For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).
Paul Gowder
It surprised me that the most interesting part of The Turn to Process was the conclusion, in which Parker turns his gaze from law, political science, and economics to history itself—and in effect historicizes the practice of historicizing.
By “the practice of historicizing” I mean what Parker vividly describes as the process where historians try to undermine ideas by placing them in social context. In his apt words: “As historians place object after object in a social-historical context, they render such objects ‘contingent,’ [and] weaken or impair their claims over us[.]” For those of us in other disciplines (and especially the normative and conceptual ones, including law, who lack ready resort to the self-defensive tool of “we’re just doing empirical observation”) the process of experiencing core ideas in one’s field getting subjected to this process of historicizing can be experienced as an annoying bit of disciplinary imperialism, and Parker captures exactly why in his discussion of the historian’s disregard of the truth claims of other fields.
Put a bit more directly: I’m a (sort of a , hesitant, very left-) liberal. To me, that statement means that I accept (tentatively) the truth of a variety of propositions such as the moral importance of individuals compared to collectivities, freedom and equality as coequal first-order values, the need to control the powerful, the contingency of existing social relationships and institutions, and so forth. Moreover, those propositions entail further truth claims about more granular questions like the injustice of immigration restrictions. And I accept those truth claims at least partly because I’ve been exposed to arguments for them which I find more convincing than the arguments against them. The historian who responds to such truth claims by giving a history of liberalism—by, for example, showing how some of the early liberal thinkers were responding to their particular social circumstances (and also often involved in pernicious or even deeply evil projects—see e.g. Locke, enslaver), seems to miss the point by not engaging with the arguments for those ideas on their own terms.
I thus have to confess to a small amount of schadenfreude when Parker essentially says to historians engaged in such a process, ’hey friends, you’re engaged in exactly the same thing as the subjects of this book—you’ve replaced the truth claims of the past with a process of placing-in-context just like the legal process school and Hayek and all the rest of the book’s subjects.” But… I’m also not sure what that amounts to. Is the idea that historians themselves are to find the claims of their own methods weakened by this? If the process of historicizing is itself a product of the crisis of modernity that replaces no longer credible truths of the past with a permanently ambiguous and contingent process of placing-within-the-past, does that undermine the process of historicizing itself? (Of course, that has a touch of an internal contradiction to it—if historicizing the practice of historicizing undermines historicizing-as-thing-that-undermines, then it undermines the first premise of its own implicit argument—but we can easily rescue that argument by just treating it a bit more schematically—either historicizing has the power to undermine a method, in which case it applies to itself, or it doesn’t, in which case we don’t care—either way, the power of the method of historicizing seems to be in trouble.)
But not so fast? To my mind, the “crisis of modernity” really ought to be called the “crisis of diversity” or the “crisis of inclusion.” It ought to surprise nobody that ideas like natural law theory go out the window in the early 20th century, when the sorts of people who did natural law theory were forced to confront the existence of people who thought about things like law very differently from them, and at least sometimes were increasingly forced to confront them sort of as equals, as opposed to benighted barbarians, dependent peoples, and the like. This perhaps comes out most clearly in Parker’s chapter on political science, in which we can see clearly that the scholars who turned to interest group pluralism did so because the actual pluralism of their societies became visible to them, and so patent nonsense like Burgess’s that tied the state to some kind of common consciousness of the people became more and more impossible to believe—at least, not without the kind of mystical nationalism that animated Nazi Germany. (One can easily read Carl Schmitt’s friend-enemy drivel and all the rest as a way to rescue the organic people/state from the existence of pluralism by giving someone the authority to say “ok, by the people I just mean THESE people.” This is, of course, the strategy that demagogues have followed ever since, see, e.g., Donald Trump.)
If that’s true, then it seems to be open to us to understand the responses to the crisis of modernity to themselves capture genuine truth claims about the world—there are people with different needs, interests, values, and even conceptual frameworks for thinking about the world out there, and we have to figure out how to live together without brutalizing one another. The way to do so so is to in effect move up a ladder of abstraction, to focus on techniques that allow ourselves to reconcile our differences, sort out solutions to the problems we face in the places of shared interest, or do as well as we can in achieving what each of us understands as their own wellbeing.
This is in a way a big insight of both John Dewey and John Rawls, who serve as the bookends (the former explicitly, the latter implicitly) for Parker. Rawls’s work is of course directed at the problem of living together under diversity, what in Political Liberalism he called the “fact of reasonable pluralism.” In the absence of a way to successfully govern a democracy that treats people as equals based on one’s own controversial religious or ethical ideas, we abstract out and look for ways of reasoning that are compatible with the project of living together.
As for Dewey, well, check out this passage from The Public and its Problems:
Whatever the future may have in store, one thing is certain. Unless local communal life can be restored, the public cannot adequately resolve its most urgent problem: to find and identify itself. But if it be re-established, it will manifest a fullness, variety and freedom of possession and enjoyment of meanings and goods unknown in the contiguous associations of the past. For it will be alive and flexible as well as stable, responsive to the complex and world-wide scene in which it is enmeshed. While local, it will not be isolated. Its larger relationships will provide an exhaustible and flowing fund of meanings upon which to draw, with assurance that its drafts will be honored. Territorial states and political boundaries will persist; but they will not be barriers which impoverish experience by cutting man off from his fellows; they will not be hard and fast divisions whereby external separation is converted into inner jealousy, fear, suspicion and hostility. Competition will continue, but it will be less rivalry for acquisition of material goods, and more an emulation of local groups to enrich direct experience with appreciatively enjoyed intellectual and artistic wealth.If only, right? This passage comes at the conclusion of the essay and follows from the observation that modernity has disrupted these local relationships and that “[e]vils which are uncritically and indiscriminately laid at the door of industrialism and democracy might, with greater intelligence, be referred to the dislocation and unsettlement of local communities.” And while he doesn’t make it as explicit as I’d like, I think part of Dewey’s idea is that his Parkerian process orientation will make it possible for the reconstructed local to be, in his words, “stable without being static, progressive without being merely mobile” through the robust ideas-based interconnections between the local and the global. (Perhaps I’m overreading Dewey here, but he does seem to anticipate, in this passage, a lot of the more contemporary work on the relationship between structure, knowledge, and governance associated with folks like Elinor Ostrom and, my personal favorite, Josiah Ober’s account of post-Cleisthenic Athens in his book Democracy and Knowledge.)
In the internet age, it’s easy to see Dewey as being onto something (shameless self-plug: and I argued as much in my last book, The Networked Leviathan: For Democratic Platforms). No surprise, then, that we currently live in a moment of Dewey revivalism lead by fantastic philosophers and political theorists such as Elizabeth Anderson and Melvin Rogers.
For Parker’s project, including as captured in the methodological aside to historians in his conclusion, I wonder whether he is showing us a kind of flip side to the practice of historicizing, which we might call historicizing-as-reinforcing? For the conditions that drove the turn which he recounts are still with us today, and insights like Dewey’s seem to hold the potential to serve us well right now. Maybe the Parkerian historian is actually uncovering a timeless truth about a diverse world (so often concealed by the efforts of those in, or aspiring to, power to suppress diversity, again see e.g. Donald Trump) expressed, in a moment of irony that perhaps shades into full-fledged aporia, best by the guy whose whole shtick was to deny timeless truths. (The only timeless truth is that there is no timeless truth, all I know is that I know nothing, sorry Dewey, you’re closer to the Greeks than you’re willing to admit?)
What if the turn to process was just the right way to go about it?
Paul Gowder is a professor of law at Northwestern Pritzker School of Law.
