Article by Fred Dallmayr
Politics and law have always been closely intertwined. In the not too distant past—in the heyday of pragmatism—this proximity was evident in the close interaction, if not convergence, of jurisprudence and social and political theory. The rise of behavioralism and empiricist methodology ruptured this liaison, driving a wedge between empirical social sciences, on the one hand, and the study of law seen as a normative discipline, on the other. Reacting against the behavioral ascendancy, political theorists often retreated into the tradition of political thought—a retreat typically privileging foundational philosophical issues over practical-normative and legal questions. More recently, there are signs of a renewed rapprochement—with startling effects, particularly for students of politics. As they return their attention to the domain of practical philosophy, political theorists are struck to discover contemporary jurisprudence as a hub of intellectual excitement and innovation. Resisting pressures toward vocational training, many American law schools in recent years have provided shelter to initiatives exiled from other fields: from radical hermeneutics to critical legal inquiries into the functions and legitimate scope of law and government. Michael Perry's Morality, Politics, and Law is a high-water mark of these initiatives. Although not a treatise on hermeneutics, Perry's study makes crucial contributions to interpretive or exegetic theory—contributions that can readily be extended, via analogy, to the reading of nonlegal texts. While not an offshoot of the critical legal studies movement, the book provides solid support over long stretches to the project of a radically transformative politics and legal practice. Without offering an ethical system, Perry's argument inserts itself trenchantly into ongoing debates over ethics and morality and their relevance to public life. In all these areas, I believe, the political theorist can fruitfully apprentice himself to the legal theorist or philosopher.
My purpose in these pages is not to present a detailed review of Perry's work. Instead, I want to lift up and highlight some of the most salient and promising features of the book, as seen from the vantage of a political theorist. Among these features I include the proposal of a nonfoundational, yet in some sense cognitivist conception of ethics; the critique of the liberal vision of morality and politics in its various forms (utilitarian and contractarian); and finally the portrayal of an alternative vision involving a nonoriginalist view of judicial interpretation as it operates in the confines of a tradition of shared beliefs that, in turn, are constantly open to challenge and transformative renewal. After having profiled these features, I voice in a second section some critical afterthoughts or reservations—all offered in the spirit of deliberative conversation that Perry extols. My concerns at that point are primarily two: First, how a nonfoundationalist outlook and the acceptance of social pluralism and diversity is compatible with a naturalist construction of ethics and moral knowledge (given the linkage of that construction with a circumscribed and emphatic notion of human nature); and second, how the plea for a transformative politics can be squared with the book's accent on tradition and community, and particularly with a communally endorsed vision of the good life. Again, these queries cannot detract (and are certainly not meant to detract) from the book's richness and broad significance. This significance is ably underscored by Perry in his Introduction, in a passage alerting to the global dimensions of contemporary politics:
[A]lthough the moral culture of the United States is pluralistic, it is certainly no more pluralistic, almost certainly less so, than the moral culture of the human species. . . . If we members of American society cannot even engage one another in productive moral conversation, how can we hope to engage members of other societies very different from our own in such conversation?
About the Author
Fred Dallmayr. Packey Dee Professor of Government, University of Notre Dame.
Citation
63 Tul. L. Rev. 1405 (1989)