Friday, October 28, 2005

Active Liberty

Supreme Court Justice Stephen Breyer has been making the rounds promoting his latest book, Actice Liberty: Interpreting Our Democratic Constitution. Last night on the Charlie Rose Show (sorry, no transcript freely available; the germ of Breyer's argument is here, here's a good interview with Terry Gross, and here's an interview with Nina Totenberg), Justice Breyer suggested that Aristotle was a source of his Judicial philosophy. Breyer usually cites Benjamin Constant as a more proximate source of his ideas. Rose elicited the nod to Aristotle by asking Breyer whether his interest in economics had influenced his thinking. The question caught Breyer off guard, so I won't take his fallback to Aristotle as a strong statement of his position.

But it's interesting. One suspects that Breyer is not defending an originalist reading of Aristotle, whose Politics is considerably to the right of Justice Antonin Scalia. What came to my mind was Aristotle's doctrine of causes (material, formal, efficient and final), which, as near as I can fathom, was meant to explain how things come to be. Breyer argues that there are six basic kinds of tools a judge can use to arrive at a decision:

Breyer's judicial philosophy emphasizes the latter two items, not merely with respect to particular statutes, but in view of the Constitution of the United States and its purpose. It seems that Breyer sometimes conflates the consequential with the purposive--to be expected given an approach that "values consequences in terms of basic constitutional purposes." The basic distinction between the two is clear enough. Breyer's purposive might possibly be understood as consistent with interpretation in terms of Aristotlean final causes, though it may be better understood as a development within a rather more indefinite European tradition of teleological hermeneutics. Breyer's consequentialism is instantly recognizable as a kind of pragmatism, quintessentially American, no less so for being ad hoc. That the two approaches might undermine each other's premises appears to be of no consequence to Breyer (in the abstract, case by case is another question), which suggests that in Breyer's jurisprudence the pragmatist streak is in the ascendent, regardless of any claims made in the final analysis. Thus Breyer's thinking doesn't appear to be notably Aristotlean-though I am struck by both thinkers' accomodations for equifinality. (That wasn't meant to be ironic. I do see it as intimating something of a paradox.)

Breyer, I'm reasonably certain, did intend to point to the Politics. Not so much its rationalizations for slavery and the oppression of women, or its defense of the Lydian mode, but the bits about liberty, equality, and citizenship. For the strong (or narrow) literalist, this exemplifies the liberal's penchant for selective reading. Yet it's not exactly like a series of notes that can be arbitarily arranged in any of a number of ways. The Lydian of the ancients, like a raga, had meanings that arose from its use for particular kinds of occasions, a set of commonly understood purposes. We could, hypothetically, arrange the same notes to produce a different mode, and then say for example that we have a "sixth degree Lydian" rather than Dorian--an amusing exercize for the musician, but not to be confused with making music. Constant's "liberty of the ancients" is harmonious with Aristotle's democratic politics, without a slavish fidelity to passing tones, accidentals, ornaments or modulations. The essential purpose, the call to participatory democracy, is loud and clear.

posted by Fido the Yak at 4:47 PM.


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