Law in Contemporary Society

What the Realists Are Missing

-- By JessicaCohen - 25 May 2010

Arnold’s Deficit

As American society underwent a radical shift in the time of the New Deal, American thinkers like Thurman Arnold sought to provide descriptive explanations of what was going on. It seemed to many that something was different in America, but also that these changes must have been connected to similar social movements around the world and throughout history. In the spirit of that endeavor, Arnold provides a coolly rational account for why our society - with its organizations big (the national government) and small (a rotary organization) - works the way that it does. This was no small task, and Arnold's writing continues to captivate. Yet his work adopts an intensely professorial tone: he has the answers. This is the way that things are, he seems to declare. His work seeks to simplify and elicit “aha moments” and feelings in his reader.

In Symbols of Government, Arnold tried to explain how organizations – to him, the foundations of our society - stick together. He writes that the culture of “common values” in every organization creates an atmosphere in which ostracism of those with divergent values is tolerated, even encouraged. These organizations, he says, are bigger than the individuals comprising them: they are built to continue rather than change. In Arnold’s estimation, political animals (us) might as well be wind-up toys. We've been playing the same games, everyone from the rotary club member to the U.S. Cabinet, since we could communicate. In the vein of other legal realists like him, Arnold explains step-by-step how institutional creeds and mythologies lead to truisms organization members do not even think to challenge, as they are unable to by their position. He speaks of the “folklore of 1937” in this way: the old myths and conventional wisdom about what government is or should be caused a great deal of backlash against New Deal thinking.

Yet as Howard Zinn points out, Arnold focuses on method to a fault. “He was so intent on sweeping away old debris, that he became obsessed, ironically, with a failure of his own in which the idea of debris-clearing crowed out the concept of what he wanted to plant in the cleared area,” says Zinn. In other words, Arnold’s work lacks some sort of overall vision to which we can turn. This is a shame, if we take somewhat for granted his unique and revelatory ideas on how organizations cohere and move from generation to generation. His emphasis on form over substance limits the potential power of his work.

Bourne and Reality

Randolph Bourne provide some answers, or at least a foil to Arnold, in his “Twilight of Idols." Written in response to John Dewey’s call to arms in the New Republic in 1917, Bourne’s essay was concerned first with the pragmatists who supported World War I. He speaks primarily of John Dewey (who was a member of the “Metaphysical Club” with Holmes) and the journalist Walter Lippmann, who publicly supported the war because it would ultimately promote democracy. In other words, the ends waiting for them after the Great War (i.e. freedom, liberty over tyranny) would excuse the means. In their support, however, the realists lost sight of the fact that war's means - by their very nature - were destructive and evil.

Bourne’s critique, however, is about much more than the war. Bourne explains that pragmatists have a propensity to become bogged down in the "process" and lose sight of their overarching aims. He argues that pragmatism gives its adherents a dangerous sense of optimism and control. An emphasis on method prevents the thinkers from determining, in Zinn’s words, what should be “planted.” Bourne writes that who that pragmatism works "against poetic vision, against concern for the quality of life as above the machinery of life."

(While the reference to Niestzche’s “Twilight of the Idols” is clear, it is less so what Bourne attempted to evoke. Was it that men do in fact have free will to shape their destiny, contrary to Arnold’s view of organizational actors? The irony here is that both Nietzsche and Bourne were romantics in a way, but that’s neither here nor there.)

Critics of Bourne may write him off as a hapless romantic who is somehow denying the realities of life. To be fair, he points to the "malcontents" as leading the way to what he wants but doesn't quite how us how they will get there. However, his plea should be taken seriously in thinking about the New Deal and today. He writes: “We are in the war because an American Government practiced a philosophy of adjustment, and an instrumentalism for minor ends, instead of creating new values and setting at once a large standard to which the nations might repair.” If we are simply going to discuss the way things work, we end up like Dewey and his followers, Arnold too, who were “vague” about their long-term goals for American society. Understanding how society and its organizations function gets us only half-way towards meaningful progress. I find extremely compelling Bourne's argument that we must start with our final vision and work backwards. If you want to be in "radiant cooperation with reality," he says, then your success is "likely to be just that and no never transcend anything."



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r18 - 13 Jan 2012 - 23:14:15 - IanSullivan
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