As the law school semester turns to its final lap and the anxiety of our students--especially 1Ls--begins to take on dire proportions, I take a page from my 1L contracts teacher, Philip Soper, and give my students this passage about lost idealism from Mark Twain's Life on the Mississippi:
Now when I had mastered the language of this water and had come to know every trifling feature that bordered the great river as familiarly as I knew the letters of the alphabet, I had made a valuable acquisition. But I had lost something, too. I had lost something which could never be restored to me while I lived. All the grace, the beauty, the poetry had gone out of the majestic river! I still keep in mind a certain wonderful sunset which I witnessed when steamboating was new to me. A broad expanse of the river was turned to blood; in the middle distance the red hue brightened into gold, through which a solitary log came floating, black and conspicuous; in one place a long, slanting mark lay sparkling upon the water; in another the surface was broken by boiling, tumbling rings, that were as many-tinted as an opal; where the ruddy flush was faintest, was a smooth spot that was covered with graceful circles and radiating lines, ever so delicately traced; the shore on our left was densely wooded, and the somber shadow that fell from this forest was broken in one place by a long, ruffled trail that shone like silver; and high above the forest wall a clean-stemmed dead tree waved a single leafy bough that glowed like a flame in the unobstructed splendor that was flowing from the sun. There were graceful curves, reflected images, woody heights, soft distances; and over the whole scene, far and near, the dissolving lights drifted steadily, enriching it, every passing moment, with new marvels of coloring.
I stood like one bewitched. I drank it in, in a speechless rapture. The world was new to me, and I had never seen anything like this at home. But as I have said, a day came when I began to cease from noting the glories and the charms which the moon and the sun and the twilight wrought upon the river's face; another day came when I ceased altogether to note them. Then, if that sunset scene had been repeated, I should have looked upon it without rapture, and should have commented upon it, inwardly, after this fashion: This sun means that we are going to have wind to-morrow; that floating log means that the river is rising, small thanks to it; that slanting mark on the water refers to a bluff reef which is going to kill somebody's steamboat one of these nights, if it keeps on stretching out like that; those tumbling 'boils' show a dissolving bar and a changing channel there; the lines and circles in the slick water over yonder are a warning that that troublesome place is shoaling up dangerously; that silver streak in the shadow of the forest is the 'break' from a new snag, and he has located himself in the very best place he could have found to fish for steamboats; that tall dead tree, with a single living branch, is not going to last long, and then how is a body ever going to get through this blind place at night without the friendly old landmark.
No, the romance and the beauty were all gone from the river. All the value any feature of it had for me now was the amount of usefulness it could furnish toward compassing the safe piloting of a steamboat. Since those days, I have pitied doctors from my heart. What does the lovely flush in a beauty's cheek mean to a doctor but a 'break' that ripples above some deadly disease. Are not all her visible charms sown thick with what are to him the signs and symbols of hidden decay? Does he ever see her beauty at all, or doesn't he simply view her professionally, and comment upon her unwholesome condition all to himself? And doesn't he sometimes wonder whether he has gained most or lost most by learning his trade?
Mark Twain, Life on the Mississippi (1883), Chapter IX
Following on last week's kerfuffle over the Note on Financial Reform from the Pontifical Council for Justice and Peace, I thought this piece by Craig Lambert from Sunday's New York Times points toward a way of thinking about the economy in the spirit of Rerum Novarum and the other major social encyclicals:
To be sure, shadow work has its benefits. Bagging one’s own groceries or pumping one’s own gas can save time. Shadow work can increase autonomy and enlarge our repertoire of skills and knowledge. Research on the “Ikea effect,” named for the Swedish furniture manufacturer whose products often require home assembly, indicates that customers value a product more highly when they play a role in constructing it.
Still, doctors routinely observe that one of the most common complaints today is fatigue; a 2007 study pegged its prevalence in the American work force at 38 percent. This should not be surprising. Much of this fatigue may result from the steady, surreptitious accumulation of shadow work in modern life. People are simply doing a huge number of tasks that were once done for them by others.
Doing things for one another is, in fact, an essential characteristic of a human community. Various mundane jobs were once spread around among us, and performing such small services for one another was even an aspect of civility. Those days are over. The robots are in charge now, pushing a thousand routine tasks onto each of our backs.
Perhaps the Church's contribution to debates over the economy shouldn't be so much to give conventional answers and provide authoritative arguments for politicians from the right or left but instead to urge a fundamental rethinking about the hollowing out of our economic life. The concern about the demands and fatigue of shadow work seems promising in that regard, and not surprisingly so--Lambert borrows the concept of "shadow work" from Ivan Illich, the wildly eccentric former Catholic priest and quasi-hero of Charles Taylor's A Secular Age.
Halloween is very big in our neighborhood -- tons of kids running around, most houses decorated, many families sitting out in their front yards enjoying some fellowship. A really festive, child-centered evening every year. Added to the mix last night was an organized, house-to-house fundraising effort by a whole group of NARAL/Pro-Choice America representatives. It was mind-boggling. A whole pack of young children, dressed up and laughing, holding their bags out for candy, and literally into their midst a grown-up walks up with a clipboard and asks for support to help defend abortion rights. At first I was offended, and then I decided that perhaps this was the best of all nights for them to be making their case to the public. They should be speaking from the midst of children, rather than from a brochure or conference podium -- it was a powerful reminder of what's at stake.
Here's a question some buddies and I have been throwing around that I thought the learned readership here might know something about. I know that Alasdair MacIntyre's critical thesis in After Virtue has found some applications for and in law. That is, MacIntyre's diagnosis of the unintelligibility and interminability of moral discourse not as proof that non-cognitivists are right but instead as evidence that we have lost the teleological foundations that made moral discourse and the ideas of true and false possible in the first place, the incapacity of rationalism to replace that Aristotelian foundation, and the resultant contemporary emotivism -- some or all of this has found applications of one sort or another in legal academic writing with which I am familiar. Some of Steve Smith's writing draws on the critical thesis in MacIntyre, for example.
What I am not sure about is whether the more positive thesis of After Virtue about social practices, goods internal to those practices, the contextualism of those goods and their intelligibility only within social practices, the mutability of the goods as the practices/traditions evolve, and the practices/traditions as sites within which the virtues are displayed -- has anyone written about the law as such a social practice/tradition? Has anyone developed the contextual, situated social practice/tradition thesis in MacIntyre as an account of law?
