Conservative in What Sense? Conservatism and Pragmatism Revisited in Response to Plotica, Bell, and Mendenhall

contemporary pragmatism 15 (2018) 547-564

brill.com/copr

Seth Vannatta Morgan State University [email protected]

At a book-in-progress session of the 2013 Summer Institute in American Philos- ophy, in an effort to direct the focus of the question and answer session toward ways of improving the manuscript that became Conservatism and Pragma- tism in Law, Politics, and Ethics, I told the audience what conservatism, for my purposes, was not. It does not mean a neo-liberal fetish for markets and is not equivalent to libertarianism. It does not mean neo-conservatism or advocate for re-making the world in an American image. Further, it does not mean the social conservatism of the religious right wing. And it does not advocate for white nationalism alongside the Alt Right. In the book, I indicate that my conservatism is methodological, which it is. However, to indicate that my conservatism is methodological and not political, is to concede to the assumption that the contemporary political right wing in the United States is anything but a coalition of these ideological interests from which I attempt to de-couple my conservatism. I did, as Luke Plotica points out, define conservatism negatively as skepticism of rationalism in law, politics, and ethics. Such skepticism registers as suspicion of wholesale change and the a priori method and method of author- ity, as defined by C.S. Peirce. To cash out this negative description in law, politics, and ethics is to distance conservatism from other methodologies in these forms of culture. In law, this means distinguishing conservatism from three im- portant legal traditions: the legal positivism of Jeremy Bentham, John Austin, H.L.A. Hart; the metaphysical conservatism of natural law theory in the medi- eval tradition but also in the Blackstonian equation of the common law and natural law, referred to by Allen Mendenhall in his review essay; and perhaps most importantly, from the formalism embraced by mainstream legal conservatives. Plotica has rightly directed his summary and critique to the embrace of formalism qua originalism by contemporary mainstream legal conservatives, and I will address the challenges his essay poses to my attempt to de-couple my understanding of conservatism from formalist versions of legal conservatism. In politics, this meant distancing conservatism from the a priori method of

548 Vannatta social contract theory, the veil of ignorance and hypothetical contracts of Immanuel Kant and John Rawls, and rationalist deliberative democratic theo- ries. In ethics, this meant distinguishing conservatism from both Kantian de- ontology and the utilitarianism of Jeremy Bentham and John Stuart Mill. However, conservatism can be cashed out positively to focus on the impor- tance of experience and custom in the prescriptive endeavors of law, politics, and ethics. In law, this meant, for better or worse, relying on the voluminous work of Oliver Wendell Holmes, Jr., specifically the way he undermined both formalism and natural law theory without entirely separating law and morality, as per the legal positivists or reducing law to politics, as per the legal realists. Be- low, I will address, responding to Plotica, my potential overreliance on Holmes and Holmes’s relationship to both the legal realists and Richard Posner. In politics, this meant relying on Dewey’s description of democracy as permeating all modes of conjoint communicative associations, as the organic formation of publics responding to problems, and as making manifest Peirce’s method of science writ large. In ethics, this meant illuminating the aesthetic, qualitative and affective, dimensions of moral experience, via David Hume, the Scottish common-sense tradition, and Peirce, and, via Dewey, demonstrating that various ele- ments in moral inquiry, such as virtue, the good, and the right are independent factors. Because of the historical, aggregative, and evolutionary features of the common law, described eloquently by Mendenhall, I felt the need to describe the historical turn in law and politics and to disclose historiographies, via Hans- Georg Gadamer, Michael Oakeshott, and John Dewey, appropriate for pragmatic conservatism. Both the negative and positive descriptions of conservatism above rely on the premise that law and politics primarily follow changes in moral sensibilities rather than create changes therein. Law, especially viewed through the common law, is a conservative form of culture, while art and science work on the progressive frontiers of society. Moral sensibilities and aesthetic first premises evolve because of the progressive forms of culture, not the conservative ones. In what follows, I will respond to the three generous review essays by Luke Plotica, Justin Bell, and Allen Mendenhall and in doing so offer my thoughts on how I would have written Conservatism and Pragmatism differently, if I penned it today.

An Exclusive Reliance on Holmes

Plotica is accurate when he writes:

Vannatta’s nearly exclusive reliance upon Holmes to characterize his al- ternative legal conservatism creates an effect akin to that of the fabled

contemporary pragmatism 15 (2018) 547-564