Kieran Healy’s Weblog Sociology and other distractions

Watch Closely

Watch closely to see an interesting bit of rhetorical misdirection from Stanley Fish, in his Op-Ed piece in today’s Times. He appears to be rebutting those who think Clarence Thomas acted in bad faith by voting to strike down the kind of Affirmative Action policies Thomas may himself have benefitted from:

In fact the opinion is a repudiation of the personal in favor of the principles of justice … [Thomas finds] that the clause forbids discrimination on the basis of race, whether that discrimination is benign or malign in intention … Justice Thomas [is] squarely in a philosophical tradition that begins with Kant’s insistence that questions of justice turn only on abstract considerations of what is right rather than on the calculation of (someone’s) preferred outcomes.

A personalized reading of Thomas’s decision is therefore unjustified:

I merely want to insist that arguments are what he is trafficking in, and that while his affinity for those arguments may have its source in his biography, that (sociological) fact should be irrelevant to our assessment of them. [Emphasis added.]

Bravo Mr Fish, say the conservative commentators. It’s the general argument that matters, and the reasons we may adduce for it, not mere “sociological” facts about Thomas or any other justice. To adopt a phrase from Michael Bowen, Thomas is one of “those who see any racial discrimination as racist regardless of intent to exclude.” He is consistently applying a general rule of non-discrimination. Accusing Thomas of bad faith is no different from (and no less absurd than) saying the same about a white abolitionist in 1850 or a male judge ruling against sex discrimination in the 1970s.

Yet, in his very next sentence, Fish says:

A proper assessment [of Thomas’s general argument] might begin by challenging the assumption that neutral principles, abstracted from history, are capable all by themselves of deciding issues that arise only in historical circumstances … Indeed, everything about the law is particular: the wrongs, the remedies, the moment at which they intersect in an effort to make things better … Justice Thomas is not the only one in search of timeless tools to deal with the untidiness of the situations time throws up … But I believe this search has failed, and therefore we will always be engaging in the ad hoc, pragmatic reasoning of which Justice Thomas accuses the majority. [Emphasis added.]

So Thomas’s critics are wrong because they point to particular sociological facts about the justices and their background when they should be engaging with the general, timeless arguments in his opinions. Yet Thomas is wrong because there is no such thing as a general, timeless argument, only a mosaic of particular historical facts and particular pragmatic responses to them!

The rhetorical success of the piece turns on the fact that “sociological” is likely to be read as a pejorative adjective, whereas “historical” is likely not to be. And so Fish can discount the particularistic, sociological argument of the critics in one breath (to the applause of conservatives) and make the same pragmatic, historical argument in the next. (The conservatives don’t notice because they’re still clapping.) I suspect the ability to talk like this is one of the things that makes Fish a good Dean.

Maybe by “sociological” Fish means lawkike statements, e.g. “the distribution of intelligence among people is not correlated with race”; and maybe by “historical” Fish means statements about particular circumstances, e.g. “African-Americans still suffer from the effects of generations of discrimination”.

Which would make Fish’s argument reasonable, and Thomas’ argument wrong but not “personal” (and not trivially dimissable either), and “sociological” not pejorative.

I don’t think “sociological” and “historical” do work in the same way here. In this Op-Ed, “sociological” seems to name a type of argument rooted in a tradition that recognizes a distinction between particular and universal reasons. “Historical” describes arguments that reject that distinction.

The fishy presumption is that Thomas’ unnamed critics are operating inside the particular/universal distinction while Fish operates “outside” it. But if the presumption is correct, then Fish’s argument is coherent.

“I suspect the ability to talk like this is one of the things that makes Fish a good Dean.”

:)

Interesting distinction between sociological and historical. I think “sociological” IS likely to be read in a pejorative sense (ie, as connoting liberal do-gooders who favour social engineering and who push slogans like “the personal is the political”—and Fish does link sociological to biographical). Whereas Fish gives a new historicist account of “historical” that conservatives can, and probably will, interpret as Burkean (Anglo particularities of time and place against Frenchified abstractions—okay, perhaps that’s reading too much into it, but this is the blogosphere and not a peer-reviewed journal, right?)

Stanley Fish is a charlatan and a fraud!

I don’t think Fish is guilty of the sleight-of-hand you accuse him of; Thomas’s critics’ error is not a failure to engage with Thomas’s general, timeless arguments. Their error is in failing to provide an argument at all, choosing instead to attack Thomas’s motives. Fish provides an argument, suggesting that pragmatic considerations ought to outweigh timeless principles in deciding cases such as this one.

I actually read it as a sleight-of-hand move, but a good one. As I was reading, I felt confused by Fish’s apparent defense of Thomas, something that might attract the attention of people who oppose affirmative action, but when Fish took the next step of his argument, espousing the practical (essentially agreeing with O’Connor) against the timeless, I do think it relies on some of the assumptions Kieran describes.