Читать книгу Clarence Thomas and the Tough Love Crowd - Ronald Suresh Roberts - Страница 27

Stephen Carter, in his Reflections and elsewhere, speaks approvingly of Randall Kennedy’s “Racial Critiques” piece, concurring in its substance and defending its author from what Carter thinks are unjustified and unwise betrayal claims. Assessment of the first complaint (“unjustified”) is already underway in the form of the arguments against common ground. Time now to address Carter’s new claim—that African America stands to lose through alienating fine minds. Carter and Kennedy have a shared agenda: stable standards of intellectual excellence. These standards, they say, are besieged by Negro Crits and other vulgarians who would abolish valuable notions of meritorious scholarship. So, let us test the stable excellences of Kennedy’s own attempt to show the failed excellences of the Negro Crits in “Racial Critiques of Legal Academia.”

At a pivotal turn in his controversial attack on Negro Crits Mari Matsuda, Derrick Bell, and Richard Delgado, Kennedy announces what is unquestionably the cornerstone of his critique. Without it, his entire meritocracy-based attack on the Negro Crits would be groundless. In this key passage, Kennedy states his allegiance to a

widely accepted ideal of scholarly procedure [that] reflects values at the heart of what Robert K. Merton describes as “the ethos of modern science.” One of these values is universalism, which refers to “the canon that truth claims are to be subjected to preestablished impersonal criteria.” A related value is disinterestedness, meaning a commitment to truth above partisan social allegiances.¹² (Emphasis in Merton’s original)

Robert Merton’s Social Theory and Social Structure is a rather big book, evidently sometimes unwieldy. Merton carefully and separately discusses what he considers the very different pursuits of scientific and of nonscientific knowledge. In his discussion of knowledge outside the physical sciences, Merton expressly denies what Kennedy here takes him to assert: Merton denies both the possibility and the usefulness of seeking truth outside of partisan social allegiances. Merton explicitly debunks the idea that a disinterested or “Outsider” perspective “has monopolistic or privileged access to social truth.” Merton instead insists, sounding rather like the Negro Crits Kennedy wants to attack, that both the Outsider and the Insider have “distinctive and interactive roles in the process of truth-seeking”¹³ (emphasis added). Merton’s argument is thus a ringing endorsement of the inclusion of “Outsiders”—Merton’s word—in the legal academy. How else, indeed, could Merton’s preferred interactive ideal unfold?

Furthermore, disastrously for Kennedy, Merton’s argument is a resounding and express rejection of the idea that Insiders should strip bare of partisan social allegiances. Unfortunately for the unwary reader of “Racial Critiques,” Kennedy missed all Merton’s relevant thinking (summarized in the previous paragraph) and opened his copy of Social Theory at Merton’s part 4, which is declaredly relevant to the physical sciences and declaredly irrelevant to law. The very first sentence of Merton’s part 4 reads, “Part IV is composed of five papers in the sociology of science, a specialized field of research which can be regarded as a subdivision of the sociology of knowledge which springs from and returns to controlled experiment or controlled observation.”¹⁴

This doesn’t quite resemble the tax code. Moreover, had Merton’s language that Kennedy quotes in support of universalistic ideals in legal scholarship been quoted in full, its irrelevance would have been manifest. Merton refers, in a sentence that Kennedy sliced in half, to “preestablished impersonal criteria: consonant with observation and with previously confirmed knowledge.”¹⁵ This, too, is not quite the tax code (the italicized language, my emphasis, is what Kennedy omitted). Moreover, on the very same page as the irrelevant language that Kennedy half-quotes, Merton explicitly distinguishes scientists (whom he is talking about) from lawyers (whom he, expressly, is not talking about). This distinction between scientists and lawyers is indeed one that philosophers of science habitually make. Thomas Kuhn, in The Structure of Scientific Revolutions, wrote that lawyers are different from scientists because scientists are accountable to a closed circle of professional peers whereas, in contrast, the “principal raison d’etre” of the law is “external social need.”¹⁶ This criterion of external social need is exactly the one to which Outsider theorists are trying to make law responsive as they push it away from science-based models. ¹⁷Robert Merton’s work is an impetus, not a bar, to this effort. Kennedy’s reliance on Merton to the contrary is misplaced. Kennedy nevertheless insists that his “intellectual debt” to Robert Merton “can be seen in practically every aspect of [‘Racial Critiques’].” Kennedy’s gaffe, at the heart of what sets out to be an expose of the scholastic failings of law’s foremost insurrectionaries, invites an unflattering comparison with Allan Bloom. Bloom’s Closing of the American Mind undertook, too, an attack on various insurrectionary intellectual currents. Paul Bove, in an article entitled “Intellectual Arrogance and Scholarly Carelessness,” has remarked that “it is a sign of the crisis under which Bloom writes that he so profoundly contradicts some of the deepest tenets of the position he claims to espouse.”¹⁸ Kennedy’s “Racial Critiques” piece is mired in similar contradictions. Ostensibly a champion of careful and traditional scholarly method, he demonstrably misreads the central text on which he purports to rely.

Kennedy’s adherence to scientistic ideals in legal scholarship is a second gaffe, independent of his misreliance on Merton: Kennedy proceeds as though legal realism never happened. If Kennedy made the slightest effort to pursue legal scholarship somehow based on observation and previously confirmed knowledge, it is difficult even to imagine what his work would look like (think of test tubes in contract class). Such work would probably be derided—even in an unreconstructed legal academy. It is perhaps unsurprising that Kennedy’s actual practice of legal scholarship, outside of his convenient attack on Negro Crits, discloses no such narrow scientism. In an article published almost contemporaneously with the “Racial Critiques” piece, Kennedy evinced a more sensible (though still problematic) awareness of “the ways in which politics inescapably affects scholarship.” No longer needing an instrument with which to attack Negro Crits, Kennedy shifted gears to a questionable, but at least not facially absurd, allegiance to the prevailing Bendaresque model of disinterested inquiry. Kennedy rejected, as Benda would, the approach of those who have opted “to fashion their scholarship into ideological weaponry serving immediate political ends.” He favored those who attempt “the difficult, but far more fruitful, task of expressing their politics without forsaking the independent