Law
The two visions conflict in law, as well as in economics and religion. Oliver Wendell Holmes expressed the systemic concept when he declared: "The life of the law has not been logic: it has been experience."50 Articulation was not essential to decision-making, for "many honorable and sensible judgments" express "an intuition of experience which outruns analysis and sums up many unnamed and tangled impressions; impressions which may lie beneath consciousness without losing their worth."51 Law incorporates the experience that reflects "not only our own lives but the lives of all men that have been," according to Holmes.52 It is a "fallacy" to conceive of law as purely a process of articulated logic, for while "it is true in the broadest sense that the law is a logical development," it is not "worked out like mathematics from general axioms of conduct."53 In short, the logic of the law's development is a systemic logic:
The development of our law has gone on for nearly a thousand years, like the development of a planet, each generation taking the next step, mind, like matter, simply obeying a law of spontaneous growth.54
John Stuart Mill, however, objected that laws are made, not evolved. What those with the constrained vision characterized as a spontaneous order evolving from history was merely "the fortuitous concourse of atoms in ages of barbarism," according to Mill.55 He said:
The laws of Moses, those of Mahomet, were made, and did not grow; they had, it is true, the direct sanction of religious faith; but the laws of Lycurgus, the laws of Solon, were made, and were as durable as any laws which grew have hitherto been found 56
To look at legal precedents was, in Mill's view, to make an "absurd sacrifice of present ends to antiquated means."57
Yet, as in other areas, Mill's assertions were modified, if not repealed, by his provisos. Those who "make" law have, according to Mill, taken into account "what the people will bear" and that is a function of their "ancient habits" or of their "durable and strenuous convictions, without which the whole system of laws would become inoperative." The "acquiescence of mankind" thus "depends upon the preservation of something like continuity of existence in institutions" representing "those innumerable compromises between adverse interests and expectations, without which no government could be carried on a year, and with difficulty even for a week."58 With these provisos included, Mill's position is not very far from that to which it seems at first to be the very opposite, namely that "all the famous early law-givers," as Hayek put it, "did not intend to create new law but merely to state what law was and had always been."59 That is, it was "largely the articulation of previously existing practice," according to Hayek.60
Many modern writers on law represent the unconstrained vision much more unambiguously than Mill. For example, Ronald Dworkin dismisses "the silly faith that ethics as well as economics moves by an invisible hand, so that individual rights and the general good will coalesce, and law based on principle will move the nation to a frictionless utopia where everyone is better off than he was before."61
These different visions applied to the law lead to opposite conclusions regarding judicial activism. The unconstrained vision, as applied by Dworkin, calls for "an activist court" to read its own meanings into the words of the Constitution.62 In this he is by no means alone, either in his conclusions or in the methods used to reach them. His call for "a fusion of constitutional law and moral theory,"63 for "fresh moral insight,"64 has been one among many.65
Oliver Wendell Holmes' conception of the law left no such room for judicial activism:
It is dangerous to tie down legislatures too closely by judicial constructions not necessarily arising from the words of the Constitution.66
Nor was it merely the words but rather the original meanings of those words that were to be adhered to. He refused to declare unconstitutional under the Fourteenth Amendment "methods of taxation which were well known when that Amendment was adopted."67 He later spoke of "the more than anxiety that I feel at the everincreasing scope given to the Fourteenth Amendment."68 In yet another case he saw "no reason for reading into the Sherman Act more than we find there."69
As in other clashes between the two visions, the issue is posed very differently by each side. Those with the unconstrained vision, favoring articulated rationality, see the issue as one between two sets of contemporaries, x and y, while those with a constrained vision, favoring systemic processes, see the issue as being between the experience of successive generations, represented by group x in today's generation, versus the articulated rationality of their contemporary opponents, group Y.
Insofar as those with the unconstrained vision acknowledge prior generations, they see the issue as being between some given prior generation- say generation hand the current generation's group y. This is dismissed as a conflict between the living and the dead, in which the dead have no right to rule beyond the grave.70 From this perspective, we must use "our own reasoned and revocable will, not some idealized ancestral compulsion"71 to advance. Alternatively, the conditions of prior times are deemed irrelevant, or less relevant, than current views based on current conditions. Chief Justice Earl Warren, for example, spoke of contemporary circumstances "far beyond the wisdom of even the wisest of the Founding Fathers."72
But when Oliver Wendell Holmes characterized the law as summarizing "not only our own lives but the lives of all men that have been," he clearly rejected any notion that the clash was between opposing groups in one generation, or even between one contemporary group and one past group, such as "the Founding Fathers." Rather, the clash was conceived as being between two whole processes, one of historical experience over many generations versus the articulated rationality of one contemporary school of thought. Neither Holmes nor others who argued for systemic processes seriously contest the claims of intellectual and/or moral superiority which are central to the articulated rationality and "social justice" of those with the unconstrained vision. With the constrained vision, the issue is not whether one individual or group is wiser than another but whether systemic experience is wiser than both.
Yet those who argue for deliberate lawmaking through judicial activism do so not on the basis of having a democratic majority, even in the given generation, but rather of having an intellectually and morally superior process for decision-making. When Dworkin dismissed the opposing process as a "silly faith," "a pessimistic theory of human nature,"73 "the curious philosophy of Edmund Burke,"74 and "the chaotic and unprincipled development of history,"75 this was a prelude to asserting a superiority competent to override a democratic majority of contemporaries, quite aside from dismissing prior generations. For Dworkin, "a more equal society is a better society even if its citizens prefer inequality."76
Social Policy
The two visions entail very different views of the relationship between members of the existing society. The unconstrained vision has tended historically toward creating more equalized economic and social conditions in society, even if the means chosen imply great inequality in the right to decide such issues and choose such means. Clearly, only very unequal intellectual and moral standing could justify having equality imposed, whether the people want it or not, as Dworkin suggests, and only very unequal power would make it possible. It is consistent for the unconstrained vision to promote equalitarian ends by unequalitarian means, given the great differences between those whom Mill called "the wisest and best" and those who have not yet reached that intellectual and moral level.
Conversely, those with the constrained vision have tended to be less concerned with promoting economic and social equality, but more concerned with the dangers of an inequality of power, producing an articulate ruling elite of rationalists. In Hayek's words:
The most dangerous state in the growth of civilization may well be that in which man has come to regard all these beliefs as superstitions and refuses to accept or to submit to anything which he does not rationally understand. The rationalist whose reason is not sufficient to teach him those limitations of the power of conscious reason, an
d who despises all the institutions and customs which have not been consciously designed, would thus become the destroyer of the civilization built upon them.77
The clash over judicial activism reflects a much more general clash over the best way to contribute to the social good. In the unconstrained vision, wise and conscientious individuals should strive to shape the best outcomes in particular issues that come within their jurisdiction. In the constrained vision, the inherent limitations of individuals mean that each individual's best contribution to society is to adhere to the special duties of his institutional role, and let systemic processes determine outcomes. By contrast, the unconstrained vision was exemplified in Chief Justice Earl Warren's interruption of lawyers unfolding complex legal principles to ask: "But is it right? Is it good?" In the constrained vision, that was neither his business nor within his competence, for the specialist's superiority exists only within a narrow range of skills- in this instance, determining how the written law applied to the case at hand. Burke said, "I revere men in the functions which belong to them"78- but not beyond.
Just as the unconstrained vision urges judicial activism on judges, it urges "social responsibility" upon businessmen- that they should hire, invest, donate, and otherwise conduct their businesses with an eye to producing specific benefits to society at large. The socially responsible businessman should, for example, hire the disadvantaged, invest in things that seem most needed by society rather than those most profitable to his firm, and turn part of the proceeds over to charitable and cultural activities, rather than pay all the proceeds out to the stockholders or plow them back into the business.
The constrained vision sees such things as outside the competence of businessmen, given the wider ramifications of such decisions in a complex systemic process. According to the constrained vision of human knowledge, what is within the businessman's competence is the running of his particular firm so as to promote its prosperity, within the law. It is the systemic effect of competition, rather than the individual intentions of businessmen, which this vision relies on to produce social benefit. According to Adam Smith, it is when the businessman "intends only his own gain" that he contributes- via the process of competition- to promote the social good "more effectually than when he really intends to promote it." Smith added: "I have never known much good done by those who affected to trade for the public good."79
The writings of those with the constrained vision abound with examples of counterproductive consequences of well-intentioned policies. But to those with the unconstrained vision, this is simply seizing upon isolated mistakes that are correctable, in order to resist tendencies that are socially beneficial on the whole. However, to those with the constrained vision, these mistakes are not happenstances, but symptoms of what to expect when the inherent limitations of individuals are ignored and systemic processes for coping with these limitations are deranged by specific tinkering.
Sincerity Versus Fidelity
Because of conflicting visions of how much knowledge a given individual can have, and how effective that knowledge can be in deciding complex social issues, the two visions attach widely differing importance to sincerity and fidelity. Where the wise and conscientious individual is conceived to be competent to shape socially beneficial outcomes directly, then his sincerity and dedication to the common good are crucial. Godwin's whole purpose was to strengthen the individual's "sincerity, fortitude, and justice."80 The "importance of general sincerity"81 was a recurring theme in Godwin, and has remained so over the centuries among others with the unconstrained vision. Sincerity tends to "liberate,"82 according to Godwin, and to "bring every other virtue in its train."83 While conceding that everyone is insincere at some time or other,84 Godwin nevertheless urged "a general and unalterable sincerity"85 as a powerful ideal, capable of producing profound social benefits.
Sincerity holds no such place of honor in the constrained vision. Those with this vision often readily concede sincerity to their adversaries, treating it as an individual virtue of minor social benefit- and sometimes as a major aggravating factor, when people persist in socially counterproductive ideals. What is morally central to the constrained vision is fidelity to duty in one's role in life. There, within the sphere of his competence, the individual can make the greatest contribution to the social good by serving the great systemic process which decides the actual outcomes. This is an entirely different conception of duty from that of the unconstrained vision, where one's duty is direct beneficence to mankind.86 But in the constrained vision, the individual wielding social decision-making power lacks the competence to continually make ad hoc determinations of what specifically is good for mankind, however sincere he may be.
In the constrained vision, the businessman's moral duty is fidelity to the stockholders, who have entrusted their savings to him, not sincere pursuit of the public good through charitable donations or investment or hiring decisions which compromise that trust. Similarly, the judge's moral duty is to faithfully carry out the law he was sworn to uphold, not sincerely change that law to produce better results as he sees them. Within this vision, a scholar's moral duty is to faithfully promote the intellectual process among his students and readers, not lead them to specific conclusions he sincerely believes to be best for society. For similar reasons, advocacy journalism or liberation theology are also anathema to those with the constrained vision, since both are seen as misuses of entrusted roles.
Sincerity is so central to the unconstrained vision that it is not readily conceded to adversaries, who are often depicted as apologists, if not venal. It is not uncommon in this tradition to find references to their adversaries' "real" reasons, which must be "unmasked." Even where sincerity is conceded to adversaries, it is often accompanied by references to those adversaries' "blindness," "prejudice," or narrow inability to transcend the status quo. Within the unconstrained vision, sincerity is a great concession to make, while those with the constrained vision can more readily make that concession, since it means so much less to them. Nor need adversaries be depicted as stupid by those with the constrained vision, for they conceive of the social process as so complex that it is easy, even for wise and moral individuals, to be mistaken- and dangerously so. They "may do the worst of things without being the worst of men," according to Burke.87
Related to the question of sincerity versus fidelity is the issue of roles or structured relationships. Fidelity to roles is central to the constrained vision, for in carrying out defined roles the individual is relying on the experiential capital of nations and of ages, in Burke's terms. Among contemporaries, he is leaving specific results to be determined by the values, knowledge, and capabilities of others, fulfilling his own role only to serve faithfully the processes which make this possible. But in the unconstrained vision, where the individual's own reason and sincerity are paramount, roles are seen as needlessly constricting. Those with the unconstrained vision tend to deplore "role stereotypes," to seek "less structured" situations, to "democratize" parent-child or student-teacher relationships, to de-emphasize titles and formalities.
All these patterns are consistent with their underlying vision of human capabilities in ad hoc decision-making. It is equally consistent for those with a more constrained vision of those individual capabilities to enlist roles and rules which tap the results of unarticulated historical experience, thereby restraining existing incumbents in these roles. Roles which involve enormous trust- parent-child or doctor-patient roles, for example- are also roles that preclude sex, for example, and those with the constrained vision are especially outraged if this taboo is broken. Others often are as well, but such opposition is not logically compelled by the unconstrained vision.
Both sincerity and fidelity can be seen as aspects of honesty- but as very different aspects, weighed differently in the opposing visions. The constrained vision in particular distinguishes sincerity from fidelity to truth: "The first thing a man will do for his ideals is lie," according to J. A. Schumpeter.88 It is o
ne reason why sincerity is given such light weight in the constrained vision. A modern defense of judicial activism by Alexander Bickel clearly put more weight on sincerity than on fidelity, when he urged that "dissimulation" was "unavoidable"89 and referred to "statesmanlike deviousness" in the public interest.90 When Bickel later turned against judicial activism, he also shifted moral grounds, now emphasizing fidelity over sincerity. It was now "a moral duty" of judges to "obey the manifest constitution," with improvements being left to the amending process."' In both positions, Bickel's conclusions were consistent with his respective visions.
The rationale for fidelity to the truth is very similar to the rationale for fidelity to roles. In both cases, one subordinates one's own ad hoc conception of what would be best for society in the particular case to adherence to a broader systemic process- accepted canons of morality, in this instance- in which one has greater confidence as to its long-run benefits to society.
Here again, it is necessary to note that none of the great historic visions has been either 100 percent unconstrained or 100 percent constrained. Differences of degree among unconstrained visions are often crucial as regards the significance of truth- and of force. In a very pure unconstrained vision, such as that of Godwin, reason is so powerful- "omnipotent" was his characterization92- that neither deception nor force was justified in pursuing the public good.93 Thus, even though the wisest and most beneficent might be on a far higher plane than most people as of a given time, their ultimate ability to gain public assent was virtually inevitable. But where the unconstrained vision of human potential postulates more resistant frictions en route to realizing the goal, falsehood and force become not merely rights but duties, for the enormous benefits of an irreversible breakthrough go on for centuries, over which time the initial costs are to be amortized.
A Conflict of Visions: Ideological Origins of Political Struggles Page 5