Law in Contemporary Society

American Creed: Politics and Law As Ideological Ritual

-- By MeaganBurrows - 16 Feb 2012

Hartzian Fragment Theory and the Liberal Consensus

Thurman Arnold’s The Folklore of Capitalism reminded me of Louis Hartz's explanation for the uniqueness of American political ideology. Hartzian fragment theory posits that the United States, established when an ideological ‘fragment’ detached in opposition to the monarchy, lost the stimulus for ideological change provided by the ‘whole’.

America’s founders created a nation frozen in time. The U.S. is perpetually confined to an ideological ‘liberal consensus’ rooted in the Revolutionary rhetoric that spurred fragmentation from the British aristocracy. This presents the American ethos as stagnant and bounded. Divorced from an oppositional catalyst, political discourse is confined to the holy trinity - laissez-fair economics, property rights, and individual freedom.

From Consensus To Creed: A ‘Principled’ Path to Salvation

The liberal consensus symbolizes American identity. It has taken on a quasi-religious persona, commanding ritualistic devotion as a prerequisite for social citizenship.

Politicians in foreign nations do not characterize opponents as ‘unItalian’ or ‘unCanadian’. Only in the United States has the term ‘unAmerican’ become a fixture in the political vernacular. Candidates are branded as heretics for refusing to conform to the liberal consensus and the canonical Constitution. Anything that interferes with these beliefs – even social welfare or justice – must be sacrificed at the altar of 'Americanism'.

A few weeks ago I witnessed a physically handicapped man in a NYC Fire Department t-shirt applying for Social Security benefits at an office in Harlem. The image prompted a discussion of the role of individualism and the ‘American Dream’ in modern American politics. A friend and I agreed that libertarian principles and social mobility are valuable for the promotion of ingenuity and innovation. But remaining devoted to these ideals while the disadvantaged struggle on a daily basis is na´ve, disheartening, and frankly ‘unAmerican’, if the U.S. prides itself on its image as a global leader in human rights and a champion of justice.

While the American ethos is valuable political currency for the sense of patriotism and belonging it instills in American citizens, pious adherence to the vague principles embodied in the ‘liberal consensus’ can serve to constrain public welfare, necessary institutional challenge and national growth.

Legal and Political Ritual: The Danger of Transcendental Nonsense

The American creed can be likened to the legal rules we have discussed in class. Both doctrinal fictions are Cohen’s ‘transcendental nonsense’. The ideological values and the legal rules we adhere to are self-referential. They exist in an ethereal vacuum, lacking any tangible meaning until they are applied. As Arnold notes, these revered “legal and economic principles…have made our learning about government a search for universal truth rather than a set of observations about the techniques of human organization.”

But what if there is no universal truth. While we value the supposed experience of discovering we are a part of something larger than ourselves, clinging to the folklore we have been fed might not be worth the sense of community we derive from our dependence.

Blind adherence to abstract principles comes at the cost of making critical observations about “techniques of human organization” and using these observations to create a composite for what we normatively want to see in both law and politics. As Arnold notes, “out of pure mystical idealism…men were opposing every self interest both of themselves and the community, because the scheme went counter to the folklore to which they were accustomed.”

Acknowledging that the uncertainty inherent in ‘shades of gray’ is preferable to necessarily restrictive and inadequate ‘black and white’ options may seem daunting. It would threaten the sense of belonging we derive from uniting with those on our imaginary ‘side’ of the ideological battle. It may temporarily destabilize the way we have been socialized to measure and assign meaning to our lives.

But perhaps we can emerge on the other side (or rather, in the middle ground of practicality) unscathed, and with a new method for deriving self-worth. We may measure our value instead by our ability to engage with legal and political institutions and the people within them. Once we begin to critically observe inputs, outputs and consequence, we may relinquish blind doctrinal loyalty to ‘principles’ and ‘rules’ in favor of pragmatism, realism and the pursuit of justice.

Dispelling the Illusion: ‘Things Are What They Do, Not What They Are Called’

Arnold’s Capitalism, Communism and Fascism are really just another form of Cohen’s transcendental nonsense – fictions, folklore, and ceremonies created to distill complicated realities into convenient and manageable compartments.

But things are what they do, not what they are called. Just as rules don’t actually explain how legal cases are decided, ideological labels fail to account for the opportunities presented by the application of rhetoric. They are far too simplistic and discrete to explain the mass influx of individual personalities, societal forces, economics, history, and institutional dynamics at work in each case. What we really have are malleable constructs that can be adjusted, refined and applied to become living, breathing systems with the potential for positive social consequence.

Acknowledgment of the restrictions posed by faithfulness to folklore in both politics and law enables us to capitalize upon political and legal opportunism. Creeds, symbols and slogans don’t need to be completely abandoned – in fact, they may be successfully manipulated for our own purposes.

But we must also recognize that the comfort provided by blind faith and fear of disillusionment and uncertainty can stifle creativity, imagination and improvement. Only then can we move forward to create complex composites that more accurately reflect reality, enabling us to engage dynamically with society and effect substantive change.

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r12 - 22 Jan 2013 - 20:10:43 - IanSullivan
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