Thursday, May 24, 2007
The Legal Academy "N-word": Nihilism
I have read Brian's posting on Sandra Day O'Connor, and the ensuing discussion, with great interest. I'm intrigued to see the re-emergence of the term "nilihism" within the debate. As somebody who has, on occasion, been labeled a "constitutional nihilist," I want to offer some clarifications as to what the term might mean (and what my current position is):
A follow up to your aside:
Although it may not be correct to describe Ivan Karamazov as a nihilist, would you agree that his father Fyodor qualifies as one? Further, although I disagree with your characterization of Alyosha's religious faith as "jejune," couldn't the same description apply with equal force to Ivan's atheism?
What all of this has to say about legal interpretation is, of course, another matter.
The Karamozov's father struck me as a drunken lout rather than anyone with a "philosophy." If he counts as a nihilist, then I think we'd have to use the same term to apply to many, say, of our leading sports stars and entertainers who seem wrapped up in their own egotism and carnality.
I agree that this may have little or nothing to do with legal interpretation. It has to do only with the application of the term "nihilist" to refer to people with presumptively insufficient "faith" in law or legal (as distinguished from other forms of) reasoning.
Calling someone a legal "nihilist" serves as an insult rather than an argument. This charge was raised against the Crits, as you know, and no Crit was a nihilist of any sort (moral or legal).
It's not entirely clear what "nihilism" means in a legal context. If it means that anything goes in law and/or legal interpretation, I can't think of anyone who qualifies.
the jejune religiosity of his brother Alyosha
Goodness, you really *can* get whatever you want out of the text, can't you? ;)
More seriously, I suppose that SL is referring to the "Rebellion" and "Grand Inquisitor" chapters -- you know, the ones that Laura Bush is able to admire without seeing any potential relevance to current events.
Arguably, Alyosha's religion *is* "jejune" at that point; he has not yet undergone his crisis after the death of Father Zossima.
Contrary to the popular definition of nihilism as the belief in nothing, I understood the term to refer to a belief in which traditional values are arbitrary, because there is no objective truth. Everything’s relative, leaving the nihilist to create her/his own values. So, the nihilist may very well still believe in values, and those values don’t necessarily need to be self-serving. Instead, an egoist would seem to better fit the cynic’s definition.
As nihilism applies to American legal interpretation, I found the notion that insufficient “faith” in the law amounts to nihilism as intriguing. Can the law really operate separately from other forms of reasoning and outside societal context? Simply because the “rules” may adapt in application or interpretation with the passage of time, does that somehow make them completely arbitrary? Are there not limits based on reason and societal constraints?
The American debate seems rather perplexing. For a remarkably similar country, the Canadian approach differs quite a bit. We’ve adopted a “living tree” method to constitutional interpretation, in which the constitution is viewed as an organic entity capable of growth and adaptation to reflect societal changes. If the “Fathers of Confederation” intended on limiting the constitution to the past, then it would loose its relevance for future generations.
Nihilism is one of those words that instantly biases me against the writer unless a strong enough case has been built up by the time the word is used that I know exactly what the writer means by it. Same goes for Moral Relativism.
So often the term is given meaning only by the use of a logical falacy whereby the writer picks some aspect of their own moral system and says that any moral system must hold to that principle in order to be a moral system, and that therefore if you do not agree on that point, you are a nihilist or a moral relativist.
It's a straw man, because most of the time the writer never explores what the logic of the dissenter's moral system is. Much of the time they don't even clearly identify which aspect of their moral system they find to be essential to moral systems.
Try to free the term from this logical falacy and things always seem to come to a point where Nihilism is so narrowly defined that no one could realisticly endorse it, or so broadly defined that anyone with an ounce of epistemological caution is a Nihilist.
I think it must say something bad if serious legal thinkers are using the word again.
With regards to indeterminacy, a text could be said to have some greater level of determinacy if it belongs to a tradition that stipulates how indeterminacies in the text should be resolved. For example, certainly the original constitution's presidential succession mechanism is indeterminate, but if it was understood that such indeterminacies would be worked out through a process of political consensus and precedent establishment, then it would be fair to say that by the time Lincoln was shot, it was constitutionally determinate that Johnson should fully assume both the duties and office of President, rather than simply serving as the acting president, even if the question hadn't been so clear for Vice President Tyler.
Since I am the one who uncorked the "nihilist" word in the comments over at Brian Tamanaha's post, I feel that I owe Brian and Sandy a bit of an apology, since it seems that my off-the-cuff choice of the word "nihilism" to describe what I was talking about was extremely ill-chosen.
A little background: As another commenter at that post divined, I am trained as a philosopher and not a legal theorist. Philosophers get notorious leeway for stipulating definitions of their terms that may not cohere exactly with anyone else's usage. Also, given that I am not a legal theorist, I was only vaguely aware (and too late, obviously) that "nihilism" was a more or less well-defined charge in legal-theoretic circles.
When I referred to "nihilism" in my earlier comment, I wasn't referring to any elaborated theoretical commitment in legal theory. Instead, I was referring to what I considered a rather lazy habit of mind that I sense among more bluntly ideological understandings of law in the wider culture. That habit involves an overeager application of Ockham's razor without stated justification, as if parsimony about the sort of things we are willing to grant as meaningful subjects of conversation is BY ITSELF a reason to deny that discussion of them fails to be meaningful. (The philosopher Donald Davidson once referred to this as "ontological Puritanism," which is perhaps a more apt phrase.)
What this means is that any position on interpretation, legal or otherwise, that acknowledges SOME constraints on interpretation, or acknowledges NO constraints after arriving at that conclusion by a reasoned argument, is not "nihilist" in the sense I had in mind.
Again, apologies to Brian, Sandy, and all of the readers of this blog for muddying the waters needlessly. I shall choose my terms more carefully in the future.
Oops! In my comment above, "a reason to deny that discussion of them fails to be meaningful" should read "a reason to deny that discussion of them IS meaningful."
Damn-- I can't even get my convoluted apologies right!
"[A] number proportionate to its population." Really?
Plus ... will to power = true sociopath.
Perhaps there really is something to that nihilism thing after all....
Straying away from the Nihilism debate (of which I know nothing! Nothing, Lebowski!), I'd like to say I've lived in China and in Korea. Both of those countries count age differently. In China, they add a year to your age on January 1, not on your actual birthdate.Post a Comment
In Korea, they add a year to your age on January 1 and also start counting at 1, not zero. In Korea, you could be two years older than you would be in the US system.
So, when I teach the requirements of the US Constitution to my undergrads in China, I have to explain to them that we count it a bit differently...that's three different ways to count age without going into lunar calendars.