Harmful Thoughts: Essays on Law, Self, and Morality

Chapter 1
LAW, COMMUNITY, AND COMMUNICATION
I follow the fashion of listing no more, and no less, than three items in a title. If it were not for this fashion, my title would have included two more items--interpretation and organization. I shall relate these concepts in the following way: I shall pair community with interpretation and organization with communication. An important strand in contemporary legal and social theory--I have in mind primarily the work of Ronald Dworkin in this country and J�rgen Habermas in Europe--is fixated on the first couple consisting of community and interpretation. In this it gives us only a partial representation of social reality and, specifically, of law; it paints only half, and probably the less significant half, of the picture. But drawing attention to the other elements in the picture, those I call organization and communication, does not simply supplement it. Rather, the fuller painting, I hope to show, bears scant resemblance to the partial rendering by Dworkin and others who belong in his mold. The linchpin that holds together the various terms I want to relate is yet another concept--role distance--which I borrow, with some modifications, from the work of the sociologist Erving Goffman.1 Let me then start by describing this linchpin.
1. Role Distance, Community, and Organization
The term role distance belongs to the vocabulary of the self as well as to the vocabulary of social role, and serves as a bridge between the two. It is part of a dramaturgical imagery of the self, according to which the self consists, at least in part, of the social roles that it enacts. The special insight that the concept of role distance imports into this picture relates to the self's capacity to locate itself, metaphorically speaking, at variable distances from the different roles that it occupies. Identification with a role is a matter of degree, and depending on the degree of identification, a given role may be more or less integrated with and constitutive of a particular self. This is the basic idea, and though my account of it must remain simplified, let me add a few further details.
Exactly what identification with a role or detachment from it consists of is a difficult matter, but the following criterion provides at least a proxy or approximation. When I fully identify with a role, when the role distance, to further exploit the spatial metaphor, is down to zero, I enact the role "transparently"--that is, without an explicit awareness of the role's requirements and the fact that I fulfill them. By contrast, the presence of role distance is marked by self-consciousness: by an explicit awareness that I engage in playacting; that I enact a certain role by responding to its requirements and expectations.
Identification and detachment are not fixed properties of roles: the distance between a person and a role can shrink or expand; it can fluctuate over time. It is also not the case that some roles must be worn tightly, whereas others are kept at a distance by all their takers. I can become at times self-conscious about, and distanced from, every one of my roles, just as it seems that every role can in principle be enacted transparently by someone. Still a certain degree of uniformity in the style of enacting different roles exists, and so some generalization regarding role distance is possible. Some roles call for greater identification than others. Certain roles are in general more likely to be enacted at a distance than other roles. So it is meaningful, though not altogether accurate, to speak in general terms about "detached" or "distant" as opposed to "nondetached" or "proximate" roles. What I shall have to say depends, at any rate, on the soundness of this distinction.
Role distance, as I said, is the linchpin that links the various concepts I want to relate. I will use role distance first to distinguish two types of collectivity or social structure: community and organization. The juxtaposition is of course familiar. It immediately brings to mind Ferdinand T�nnies' distinction between Gemeinschaft and Gesellschaft,2 and I mean to capitalize on this association. But for my present purposes, I first want to draw the distinction exclusively in terms of the concept of role distance. I will define a community as a social union of nondetached roles. In other words, a community is a collectivity whose roles do not allow their holders to maintain a distance from those roles. By contrast, an organization is a social union of detached roles; it is a collectivity whose roles allow or even call for distance. These definitions are admittedly stipulative, but they are not arbitrary. I would like to get at least provisional assent to them, and I hope to earn it by an illustration and an explanation.
Consider the role of a parent--a role within a collectivity, the family, which in its ideal form I take to be the paradigm of what I call community. Contrast this role with that of say an AT&T operator, who performs what I take to be a quintessentially organizational role. Let me now draw attention to a few aspects of this opposition.
First notice that there are pretty clear social norms that regulate role distance in these instances. To be a parent, characteristically, is to enact a nondetached role. Since there is no distance between me and my role as a father, since I fully identify with that role, the imperatives that guide me in discharging it are in an important sense internal to me. I simply do what I think best in a certain regard, for example in matters that pertain to my child's education, or behavior, or welfare. We can say that in doing so my conduct as father is fully autonomous. This is not because I can treat my child with unfettered discretion, let alone arbitrarily. Quite the contrary. The demands of my role as father often are circumscribed narrowly, mandating a very specific attitude or course of action. Still, these imperatives do not compromise my autonomy but rather express it, since they follow from me; they shape or constitute an aspect of my own identity, that of parent.
Nor should it be thought that my autonomy in going about my fatherly role depends on my doing so cheerfully and enthusiastically. Many a parent would flunk this test when getting up to attend to a screaming baby in the middle of the night, and yet their autonomy in performing the parental role is not thereby the least bit diminished. This conclusion derives, by close analogy, straight from Kant. The strain we feel in performing our moral duties, according to Kant, results from their frequent conflict with our inclinations. Still, this is in an important sense an internal struggle between different parts or aspects of the self. When we do follow morality, despite our inclinations, we act autonomously because we heed an internal, not an external, call. So also in the case of the parent. One's identification with the role and one's autonomous execution of its demands are not undercut but rather are put to the test by temptations and pressures that lead away from the role's requirements. Another way of making the same point, a way that also has clear Kantian overtones and will serve us later, is this: in enacting a nondetached role, my will is identical (within the role's domain) with the role's requirements. There is therefore no question of providing me with some external motivation to perform the various aspects of my parental role--for example, to get up to my crying baby--since an internal motivation is already provided in the assumption that I enact parenthood as a nondetached role. In that case I simply will the role's various imperatives, although my will on occasion may have to prevail over such impediments as my desire to go on sleeping.
Moreover, since there is no question of motivation to behave in accordance with the precepts of a nondetached role, there is a fortiori no question of coercion to do so. It is not that coercion is pragmatically unnecessary, but rather that it is conceptually out of place. Coercion becomes intelligible in this context only when the premises of my depiction of (the idealized) parental role already have been vitiated--that is, when a gap has been opened between the person and his or her role as parent, so that compliance with the role's requirements is put into question for the first time.
A telephone operator's role contrasts with the parent's in all these respects. It would be utterly appropriate for the operator to keep the role at a distance. He can be an accomplished operator even though he just, as it were, goes through the motions of an operator (as long as, of course, he goes through them well enough). Since the operator need not identify with his role, its imperatives are external to him. The main difference between the roles of parent and operator is not that the latter role's demands are more narrowly defined on any particular occasion than are the former's. The difference, instead, lies in the source relative to the self of the guidance provided by the role. Insofar as the role that I enact is a detached one, I experience the role's imperatives as external, and thus potentially as constraints. Potentially, because the role's requirements may coincide, of course, in general or in any specific instance with my wants and desires. But this coincidence is, in principle, adventitious; it is not an essential part of my relationship to a detached role.
It follows that unlike a nondetached role, a detached one presents starkly the problems of motivation, autonomy, and coercion. Since I keep the role at a distance--outside of me--the role's requirements do not, in and of themselves, become my reasons or motivations for complying with them. The various tasks that compose the telephone operator's role, such as answering the numerous phone calls and operating the electronic switchboard, are not the things the operator himself has any reason or desire to do. (The crucial point here is that it makes perfectly good sense to refer to the "operator himself," meaning the operator qua person, aside from this particular role. By contrast, it ordinarily would be clumsy to separate a person from, say, the parent that he is.) If the operator is to perform his tasks, he must be motivated somehow, bribed or coerced, to do so. The most common combination used to this effect contains elements of both kinds of inducement. Performing a detached role is therefore not, as such, a display of autonomy. I say as such, because depending on a more detailed theory of autonomy, as well as on the nature of the second-order reasons one may have for enacting the detached role, its enactment may count as autonomous after all. But the individual's very engagement in the tasks of a telephone operator does not purport to express the operator's own will in the way that properly discharging parental duties is ordinarily supposed to be a manifestation of the parent's will.
The telephone operator is a member of an organization, AT&T in my example, simply in the sense, and by virtue of the fact, that he holds a detached role in that collectivity. For this reason, he in principle must be bribed or coerced if he is to perform the role's requirements. But don't those who do the bribing or coercing have to do so willfully, out of identification with their roles, and thus exemplify a communal type of participation in AT&T? And, if so, isn't there a contradiction in describing AT&T both as an organization and a community?
My answer to both questions is negative. First, it is not really necessary for anyone at AT&T, including those who see to it that the operator perform his tasks, to identify with their roles. Putting aside the historical question of how AT&T came to be, the organization presently can consist entirely of detached roles, all of which depend on some external source of motivation for implementation by their holders. Although it is not required that some of AT&T's roles be nondetached, however, there would be no contradiction in terms of my proposed scheme if, in fact, some roles were to be enacted so. It is altogether possible for AT&T to comprise some roles--upper echelon management, perhaps--that are to be held with no elbow room, with no personal distance. In my terminology, AT&T would then provide a community for the holders of those roles, whereas it would continue to be an organization for its other role holders.
Why do some collectivities call for and some attain identification, whereas others engender or condone role distance? Like other social questions, this one too can be investigated descriptively or normatively. The normative investigation can be conventional in character--it can look for the source of various claims to role identification or role distance in a society's existing value system--or it can be critical, in the sense of trying to assess or ground such claims from the perspective of some ideal normative scheme. A complete theory of social structures in terms of variations in role distance would have to tackle these various issues at the different levels, but that is not an enterprise in which I can engage here. Instead, I will settle for only some crude and speculative observations that will serve me in my present argument.
The main hypothesis is this: there is a rough correlation in our society between role distance, as both norm and reality, and a form of social organization that we can loosely call bureaucratic. Social entities fitting under this heading are marked by their large size, formal and hierarchical structure, and a relatively well and narrowly defined set of goals. It is primarily with regard to such entities--AT&T is a paradigm example--that role distance is engendered and condoned. We also can glimpse in passing an explanation, albeit a highly speculative one, for the prominence of role distance in bureaucratic organizations. By isolating the self from the organizational role, role distance shields the self to a degree from the blatant instrumentalism of these organizations. At the same time, role distance gives those organizations as well as their members a certain flexibility and adaptability that are likely to be conducive to the organization's operational success. Detached roles can be, if necessary, redefined or reassigned without thereby playing havoc with the selves of the roles' individual bearers.
If my hypothesis is sound, my characterization of community and organization in terms of role distance will be roughly coextensive with our ordinary use of those two labels, based upon some general structural features that distinguish the two types of collectivity. My proposed characterization, however, lays emphasis on what, at least for my present purposes, deserves the greatest attention: the radically different relationship to the self that various collectivities can and ought to bear.
One final observation. Role distance is a normative as well as descriptive concept. One's appropriate distance from various roles is regulated normatively and, as I said, is amenable to assessment on both conventional and ideal grounds. In all of this, role distance must be sharply distinguished from alienation, which is a malady of the self. In the conceptual scheme that I propose, alienation is an inappropriate role distance--that is, it is distance from what is supposed to be one's communal role. So understood, alienation contrasts with what would be the self's opposite disease: misplaced identification with what ought to be a distanced, organizational role. The name of this disease is bad faith.3
2. Interpretation and Communication
I turn now to the second pair of concepts that I want to juxtapose: interpretation and communication. I begin with a caveat: the way in which I'm going to use these terms may create confusion, and I shall try to avoid it by the following clarifications. I borrow the notion of interpretation directly from Ronald Dworkin's writings, primarily Law's Empire,4 where this concept is already shaped to suit our legal concerns as the centerpiece of a theory that Dworkin calls "law as interpretation."5 However, it seems to me we can better understand Dworkin's conception of interpretation, as well as appreciate its shortcomings, if we view it in the light of an important distinction drawn by J�rgen Habermas in his theory of communicative action.6 Habermas sharply distinguishes between two kinds of discursive social action: communicative action and strategic communication. In communicative action, the participants are oriented toward reaching agreement through understanding. In strategic communication, by contrast, participants are oriented toward success; they have a specific goal determined antecedently to their discursive behavior that the latter is designed to promote. My claim is that Habermas' notion of communicative action--that is, discourse oriented toward agreement through understanding--is closely related to Dworkin's idea of interpretation.7 I shall not be able to defend fully this claim here, though I trust that it does not seem particularly controversial to those familiar with the relevant writings. At any rate, I shall have to rest my case mainly on one central factor common to both notions. The engine that drives Dworkin's interpretation as well as Habermas' communicative action, or to shift the metaphor, the beacon that attracts them both, is truth, or perhaps more accurately, a shared belief in its attainability. I propose to treat interpretation and communicative action as one pole, which, following Dworkin's usage, I shall call interpretation, of an opposition that has the notion of strategic communication, or simply communication, as the other pole.
The terms interpretation and communication are convenient labels for the polarity that I want to describe, but as I warned already, and for reasons that I hope are now clearer, my use of these terms is potentially misleading. Both terms are characterizations of discourse, and thus both pertain to communication. My derivation of the notion of interpretation in part from Habermas' concept of communicative action underscores this obvious fact. Still, my proposed usage--juxtaposing interpretation with communication--has a substantive justification in addition to its convenience. It helps bring out the internal relationship between interpretation and community that I have anticipated at the outset. My point is this: though the program of interpretation does characteristically involve a plurality of participants, it is evident in both Dworkin's and Habermas' depiction of it that the existence of a plurality is not essential to the proper analysis and understanding of interpretation under ideal conditions. This is so for the following reason. Those ideal conditions, which, as Professor Dworkin is at pains to emphasize, point to the fact that interpretation takes place in the context of community, secure a degree of cognitive alignment and motivational coordination among the participants so as to make their plurality insignificant. As embodied in Dworkin's famous allegory of Judge Hercules, interpretation in principle can be understood successfully on a monological model, as though the discourse under consideration took place within an individual's internal forum in which the interlocutors are all figments of the interpreter's own imagination.8 In deploying competing views and arguments, these imaginary speakers serve a purely heuristic purpose in the unified search for truth and understanding.9
In terms of the metaphor of role distance and the idea of community to which it gives rise, the picture is this: when individuals fully participate in community, when they efface all distance between themselves and their communal roles, then the system of interlocking roles, which is the community, constitutes a configuration of partially intermingled personal identities. Partially, because the individual identities intermingle only along the dimension or within the domain that defines and bounds the particular community that these individuals share. But insofar as matters concerning the community go, the members occupy a common space, which is fully continuous with each member's private space. We plausibly can imagine their public discourse as taking place within a single member's private forum precisely because the relevant zone of that private forum is continuous with the community's public space.
This, I believe, is the picture that underlies and best explains the concept of interpretation as articulated by Dworkin and Habermas. This picture links up with a number of important features of interpretation that I shall now consider.
Recall the examples of parent and telephone operator. Dworkin derives his description of law as interpretation from an analysis of interpretation in the context of another social practice: courtesy.10 In order to keep the following comments as parallel as I can to Dworkin's discussion, I shall also begin by placing my protagonists, the parent first, in a similar context. Suppose that someone had just helped my four-year-old daughter to cross the street, as I happen to walk by. Being in general a polite fellow, I wonder (this of course is just a way of speaking) whether courtesy makes any demands on me in these circumstances. The answer is plain, and so I say to the benefactor something like, "Thank you for helping my daughter." The first thing to notice about this situation is this: my expression of gratitude is strictly a matter of performing my role as father. After all, the benefactor has not rendered any help directly to me. It is only by virtue of my parental role, and as an aspect of it, that it is appropriate and necessary that I thank the helper under these circumstances. But it is equally important to notice that once I have ascertained that it is incumbent upon a father to express gratitude under these circumstances, no further question about motivation--that is, why did I express gratitude--arises. This motivation is already provided for (though it is not invariably guaranteed) by my general tendency to excel at what I take myself to be--by my striving to be the best at what I am. In this case, my general tendency to be a polite person is sufficient to secure my performance of such a speech act, because my being a father is simply the aspect of my personal identity that pertains to the situation at hand.
Suppose now that the above episode happens when I'm in my wife's company. As we are approaching the helping person, my wife urges me to thank the stranger for her help. I demur: "It was none of this woman's business to help our daughter go where we didn't want her to go," I argue. It is now open to my wife to persuade me that I have taken the wrong attitude; that gratitude and its expression are due. I may be persuaded by her reasons, or I may defer to her judgment, which, in matters of courtesy, I consider superior to mine. All of this possible interaction comports with the spirit of community and counts as an exercise in interpretation. A good test of this conclusion is whether I can imagine the same dialogue occurring "in my head," with me deploying my wife's arguments on her behalf and then duly considering them. There is however one thing that my wife decidedly cannot do and still remain within the interpretive enterprise. She cannot, when all fails, squeeze my elbow and mutter through clenched teeth: "Thank her or I'll break your arm!" As Habermas insists, interpretation proceeds on the participants' shared assumption of their mutual desire to reach the truth, to the discovery of which they all have an equal claim. Understanding, both in the sense of improved comprehension and increasing agreement, is the exclusive concern of this form of discursive activity. Forcing assent by coercive measures cannot promote interpretation; it can only undercut it and convert it into a form of the antinomous category--strategic communication. Observe also that resort to coercion suspends community. If I act on my wife's threat and thank my child's benefactor for that reason, I act apart from, and despite, my own understanding of my role as father. I am propelled by external motivation, with whose source I do not identify. By issuing the threat, my wife herself has stepped out of our shared communal space and has instead installed herself as the final arbiter of an enterprise that I am no longer expected to share.