“Human Nature”??

Thanks, Danielle, for organizing this conversation and to the others at Concurring Opinions for hosting! And, of course, to Robin for this new gift of a book. It’s such a pleasure to be a part of this conversation.


To read Robin’s Normative Jurisprudence and hear its call for a new and different turn to a deep, normative scholarship about justice, including the common good, feels like nothing so much as an exhortation to make what we, as legal academics do, matter and matter profoundly. It’s not that the descriptive work that many of us are doing—whether as our work’s sum or as part of larger normative projects we are pursuing—or even that what Robin calls the “faux-normative” work that broadly defines normative scholarship in law isn’t worthwhile. It’s that this is not as much as we can and should make our scholarly work be, or at the least try, in the spirit of an ideal. In this sense, there’s something wonderfully insightful in Brian Bix’s impeccable humility: We mostly live and work in the shadows, not just sit atop the shoulders of the greats of the past—and present. But what’s useful about Robin’s own embrace of a new, deeply normative turn in scholarship—and her encouragement to others to embrace it—is that it can serve as a catalyst, reminder, or question to ask ourselves: Have we achieved and surpassed our own limits when doing our scholarly work?

Traditionally, as with other crafts, this question arises during apprenticeship, and informs what junior scholars experience in many respects. In this vision, junior scholars work with more senior scholars to master the scholarly arts, striving to enhance their scholarly abilities and achievements, to gain and grow while thinking and doing, not to produce work, or produce it against a deadline, but to define and expand the horizons of what can be achieved. In line with this tradition, various critiques of it aside, this book may be especially important for junior academics and soon-to-be-junior academics. Not only does it map out and put Robin’s considerable academic authority behind the view that deeply normative scholarship about justice, including the common good, should count as scholarship, indeed, should be its measure, but this move opens up possibilities for junior and soon-to-be-junior academics about what is thinkable as scholarship, as well as worth giving a life to doing. As importantly, if there’s going to be a future that’s written in the directions that Robin’s work describes, it may practically be up to junior academics and those of the next generation as much as, if not more than those already deeply in the game, to take the larger body of legal academic scholarship decidedly in these directions.

Shifting gears just a bit, there are some on the left—if not the post-modernist left as Robin describes it—who may already see themselves as doing just the sort of normative, justice-focused scholarly work this book urges the rest of us to do. At least with respect to critical race theory, broadly (if, as Anita Allen reminds us, seriously) defined, and the scholarship it has generated, it seems worth remembering that the normative, justice-based scholarship law professors produce needn’t simply pursue lines put down elsewhere in the academy, with theories from philosophy or political theory or other normative theoretical disciplines being imported into law, to drive our own work, though that seems to be the paradigm that regularly surfaces in this book and in some of the commentary here. Moving in the other direction, legal academic scholarship, particularly at its normative, theoretical best, can be exported to the rest of the academy and taken up there, as has been the case with a number of canonical critical race theory texts. Appreciating this may alleviate the sense that some may have when reading Robin’s book, that without advanced training and practice in different academic disciplines, or at least their theories of justice, including the common good, one cannot possibly do the work the book urges us to do. There really are worlds to explore and theorize in our own back yard. Robin’s point: That work is for all of us to take up.

At the same time, while it may seem to some that the book may not give enough attention to critical race theory, including its ongoing justice-based dimensions, or, for that matter, feminist legal theory, including its commitments to justice, not to forget the intersections between them, Robin’s work might best be seen and thought not to be saying that critical race theory and feminist legal theory (and their justice-seeking allied movements on the left) do not and have not been pursuing the sort of normative work that she would like to see more of us do more of the time. Instead, the work may be seen to suggest a diagnosis: One of the reasons that critical race theory and feminist legal theory (and their justice-seeking allied movements on the left) have been so marginalized is that they’ve been seen by other legal academics’ lights as too drenched in normativity, too much about justice, whether theoretical or of a more practical sort, to be counted as “real” legal scholarship, which bears a different and more distanced, sometimes ironic, relationship to theories of justice as such. It’s not partisanship that, following Robin, one should see when looking at critical race theory or feminist legal theory (or their justice-seeking allied movements), but when they’re there, arguments about and for the common good, in the direction of justice, if not justice-based claims directly. If Robin’s work succeeds, it will, in part, redound to the benefit of critical outsider scholarship that has long been kept at the margins of academic life, a situation that risks getting worse in the current economic and institutional situation that we, in the legal academy, as elsewhere in the academy, are facing, a situation in which what counts as good, useful, important scholarly work—including the kind of work that can get you a job or once in, tenure—is all about the technical petit point that causes scholarship sometimes to feel or be—no matter how legally important—normatively small, “faux-normative,” in Robin’s words.

From the perspective of some of these critical outsider projects, what may seem simultaneously both curious and challenging about the way Robin structures some of her argument is the way it repeatedly calls not only for a reconsideration of arguments for the common good toward making law be just, but also, as part of that effort, an express contemplation of and arguments about “human nature.” A variety of critical outsider projects on the left, of course, have, as Robin acknowledges, a fraught relationship with arguments from human nature, these ideals long having been deployed to justify and perpetuate a range of unjust hierarchies and subordinating practices—hierarchies and practices that these critical left projects struggle with and against. This being the case, from the perspective of these projects, this call for work in the name of “human nature” can seem forgetful, misguided, or just plain dangerous (or worse). We should go there? What’s a justice-based or justice-promoting or justice-loving account of “human nature”?

The governing view of human nature on the left famously toggles between a view of it as deeply, if not essentially, plastic, or so buried under the weight of history, culture, ideology, and power, among other things, including injustice, that the human nature we think we know and that the law often legislates based on and toward is what can only properly be called, borrowing from Peter Gabel’s still-wonderful language, an “alienated” view, an expression of “alienated selves” which are nothing so much as distortions of our “real” natures. In the heyday of critical legal studies, Gabel, whose work Robin’s rightly suggests we collectively revisit, was concerned, among other things, with how the dominant liberal legal paradigm treats us as though our human nature were out of Hobbes in some important sense. That is, in Robin’s words:

anxious, insecure, alienated, isolated, atomistic, and unhappy, . . . a life filled with fear of the Other and paranoid anxiety about that Other’s desire to rip us off, . . . that our brother will routinely and by nature stab us in the back rather than have our back, and all of that paranoia then drenched with a Lear-like dread of the ever-present possibility of exposure to the elements, should we lose our quest for a chunk of the shrinking pie in our invariably winner-take-all economic system and social life. (112)

By contrast, Gabel imagined in a “visionary” or “aspirational” or “utopian” (112) way that:

[w]e are not inherently egotistic, alienated atomistic monsters. The depiction is false, Gabel argued: we do have a nature, but it is not that. With changed expectations of either who we are or who we can be, we can create a shared life that is more trusting, more communal, less hostile, less suspicious, and more welcoming toward strangers and intimates both, as well as a less alienated way of working with the natural world to create a shared and hospitable social home. . . . For Peter Gabel, the most underappreciated of the utopian critical writers, we need not imagine a different nature, we need only reacquaint ourselves with our true desires, and hence our true selves: our natures are in fact at odds with the paranoid delusions of liberal legalism. (113)

To read Gabel is to encounter a powerful turn to the spirit that makes the work, on reading it again today, seem wonderfully full of possibilities, fresh and completely awake.

All this is worth mentioning in this context, because the project Robin is mapping out is so big and, for some, may feel beyond our ordinary capacities, given our usual ways of talking about things, that this—thinking about what a conversation around human nature might mean—is one way (in addition to what others have offered) to get concrete about what the sort of scholarship she’s imagining for us might look like and entail. We all have thoughts on human nature, even if they are not (for most of us, anyway) well hammered out. But you can’t read Robin’s work and not wonder about all the ways, off the radar, we’re actually living and writing from our views of it. To begin to think of it is to begin to remember how views of human nature abound in law. From Holmes’ “bad man,” to a range of views on the “reasonable” person, standards we set that we believe people can achieve, to views of our natures as humans and as individuals as highly rational, with perfectly firing impulse control, which pulse through the veins not only of all sorts of legal rules, but also legal scholarship, often, if not near the surface of it, animating or at least powerfully shaping it.

It’s hard not to wonder about whether some of the postmodernist views that come in for criticism in the book’s pages—criticism delivered with what still amounts as plenty of respect—might not be on to something about human nature in precisely the sorts of ways that Robin is urging, though not in ways she appears to be intending. Think here of David Charny’s “The Economics of Death,” a lively, engaged, worldly, and, in its way, deeply normative critical review of Tomas J. Philipson’s and Richard A. Posner’s book, Private Choices and Public Health: The AIDS Epidemic in an Economic Perspective. The points Charny makes in this piece are just too rich to try to summarize or boil down here, but the reason for mentioning this work is the reminder Charny powerfully issues, critical of Philipson’s and Posner’s approach, for the way it fails to take account of the persistently irrational impulses in human nature that have made their presence felt across the entire course of human history, including a vast range of its theories, certainly in matters of sex. As Charny writes:

[T]he entire approach to sex is refreshingly candid, straightforward and businesslike. Sex is for pleasure, and people rationally make choices about sex to maximize that pleasure. It is all in the spirit of Ben Franklin’s celebrated maxims. Rage, obsession, brutality, and jealousy make no appearance in the book’s numerous graphs. Philipson and Posner, in developing their argument, have no use for the West’s rich and moving meditations—from Euripides, Plato, and Catullus to Freud—on the darkness and irrationality of sexual passion, on sex as a blinding, captivating, force—“Vénus toute entière à sa proie attachée,” in Racine’s image. Sex in Hyde Park, by contrast, is a tedious affair.

If, following Charny following others, our sexual nature is taken to speak to and for our human nature, more generally, if, that is, human nature is filled with “darkness and irrationality,” maybe even defined by it, how do you legislate at all in relation to that, much less in relation to the common good? Is it all oppositional: stamp this out? Can that be achieved, and if so, with what sorts of justice-based effects? How much of human nature has to be, in some sense, stable and predictable, even rational, or, perhaps more importantly, good, to think it’s properly a mark toward which we can in any meaningful sense properly aim our justice-seeking efforts? To put the point even more broadly, one question that, in light of Robin’s work, we should be thinking on is: Are only certain views of human nature and human goods compatible with the project that’s being put on the table?

Those who have already had occasion to read Robin’s book will know that she has concrete views on some of the postmodernist projects that have spun out from the sorts of impulses Charny describes. But her position on them makes it seem as though, if “darkness and irrationality” are part of our natures, they do not yet constitute an obstacle to the theories of human nature and human good we ought to be aiming for. Knowing that Robin has some important thoughts on these questions—or ones like them—one thing that seems worth talking about a bit, among the other wonderful points that others have already raised, is what they are, and what we might make of them.

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1 Response

  1. Heidi Li Feldman says:

    Great stuff, Marc. I particularly like – and endorse – your account of how “outsider” critical legal analyses get marginalized because they are too normative, too concerned with justice. How unseemly! To keep beating my drum, I will add that something similar goes on when mainstream constitutional law theorists act as if other fields of law are somehow too grubby or low-brow for serious scholarly attention. As I indicated in “Take that Constitution…”, fields of law like torts and contracts run immediately into questions of substantive everyday questions that are normative: what do we owe each other? Nothing grubby or low brow about that question.