Legal Commentary

The ruckus that I caused with my (admittedly intemperate but, I hope, harmless) Bronx cheer for Judith Butler reminds me of a serious topic -- which is the durability of an Brit-French divide in American political writing.   After pondering the matter deeply (i.e., for at least eight minutes -- practically a research leave in blogtime), it occurs to me that the split may have existed since the 1790s. 

The elements of the 1790s conflict are familiar:  Pro-Scot/English writers accuse the pro-French ones of being doctrinaire, ignorant of real-life experience, excessively abstract, hostile to ordinary conventions (in the 1790s, revealed religion), and willing, in the name of arcane theories, to perpetrate atrocities.   Pro-French writers accuse the pro-English ones of being bigoted, beknighted by custom, or (worse) willing to exploit the irrational customs of others for elitist ends.  The classic Tory stylist is often said to be Edmund Burke, but I am persuaded by Don Herzog that this is a mistake:  Burke was, after all, a Whig of sorts and had no difficulty with radical Scottish social theory (e.g., Adam Smith) just so long as the "lower orders" were not exposed to it.  A better example of the anti-rationalist English Tory style is Samuel Johnson's "Taxation no Tyranny" or Hannah More's 1793 "Village Politics."   William Godwin's Enquiry Concerning Political Justice (1796) is equally paradigmatic for the Englishman's pro-French style.  A classic example of the gruff old "common-sensical" Tory on the American side of the Atlantic would include Gouvernour Morris (especially his journal on the French Revolution).

Does our modern division in stylistic sensibilities (often misleadingly termed a "Continental-Analytic" division) have any genealogical relationship to the 1790s divide on Theory versus Experience?  Any such argument, of course, would have to come to terms with the influence of Hegel and Heidegger on the French after World War II.   But here's a hypothesis worth considering: The post-1945 combination of the German Hegelianism and Existentialism with a pre-existing French Revolutionary tradition of radical social criticism created a rhetorical style deeply antithetical to the Scottish-English tradition of empiricism, logical analysis, and incremental social reform.   When John Searle and W.V. Quine denounce Derrida or (on a much more preposterously trivial level) when I make snide remarks about Judith Butler, we might be playing out a drama that has been going on since Hamilton and Jefferson tangled over coinage and manufactures.  The new post-'45 element in the familiar donnybrook is that now the Brits and Yanks accuse the French and Germans of not only being hostile to experience but also (ever since they started reading Hegel and Heidegger under the influence of Sartre and Kojeve) also bad writers.

How seriously should we law profs take this rivalry?

May I suggest that we do so in the same terms as the Harvard-Yale game -- good, clean fun, but nothing more? If anyone wants to take a poke at my favorite philosophers -- Hilary Putnam, Quine, Kripke, Donald Davidson -- I'll be pleased to listen, especially if you are funny. (Yes, I think that Butler writes awfully -- but I can understand someone who thinks that Davidson's discussion ?Schnee ist weiss,? Tarski's Convention T, and so forth is duller than a stock exchange report). And, in response to Professor Heller: Yes, I'm a fan of Pirandello, too. Not to mention Paul Claudel. As for Heidegger -- no one who loves Arendt's work as much as we both do can afford not to take him seriously. But Sein und Zeit:  Mein Gott!   It just took too much Zeit and made me want to end my Sein.