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Just Do It": Pragmatism and Progressive Social Change

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"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. 697 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 pro- gressivesocial 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 idiosyncraticfanta- sies 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 concern- ing 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 sepa- ratistgroups 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
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