Balkinization  

Wednesday, January 17, 2007

WWKD (What Would Kant Do?)

Scott Horton

Stanley Fish, writing in the New York Times on Sunday examines what Immanuel Kant would tell us about affirmative action programs at American universities. He gives us a great discussion of Kantian principles relating to morality and politics as they affect the subject, and it produces a lot of interesting insight. Fish does not propose any definitive call on the question, but he tends to put Kant on the side of the affirmative action critics. He writes:

I do not mean to suggest that because Kant (at least in my account of him) would agree with Justice Thomas, the case against affirmative action has been decisively made. I am just noting that the two actions Kant contrasts – legislating in response to perceived social needs and legislating with an eye always to first principles – have defined the affirmative action debate from its beginning and continue to do so.

I don't see any obvious flaws in Fish's analysis. But I am not so certain that Kant would come out where Fish obviously does (indeed, Kant seems to be wielded throughout the piece to support what appear to be Fish's views).

I don't know how Kant would judge the affirmative action question. No doubt he would think it important. The academy was extremely important to him. And as Kant died, its potential as a force for social transformation was increasingly obvious in the German-speaking world. The university was emerging as a vital forum for political thought, and thinkers like Kant were having an electrifying impact. The aspiring middle class (what came to be called the Bildungsbürgertum) was also seeing university study as a vehicle for social and political promotion. In Kant's political thought, this educated elite – what he called the "reading public" – was vital. The appeal he makes in writings like Towards a Perpetual Peace is directed to them. But it is significant to note that this is an elite. Fish suggests that Kant's attitude is molded by a fairly stark egalitarianism (he notes "the equality of each with all the others as a subject (Untertan)")(Theorie und Praxis II). But of course, Kant was decidedly no radical democrat, notwithstanding some flirtations with Jacobin thought at the outset of the French Revolution. Indeed, it is noteworthy that during the revolution, he wrote about "liberté" and "fraternité" with the decided avoidance of the term "égalité." He embraces the idea of representative democracy, and he aspires for the rise of a governing elite composed of the intellectual best rather than those born to wealth, title and privilege ("Wisdom will come to the courts out of the study halls," 15:1436). Indeed, we don't know what Kant would say about affirmative action in general, but we know very clearly what he thinks about one form of affirmative action: the admission of the "legacy" candidate based solely on his privileged family connections. This is inexcusable. (Rechtslehre).

It does seem to me that there are some important points that Fish neglects which would contribute to a more complete understanding.

First, Kant had vehement feelings about slavery and the slave trade, which were extraordinary for his times. He had a generally positive view of England, but this – and the English monarch's decision to use force of arms against the American colonies – soured him on Prime Minister Pitt ("perhaps he seeks to promote freedom and culture – perhaps – but the barbarous slave trade certainly stands higher on his agenda") and on England ("The English nation (gens), viewed as a people (populus), constitute the most valuable link in the entire chain of humanity. Yet as a state dealing with other states, is it not the most miserable, domineering and warlike of all states?" 15:1366).

Second, Kant had equally strong feelings about nations which were wrongly conquered and subjugated. He felt their people were entitled to compensation for the injury done to them. These views appear several times in his writings, most notably in the allusions to the partition of Poland found in Perpetual Peace, in writings about the English repression of the American uprising (15:1444, 1453) and in his discussion of British colonial policy towards the Indian princely states (15:1366). Among the wrongs he identifies are the seizure of property and the practice of impressing the peoples of the subjugated states into involuntary servitude or slavery. Kant makes clear that in a just world the people so abused would be entitled to compensation. He would certainly not view claims for reparations by slaves or their immediate offspring as whacky. On the other hand, it seems unlikely he would carry these claims forward over many generations, since that would tend to violate the concept of equality of subjects ab initio.

It seems to me that Fish is right in identifying the main concepts in Kantian thought that weigh against affirmative action. Even so, I think the passages I have cited show that Kant would personally be far more sympathetic to this idea than Fish allows.

Still, this is a useful exercise, and I hope Stanley Fish will give us more in the future.

P.S. Stanley: your wife is right.

Comments:

"But if we assume a plan of nature, we have grounds for greater hopes. For such a plan opens up the comforting prospect of a future in which we are shown from afar how the human race eventually works its way upward to a situation in which all the germs impanted by nature can be developed fully, and in which man's destiny can be fulfilled here on earth." - Idea for a Universal History With a Cosmopolitan Purpose

I cite the above to point out that what guides Kant's political judgement is not simply the philosophical inquiries into questions of right and wrong, but also a very specific faith that the linkages between history, idea, and political practice play themselves out in very specific ways as long as we simply turn ourselves more towards knowing the right answers. This is a very "Enlightenment" way to think, and political thoery and philosophy has compiled at least 120 years of solid reasons to doubt Kant's position.

In this regard, I think that one can be quite sympathetic to Kant's moral investigations while still being very wary of his political writings. Further, I think this critique of Fish, that he is ignoring some of Kant's political views, can be expanded alittle bit so that we can actually say that Fish is not just ignoring those views, but also ignoring why Kant HELD such views. When we dig into this question by looking at Kant's more politcally oriented writings (I recommend the Cambridge "Political Writings", from which I extracted the quote above), this discussion actually starts to have a lot in common with the earlier post by Professor Balkin on Hegel's "World Historicism."
 

A search for moral reasons to keep black people out of elite education appears to me the effort of someone with a guilty conscience trying to rationalize his privilege on what might be seen as a neutral ground. Kant's approach to looking to the right reminds me of those who said that segregation would wither away and just be patient back in the 1950's. In 50 years, don't worry it won't be there. Those 50 years would have been the arc of my life. I integrated private schools all my life - sometimes after my parents asserted rights in court proceedings such as in New Jersey - and I will guarantee you that out in America there remains plenty of venom against black people. Affirmative Action antipathy remains a proxy for directing that venom, just like busing was in an earlier generation.

My question is always to those who wish to rant against Affirmative Action - what is your integration strategy? If the legacy of Brown is non-discrimination and integration, then what is your integration strategy? Every time I have asked that of anti-affirmative action advocates they have proposed pie in the sky and approaches to integration that simply will not work. So they have no strategy to integrate because - I suspect - they simply do not think integrating America is important. Look at the neighborhoods that remain so segregated except for a token person of color here or there.

Puh-leaze.
Best,
Ben
 

Scott Horton seems to be saying that Fish is a critic of using affirmative action in academia. Everything I've read by Fish on this question would lead me to quite the opposite conclusion (I haven't read this piece yet though).


One thing about Fish is that he's always been the sort of scholar whose own views on an issue have no apparent influence on his evaluation of whether somebody else would have agreed with those views.
 

Post a Comment

Older Posts
Newer Posts
Home