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.
[1] Professor of Law and
Dean’s Distinguished Scholar, University of Miami School of Law.
[2] Alexander M. Bickel, The
Morality of Consent (New Haven: Yale University Press, 1977), pp. 120-21.
[3] David Braybrooke and Charles Lindblom, A
Strategy of Decision: Policy Evaluation as a Social Process (New York: Free
Press, 1963), p. 232.
[4] Friedrich A. Hayek, “The Meaning
of Competition” (1946) in Hayek ed. Individualism and Economic Order (Chicago
& London: University of Chicago Press, 1980 [1948]), p. 106.
[5] See, e.g., Daniel
Wickberg, A History of American Thought, 1860 – 2000: Thinking the Modern
(New York: Routledge, 2023). A pioneer
in this regard was the intellectual historian Dorothy Ross. See Dorothy Ross, The Origins of
American Social Science (New York: Cambridge University Press, 1992).
[6] See also Paul
Murphy, The Rebuke of History: Southern Agrarians and American Conservative
Thought (Chapel Hill: University of North Carolina Press, 2001)
[7] See Kunal M.
Parker, Common Law, History, and Democracy in America, 1790 – 1900: Legal
Thought Before Modernism (New York: Cambridge University Press, 2011).
[8] See, e.g., Lon
Fuller, The Morality of Law (rev. ed.) (New Haven: Yale University
Press, 1969 [1964]), pp. 96-97