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Saturday, January 28, 2023

Il Miglior Fabbro: RIP Kent Greenawalt

Brian Leiter shares the news that Kent Greenawalt, long a professor at Columbia Law School, has died, at 86. Kent was a leading figure in law and religion, among other fields--I am inclined to call him, more generally, a leading figure in legal interpretation--and mentored many of us in that area. I also had the privilege of studying under him at Columbia as an LL.M. student. 

Law is a highly tradition-oriented profession, and no less so in this country, for all its claims to love the new and disdain the old. (This link is perhaps outdated, but I think it's correct in saying that law Latin is probably used more often in the States now than in His Majesty's courts, because American lawyers are just more conservative, plus royaliste que le roi.) Legal academia is the same. That's true in various larger ways and also in more personal ways. They are combined in the many linkages in our individual lives between mentorship, memory, history, and tradition. A professor today who learned constitutional law from Louis Henkin is five degrees of generational separation from the Framers, via Henkin, Frankfurter, Holmes, and John Quincy Adams (whom Holmes met as a boy), and law students studying today who will still be contributing to the profession on the date of the tricentennial will remain, even then, within Baconian distance of 1776. It adds a sense of awesome significance to these individual connections, however personal the memories and experiences of mentoring are in each instance.  

Our reliance on mentorship can be bad as well as good. Unsurprisingly, I'll focus on the good aspects of mentoring here. I'll happily rhapsodize, but will try to avoid the bullshitting that is a cardinal feature of tributes in American legal writing. But to talk about the larger temporal chains involved in these relationships is not merely rhapsodical, I think; it is genuinely meaningful, and a cause for gratitude and humility. I note before pushing off that there will be entirely too much use of the first person here. Not without reason; he was deeply influential personally and affected the course of my life deeply. Nonetheless, I apologize. 

Years ago I wrote here about the debts that mentors impose on one. I say "debts," but could just as well have used the word "gifts," with the thought in mind that the greatest gifts that one receives from others are also debts--obligations that one cannot really repay to the giver, but which must instead be settled by handing gifts or debts to others. (This is another reason for the first-person excess: It's hard to talk about an influential person without talking about how that influence played out going forward.)  For me, the greatest gifts, and thus the greatest debts, came from three teachers, all then at Columbia and each in his own way focused on the art of legal interpretation. These were Kent, John Manning, and Michael Dorf. In my own experience, Kent loomed largest.

Many of us who studied under him had already read, or would come to know well, books like Religious Convictions and Personal Choice or Private Consciences and Public Reasons or Fighting Words, and those who came slightly later would have known well his tremendous two-volume treatment of Religion and the Constitution. (To call that a selective list is understatement. In the last fifteen years of his life he published seven books in addition to the Religion and the Constitution volumes.) We learned from his writing.

But we learned even more, perhaps, from his model. He was an eminently kind man: a serious man, not a classroom "buddy" type or collector of allies, but decent, possessed of the capacity to laugh, and heavily invested in teaching as a dialogue or collaboration of (what he made feel like) equals, in which student and teacher were both interested enough in the same topic to devote time and thought to talking it through. Back in earlier days, when Dan was still with us and comments were still a thing (and were not limited to a couple hundred characters), I said this about Kent's teaching:

Kent Greenawalt taught me a surprisingly difficult skill: that of listening.  Socratic lecturing and seminar teaching both count on interaction with students.  Yet, as new teachers find, often one is so focused on where the material is going next that Socratic lecturing is a mere dumb show, in which you take comments until someone says what you want to go where you need to be next.  A couple of years of teaching has taught me the difficulty of really simply listening to a student, and responding respectfully and thoughtfully, without regard for the direction of the class.  I think it's difficult to do this right until you've really road-tested your classes and mastered the material. 

Listening is indeed a difficult skill, in or out of the classroom. To say that experience taught me the difficulty of that skill is not to say that even more experience has led me to its mastery. Kent was a master of listening. Part of that was his mastery of the subject itself, of course, as well as his long experience at teaching it. But I think most of it was his view that teaching was indeed a dialogue, a joint effort to work together through a set of questions and problems, rather than a performance in which the student is a mere unknowing cast member or magician's assistant. The goal of the conversation for him was the working-through, not the answer itself and certainly not a predetermined one. And so he listened, fully and seriously and respectfully; and he responded, neither with criticism nor with false praise, but with respect and genuine interest and effort. I'm no whiz at seminar teaching, but what I do well I stole from teachers like Kent, Vince Blasi, and others; and I don't doubt there are actually superb seminar teachers out there who are applying lessons from Kent and repaying debts they took on in his class.

Kent's seminars often took place in his apartment on Riverside Drive. I remember, a mere quarter-century later, the rather dim light in the room, the park outside, the smell of pizza from V&T, and Kent's courtly, careful prodding. As a reader of his work, I remember not only the fact that his work was dense and demanded attention but was always written in plain English, but also the little eruptions of personal life that came along with it, typically in the prefaces or introductions, and that similarly emerged from time to time in his seminars. The love and deeply affecting loss of a wife, the deep attachment to his sons, the memory of his father's work as a lawyer (including on religious liberties cases), the importance of new relationships and attachments: all these came occasionally into his discussions, not grossly or as a matter of oversharing but naturally and as a matter of fact.

He was, of course, human. He worked hard, he got tired, he had better and worse days, and I vividly remember his expressing an almost pettish anger at having an article turned down by his home journal, and thus getting a lesson both in the unceasing nature of ambition and in the fact that we are never too old to re-experience the hurt feelings of youth. He wanted the best for me (as for all of his students), and for some reason his ambitions and hopes for me did not include something like dyeing my hair and wearing weird T-shirts. (He put the point kindly, although it was dispiriting, and the point had to do not with encouraging conformity but with removing possible barriers to getting places he hoped to see me go. Whether the latter worked out or not, I can say that the former failed utterly. It was only later that I appreciated at first hand that business dress is still so thoroughly the norm at many elite law schools that Duncan Kennedy wearing a leather jacket was and still is actually a somewhat radical action. The ways of the great are strange.) Those human and personal moments, in his writing and in person, were refreshing and touching. But time still stopped, or took on a pace and sensation of its own, in the half-light of the apartment on Riverside Drive. If the contretemps at Yale Law a couple of years ago teaches us anything about teaching off of official grounds, it's that it's something worth preserving regardless of the contretemps at Yale Law a couple of years ago.

Kent was eminently reasonable, in person and in his work. His readers would probably associate his work with the word "reasonable" above all else. I mean that as a compliment and tribute, of course, but it is a thought-provoking, if not double-edged, compliment. I have a distinct memory of someone somewhere, in a symposium piece commenting on Kent's work, referring to Kent's work as offering the "view from Morningside Heights" or the "view from Riverside Drive." Perhaps it was only spoken at the conference in question; in any event, I certainly can't find it. It was apt phrasing.

Whether it appeared in print or not, the phrase does find echoes in critiques of his work from Larry Alexander and Stanley Fish. Each of them avoids directly accusing him of thinking of himself as offering a "view from nowhere." (Larry is explicit: "Kent recognizes that there is no 'view from nowhere,' no neutral position above the fray of competing metaphysical and normative views--or rather, that neutrality is always relative to some viewpoint, and that there is no Archimedean, interpersonal point of view to which our bare noumenal selves can repair.") But both suggest, more or less gently, that his reasonableness was itself a position, with a particular politics, method, and location, one that covered some ground but not the whole terrain. Maintaining the borders of that ground was hard; convincing people to work within its territory and not outside it was hard also, and the number of people who might think of themselves as citizens of that territory, imbued with its culture and assumptions and invested in its success, could grow or (and especially) shrink; and the plausibility of the positions and solutions offered from within the rules and culture of that territory could seem more or less stable, convincing or unconvincing, ecumenical or sectarian and imperial, more or less caught up in tensions and contradictions, at different times depending on the nature of the cultural and political surround. The point here is not the banal one that issues change and necessarily require a new assessment of what is reasonable. Nor, I think, is it the point that what is seen as "reasonable" changes over time. It's closer to the mark to say that there are multiple communities of the "reasonable" or of the "consensus view," that the assumed place of any one of them as the genuine article may be stable for quite a while but can shift slowly or suddenly, that its influence can perforce be so strong as to be unquestioned or can suddenly virtually disappear, and that interest in the reasonableness project and its members, at least as defined and understood for stretches of decades at a time--in this case for much of postwar American life--can itself fade. (This may also be banal. But it's different from simply saying that issues and perspectives change within the Land of the Reasonable.) 

In his Fishy way, Stanley had this to say (I quote at length):

[T]he chief merit of [Private Consciences and Public Reasons] is that it is an illustration of the tension it wants to resolve, the tension we have been tracking from the beginning between the impulse toward tolerance and the demands of order. Although Greenawalt does not finally advance the debates he rehearses, he does display the springs of those debates in a way that makes as clear as one would like why they are, and will continue to be, interminable....

Private Consciences and Public Reasons abounds in such moments, some acknowledged and some not, with the result that the book exhibits, sometimes in a single sentence, a split personality. On the one hand, it is a theoretical treatise in search of a privileged philosophical position from the vantage point of which the issues it raises can be definitively addressed--as when Greenawalt declares that the “problem of political philosophy is genuine only if some moral and political judgments do have a more solid or widely comprehensible basis than others;” on the other hand, it is an account (not without interest) of the compromises and adjustments that are available within a set of political conditions--roughly the conditions of American political life at the end of the century--whose rightness is assumed and not interrogated. In one narrative, the goal is the generation through rigorous conceptual analysis of a formula for settling the just bounds all citizens will positively affirm; in the other, the goal is the prudential one of figuring out what, given the prevailing realities of power, one can or cannot accomplish--at least until those realities change, at which point the calculations would have to be done all over again....

What Greenawalt has done without announcing it is eliminate the tension between Faith's religious convictions and the principles of liberal government, and once they have been collapsed into one another he can declare that in the course of reflection she has become someone whose overriding concern is “to show respect for fellow citizens.” She has become a liberal theorist....

Serious attention [to competing visions of life] is certainly what Greenawalt pays, but as I have already said, he alternates between thinking that he is paying attention to a political/sociological configuration and thinking that he is paying attention to a configuration (and a set of distinctions) reflective of some deep, noncontingent truth. If he is doing the first, his book is interesting largely as a rhetoric, as a handbook for those who want to operate successfully in late-twentieth-century liberal democracy. If he wants, as I think he does, to be doing the second, he is making...the mistake of confusing a present and revisable status quo for a permanent and general settlement of old and persistent questions. What makes his book compelling is the degree to which he is aware, at least on occasions, of how little theoretical interest his efforts might finally have. Fairly late on he acknowledges that with respect to his analyses and recommendations, the “priority and weight of considerations turn out to look quite different in regard to people who occupy different positions” and thus “the relevant choices turn out to be highly specific.”....In other words, what I'm telling you is what I see from my own particular perch, constructed as it is by the beliefs and convictions that have long since made me what I am, and if you happen to be sitting on another perch, what I am saying may seem to you to be unpersuasive and flatly in error.

Not, perhaps, the passage one is expecting in a tribute--which this emphatically is and remains. But it does seem true to me that Kent, for many of us, stood as a hallmark of reasonableness in confronting and offering a guide to the "compromises and adjustments that are available within a set of political conditions," a set that did indeed constitute "roughly the conditions of American political life at the end of the century." He still has that status, but the sense of his having that status within a particular and perhaps vanishing context is now much stronger. Within that time and place and its animating premises, his views were so reasonable, and so reasonably put, that they came close to the feeling of a "view from nowhere." The view from his perch, if it was limited, was not limited because of any particular occlusion or limitation of vision; that was exceptionally clear. Rather, if it was limited, it was because it was the view of a particular territory, one whose citizens might disagree over particular conclusions but did so in the same way and with roughly similar premises and commitments.

It is, I think, a territory whose internal population has shrunk and which has been somewhat overshadowed and subjected to criticisms (or--worse--lack of interest) by kingdoms sitting to the left and right of its borders. (Or, perhaps more accurately, by people residing within its borders but at the furthest points left and right within them, or who sit just outside its walls but still operate comfortably under its protection. I'm not sure it's more accurate to call someone like Patrick Deneen illiberal or antiliberal than it is to call him something of a permanent resident within liberalism, one whose protections as a green-card holder include the right to reject liberalism.) To visit and revisit Kent's work, which I still do often and to great benefit, feels now, much more than it used to, like taking a trip to a foreign country, one that seems on the whole like a very nice and well-run place to live.

That is no mean tribute. Nobody fully "evolves" with the times, and if they did they would be more likely to seem (and be) ridiculous or desperate than fully contemporary and in step with the times, to the extent that that is a worthy goal of some sort. To be able to say of someone that his views within a particular era were so full and thoughtful that they managed to offer what seemed like a definitive account of law and religion (among other topics) from within that time-bound position is beyond most of our hopes. 

And, of course, I offer no suggestion that Kent's perspective, his domain, was not a better domain or perspective than whatever is currently on offer. Just before I learned of Kent's passing, I read a post in the ongoing Balkinization anniversary series, this one by Melissa Murray and titled "Talking 'bout my generation." I quite liked it. It compares the perspectives of Justices Thomas and Jackson from the perspective of an "intraracial generational divide," noting the "temporal and experiential differences" that might affect their understanding of "vexed questions" such as affirmative action. It's a useful perspective, both as to these justices and more broadly. It rightly counts diversity of age and experience as something to be valued. What it does not do, and cannot do, at least without appealing to something other than mere temporal happenstance, is say whose understanding is more accurate or appealing. It is pretty clear that Murray has a preference, judging by her choice of words. (Thomas's vision is "clouded by the prospect of stigma and assumptions of inferiority," while Jackson's "reflected the opportunities and access that integration’s advocates promised." I take the historical point. But surely every vision, including the latest one, can and should be said equally to be clouded or reflective--leaving aside the point, which Murray would not deny, that neither Thomas nor Jackson can lay claim to a definitive generational response to the factors operating in each era.)

I would say likewise, of Kent, that if he offered a particular "view," an account of reasonableness among particular participants, in a particular time and place and operating from particular shared assumptions and premises, and if the delimitations of that perch within a particular time and space are now more visible--perhaps painfully more visible--that does not in itself tell us that he was wrong, or that other and different views and perspectives are more right. Within the time period in which and for which Kent was writing, and from a position somewhere within its borders, if not quite on a perch over Riverside Park, I often found things to disagree with within Kent's work. Within this time period, I find occasion often enough to lament that his approach--his thoughtfulness, his reasonableness, his somewhat formal warmth, his capacity to listen and respond with seriousness and with no sense of urgency--is not more available. At the risk of being overly dramatic, I do tend to think that that model is now both less common and less tenable. That alone is a pretty excellent reason to continue to follow it; what place is there for any academic in a river, if not swimming against the tide? So is the fact that I remain under an obligation to him. And so, finally, is the fact that it, and Kent, were in so many ways so admirable. May he rest in peace.   

Posted by Paul Horwitz on January 28, 2023 at 05:06 PM in Paul Horwitz | Permalink


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