Mirror of Justice

Here are ten thoughts on the exchange between Rick and Jody Bottum. Thanks to both men for provoking them.

1. Mr. Bottum is on to something important on the issue of cultural change. Cultural change often is not driven by law or by legal argument, but the other way round. And it also seems to me that this is a desirable state of affairs. We should not want law to be the primary driving force of cultural change, and it would be regrettable, if not dangerous, to live in a society in which law arrogated to itself this function. 
2. To that extent, Mr. Bottum is right. If one wishes to change the culture, law is not and should not be the exclusive, or even the primary, medium through which one works. He is also right that poetry and storytelling and literature and art, etc., are promising methods, as they have always been.
3. Still, law has its role to play. Lon Fuller once observed in response to the challenge of legal realism that there is mutual action and reaction between law and culture. Even if law is not and should not be a primary cultural determinant, it is certainly one such determinant. Law's effect on culture is not the less important for being secondary and (generally speaking) reactive. I am thus unsure what Mr. Bottum means when he writes that "you law professors have had the public intellectual part in your hands for forty years." We have had the part that relates to law, and we have taken up that part by our best lights--sometimes well, sometimes poorly. Others have played other parts, also to greater or lesser effect. Mr. Bottum himself has played his own role. There seems to be no shortage of available work, so we needn't niggle over whose turn it is at the bullhorn. 
4. But perhaps this does not do justice to the sense in which Mr. Bottum may believe that law is actually a problem or an impediment to various larger aims. In fact, it's much worse than he thinks. I fear he may underestimate just how important law has become in our society as a source of value, beauty, and shared meaning. To take one provincial example (what do you expect from a law professor?) this is the reason that Legal Ethics is so hard to teach. People think of it and teach it as a course about rules, but actually, it ought to be taught as a course about law's powerful, usually subterranean cultural and ethical impact. Bar associations and legal education reformers like very much to talk about the importance of ethics and imparting "professional values" to new lawyers, but in fact they usually have very little clear idea what that means. Worse still, it seems vitally important that these ideas remain perpetually vague. To infuse them with content might well disturb what Roger Cramton once described as the ordinary religion of the law school classroom, which is not too far distant from the ordinary religion of the legal profession and the legal culture, which is to say, the culture.
5. It will be a daunting task indeed to "re-enchant" the culture, if that is what Mr. Bottum has in mind, in part because it will require disenchanting it from law. The terms in which we think about culture are all too often legal terms. That's more or less what remains as a common discursive currency, cheapened by inflation and otherwise devalued as it may be. Another local example: though he did not say so, Mr. Bottum may see the project in which we are engaged at MOJ as problematic inasmuch as it works within a legal framework or world view. The fact that the project has definite limits makes it appealing to me, but those with larger ambitions will want more.
6. I also sympathize in some ways with the weariness Mr. Bottum has expressed in other contexts and which makes a background appearance here. I am coming to tire more and more of the screeching, scratching, gnawing, biting scuffles about law and religion that one is forced into. But it would be wrong to believe that these fights are increasingly tedious because they don't sufficiently engage cultural issues. In fact, they are tiresome because there is so little law in them. If anything has been true for forty years (at least), it is that law and culture have been too often fused into a kind of cheap alloy, to the detriment and diminution of both, particularly law.  
7. There is an assumption, one that one hears with some frequency these days, in some of the talk about focusing elsewhere than law, that if we do so the state and those many that stand opposite will be appeased. They will leave us alone. We will be able to go on defending positions we find important, living the way that we think best, and the state will take its ball and go home. I think that assumption is false. First, I had thought the whole point was to stop discussing law and politics and start talking about something else. And second, skepticism about this assumption is one reason that I admire the difficult work of Rick, Tom Berg, Douglas Laycock, and others. But it is also the reason that I am uncomfortable with the strategy of sympathetic reciprocity that I sometimes see in Tom's always deeply thoughtful commentary. Perhaps mine is an overly pessimistic disposition--and I've now been dutifully admonished about the shortcomings of "sourpusses." But the case here is simpler: if Mr. Bottum really believes that singing in the trees and rivers will make abortions less common, I'm afraid I see things differently. The state and those on the other side of the issue will see to that. They will be the only game in town.
8. Speaking of "hymns to God that are sung in trees and rivers," what is all of this pantheistic, Whitmanesque nonsense? Having read Rick's Notre Dame essay to which Mr. Bottum approvingly linked, I must differ with both of them about Whitman and Whimanesquery respectively. I find Walt Whitman pretty hard to take and think he and Emerson are not the best writers America has produced. As Mark Lilla once put it, in the study of American literature, "just steer clear of anything polluted by Emerson." That goes double for Whitman.
9. Unfortunately, the last point isn't really about Whitman. Suppose we accept Mr. Bottum's advice and pivot to cultural or metaphysical matters and away from law. We should fully expect to rekindle some of the same sorts of culture war conflagrations that we were so intent on snuffing out. We will fight about whether the cultural turn should in fact be a "song of myself" or a song about someone or something else. I wonder whether many Catholics inclined to the cultural turn will agree with one another about what is enchanting, what is re-enchanting, and what is altogether disenchanting. Some things are worse that Weber's Iron Cage. I suspect there will be considerable disagreement, and that the fire will rage on.
10. Last, and least. The idea that making the cultural turn will mean "pulling back on politics" (in Patheos's locution) is mistaken. The argument seems to be that if we stick to our tree-chanting, we will have effectively lopped off political and ethical matters. One sees this sort of "non-political" point often, but I confess I am mystified by it (maybe "politics" is being used in a way I don't understand). As I have observed before, all Popes are political (just like the rest of us), and it is intended (and I hope is taken) as a token of respect, not disparagement, to call Pope Francis's recent Exhortation an openly and patently political, social, and ethical document (not only that, of course, but plainly that). To take the cultural turn and to devote one's waking hours to matters other than law and politics will not usher in a new era of abstention from legal, political, and ethical questions. Taking positions on such questions is inevitable, though there are more and less effective ways of doing so. It might be better to be candid about that. Then we could talk substance, rather than form or process, as Mr. Bottum rightly urges.