Just Do It": Pragmatism and Progressive Social Change

"JUST DO IT": PRAGMATISM AND PROGRESSIVE SOCIAL CHANGE

LynnA. Baker*

REX IHAT use is pragmatismfor achievingprogressive social vYv change? This questionhas been centralto the recentrenais- sanceof pragmatismwithin the legal academy. Not surprisingly,the scholarswho have examined this question have shared a coreconcern: thepersistent marginalization and disempowermentofcertain groups in our society.'More striking,however, is thesubstantial agreement of thesescholars that pragmatism is usefulfor alleviating oppression in modemAmerica.2 In thisEssay I suggest,despite the popularity of claims to thecon- trary,that pragmatism is ofscant use forachieving progressive social change.My analysisfocuses on thewritings of Richard Rorty for two reasons. First,he is the acknowledgedphilosophical leader of the recentrevival of interestin pragmatism.Second, an examinationof Rorty'swork uncovers important, and previouslyundiscussed, incon-

* AssistantProfessor, University of VirginiaSchool of Law. Associate Professor, Universityof Arizona College of Law (Fall 1992-). B.A., 1978,Yale University;B.A., 1982, OxfordUniversity; J.D., 1985,Yale University. I am gratefulto JessicaFeldman, Ken Kress,Dan Ortiz,Dick Rorty,George Rutherglen, and Bill Weaverfor challenging conversations and carefulreadings of earlierdrafts. An earlierversion of this essay appeared in Pragmatismin Law and Society(Michael Brint & WilliamG. Weavereds., 1991). 1 See, e.g.,Mari J. Matsuda,Pragmatism Modified and theFalse ConsciousnessProblem, 63 S. Cal. L. Rev. 1763,1763-64 (1990); MarthaMinow & ElizabethV. Spelman,In Context, 63 S. Cal. L. Rev. 1597,1601 (1990); MargaretJ. Radin, The Pragmatistand theFeminist, 63 S. Cal. L. Rev. 1699,1699-1700 (1990); JosephW. Singer,Property and Coercionin Federal IndianLaw: The ConflictBetween Critical and ComplacentPragmatism, 63 S. Cal. L. Rev. 1821, 1821-22(1990) [hereinafterSinger, Property]; Allan C. Hutchinson,The Three'Rs': Reading/Rorty/Radically,103 Harv. L. Rev. 555, 563-66,571 (1989) (reviewingRichard Rorty,Contingency, irony, and solidarity(1989)); JosephW. Singer,Should Lawyers Care AboutPhilosophy?, 1989 Duke L.J. 1752,1765-66 [hereinafter Singer, Should Lawyers Care] (reviewing,inter alia, RichardRorty, Contingency, irony, and solidarity(1989)). 2 See,e.g., Matsuda, supra note 1, at 1764-68;Minow & Spelman,supra note 1, at 1600-01, 1609-15,1647-52; Radin, supra note 1, at 1705-19;Singer, Property, supra note 1, at 1822-24; Hutchinson,supra note 1, at 566-73,583-85; Singer, Should Lawyers Care, supra note 1, at 1759-66.

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This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 698 VirginiaLaw Review [Vol.78:697 sistenciesin his own assessmentof pragmatism'susefulness for progressivesocial change. I begin by analyzingtwo distinct,but previouslyunseparated, strandsin Rorty'sdiscussion of progressivesocial change,which I termthe "prophetic" and the"processual." In PartII, I examinetwo popularresponses of thelegal academy to Rorty'sviews: criticism of his seemingdefense of the statusquo, and praiseof his concernfor marginalizedpeople. I arguethat, in both instances,the response may be problematicif it failsto distinguishbetween the different strandsin Rorty'sview of progressivesocial change. In PartsIII and IV, I evaluateby Rorty's own pragmatist terms his claimsfor a pragmatist("postmetaphysical") culture. Part III exam- ines whetherthe postmetaphysicalculture that Rorty advocates wouldhave any advantagesover our currentfoundationalist one for achievingprogressive social change as Rortydefines it. PartIV con- siderswhether, regardless of the backgroundculture, the prophets who are necessaryfor progressive social changeunder Rorty's view would be better served by subscribingto pragmatismor to foundationalism.

I. RORTY ON PROGRESSIVE SOCIAL CHANGE Legalscholars have discussed Richard Rorty's views on progressive social changeas if theywere of a singlegenus. Close analysisof a widerange of Rorty's essays and books,however, reveals two distinct strandsin his work:the "prophetic" and the"processual." Identify- ingand separatingthese threads is necessaryfor understanding both Rorty'sclaims and legalscholars' (mis)conceptions of them. The propheticstrand in Rorty'sdiscussion of progressivesocial changecan itselfbe dividedinto two subparts. One is his visionof a betterworld. The otheris his suggestedvehicles for traveling from thepresent to thatbetter world. The processualstrand, in contrast, consistsof Rorty'sdescription of theprocess or mechanismby which his proposedvehicles move us closerto thebetter world he imagines. Thus,one mightagree with Rorty about the likely efficacy of a sug- gestedvehicle for reaching his utopia(prophetic strand), but disagree about the mechanismby whichthat vehicle will moveus alongthe routeof progressivesocial change(processual strand). The centralelement of Rorty'sprophetic strand is his definitionof progressivesocial change. Although he frequentlyeschews the notion

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 1992] JustDo It 699 of progress,Rorty is willingto employit in the contextof social change. Accordingto Rorty,progressive social change is thatwhich movesa societycloser to realizinghis threeinterrelated aspirations: thatsuffering and crueltywill be diminished;3that freedom will be maximized;4and that"chances for fulfillment of idiosyncraticfantasies willbe equalized."5Rorty derives these hopes from his premise that"the aim of a just and freesociety [is] lettingits citizensbe as privatistic,'irrationalist,' and aestheticistas theyplease so long as theydo it on theirown time--causing no harmto othersand usingno resourcesneeded by thoseless advantaged."6 Rortydoes not attempt a theoreticalor metaphysicaldefense of this premiseor of the hopes it embodies,"hav[ing] abandoned the idea thatthose central beliefs and desiresrefer back to somethingbeyond the reach of time and chance."7 They are simply"ungroundable desires"for which there is "no noncirculartheoretical backup.""8 Rorty'sprophetic strand also encompasseshis suggestions concerning the vehicleswe mightuse to moveto the betterworld he envi- sions. Rortyrepeatedly asserts: "There is no methodor procedureto be followedexcept courageous and imaginativeexperimentation."9 Nonetheless,he suggeststwo vehiclesby whichsocial progresshas occurredin the past and mightoccur in the future:narratives and separatistgroups. Rorty does notmean to imply,however, that these are the only two vehiclesby whichsocial changehas occurredor could somedayoccur; they are simplythe two thathe thusfar has chosento examineat greatestlength. Thus,Rorty's prophetic strand consists of his threehopes and the premisefrom which they are derived,as wellas hissuggestion of nar-

3 RichardRorty, Contingency, irony, and solidarityat xv (1989). 4 Id. at 60 ("an idealliberal society is one whichhas no purposeexcept freedom"); Richard Rorty,Consequences of Pragmatism 69-70 (1982) (thereis "no bettercause" than "'enlarging humanfreedom'") (quotingSidney Hook, Pragmatismand the Tragic Sense of Life 25 (1974)). 5 Rorty,supra note 3, at 53. 6 Id. at xiv. 7 Id. at xv. 8 Id. 9 RichardRorty, Feminism and Pragmatism,30 Mich.Q. Rev. 231,242 (1990) [hereinafter Rorty,Feminism and Pragmatism];see also RichardRorty, Thugs and Theorists:A Replyto Bernstein,15 Pol. Theory564, 565 (1987) ("Thereis nothingsacred about either the free marketor about centralplanning; the properbalance betweenthe two is a matterof experimentaltinkering.").

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 700 VirginiaLaw Review [Vol.78:697 rativesand separatistgroups as thevehicles for realizing these hopes. Rorty'sprocessual strand, in contrast,consists of his accountof the processesor mechanismsby which the vehicles of narratives and separatistgroups would transport us to his betterworld. By narratives,Rorty means novels,docudramas, ethnographies, and journalists'reports, for example, that provide "detailed descrip- tionsof particular varieties of pain and humiliation."10According to Rorty,the narrativecan be authoredby one of the oppressedor by someoneelse, and is an attemptto interpretthe situationof the oppressedgroup to therest of their society. Such narrativesincrease humansolidarity by expanding the sympathies of persons who are not membersof the oppressedgroup so that they come to see the oppressedas an "us" ratherthan as a "them."11Increased human solidarity,however, does notconstitute an "us" admittinga "them" to membershipthrough an act of noblesseoblige. Rather,according to Rorty,the narrativeprocess of interpretivedescription encom- passesthe non-oppressed as well as theoppressed; it "is a matterof detailed descriptionof what unfamiliarpeople are like and of redescriptionof what we ourselvesare like."''2 Throughnarratives we eachmay come to knowbetter not only per- sonswith whom we do not(yet) identify, but also "thetendencies to crueltyinherent in searchesfor autonomy" that we ourselvespos- sess,'3the "sortsof crueltywe ourselvesare capable of.""4 In this way,we each maybecome more generally aware of, and moresensi- tiveto, the sufferingaround us and our role in causingit.'5 "Such increasedsensitivity," according to Rorty,"makes it moredifficult to marginalizepeople different from ourselves by thinking, 'They do not feelit as wewould,' or 'Theremust always be suffering,so why not let themsuffer?' "16 Solidarity,then, is "theability to see moreand more

10 Rorty,supra note 3, at 192. 11Id. at xvi. "[O]ur senseof solidarityis strongestwhen those with whom solidarity is expressedare thoughtof as 'one of us,' where'us' meanssomething smaller and morelocal thanthe human race." Id. at 191. 12 Id. at xvi(emphasis added). 13 Id. at 144. 14 Id. at xvi. 15 Id. at 93. 16 Id. at xvi.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 1992] JustDo It 701 traditionaldifferences ... as unimportantwhen compared with simi- laritieswith respect to pain and humiliation."'7 Amongexisting narratives, Rorty classifies the workof Charles Dickens,Olive Schreiner, and RichardWright as detailingthe "kinds of sufferingbeing endured by peopleto whomwe had previouslynot attended."' The workof Choderlosde Laclos, HenryJames, and VladimirNabokov, in contrast,depicts the "sorts of crueltywe ourselvesare capableof."19 A secondvehicle that Rorty suggests might enable society to pro- gresstoward his utopian vision is separatistgroups. The creationof a separatistgroup requires that at leastone memberof the oppressed grouphave "the imagination it takesto hearoneself as thespokesper- son ofa merelypossible community, rather than as a lonely,and perhaps crazed, outcast from an actual one."20 That courageous individualwill begin to workout a newstory about who she is, which willrequire that she hear her own statements as partof a sharedprac- ticein orderto achievesemantic authority over even herself.2' Thus, accordingto Rorty, she may persuade other membersof the oppressedgroup to band togetherwith her in an exclusiveclub in orderto "tryout new ways of speaking,and to gatherthe moral strengthto go out and changethe world."22As examplesof such clubs, Rorty cites the contemporaryfeminist movement, Plato's Academy,the early Christians who metin thecatacombs, the seven- teenthcentury underground Copernican colleges, and the workers who gatheredto discussTom Paine'spamphlets.23 Changingthe world is a riskybusiness. The separatistgroup may be ruthlesslysuppressed, its members thus doubly oppressed. Prefera- bly,however, over generations "those in control[will] gradually find theirconceptions of the possibilities open to humanbeings changing" and "[t]henew language spoken by theseparatist group [will] gradu- allyget woven into the language taught in theschools."24 That is, the

17 Id. at 192. 18 Id. at xvi. 19 Id. 20 Rorty,Feminism and Pragmatism,supra note 9, at 240. 21 Id. at 247. 22 Id. 23 Id. 24 Id. at 248.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 702 VirginiaLaw Review [Vol.78:697 formerlyoppressed group gradually achieves "'full personhood'in theeyes of everybody,having first achieved it onlyin theeyes of fel- low-membersof theirown club."25According to Rorty,the testof whetherfull personhood has beenachieved is whetherpowerful people in the society(still) thank God thatthey do not belongto the (formerly)oppressed group.26 To summarizeRorty's processual strand: Separatist groups move societytoward Rorty's utopian vision through their creation of new linguisticpractices; narratives do so throughan expansionof individ- ual empathy.This distinctionis not intended,however, to obscure the obviousinterrelatedness of the two mechanisms:The creationof new linguisticpractices can occur simultaneouslywith, cause, or resultfrom an expansionof individualempathy. Thus, Rortyalso describesnarratives as "aimed at workingout a new public final vocabulary. . . , a vocabularydeployed to answerthe question 'What sortsof thingsabout whatsorts of peopledo I need to notice?'"27 Similarly,he portraysseparatist groups as "tryingto getpeople to feel indifferenceor satisfactionwhere they once recoiled,and revulsion and ragewhere they once feltindifference or resignation. "28 At thecenter of both the narrative and separatistprocesses of progressivesocial change,as Rortydescribes them, is a prophet-an interpreteror a leaderwith a visionof a betterworld. The author(s) ofa narrativemust have both a visionand a senseof how to translate theexperiences of either the oppressed group or thecruel group into a languagethat is not onlyunderstandable but transformative.Simi- larly,the leader of a separatistgroup must not only be able to suggest particularways in whicha society'slanguage and institutionsmight be changed,but also musthave a visionthat includes "some sort of blueprintfor the results of transformation (in the way in whichJeffer- son and Adams,or Leninand Trotsky,did, and AbbieHoffman did not)."29Above all else,then, both the narratorand the leaderof a separatistgroup must have imagination-andsometimes a special kindof courage.

25 Id. 26 Id. 27 Rorty,supra note 3, at 143. 28 Rorty,Feminism and Pragmatism,supra note 9, at 233. 29 RichardRorty, Two Cheersfor the Cultural Left, 89 S. AtlanticQ. 227,229 (1990).

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 1992] JustDo It 703 Giventhe above analysis of the prophetic and processualstrands in hiswork, what unique contribution does Rorty'spragmatism make to his viewson progressivesocial change?This issuecan be examined withoutconfronting the vastlylarger and less tractablechallenge of definingpragmatism by focusing on pragmatism'santi-foundationalist core: the claim that "metaphysicalentities" such as "reality," "truth,"and "nature"are not"warrants for certitude."30 In thecontext of social change,this anti-foundationalismmore specifically entails:(1) recognizingthe pervasiveness of contingency; (2) rejecting metaphysicalnotions when conceptualizing or evaluatingprocesses of socialchange; and (3) avoidingmetaphysical notions when construct- ing or evaluatingarguments for (or against)social change. Applyingthese criteria to Rorty'sprophetic strand, there appears to be nothingdistinctly anti-foundationalist ("pragmatist") about his premiseconcerning "the aim ofa justand freesociety,"'31 or thethree hopeshe believesthat premise embodies, or his choiceof narratives and separatistgroups as vehiclesfor realizing these hopes. Indeed, theonly anti-foundationalist aspect of Rorty's prophetic strand is the wayhe "justifies"its various aspects. Rorty's claim that his premise simplyembodies "ungroundable desires" for which thereis "no noncirculartheoretical backup"32 is an exampleof pragmatism's anti- foundationalistdistrust of metaphysical entities as warrantsfor certitude. Anotherexample of this distrustis Rorty'ssuggestion that "[w]e shouldlearn to brushaside questionslike 'How do you know thatfreedom is the chiefgoal of social organization?'"and instead ''shouldsee allegianceto social institutionsas no morematters for justificationby referenceto familiar,commonly accepted premises- but also as no morearbitrary-than choices of friendsor heroes."33 Pragmatism'santi-foundationalist acknowledgment of contingency dictatesthis approachto justification:Choices of prophecies(and, therefore,of social institutions)"cannot be precededby presupposi-

30 JudgeRichard Posner has posited"three 'essential' elements" of pragmatism:(1) "a distrustof metaphysical entities ... viewedas warrantsfor certitude"; (2) "an insistencethat propositionsbe testedby theirconsequences, by the differencethey make"; and (3) "an insistenceon judgingour projects. . . by theirconformity to social or otherhuman needs ratherthan to 'objective,''impersonal' criteria." Richard A. Posner,What Has Pragmatismto OfferLaw?, 63 S. Cal. L. Rev. 1653,1660-61 (1990). 31 Rorty,supra note 3, at xiv. 32 Id. at xv. 33 Id. at 54.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 704 VirginiaLaw Review [Vol.78:697 tionlesscritical reflection, conducted in no particularlanguage and outsideof any particular historical context."34 Thus, Rorty suggests, borrowingfrom John Rawls, that the justification for his particular visionof a betterworld " 'is notits being true to an orderantecedent and givento us, butits congruence with our deeperunderstanding of ourselvesand our aspirations,and ourrealization that, given our his- toryand the traditionsembedded in our publiclife, it is the most reasonabledoctrine for us.' "'5 In the end, Rortyjustifies various aspectsof his prophecyby invokingan anti-foundationalist,histori- cally contingentcongruence rather than a metaphysicalcorrespon- denceto Truth. Rorty's processualstrand, in contrast,is anti-foundationalist throughand through.In his accountof the mechanismsby which separatistgroups and narrativeseffect progressive social change, Rortyportrays neither vehicle as reachingtoward a metaphysical truthor an objectivereality. Separatist groups and narratives'both strivetoward "increasingly useful metaphors rather than ... increas- ing understandingof how thingsreally are."36 For Rorty,separatist groups try to createnew linguisticpractices throughwhich they will forge a moreuseful identity for persons like themselveswithin the larger society. Narrators can similarlyhelp us see theeffects of our social practices, institutions, and privateidiosyn- cracies,and therebyenable us usefullyto redescribeboth others and ourselves.The world is changednot as narrativesand separatist groupsdiscover and communicatetruths, but as theyprovide useful redescriptionsof theworld and its inhabitants.For Rorty,"a talent for speakingdifferently, rather than for arguingwell, is the chief instrumentof culturalchange."37 In sum, pragmatism'santi-foundationalist core contributestwo importantaspects of Rorty'sdiscussion of progressivesocial change: the way he justifiesvarious aspects of his propheticstrand, and his accountof the mechanisms by which separatist groups and narratives willeffect his visionof a betterworld (his processualstrand).

34Id. 35 Id. at 58 (quoting JohnRawls, Kantian Constructivismin Moral Theory,77 J. Phil. 515, 519 (1980)). 36 Id. at 9. 37 Id. at 7.

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II. LEGAL SCHOLARS RESPOND The above analysisof Rorty'sdiscussion of progressivesocial changesheds important light on twopopular responses by legalaca- demicsto Rorty'sviews. Scholarshave applaudedRorty's concern for "marginalizedpeople."38 They have also, however,frequently criticizedRorty for offering a "complacent pragmatism," for provid- ing a conservative"reaffirmation of liberalinstitutions and practices."39This Part argues that both of these responsesmay be problematicif theyfail to distinguishbetween the purelyprophetic and the anti-foundationalist(both processual and prophetic)aspects of Rorty'sviews on progressivesocial change. Legal scholarsinterested in pragmatismhave explicitlyor implic- itlypraised Rorty for his statementthat "[w]e shouldstay on the lookoutfor marginalized people-people whomwe stillinstinctively thinkof as 'they'rather than 'us.' "0 JosephSinger, for example, has statedthat "Rorty is rightto adviseall ofus to be on thelookout for peoplewho are oppressed.""4And scholarssuch as Mari Matsuda and MargaretRadin have suggestedthat pragmatismcould be improvedby explicitlyincorporating a concernfor oppressed persons.42It thusseems important to examineRorty's statement in the largercontext of his viewson progressivesocial change. Rorty'sexhortation concerning marginalized people is onlyone of his manysuggestions about how to makeour world "much less cruel for a lot of people."43Elsewhere, for example,he suggeststhat schoolsshould assign students books that will help them "learn about whatit has beenlike (and oftenstill is like)to be female,or black,or

38 See, e.g.,Singer, Should Lawyers Care, supra note 1, at 1766;Hutchinson, supra note 1, at 564-66. 39 Hutchinson,supra note 1, at 564; accordMinow & Spelman,supra note 1, at 1611-12, 1650;Singer, Property, supra note 1, at 1825-26;Singer, Should Lawyers Care, supra note 1, at 1759-66. 40 Rorty,supra note 3, at 196. 41 Singer,Should Lawyers Care, supra note 1, at 1766. 42 See Matsuda,supra note 1, at 1764(arguing that to improvepragmatism, she "would weightthe pragmatic method to identifyand givespecial credence to theperspective of the subordinated[j... add a firstprinciple of anti-subordination;and ... claimthat the use of pragmaticmethod with a normativefirst principle is not inconsistent")(footnote omitted); Radin,supra note 1, at 1708-11(stating that pragmatism should use thefeminist methodology of incorporatingthe perspective of the oppressed to remedyits "problem of bad coherence"). 43 Rorty,supra note 29, at 233.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 706 VirginiaLaw Review [Vol.78:697 gay."" And in Contingency,irony and solidarity,Rorty describes his "liberalutopia" at substantiallength, and suggeststhat narratives mighthelp us getthere.45 Rortymakes theseproposals purely as a prophet,not an anti- foundationalist.He is simplysetting forth his vision of a betterworld and suggestingvehicles for its realization.Whether one considers Rorty'ssuggestions for a betterworld to be signsof his politicalradi- calismor conservatism,it is importantto recognizethat these sugges- tionsare not entailedby his anti-foundationalism.They are simply notinconsistent with it. Shouldany of Rorty's proposals be triedand founduseful, we willhave evidencethat Rorty is a usefulprophet- not evidencethat Rorty is a good anti-foundationalistor that anti- foundationalismis useful. Similarly, when Matsuda and Radin sug- gestimproving pragmatism by explicitlyincorporating a concern for marginalizedpeople, they would be best understoodas supplyinga prophecy;and anti-foundationalismmay or maynot prove useful for effectingtheir vision of a betterworld. Althoughlegal scholars have lauded Rorty for his concernfor the oppressed,they also havecriticized him for his seeming political conservatism.For example,Joseph Singer writes that Rorty's "version of pragmatismis inherentlyconservative because it equates'democracy' and 'freedom'with establishedinstitutions. "46 Allan Hutchinson accuses Rortyof failingto considerthat "liberal institutions" have helpedto createand sustainsocial ills such as "patriarchy,racism, economicinequality, and the continualthreat of nuclearholocaust and environmentaldestruction."47 Because they perceive Rorty to be a defenderof existing American political institutions and a proponent of liberalism,such scholarshave concludedthat he is a complacent apologistfor the social and politicalstatus quo.48 To be sure,Rorty does explicitlyadvocate "the protection of somethinglike the institutions of bourgeois liberal society,"49 and he does repeatedlydescribe himself as a "liberal."50But his criticsimpor-

44 Id. 45 See Rorty,supra note 3. 46 Singer,Property, supra note 1, at 1825. 47 Hutchinson,supra note 1, at 564. 48 See sourcescited supra note 39. 49 Rorty,supra note 3, at 84. 50 See, e.g.,id. at 47, 84, 198.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 1992] JustDo It 707 tantlyoverlook the larger context in whichRorty makes these statements.The preservationof existing American political institutions is notthe focus of Rorty'sutopian vision. Nor is his advocacyof their preservationevidence that Rorty has no utopianvision. Rather, those institutionsare yet anothervehicle for the realizationof Rorty's vision,which he has chosenlargely by default,and whichoperates in conjunctionwith narratives and separatistgroups. Rorty'sprophetic strand includes the institutions of liberalsociety forthree reasons. First, Rorty reads "the historical facts" to suggest that withoutthe protectionof somethinglike thoseinstitutions, a societymoves farther away from realizing his threehopes:5" that suf- feringand crueltywill be minimized,52freedom will be maximized,53 and "chancesfor fulfillment of idiosyncraticfantasies will be equalized."54 Second,he believesthat the institutionsof "contemporary liberalsociety" will affirmatively enable that society to improveitself in thedirection of his vision.55Third, Rorty feels he can suggestno alternativeto thoseinstitutions that would betterenable society to movein thedirection of his vision.56 Thus, the existingAmerican political institutions play a role in Rorty's dream ultimatelyby default. Indeed, Rorty repeatedly expressesa willingnessto reexaminethe value of those institutions in lightof "practicalproposals for the erectionof alternativeinstitu- tions."57He furtherconcedes that his ownfailure to generatesuch a proposalis due to his own lack of propheticimagination.58 Or, perhapsmore accurately, Rorty's quite substantial prophetic imagination simplydoes notextend this far. Criticsalso have misunderstoodRorty's seeming praise for and advocacyof liberalism.Rorty does not meanthe termto signifya complacentacceptance of the political status quo (or theunquestion- ingadoption of an extantpolitical ideology), but typically uses it as a shorthandfor certain aspects of his prophecy.The societythat real-

51 Id. at 84-85. 52 Id. at xv. 53 Id. at 60. 54 Id. at 53. 55 Id. at 63. 56 Id. at 197;Rorty, supra note 29, at 229; Rorty,Feminism and Pragmatism,supra note 9, at 253 n.15. 57 Rorty,supra note 3, at 197;Rorty, Feminism and Pragmatism,supra note 9, at 253 n.15. S8 Rorty,Feminism and Pragmatism,supra note 9, at 253 n.15.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 708 VirginiaLaw Review [Vol. 78:697 izes Rorty'sthree hopes is one thathe terms"a liberalutopia"'59 or "an ideal liberalsociety,"' notsimply a "utopia"or "ideal society." Rortyalso uses "liberal"to describepeople who sharethe hopesat thecore of his prophecy."[T]hat cruelty is theworst thing we do," forexample, he repeatedlydescribes as "theliberal's claim."'61 Most importantly,however, Rorty uses theterm "liberal" to help establishthe historicalroots of his dreamof an "ideal liberalsociety."62Rorty considers his threehopes for society to be importantly consistentwith "a historicalnarrative" about existing institutions and customsthat he also describesas "liberal": "theinstitutions and cus- tomswhich were designed to diminishcruelty, make possible govern- ment by the consent of the governed,and permitas much domination-freecommunication as possibleto takeplace."63 Rorty's criticsmay be confusingthis anti-foundationalisthistoricism and acknowledgmentof contingencywith political conservatism. In discussingthe threehopes at the core of his prophecy,Rorty repeatedlyacknowledges his inabilityto escape the past entirely. Rortyreminds us, invokingNeurath's image, that we are peopleon a shipat sea,prevented from realizing our most radical visions of a new and bettership by our inabilityto replaceall of the existingship's planksat once.4 Propheticimagination freed completely from his- toryis perceivedas madness. Thus, to be effective,any prophecy (includingRorty's) must be the productof varyingdegrees of both imaginationand history. It is in thiscontext that one mustconsider Rorty's acknowledg- mentthat "the contingencies of history" make it difficultfor him (and us) to "see the kindof individualfreedom which the modem liberal

59 Rorty,supra note 3, at xv. 60 Id. at 60. 61 See, e.g.,id. at 197,xv, 63-68. 62 Id. at 84. 63 Id. at 68. 64 [W]e can understandthe revolutionary's suggestion that a sailableboat can'tbe made outof the planks which make up ours,and thatwe mustsimply abandon ship. Butwe cannottake his suggestion seriously.... Ourcommunity-the community of the liberal intellectualsof the secular modem West-wants to be ableto giveapostfactum account of any changeof view. We wantto be able, so to speak,to justifyourselves to our earlierselves. This preference is not built into us byhuman nature. It isjust the way we livenow. RichardRorty, Solidarity or Objectivity?,in Objectivity,Relativism, and Truth21, 29 (1991).

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 1992] JustDo It 709 stateoffers its citizensas just one morevalue."65 Similarly, Rorty attributeshis (our) ideal of a societyin whichpain and crueltyare minimizedto his (our) historicallycontingent socialization process and "thesense of humansolidarity which the development of demo- cratic institutionshas facilitated."66But the past neitherwholly determinesnor wholly constitutes Rorty's prophecy. History simply providesthe inescapableroots of Rorty'sown imaginativeflower: a "poeticized"culture.67 In sum,scholars who laud Rorty'sconcern for marginalized people praisehis prophecy,not his pragmatism.In contrast,scholars who findfault with Rorty's defense of existingAmerican political institu- tionsdisapprove of partof his prophecy,and/or disagree with his assessmentof the constraintsanti-foundationalism imposes on the currentpursuit of his betterworld.

III. THE RELATIONSHIP BETWEEN PROPHECY AND ANTI- FOUNDATIONALISM In theirhaste to criticizeRorty for complacently defending the status quo, legal scholarshave failedto raisea potentiallymuch more devastatingissue. Theyhave never undertaken to evaluate,by Rorty's ownpragmatist terms, his claims for a postmetaphysicalculture in the contextof progressivesocial change. Whatuse is anti-foundational- ismfor achieving progressive social change as Rortydefines it? Or,in otherwords, what is therelationship between prophecy, which Rorty suggestsis necessaryfor progressivesocial change,and the anti- foundationalismthat he advocates? Despite the centralityof this issue,Rorty, like his critics,never directly confronts it. Certainlya societythat has givenup metaphysicsfor anti-foundationalismwould still need progressivesocial change(and, therefore, prophetssuch as narratorsand separatistgroup leaders). To suggest otherwisewould be to hold out anti-foundationalismas the Truth towardwhich the world has beenconverging-and Rorty, as an anti- foundationalist,explicitly rejects the metaphysicalnotion that the worldis "converg[ing]toward an alreadyexisting Truth."68

65 Rorty,supra note 3, at 50. 66 Id. at 197. 67 Id. at 53. 68 Id. at xvi.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 710 VirginiaLaw Review [Vol.78:697 Wouldthe postmetaphysical culture that Rorty advocates have any advantagesover our currentmetaphysical one forachieving progressive social change?To begin,there are severalpertinent differences betweenan anti-foundationalistculture, as Rortydescribes it, and the existingmetaphysical one. First,members of an anti-foundationalist culturewould understand that everything-"our language, our con- science,our community"-isa productof contingency,time, and chance.69They would therefore be "peoplewho combinedcommit- mentwith a senseof the contingencyof theirown commitment."70 Second,their pervasive sense of contingency would make them skepti- cal that any statusquo was eithernecessary or the best possible world.71Third, members of an anti-foundationalistculture would not employ,or be receptiveto, foundationalistvocabulary and formsof argument.72They would not use wordslike "truth," "nature," "reality,"and "reason" as warrantsfor certitude.Their "arguments," therefore,would more oftenbe suggestionsthat otherssimply try thinkingof thingsin a different(and perhapsmore useful) way, or suggestionsthat it mightbe moreeffective to stopdoing some things in favorof doingothers.73 Fourth, a postmetaphysicalculture will have made "a generalturn against theory and towardnarrative."74 Accordingto Rorty,"[s]uch a turnwould be emblematicof our having givenup the attemptto hold all the sidesof our lifein a single vision,to describethem with a singlevocabulary."75 Finally, membersof an anti-foundationalistculture would conceive of progressive socialchange as a seeminglyendless process of "the realization of utopias and theenvisaging of stillfurther utopias. "76 Assuming,arguendo, that a postmetaphysicalculture will have the characteristicsRorty ascribes to it,what will that mean for progressive social change? Consider,first, the membersof the societyin whicha prophetsuch as a narratoror a separatistgroup leader will be working.Will a postmetaphysicalculture be morelikely to join with

69 Id. at 22. 70 Id. at 61. 71 Id. at xv-xvi,61. 72 Id. at 79. 73 Id. 74 Id. at xvi. 75 Id. 76 Id. This processwould yield "a historyof increasingly useful metaphors rather than of increasingunderstanding of how thingsreally are." Id. at 9.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 1992] JustDo It 711 a prophetin realizingher vision of a less cruelworld, or morelikely than presentsociety to be movedby a narratortoward increased humansolidarity? There seems littlereason to believeso, despite Rorty'sinconsistent, but often hopeful, claims. At hismost optimistic, Rorty asserts that for "the preservation and progressof democraticsocieties," an anti-foundationalistvocabulary centeredon "notionsof metaphor and self-creation"is preferable to a metaphysicalvocabulary based on "notionsof truth,rationality, and moralobligation.""7 Indeed, he claimsthat this latter vocabulary of Enlightenmentrationalism has begunto hindersocial progress.78 In a similarlyenthusiastic vein, Rorty asserts that "reformulat[ing]the hopesof liberal society in a nonrationalistand nonuniversalistway ... [will]further[ ] their realization better than older descriptions of them did.s79 At othertimes, however, Rorty's claims for an anti-foundationalist cultureare substantiallyweaker and moretentative. With regard to progressivesocial change,Rorty states that an anti-foundationalist culture(in whichthe "nonintellectuals" are "commonsensicallynom- inalistand historicist")could "be everybit as self-criticaland every bitas devotedto humanequality as our ownfamiliar, and stillmeta- physical,liberal culture-if not more So." 8O More tentatively,he assuresus thatthe public's adoption of anti-metaphysical, anti-essen- tialistviews at leastwill not "weaken and dissolveliberal societies."8 Rortyadds, with even less optimism,that individuals whose lives are givenmeaning by themodern, liberal hope "thatlife will eventually be freer,less cruel, more leisured, richer in goodsand experiences,not just for our descendantsbut for everybody'sdescendants, "82 are unlikelyto be interestedin, much less adverselyaffected by, philoso- pherswho are questioningmetaphysics.83 At his leasthopeful, Rorty concedesthe possibility that shifting to an anti-foundationalistculture "wouldweaken and dissolveliberal societies. "84

77 Id. at 44. 78 Id. 79 Id. at 44-45. 80 Id. at 87. 81 Id. at 85. 82 Id. at 86. 83 Id. "The idea thatliberal societies are boundtogether by philosophical beliefs seems to me ludicrous."Id. 84 Id. at 85.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 712 VirginiaLaw Review [Vol. 78:697 Rortynever supports his moreoptimistic claims for anti-founda- tionalismwith explanationsof how or why anti-foundationalist vocabularyand reformulationsof social hopeswould be superiorto metaphysicalones for achieving progressive social change. Can a per- suasivecase nonethelessbe madethat anti-foundationalism would be moreuseful than metaphysics for achieving progressive social change as Rortydefines it? Rortyseems to implythat one advantageof an anti-foundationalistculture is its potentiallygreater revisability. In thepresent culture, metaphysics anchors the bulk of our beliefs, some of whichmay impede social progress.So, the argumentgoes, elimi- natingthose metaphysicalanchors might yield a more revisable culture. There are severalproblems with this reasoning.First, greater revisabilityalone does notincrease the likelihood that changes occur- ringin societywill be in anyone direction.Revisability, after all, is as mucha preconditionfor a societymoving away from Rorty's vision of a betterworld as it is formoving toward it. Second,any metaphysical notion,such as religionor truth,that might impede progressive social changealso mightexpedite it. MartinLuther King, Jr., for example, had a utopianvision not unlike Rorty's. That he was a ministerand frequentlyinvoked religious concepts when advocating social change did not diminishhis influenceas a prophet,but ratherwas muchof thesource of it. Similarly,an anti-foundationalistsociety may be less inclinedto followa prophetpromising only a contingentvision of a betterworld than a metaphysicalsociety will be to followa prophet assertingthat moral truth or God is on herside. The latterprophet, forexample, may be relativelybetter at inspiringand motivating,at capturingthe imaginationof her society.Thus, it is farfrom clear thatan anti-foundationalistculture would be morerevisable in the directionof social progress, or thatit would have more (or moreinflu- ential)prophets sharing Rorty's vision of a betterworld. In theend, Rorty persuades one onlyof that for which no persuad- ingwas necessary:An anti-foundationalistculture by definition will be differentfrom our foundationalistone. Notwithstandinghis general claimthat a postmetaphysicalculture would be preferableto ourmet- aphysicalone, Rortydoes not convincinglyestablish that a cultural shiftto anti-foundationalismwould be advantageousfor realizing evenhis own utopianvision.

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IV. PRAGMATIC PROPHETS If our culturedoes notmove from foundationalism to anti-foundationalism,would subscribing to thelatter nonetheless be ofgreater use to prophetsthan a beliefin metaphysics?Throughout his writings, Rorty'sanswer to thisquestion seems to waiverbetween "no" and "yes,quite a bit." At one extreme,Rorty states that pragmatism has nothingto offer thosewith a visionof a betterworld: "[I]t seemsto me thatif you had theprophecy, you couldskip the pragmatism."85 In addition,Rorty has describedpragmatism in thecontext of progressivesocial change as "somethingcomparatively small and unimportant,a set of answers to philosophicalquestions-questions which arise only for people who findphilosophical topics intriguing rather than silly."86 Thus, Rortynotes that "pragmatism bites other philosophies, but not social problemsas such-and so is as usefulto fascistslike Mussoliniand conservativeslike Oakeshott as it is to liberalslike Dewey."87 At theother extreme, however, is thebulk of Rorty's recent Tanner Lecture,"Feminism and Pragmatism."88There he statesthat feminist prophetswith a visionof a betterworld, such as Catherine MacKinnonand MarilynFrye, might profit from "thinking with the pragmatists."89With seeming modesty, Rorty claims that "All we [anti-foundationalists]can do is to offerfeminists a few pieces of special-purposeammunition-for example, some additionalreplies to chargesthat their aims are unnatural,their demands irrational, or theirclaims hyperbolic."90 Rorty goes on, however,to detailthree much more importantways that he believesanti-foundationalism mightbe usefulto feministprophets. First, anti-foundationalism affordsthese prophets a wayto conceptualizethe process of progressive social changeand, therefore,their job.91 Second,and related, anti-foundationalismequips them with a rhetoric-avocabulary and formof argument-foruse withthose they are tryingto persuade.92

85 Afterword,63 S. Cal. L. Rev. 1911,1917 (1990). 86 Rorty,Feminism and Pragmatism,supra note 9, at 238. 87 Id. at 255 n.23. 88 Rorty,Feminism and Pragmatism,supra note 9. 89 Id. at 237. 9 Id. at 238. 91 Id. at 233-36,238, 240-41,246-49. 92 Id. at 236-42.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 714 VirginiaLaw Review [Vol. 78:697 Third,anti-foundationalism offers feminist prophets a kindof moral support.93 Both of Rorty's ratherextreme positions cannot be correct. Indeed,close examination of Rorty's three more ambitious claims for anti-foundationalismfinds them unpersuasive. First,Rorty states that pragmatist philosophy might aid feminist politicsbecause of the way the former conceptualizes and redescribes social progress:"by substitutingmetaphors of evolutionarydevelop- mentfor metaphors of progressivelyless distortedperception," and "bydrop[ping] the appearance-reality distinction in favorof a distinction betweenbeliefs which serve some purposesand beliefswhich serveother purposes."94 Rorty adds thatfeminists can easilyfit their claim thata new voice is neededinto a pragmatistview of moral progress.95 But will prophetsreally profit from conceptualizing the societal changethey advocate as partof a larger,endless evolutionary process? Not necessarily.For sucha conceptualizationto be useful,it should somehowmake the prophet'swork easier or moreeffective. Rorty does not make a case that this conceptualization,without more, wouldbe usefulin thisway. Nor is suchan argumenteasy to gener- ate. Indeed,an anti-foundationalistconception of social changeas evolutionmay dilute both the prophet's belief in herown visionand hermotivation to effectsocial change. It is one thingto believe,as a prophetby definition does, that the status quo is neithernecessary nor thebest possible state of affairs;but it is quiteanother to believethat thebetter world one envisionsand wouldwork toward achieving is also a contingency,a mere resting point in a largerevolution. Rortyclaims that the recognitionof contingencyunderlying the anti-foundationalistconception of social changeneed not dilutethe prophet'ssense of convictionin hervision. He arguesthat "a belief can stillregulate action, can stillbe thoughtworth dying for, among people who are quite aware that this beliefis caused by nothing deeperthan contingent historical circumstance. "96 Perhaps.But the questionstill remains as to whetherthis recognition of contingency

93 Id. at 235-36,241-42. 94 Id. at 234. 95 Id. at 236. This is one pertinentadvantage that Rorty claims pragmatism has over universalismand realism.Id. at 235-36. 96 Rorty,supra note 3, at 189.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 1992] JustDo It 715 makesthe prophetmore effective in any way. Rortymakes no case thatit does. Rorty'ssecond claim is thatanti-foundationalism offers feminist prophetsuseful rules of rhetoric.He suggeststhat feministsquit invoking"an ahistoricistrealism" through the use ofphrases like "in truth"and "in reality,"and insteadsee themselvesas creatinga new languagethrough which they would simultaneouslybe fashioning whatthey did notbefore have: "a moralidentity as women."7 Rorty promisesthat with new, anti-foundationalist linguistic practices come newsocial constructs.98 In additionto abandoningtheir old universalistand realistrhetoric, Rortysuggests that feminists should use substantivelydifferent argu- mentsin attemptingto persuadeothers to theirview. Feminists,he argues,should "drop[ ] thenotion that the subordination of women is intrinsicallyabominable, drop[ ] the claim thatthere is something called'right' or 'justice'or 'humanity'which has alwaysbeen on their side, makingtheir claims true."99 Instead, they should "just make invidiouscomparisons between the actual presentand a possible,if inchoate,future."10 This is the onlyform of argumentleft, Rorty notes,when "one seesthe need for something more than an appealto rationalacceptability by the standards of the existing community."101 Thereare two problemswith Rorty's suggestions. As Rortyhim- selfacknowledges, anti-foundationalism cannot provide prophets (or anyoneelse) witha methodfor selling their visions (or doinganything else): "Thereis no methodor procedureto be followedexcept coura- geousand imaginativeexperimentation."102 And, as Rortyalso notes, theextent to whichmetaphysics holds sway in our worldmeans that ''practicalpolitics will doubtless often require feminists to speakwith theuniversalist vulgar. ... 9"103 Indeed,anti-foundationalist rhetoric and argumentswould seem to be ofquestionable use to prophetswho are sellingtheir vision to a foundationalistsociety.

97 Rorty,Feminism and Pragmatism,supra note 9, at 236-37(emphasis added). 98 Id. at 236. 99 Id. at 237. 00 Id. at 242. 101 Id. at 239. 102 Id. at 242. 103 Id. at 237.

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Third,Rorty would have feminist prophets who are feeling discour- agedlook to anti-foundationalismfora kindof moral support. Rorty claimsthat anti-foundationalism and variantsof politicalradicalism such as feminismare compatibleand mutuallysupportive "because pragmatismallows for the possibility of expanding logical space, and therebyfor an appealto courageand imaginationrather than to puta- tivelyneutral criteria."1" In addition,Rorty urges feminists to have faithin theirvision of a betterworld: "Prophecy, as we [pragmatists] see it, is all thatnon-violent political movements can fall back on whenargument fails."105 To be sure,some (rather intellectual) feministprophets may be bolsteredby Rorty'sexhortation. But thenwill notanti-foundationalism have become for the prophet what Rorty has claimed,with some disdain, that metaphysical entities are for the real- ist and universalist:"something large and powerful"that is on one's side and enablesone to keeptrying?"10 In sum,neither the visionarynor the persuasive/politicalpart of everyprophet's job appearsto be aidedby a beliefin anti-foundationalism.107 Certainlya beliefin anti-foundationalismseems neither nec- essarynor sufficientfor actually becoming a prophet.Even Rorty disclaimsits necessity: Prophetsare whereveryou find them. The greatheroes-the pro- pheticleaders-in eastern Europe now are a facelessbureaucrat, Gorbachev,and a playwright,Havel. .... I don'tknow who our [American]analogues of Havel and Gorbachevare goingto be. ButI doubtvery much that they will take theirinspiration either from deconstruction orfrom neopragmatism. 108 In addition,already implicit in Rorty'snotion of the prophet's dream are two of the contributionsthat a beliefin anti-foundationalism mightbe ableto make:skepticism about the status quo, and an under- standingthat social progressis notabout reasoning from first princi- ples, but about respondingto humanneeds, about whatworks (or mightwork).

104Id. at 242. 105 Id. at 235. 106 Id. at 254 n.21. 107 As Rortydefines her, a prophethas twochief characteristics: a vision of a betterworld and a voiceto describethat dream. Id. at 232. 108Afterword, supra note 85, at 1917-18(emphasis added).

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Nor is a beliefin anti-foundationalismsufficient for becoming a prophet:After all, notall of theexisting self-proclaimed pragmatists are prophets. Thus,despite Rorty's broader claims, he persuadesone ultimately thatanti-foundationalism might be usefulonly to especiallyintellec- tual prophets,and onlywhen they need to extricatethemselves from philosophicalor theoreticalhassles. Rortyconvinces one onlythat if highlyintellectual feminists redescribe themselves and theirproject in anti-foundationalistterms, they might free themselves from the "philosophical"demand for a "generaltheory of oppression."109

V. CONCLUSION Notwithstandingthe claims of many legal scholars, and sometimes RichardRorty, pragmatism is of scantuse foralleviating oppression in Americansociety. Rorty's own discussionof progressivesocial changeis deceptiveon thisscore because it containsboth a prophetic and a processualstrand. And pragmaticanti-foundationalism entails thesubstance of onlythe latter strand. Thus, Rorty's exhortation to look out formarginalized people is bestunderstood as dictatedby his prophecy,not his pragmatism.In contrast,Rorty's defense of existingAmerican political institutions indicates neither conservatism northe absence of a utopianvision; rather, it is theresult of his prag- matisthistoricism and acknowledgmentof contingencyin contem- platingthe vehicles for realizing his prophecy. The centralissue that neither Rorty nor his critics has confrontedis whether,by Rorty's own pragmatist terms, he showsanti-foundation- alismto be usefulfor realizing his ownutopian vision. I haveargued in thisEssay thathe does not. EvaluatingRorty's claims for anti- foundationalismby his own pragmatistcriterion of "usefulness" pointsup twodistinct strands within pragmatism: anti-foundational- ismand instrumentalism.And therewould not seem to be anyneces- saryconnection between the two strands. As I haveshown, Rorty does notsupport his morehopeful claims foran anti-foundationalistculture with convincing explanations of how or whythat culture will be moreuseful than our currentmeta- physicalone forachieving progressive social change. Nor has he pro- vided persuasiveevidence that subscribingto anti-foundationalism

109Rorty, Feminism and Pragmatism,supra note 9, at 238.

This content downloaded from 128.83.82.170 on Fri, 16 Oct 2015 14:58:21 UTC All use subject to JSTOR Terms and Conditions 718 VirginiaLaw Review [Vol.78:697 willbe of greateruse to prophetsthan a beliefin metaphysics.As a goodpragmatist, Rorty cannot therefore be surethat anti-foundationalismis preferableto metaphysicsfor realizing his-or any other- utopian vision. In theend, pragmatism appears to be usefulin achievingprogres- sivesocial change to theextent that one profitsfrom statements such as, "Thereis no methodor procedureto be followedexcept courageous and imaginativeexperimentation."110 Or, as the Nike people say,"Just do it."

110 Id. at 242.

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