they may be more willing to see themselves as part of an ongoing, cyclical dialogue between two valid sets of ideas -- liberty vs. equality, say, or rules vs. standards --neither of which will or should ever enjoy a final victory. Elsewhere, as you know, I've used the label "tragedian," and placed you within that category as well. And so the mutual appreciation society continues....

Posted by: Paul Horwitz | Oct 21, 2010 3:58:47 PM

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