Method and History

Guest Blogger

For the Balkinization symposium on Kunal Parker, The Turn to Process: American Legal, Political, and Economic Thought, 1870–1970 (Cambridge University Press, 2023).

Kunal M. Parker[1]

Immense thanks to Paul Gowder, Amalia Kessler, Ajay Mehrotra, Aziz Rana, and John Witt for their thoughtful, incisive, and occasionally spirited engagements with The Turn to Process.  Many thanks as well to Jack Balkin for agreeing to host this symposium.  In what follows, I set forth some of what I hoped to accomplish in The Turn to Process.  This will allow me to respond to the points made by the contributors.

The Turn to Process is an attempt to capture a curious modernist intellectual sensibility: one in which ways, means, methods, techniques, procedures, and processes took center stage relative to truths, ends, and foundations.  Consider the following statement by the postwar constitutional theorist Alexander Bickel: “But legal technicalities are the stuff of law, and piercing through a particular substance to get to procedures suitable to many substances is in fact what the task of law most often is.”[2]  Or this one by the prominent political scientist and economist Charles Lindblom in one of his many midcentury studies of bureaucratic and democratic decision-making: “[W]hat we establish as policy objectives we derive in large part from an inspection of our means.”[3]  Or this one by the celebrated Nobel Laureate economist Friedrich von Hayek: “Competition is essentially a process of the formation of opinion . . . . It creates the views people have about what is best and cheapest, and it is because of it that people know at least as much about possibilities and opportunities as they in fact do.”[4]

In all these quotes, it is not just that means are important, something that thinkers had long acknowledged, but that the knowledge is fundamentally oriented around means such that ends recede in importance, fade into the background.  Thus, in the quote by Bickel, the “task of law” is not to arrive at the correct substantive decision, but instead to “pierc[e] through a particular substance to get to procedures.”  And why not, if (as the quotes by Lindblom and Hayek suggest), our means give us our very ends, rather than being something we select once we have determined our ends?

In The Turn to Process, I explore the emergence of this ideational structure in the context of the transformation of American legal, political, and economic thought between 1870 and 1970.  I locate the origins of this way of thinking in the philosophical crisis of modernism in the late nineteenth and early twentieth centuries.  In this period, thoroughly in the grip of an anti-foundational historical consciousness that sought to dissolve received truths, and simultaneously acutely aware of psychological theories that undermined their own capacity to know truths, American legal, political and economic thinkers reoriented their disciplines away from truths, ends, and foundations towards means, methods, techniques, procedures and processes.  This was by no means a development unique to law, political science, and economics.  It ranged across many fields of intellectual and artistic endeavor, from art to anthropology, music to mathematics, poetry to physics.  In much scholarship and in the larger public consciousness, modernism still tends to be associated with the arts and often with an iconoclastic leaning (Picasso, Schoenberg, Woolf).  Along with a growing number of books, The Turn to Process is an attempt to explore what modernism looked like in other fields.[5]  Not coincidentally, it is one of a few books to probe the often-missed relationship between modernism and conservatism.[6]

In examining how American law, political science, and economics turned from truth to method, it was not just the pervasive midcentury sense that means shaped ends that struck me as noteworthy.  I discovered that, all too often, the very same things that had passed for truths in the nineteenth century came to be re-presented as methods in the twentieth.  In other words, as American legal, political, and economic thinkers imbibed a measure of skepticism towards truths under the pressure of modernist critique, they changed perspective on their old truths, representing them instead as methods.  The Turn to Process draws attention to the existence of—and traces the career of--what I call truths-become-methods, uncanny creatures that retain something of the weight of truths but always in the guise of being “only” methods.  In tracing the trajectories of various truths-become-methods in law, political science, and economics, I seek also to change the picture we currently have of Cold War thinking as something arid and hyperrational into something far more self-consciously irrational, appreciative of the vague, the felt, the mood-like, the mysterious.  Methods were not intended only to clarify.  As Alexander Bickel’s oeuvre illustrates (and he is by no means alone in this regard in the pages of The Turn to Process), methods were there to engender vagueness.

In a fundamental sense, however, The Turn to Process is a book about the writing of history.  My earlier work in American intellectual and legal history has been concerned with the relationship between legal and historical temporalities and with the ways in which modern disciplinary history—with its insistence on subsuming objects within infinitely expansible social/historical frames—risks doing violence to the ways in which legal thinkers conceive of law in time.[7]  In The Turn to Process, even as I expand my focus beyond law to encompass political science and economics, these preoccupations are, if anything, more pronounced.  This led to challenges for me as a historian.

In crucial sense, this is because the modernist turn to methods, techniques, processes, and procedures was precisely an attempt to grapple with the condition of living in history and to transcend it.  Unlike truths that had claimed to be timeless, and that therefore could be demolished by showing that they had arisen in history, methods immunized themselves from historical critique by claiming to be provisional, “only” tools for making sense of things, “mere” instruments that might be set down or picked up if they did not deliver.  Methods could claim to represent a leap into a future itself beyond the reach of history, a reaching for something not already known.  Methods were not truth itself, but a way to a possible, eventual truth.  It is this futural, provisional, searching quality of method—a quality not associated with timeless truths—that infused the turn to process in American legal, political and economic thought.  Even though methods were, all too often, truths-become-methods, they nevertheless retained that subtle quality in the minds of their proponents and wielders.

But how then to write a historical account of a turn to method?  How to bring to life the ideas of thinkers who turned to method precisely in reaction to the anti-foundational historical consciousness that had made it harder for such thinkers to stand behind truths, ends, and foundations?  Was more history the antidote to understanding those who, acutely aware of the predicament of history, had sought a way out of it?  Was more context the answer to understanding those who sought to extricate themselves from context?

In The Turn to Process, rather than drowning my subjects in historical context, I elected to “think with” them “sympathetically.” In the first instance, my goal was to place before the reader in some plenitude process thinkers’ particular way of living in (and living beyond) history.  The goal was not merely to present a way of thinking that continues to mark us, but also to underscore for historians the limits of thinking historically.

What this meant was that I sometimes eschewed some of the familiar contextualizing methods of the historian.  For example, I chose self-consciously not to present the turn to process as an ongoing debate between two opposed positions, “truth” versus “method.”  In his highly perceptive comment, Ajay Mehrotra considers this decision “strikingly odd or curious,” and adds that doing things differently would have shown “how foundational thinking was hardly dead decades after the crisis of authority.”  Mehrotra is undoubtedly correct that writing a book about this debate would have shown that.  But to have placed the turn to process in debate with its opposite would simply have relativized it, canceled it out (as it were) through my historian’s framing, instead of allowing the reader to appreciate it more fully, which is what I wanted to do.  In a related vein, John Witt writes: “One thread that runs through the book, though mostly implicitly, is the centrality of capitalism’s structuring role. . . . I might have been inclined to emphasize two additional features of modernity, namely globalization and democracy, each of which made salient a collateral artifact, disagreement.”  Once again, this would make for an worthwhile project.  But to “explain” the turn to process turn in terms of capitalism, globalization and democracy (I do, of course, discuss democracy as an instantiation of the process turn, but that’s another matter) would rob the turn to process of what was arresting about it to me.  It would either turn the turn to process into a reassuringly familiar story or caparison the book with insufficiently rigorous scholarly gestures.  Neither would have advanced my purpose. 

However, I am enough of a historian not only to have provided a story about change over time about a development that refused to be subsumed into stories about change over time, but also, through my readings of process thinkers, to provide the critical reader with enough material to contextualize the turn to process on his/her own terms.  And I am grateful to Gowder, Kessler, Mehrotra, Rana, and Witt for having done just that.  They have drawn upon my readings in The Turn to Process to make the process turn their own, which is as it should be.  Let me turn, then, to address some of their comments. 

I agree entirely with Paul Gowder that the process turn could be seen as an awakening to a more diverse (and potentially less hierarchical) world.  However, it is worth emphasizing that the rise of homo economicus and markets as techniques, both fully part of the process turn that I explore at great length in the book, were deeply homogenizing.  Legal proceduralism itself can be utterly homogenizing or utterly awake to difference, depending upon how it works.  As I see it, therefore, the process turn does not necessarily yield any particular politics, which is why Gowder’s concluding rhetorical question in his comment (“What if the turn to process was just the right way to go about it?”) would not be my own. 

Amalia Kessler’s elegant, measured, and thoughtful comment centers on what she calls “the question of American difference” by suggesting that the process turn be seen as a particularly American phenomenon, at least relative to European developments.  Kessler identifies a range of different factors to mark the distance of Americans from Europeans (the common law tradition, judicial review, etc.) even as she sometimes skillfully tears down the very differences she herself identifies.  I do not disagree with Kessler that “from a comparative perspective, the United States was already primed to take this turn,” but at least in part because I do not know enough about the European story (and is there one European story?  and why frame the comparative project this way anyway?).  I would add, however, that European modernist legal, political, and economic thinkers were every bit as concerned with the erosion of stable foundations, truths, and ends as their American counterparts were.  The roughly coeval writings of Carl Schmitt and John Dewey line up nicely in this regard.  And European thinkers were intensely preoccupied with the concomitant rise of means, methods, processes, procedures, and techniques.  Indeed, twentieth-century European anxieties about the rise of technique (as evidenced by the writings of Max Weber, Martin Heidegger, Jacques Ellul, and countless others) are among the most famous renderings of the problem of technique that we possess.  After all, Europe gave us logical positivism.  Some of the twentieth century’s most important celebrants of the market as process—Friedrich von Hayek and Ludwig von Mises--were not Americans, but came from the very heart of continental Europe.  Inaugurated by Hayek, the Mont Pèlerin Society—widely taken to the origin of postwar neoliberalism--was a thoroughly Euro-American affair at its inception.  And mid-twentieth-century Europe has a particularly ugly history of embracing technique and process: the instrumentalization of its general populations, domestic minorities, and colonized populations.  The last point, in particular, might at least raise some questions with respect to Kessler’s claim that “Europe has historically been both less enamored by process and more left-leaning.”

Aziz Rana is exactly right in emphasizing how the post-war turn to process—with its emphasis on the vague, the felt, the ambiguous—was an arrogation of expertise over the correct deployment of methods.  This is most pronounced in the case of legal thinkers like Felix Frankfurter and Alexander Bickel, but has echoes in the thinking of political scientists like Robert Dahl and Charles Lindblom and economists like Milton Friedman and Hayek.  The Turn to Process is not a book about expertise, but I am gratified that Rana reads the postwar process specialists this way.  I suspect Rana would agree that the adherents of “truth” in an earlier period were hardly less monopolizing in their claim to declare what counted as truth, nature, rationality, or the logic of history.  As to Rana’s final point—whether we are moving into a new era of anti-expertise—I can offer no answer except, perhaps, to hold out the best aspects of the turn to process as something worth hanging onto.  I did not write The Turn to Process as an act of nostalgia: I hope we are not compelled to read it that way in our current troubling moment.

Let me turn, finally, to John Witt’s comments to register some differences vis-à-vis his reading.  Witt argues both that the turn to process was not specific to modernism (as he puts it, “process bids to be the master principle not merely of the past century and a half, but of the last half-millenium”) and that process did not, even relatively speaking, push truth into the background (he speaks of his own forthcoming book on twentieth-century social movements that “appealed not to processes but to new truth claims, which they asserted and forced onto the national stage”).  In other words, for Witt, process and truth have long been around and have always been equally prominent: there is no story of temporal shift, even of change in relative weight, to be told.  This alleged eternal ubiquity of process and truth seems to contradict, at least somewhat, Witt’s reading of the common law, which seems for him always to have been process.  As he puts it: “Parker describes the common law as a historical accumulation of customs.  But that was and is a highly ideological, even tendentious description of the field.  The common law might better have been described as a process for deciding when the king’s sword could be deployed in the resolution of disputes.”

To begin with, I have argued nowhere in my own voice that the common law was “a historical accumulation of customs,” but always only that influential common law thinkers claimed that it was.  This was one of the most significant foundational stories that the common law told about itself.  It may have been a highly ideological claim on common lawyers’ part, but it is hard to deny that it was, and remains, an important component of Anglo-American politico-legal discourse. 

The larger point, however, is that I do not argue in The Turn to Process that means, methods, processes, techniques, and procedures were ever absent from thinking before the late nineteenth and early twentieth centuries.  The point is rather that, historically, thinking about means, methods, processes, and procedures was always conjoined with thinking about truths, ends, and foundations.  Witt cites Grotius and Hobbes as thinkers of a “procedural model of social relations,” but it is hard to argue that either thinker operated without theories founded in natural rights.  Much the same argument can be made of the common law over centuries of its unfolding.  The common law’s proceduralism was inextricable from common lawyerly arguments that referred to its foundations in custom, nature, morality, God, and the like. 

Modernism made such foundational arguments largely unavailable to the important, influential and mainstream American legal, political, and economic thinkers I study in The Turn to Process.  Or at any rate, such arguments were unavailable to them in the same way they had been to thinkers in preceding centuries.  And that, precisely, is the point.  Both truth and method looked different before—and, crucially, after—the modernist turn.  This is a way of saying that even if “foundational’” arguments were made after modernism, they were likely to look very different from what they looked like earlier.  One would be hard pressed to find a legal, political or economic thinker in eighteenth-century Great Britain or nineteenth-century America straining as hard as Lon Fuller did in the mid-twentieth century to make a case for “procedural natural law” because a substantive version had become difficult to talk about.[8]  Witt speaks of the truth claims animating social movements in the twentieth century, but I would be attentive to the ways in which such truth claims looked different from truth claims in earlier centuries.  I suspect that, examined more closely, they look slightly more “method-like” than Witt intimates, but I cannot tell for sure without knowing more.  Of course, I do not mean to suggest that modernism changed everything everywhere for everyone: that would be absurd and totalizing.  But in many fields of intellectual and artistic endeavor in the twentieth-century West, it was difficult to escape modernism’s challenge.

Notwithstanding Witt’s insistence that truth claims were alive and well in the twentieth century, he himself seems to recognize a certain vanishing of truth in important swathes of legal, political, and economic thought in this period.  As he puts it: “What Parker’s social theorists really want, in their heart of hearts, is a millenium—a resting place against the ceaseless current, a destination in which fundamental truths might at last express themselves.  Perhaps an equilibrium, to use the language of Parker’s economists, would suffice, or maybe a mere waystation.”  Why would one need “a resting place against the ceaseless current” if (as Witt asserts) truth claims were alive and well in this period?  A final irony: equilibria in economic theory, as every economist since the rise of marginalism would agree, do not exist in the real world.  They are simply an intellectual technique or device to think about how markets work.  The “resting place” Witt invokes is thus only yet another tool.  It is the “stark beauty” of the turn to process (to borrow a wonderful phrase that Witt uses to describe my book; perhaps even the best compliment I can hope for the book) that it offers no place of refuge but that of technique.