Lecture Notes from 11/14

The Philosophy of Discourse

In a sense this class is about two things: (1) argument – empathic as opposed to oppositional; and (2) Cybermedia – projection of message into space

• Empathic argument can be seen as not different as the idea of communicative discourse that Habermas describes, or what people in sales teach their workers about having to convince customers to move in a way you want them to move before they know they want to

Example: A law student coming to a case for the first time; it tells a story, relates to your emotions. You have a sense of justice or injustice, but without having read any other cases you have nothing else to relate it to. Then you read your second case, and you are able to start making distinctions

• Distinctions allow you to craft categories and discriminations
• But the typical path is that, as you become increasingly competent in categorization and discrimination, you at some point lose feeling and become a hired gun – “tell me which side to argue, and I can do it”
• Like coming back to a glass of wine after you’ve become a connoisseur, you can appreciate it for what it is, but its different now in the context of what you know

Example: Teaching life lessons to kids through the lens of HIV/AIDS Issues; kids creating skits about HIV/AIDS issues, shining the light on how kids believe adults act (badly) and what adults have taught their kids

• Steps in implementing the program
  • (1) Get the kids together – purpose of first meetings is to establish trust
  • (2) Play games – like doing the three hats, they are led to see things from other points of view (first conceptual, then eventually realistic)
  • (3) Get the kids to engage, in ways that get them to talk to each other; literally interviewing each other in order to gain mutual understandings
  • (4) Aggregate – bringing together the group of trusting people who have expressed themselves and have been responded to by other people in the group, they work together in the group to see what they want to do, and that’s when they write their skit, learn to act it out
• Where are we in this series of steps?
  • We are a class in discourse – we are doing it and studying the structure of it

Charles Fried, “Modern Liberty and the Limits of Government”

• The first chapter was the first reading assignment for this class – Fried argues for an individual orientation to liberty, a libertarian argument; his project tis to regenerate respectable liberalism; he distinguishes liberty into two kinds – (1) the liberty of the ancients & (2) the liberty of the moderns
  • Ancients: based on the idea that a tribe, a people, a state, should be able to rule itself; that you shouldn’t be ruled by an outsider – this a powerful idea, an idea that sets up the state as a powerful origin for rights and welfare; this is the idea that has built the pyramids, the canals, but it’s also the idea that is in back of Hitler, Pol Pot, and the idea of the state supreme and the individual as a unit to serve the state and, within that environment, if there’s something left for the individual then that’s fine, but that’s it
  • Moderns: Fried’s family fled Hitler and left Hungary; he had the choice to leave and choose escape; the idea is that each individual, each one of us, is in some pre-right, pre-state entitlement, justified in seeking to live the best life according to what we ourselves think – it’s our life, we should live it to the best and what’s best is up to each individual; Fried extends that thesis that we choose our beliefs, we choose our understandings, we choose our biases, we choose boundaries of our identity to a very great extent, and that we should be responsible for our choices
  • Fried has long studied the relationship (his relationship) with the individual and the state; the individual must come first --> he imagines the framers getting together being the libertarian individuals that own their identities, and then together forming a state
  • Nesson sees this philosophy as one that works for the Net; with the Net we aren’t yet in a defined state, we are in a pre-state environment, a network in which individuals can connect in a multiplicity of ways, and each of us steps up to the Net as a person with the liberty of the modern
• Most of the speakers got the book all wrong
  • E.g. Former Dean Summers; Professors Minow, Michelman, and Fallon; Judges Boudin (1st Cir.) and Cordy (SJC)
  • Pyramids seen not through the point of the view of the Pharaoh, but through the eyes of the builders – and they all missed Fried’s point and personality and his expression in the way he meant it)
• Richard Parker on Fried:
  • The book is about the spirit of liberty, written by a free spirit
  • That’s what’s exemplary about it, and that what’s drastically missing from the world
  • (1) Temperament – The “good” Charles is well-behaved, is sound, keeps his contributions within balance, is cooperative, is trying to be coherent, and most academic writings are like this, and are thus not useful
    • Bad Charles is the obnoxious, irritating, rubs you the wrong way
    • It’s interesting writing, unlike more writing about law
  • (2) Genre – he’s not trying to demonstrate or prove anything, to force anything on us; not preventing data and stats ; not presenting that there is a philosophically “correct” answer; there still remains evidence of the blight that is destroying modern legal writing, but 99%
    • Open texture; constantly moving, no closure meant, no closure taken
    • Far more open than most people are giving it credit for
  • (3) Style – legal academic writing is a wasteland now, and that’s why it’s read by almost no one; the boredom is just overwhelming, partly because of its pomposity and partly due to its pretense to impersonality
  • It’s personal at every level; referring to his family (parents, wife, children), but also the style is pungent, humorous, and light – at every moment it’s light on its feet; you never feel like you’re dying, like most academic writing
  • This book is very free, and it's Fried's best writing

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