Hermeneutics and Constitutionalism

Heidegger, Gadamer, Taylor, and Rorty all saw poetry, literature, art, and even sports as powerful lenses for understanding the world and explaining their philosophies. Ever since Gadamer bent my framework to the breaking point, I have found that stand-up comedy is the best lens for my own edification.

I have employed this lens in numerous venues before, so I hope you’ll forgive me quoting myself:

There’s something mysterious about a truly successful set. The comic spends no small amount of time laying groundwork, and then lands a punchline that lights up the room. There’s a palpable effect; people loosen up, they’re more likely to laugh at things they might have only chuckled at mere moments earlier. In a sense, the comedian seeks to master the room rather than any specific people in it. But he never knows ahead of time, or even most of the time he’s up, whether he’s going to pull it off or not. Comedians, especially unknowns and especially unknowns performing at open mics, step into a situation of great uncertainty and emotional vulnerability.

Even seasoned comics with well-tested material can blow it and face the agony of an uncomfortably or tensely silent room. There’s never a guarantee, no matter how good they are, that this day won’t be a bad one, this performance won’t win the audience over. And that is after years of almost entirely bad days. In short, it takes not only practice, but considerable commitment in the face of discomfort and humiliation in order to become skilled at comedy.

There are a few key pieces here. First and foremost, the circumstances; jokes do not stand on their own, but are funny in specific contexts. Then there is delivery, of course; the performance. To paraphrase Aristotle, a joke is funny when told the right way to the right audience under the right circumstances. Then there’s a relationship between the two: a successfully delivered joke actively influences the circumstances, improving conditions for the next joke and the one after that. Finally, there is an irreducible, even oppressive, uncertainty; no matter how experienced and skilled the comedian, no matter how reliably their set has worked for however long a time, it is impossible to know that here, tonight, at this performance, they will succeed.

This array of contingencies makes scientific humor impossible:

Now imagine cognitive scientists attempting to study humor. They have a set of pre-written jokes and have people read them in a controlled environment. Or use your imagination—try to think of any controlled environment in which they could systematically study humor. I can’t. Professional comedians brave pitiless audiences for years in order to master the art of formulating and delivering jokes. If they can’t be guaranteed to make you laugh, do you really think cognitive scientists could, much less reliably and in a way that replicates?

In Gadamer’s formulation, understanding is an event, it is something that happens to someone, not something they choose to have. In comedy, a polite laugh is not the same as a deep belly laugh, the kind that leaves you laughing so hard you are crying. The latter is not something you can choose, it is something that happens to you, perhaps in spite of yourself.

For Gadamer, hermeneutics is what we reach for when something has gone wrong, when understanding has not happened. Much as we can choose to try and understand why other people find a joke funny when it failed to make us laugh. Perhaps the end result will be understanding, and as a result when we read new texts employing related ideas, we will understand them from the outset. And perhaps in attempting to understand what people find funny about a joke we did not laugh at, we’ll grasp something intellectually for now that will make us more likely to laugh at similar humor in the future (even if, as anyone can tell you, the very act of understanding a joke in this way kills the particular joke).

Now imagine a judge ordering his bailiff to take away a defendant the jury has just pronounced guilty. Imagine this bailiff does not immediately act; perhaps they are simply spacing out, perhaps they are actively hesitating for some reason. The judge, annoyed, barks his order again, startling the bailiff, who at last complies. Yet into this situation entered the possibility that the bailiff would not act, something that seems more strange, more alien, than the notion that a human being would almost mechanically comply with what another one told them to do simply because the words had been spoken. The judge’s annoyance conveys a frustrated expectation, but only frustrated, not impeded—he still expects to ultimately get his way, and has not even conceived of a scenario in which the bailiff ignores him entirely.

The judge’s order is a speech act, something more specific and institutionalized than the well delivered punchline or the interpretation of a text. Yet the three can usefully be put in parallel for my purposes. Speech act, punchline, and interpretation are all performed actions that achieve an effect on other human beings in specific circumstances. When all goes well, it is almost like an incantation; the bailiff’s body moves on command, the audience roars with laughter with a timing that couldn’t be more precise if it were rehearsed, and a “lightbulb goes off” in one’s head—the reader suddenly finds it impossible to understand something in any other way than the one that has just occurred to them.

I am currently working on a project, a crash course in the political science of the American system. When people have asked me why this project has consumed me the way it has, I have had trouble answering. One answer which is not exactly wrong is that it is relevant. Hermeneutics and pragmatism are fascinating to me, but at the end of the day the payoff of each is that you ought to attend more to the details of life than to the heady abstractions of (even pragmatist and hermeneutic) philosophy. Understanding how the American legal and political system works in practice has much more concrete and useful applications.

But this answer is incomplete. I’ve had trouble articulating the other part but think I have it at last. To me, constitutionalism—which is what this project of mine truly is, constitutionalism in the British sense, the sense not tainted by contractarianism—is simply institutional exegesis.

The constitutional whole

Wood has all the scholarly credentials needed to aid us in the reading of Hegel, but his purpose is to open up the richness of Hegel’s thought, and to answer in his own way Hegel’s claim that “the true is the whole.” This claim too is a source of difficulty, since it seems one must know everything to know anything. And yet this view can also be a source of enabling rather than hindering. If the true is the whole, in a sense one can start anywhere, one can start wherever one happens to be, and traverse the pathways of connection revealed by attentive thinking.

William Desmond’s foreward to Hegel’s Introduction to the System, by Robert E. Wood

To understand the court system you must understand parts like the role of judges, bailiffs, juries, prosecutors, and so forth. These parts add up to the institution of American judiciary as a whole. Only this picture is still partial; the judiciary operates in relation to other institutions; congress, the presidency, the administrative state, the many components of state and local governments, but also the law school system and the pillars of the American legal community. All these and more add up to the American constitution, small-c, which amounts to the whole social system of the nation.

Now, to return to the notion of “performed actions that achieve an effect on other human beings in specific circumstances.” Part of what drew me to constitutionalism in particular of all the possible fields of interpretation was reading more about the details of performed actions in our institutional setting that didn’t have the effect they are formally supposed to have. So The Color of Law contains numerous examples of Supreme Court decisions which simply did not change the reality on the ground at the municipal level, even though the Supreme Court is formally at the top of the system and the rulings were explicitly about municipal laws (rather than being federal cases). Here were judicial punchlines intended to light up the room that were instead met with utter silence.

I began to think of things in terms of:

  • What actors
  • under what circumstances
  • performing what actions
  • achieve what effects

The massive amount of possible combinations means that one cannot ever hope to achieve a comprehensive catalog, even if you lived for a thousand years (the circumstances component alone would be impossible to be comprehensive about). So what can you do?

You can draw an incomplete, imperfect outline of the whole—the constitution. Each part of the constitution is a subject of study with specialists (and practitioners!) who make whole careers out of just that part, or some part of that part. As a constitutionalist, you draw on these specialists from across each institution and corner of society and attempt to flesh out the relations as best you can, to see the big picture that creates the context that each component operates within.

No social action occurs in a void. Audiences are not passive receptacles of comedians’ jokes. Some may not even be there to enjoy the routine; they may be there begrudgingly, and seek to ruin it for everyone or to draw positive attention to themselves by upstaging the comedian. When a comedian sets up a joke, these hecklers can take specific action to torpedo the conditions the comedian is seeking to create. Skilled comedians know not only how to tell a joke to receptive audiences, but how to parry hecklers and use their barbs to the comedians’ own advantage.

Similarly, a ruling issued by the Supreme Court is not met by a passively accepting institutional structure; actors seated at different perches of power throughout the system can take action to nullify any possible effect the ruling might have. In as much as the jurisprudence known as legal realism has a useful practical message for judges on the bench, it is that these factors—how institutional actors will actually respond to rulings—need to be considered when deciding the rulings in the first place.

A good constitutionalist will be able to see a particular action by a particular actor under a particular set of circumstances, and, without being able to scientifically predict anything, have useful thoughts about:

  • What the likely effect would be if no other actor made an attempt at nullification
  • What actions from what actors could potentially nullify the effect of the action
  • What actions from what actors would strengthen or complement the effect of the action

At this time, to speak of constitutionalism in America is rather presumptuous. We have political science and sociology. We have a legal community with a great deal of knowledge of case law. We have capital-C Constitutionalism, which, when it takes the form of philosophy rather than knowledge of relevant case law, is little more than a species of rationalism. But few really attempt the exegesis of American society, to read our institutional character, the constitution that matters more than any other could.

And it just seems to me to be very hard to get a sense of how a particular institution truly functions in the American setting if you don’t have at least a sketch of the overall constitution to provide context.

That, then, is part of my current interest—OK, obsession—with constitutionalism. Gadamer’s hermeneutics truly turned my world upside down and made me reconsider a great deal from scratch. Hermeneutics is the theory of interpretation, exegesis its practice. The more comfortable I became with the former, the more I hungered for a topic in which to practice the latter. Constitutionalism, for a number of reasons I hope I made clear above, has a great deal about it that excites me intellectually.

Don’t Look Down

My father believes that the 21st century by necessity will be a metaphysical age. Our tacit metaphysics so divides us from one another and from the world, that we will have to find our way back again. I do not doubt that a new, great unified metaphysical framework may bloom. As to its necessity—I wonder.

For a long time, as a devoted believer in the philosophy of David Hume, I thought that “metaphysics” was simply the highest form of rationalism; a word that must always be said with a sneer. Metaphysics is synonymous with hubris, with the folly of man leaping over an open cliff with no real hope of reaching the other side.

A greater appreciation of history has helped me to see that Hume’s anti-metaphysics metaphysics, and the sorts of metaphysics it was aimed against, tend to run together. For every Plato and Aristotle there is a Pyrrho and Sextus Empiricus, for every Hume there is a Kant—or more to the point, a Hegel.

Today, the echoes of the Hegelian and Marxist projects, as well as the anti-metaphysical positivist ones, are all we are left with. They have fallen into ruin, but their ghosts continue to haunt us as the most recent of such projects to be taken up. Behind them we see the long reach of their predecessors; the continental rationalists and the English-speaking empiricists.

But in this accounting we leave out a very different sort of project. We can see it in the phenomenological and hermeneutical schools in Germany, and in the “ordinary language” philosophy in England. Its most prominent figures are Heidegger, whose putrid prose and National Socialist politics left a foul odor on the enterprise, and Wittgenstein, who made his name through a cold formalism he subsequently abandoned for the enchantment of language.

These thinkers were not so much metaphysical or anti-metaphysical as mystical. Their critics would agree, for positivists, Hegelians, rationalists and empiricists alike can think of no higher insult to a thinker than the accusation of mysticism.

But mysticism is not here meant as an insult, but as an appreciation for ineradicable mystery. Heidegger’s forgetting of Being can be seen as the inevitable result of attempting such an eradication. In seeking to remove all mystery, we simply fence our attention into specific areas and soon forget that a whole world exists beyond them. As Wittgenstein put it:

It is as if someone were to say: “A game consists in moving objects about on a surface according to certain rules…”—and we replied: You seem to be thinking of board games, but there are others. You can make your definition correct by expressly restricting it to those games.

A serious commitment to truth accepts that unconcealing some aspect of it necessarily involves some other aspect falling back behind the veil. Total unconceilment, Hegel’s great promise, is not available to frail, finite beings such as ourselves.

And yet there is wisdom, there is truth—even moral truth—immanent in life. It is not really grasped through theory, though theory does play a partial but important role in the life of such truths. These truths are best approached cautiously, sketching them out as living phenomena rather than attempting to reduce them to some formula.

Poetry and storytelling are beyond compare as methods for approaching these truths. It is precisely their indirect, figurative, and suggestive nature that leaves them open to vastly more than direct examination allows. More than even poets and storytellers are capable of realizing they have captured.

I don’t think anyone has any trouble seeing and feeling this when they aren’t taking the stance of philosopher or scientist. As children, stories seem to have a simple meaning. As we age, we notice meanings in familiar stories that we had missed the first time. The danger is to suppose we have finally grasped all of the meanings, or that we are capable of doing so. True adulthood requires an acceptance of the multitudes forever beyond our reach. This acceptance must be paired with a faith that such multitudes exist at all.

Metaphysics, and even anti-metaphysics, has its place. But living in the world requires a deep seated belief in its enchantment. In practice, we are all mystics.

It’s Academic

Recognition is performed. Its meaning is determined by the context of the performance. This gives it an elusive quality, difficult to generalize out of particular settings.

Consider the academic department. Wallace Stanley Sayre famously said that “Academic politics is the most vicious and bitter form of politics, because the stakes are so low.” As a student in an MA program in economics, I had a very small window into it. Mostly through the gossip of the PhD students, for whom it was a practical concern. It amazed me how a few dozen people could organize into so many factions.

The games that were played were largely determined by larger communities than the particular department—academia and the field of economics. You published papers and you taught students, some of whom you took under your wing. My school was a bit unusual in the degree to which blogging and writing books for popular audiences were recognized as legitimate work, rather than sideshows. A popular book that made a big splash could elevate a professor’s status in the department, which I have been led to believe is not the norm.

A lot of the moves that professors made in these games were characteristic of the department rather than the larger communities. Ronald Coase, F. A. Hayek, and Gordon Tullock were recognized as authorities whose work could lend strength to your argument, for example. But a lot of moves were recognizable signs that you belonged to a specific faction.

One of the factions was extremely tightly knit compared to the rest. Their canonical texts were more uniformly selected, their shared scholarly language distinct. They rotated around a single central Sun, who had a handful of former students within the department in the closest orbit. An alumni who was not of this particular faction joked that to gain the career benefits from it, you had to burn their brand onto your forehead. The members went out of their way to make themselves recognizable, not only as members of the department but members of their faction first and foremost.

Repeated failure to recognize the moves, or even the games, that someone is playing, will eventually lead to lack of recognition of membership in the community. Tenure complicates that equation. One tenured professor was playing games so clearly different from his colleagues that he was out in the wilderness, as far as the community was concerned. He did not participate in their games and they did not participate in his. Nevertheless, all recognized his claims to a salary and an office, as well as his responsibility to teach classes.

Context is key. The department is a particular community, but so is the field of economics, as well as the vocation of university professor. Economics professors in different factions or employed at different universities would recognize one another as fellow travelers at a wedding where neither knew any of the guests. An economics professor and an English professor would probably find something to commiserate about in that situation as well.

In the specific setting of a given department, economists who seem quite close together from an outsider’s perspective may refuse to recognize one another as fellows. You’re one of them, the ones taking the department down the wrong path. At the wedding, the same person is someone who can talk about something actually interesting, and they are recognized as such.

I originally approached the question of recognition to get at a different question: just what is a community? My tentative reply was: a community is a group of people who recognize one another as players in a set of games which they also recognize, and are capable of recognizing the potential moves in those games.

Recognition and community exist, then, in a hermeneutic circle: community cannot exist without recognition, but recognition lacks sense without the context provided by community. Whether you’re in the department with one group of people, or at a wedding with another, bounds what you’re capable of recognizing and gives meaning to the recognition you do, in fact, perform.

Recognition is performed in communities which are created by recognition.

Recognition

In a little suburban neighborhood, the children play on the sidewalk. The parents, standing together to watch, play a different game. This game takes the form of a conversation.

The moves in this game may include telling a story about your child that the other parents will appreciate, or talking about the sport you know another parent also enjoys. The potential moves are too many to list, and the boundary around them is vague and indistinct. You know you’ve made a legitimate move only when your conversation partners recognize it as such. You know you’re a member of the same community when the group of you are capable of sustaining a series of mutually recognized moves in familiar games.

Our membership is always incomplete. More crucially, the game is always in the process of being developed. So we will all make moves that are not recognized by anyone. This lack of recognition is isolating; it highlights the existential gulf that exists even between the closest of friends in the most tight nit of communities.

This lack of recognition is akin to what Gadamer called the hermeneutic problem: we begin to think about the discipline, as opposed to the everyday practice, of interpretation, only when something has gone wrong. When we come up against the otherness, the opacity of a text. We seek the fusion of horizons between text and reader to overcome that otherness, to the extent we historical, finite creatures can do such a thing. And communities form and fuse the horizons of their members as they continually seek to overcome the isolation of unrecognized moves and even unrecognized games.

There is another aspect of recognition which is also a crucial feature of communities. Its absence does not have its origin in misunderstanding; it is driven by a desire to exclude. A clique may form among the sidewalk parent group, and they may refuse to recognize one of their neighbors as a member of their little community. So merely knowing how to play the games is no guarantee of membership in a community.

An Econ Grad Discovers Poetry

We call it “imposter syndrome.” It’s the feeling that you don’t belong, that you’ve somehow tricked everyone into hiring you, marrying you, letting you be a parent. In reality, it isn’t a syndrome at all; it is merely the lingering sense, felt most acutely in childhood, that everyone else knows what they’re supposed to do. Accepting that no one does is the first step to true adulthood, and the soil on which wisdom may one day grow.

I was a reductive materialist. I believed that everything which exists could be captured in plain, concise, direct description. Indirect speech could convey nothing which could not in principle be translated into direct speech. Analytic philosophers who wrote relatively simply were far superior to continentals who were deliberately obscure. Economists, with their elegant theoretical models, were to be prized over the more fuzzy sociologists and anthropologists. And poetry was not even on my radar.

Let’s say I had encountered Robert Herrick’s “To the Virgins, to Make Much of Time”:

Gather ye rose-buds while ye may,
Old Time is still a-flying;
And this same flower that smiles today
Tomorrow will be dying.

The glorious lamp of heaven, the sun,
The higher he’s a-getting,
The sooner will his race be run,
And nearer he’s to setting.

That age is best which is the first,
When youth and blood are warmer;
But being spent, the worse, and worst
Times still succeed the former.

Then be not coy, but use your time,
And while ye may, go marry;
For having lost but once your prime,
You may forever tarry.

I would probably have summarized this as saying “Life is short, get married before you get old and die.”

And how succinct, how direct, how to the point that is! So much more efficient at conveying the message than the poem itself. The remainder is merely ornamental; pretty-sounding language that takes forever to get to the bottom line. At best it creates a pleasant feeling. Or so I might have said.

Over the last six years I have read some two hundred books, mostly nonfiction, predominantly philosophy. Yet far greater than all of the philosophy books that I read combined was one unpublished work—an expansive novel by one John David Duke, Jr., the proprietor of this little stretch of the web. This novel said more about the nature of politics, family, parenthood, and war—to name but a few subjects—than a work of philosophy is capable of saying. It said it by not saying it.

That is the power of art.

Since my reductive days, I have had many great teachers. Dave is among the greatest of them, of course. But other friends, as well as authors whose books I’ve had the privilege to read, have helped me to see that “direct” speech is in many ways an imagined quality. We are always pointing to much more indirectly than we are capable of saying. The greatest depth is to be found in speech that embraces its indirectness and polyvalence. Art does just that, mirroring our unarticulated practices and containing multitudes beyond what we are capable of doing justice to with our articulations. Never mind our specifically reductive articulations.

Among my many shortcomings, as I mentioned, was an absolute ignorance of poetry. Poetry, for me as with most of my generation, is something you gloss over in English class and never think about again. At most, you devote some thought to the meaning of song lyrics. As a teenager, I was very excited when I thought I had cracked the meaning of “Paint It Black”.

But I have lately fallen completely in love with poetry, and can scarcely think of anything else.

It is often observed that the language itself is more central to poetry than to prose. Whatever the merit of this observation, it must be said that the language itself does more work than simply conveying the message summarized by the reductionist, or even “creating a pleasant feeling”. Just as different soundtracks can change the meaning of a scene, so too can different sorts of poetic language.

But I am no literary critic. I find it very hard to explain or convey what it is about indirectness and polyvalence that are capable of containing more than can be said directly. But that’s the point, I suppose—you cannot truly explain it, at least not by walking right up to the matter and starting to describe it like you would begin an instruction manual.

So rather than trying, I will flex my atrophied poetic muscles and say:

The boy sees the men
who know what to do
and dreams of when he will too.
One day he’s a man
and still
does not get
what he expects
all others get.

He’s playing a part
without any script
why did no one
teach him his lines?

Scientists promise answers
and their words
are true
but hollow
insight without life.

Poetry explains
by not explaining
tells what can’t be told
by not telling.
Circling the
invisible
unspeakable
unknowable
wisdom
that makes us human.

I like to think that I have taken a big step forward by embracing the poetic, the indirect, the wisdom that cannot be properly articulated. But sometimes I think that I have actually gone back to where I began, before my reductive materialism, and simply brought something with me from the journey.