On what’s after postmodernism: holistic pragmatic clarification of concepts

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Contradictions, obfuscations, and lack of clarity have not only seized so much of academia (as my friend Heather Lockheart brilliantly discusses in her thesis on the topic) but also it has led to the emboldening of blatant racism from President Trump and his supporters, along with a wider embrace of immorality in general. Trump’s TV lawyer Rudolph Giuliani has gone so far as arguing that “truth is not truth.” Where did this postmodern way of thinking come from? Can we blame Nietzsche? Although postmodernism clearly leads to problematic modes of thought, does it raise any valid points? Is there anything “after” or “beyond” postmodernism? I say “yes!” and that includes some iteration of a holistic pragmatic clarification of concepts. 

PRODUCED BY ASHLEY O’CONNOR AND MONTANIZ STILLS

Thank you again for visiting the Public Comment website which I created back in 2012. After 7 years of  experimentation and uncertainty about the identity and direction the website should take on, I established, in June of 2019, an official focuses on politics and philosophy and launched the podcast. As a political activist and philosopher, my goal here on Public Comment is to contribute to a universal dialogue of critical, creative, and introspective thought on politics and philosophy– a dialogue I hope you’ll join in the comments below.

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Extemporaneous Speaking & Guns (Sean O’Connor’s Public Comment video diary vlog– episode #6)

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The most microscopic aspects of things complicate if you delve into them enough, zooming into the depths like…a microscope. So sometimes when it comes to making choices it can feel quite challenging. For example, I could mull over every word in every sentence I want to say to you and spend months attempting to perfect my verbal expression, and in the meantime, miss out on things I want to tell you now, that will end up cast aside (is this just prioritizing?) or…one can just…and I’ll quote John Mayer here, when he sings “say what you need to say”…

The opportunity to talk directly to you here and now… I view it as its own “art” in contrast to “writing” in the more “literary” sense. Not to say I wish to be arbitrary. I don’t. It’s important to spend time just thinking, researching, processing, analyzing…having something to talk about…kind of like prepper for a jazz performance? Wasn’t THIS what especially the “Beat Poets” were really after? The art of talking? So that is what I am going for here, aesthetically, medium-wise, contextually. I want to talk to you from where I am psychologically and metaphysically.

In today’s video blog this is my first topic. But then I move onto the topic of gun policy. Instead of getting into the depths of the “politics” of gun “policy” though, I’ve decided to delve more specifically into the philosophy behind gun politics. Why do we say one has a “right” to own a gun? Sure, you can cite the U.S. constitution, but the U.S. Constitution is not the “golden words” of some “God” (I believe in a God but I do not say “I know a God exists”; a belief is different than knowledge). What is a “right?” I take a look at some dictionary definitions and propose my own, for your consideration.

And how do we determine then, what a “right” is?  There are epistemological and ethical considerations here. Do you believe in thinking objectively? If so, how do we think logically and objectively about this? Do you believe in ethics/morality? It’s fundamental ethics that lead to fundamental policy views. This means, what rights do you think we should have, and why? And tied to this, how much do you value human life? Do you value human life enough to grant that there is an ethical need to keep guns out of the hands of those who are mentally unwell  and seek to murder?

One other point: some statistics. There are significantly more homicides per 100,000 people in the U.S. than in the U.K. Moreover, you are more likely to get stabbed to death in California or in Texas than you are in the U.K. In the UK there were 285 knife/stabbing related homicides between March of 2017 and 2018 in a population of roughly 66 million people. In contrast, there were 280 knife/stabbing related murders in 2015 in California in a population of merely a rough 39 million…or Texas where there were 175 knife/stabbing related deaths out of a population of roughly 29 million.

I bring these points up because I hear from conservatives and libertarians this idea that in the UK even if they don’t have a gun problem, they have a stabbing problem, so the real problem is world wide homicide, not homicide by guns in the U.S. They are wrong. Homicide is a bigger problem in the U.S. than it is in much of the world. It’s not about guns versus knives. It’s about homicide, guns and knives and we must take measures to address all of these issues.

A BRIEF ON THE SUPERIORITY OF NATURAL LAW

-An evaluation of the major theories of jurisprudence, with an explanation as to why the ‘natural law’ theory is the best one

naturallaw
John Locke. Philosopher & Advocate of “Natural Law”. IMAGE VIA SIR GODFREY KNELLER VIA https://commons.wikimedia.org/wiki/File:Godfrey_Kneller_-_Portrait_of_John_Locke_(Hermitage).jpg

(Note: I originally stated in this post that I wanted to be a philosophy professor. That is no longer the case. I want to concentrate on advancing a Social Democratic agenda via activism and commentary.)

 

All questions pertaining to politics and law, in my view, are a result of one question that is so consequential that its answers can cause genocide, or protect the freedom of individuals so that they may thrive.

The question is: “what should people be allowed to do, and not allowed to do?”

Answers to this fundamental question give us political philosophies and theories of jurisprudence. As someone who aspires to be a philosophy professor, and has run for political office three times, I have had much to say about political philosophy, and yet little about that branch of philosophy called jurisprudence.

Now I shall for the first time say a bit on the topic. In my opinion, the “natural law” theory is the superior theory of jurisprudence, and is so because it is based on reason (a word with many different definitions. For the purposes of this paper, when I refer to reason, I refer to non-contradiction) and morality.

That being said, there are some valid criticisms of other aspects of the theory, in particular, the assertion by some, that natural law is necessarily based on a God, and also, the fact is, some proponents of natural law theory have misapplied it.

Before I elaborate further, I shall be clear about exactly what natural law theory is said to be. In an academic outline on the term “natural law theory,” where it is also referred to as “classical naturalism,” it is defined as “a group of theories that contend, in a variety of ways, that law is to be identified by reference to moral or ethical (as well as formal) criteria of identification.” (Principe, 1)

I think it is worth adding that most proponents of classical naturalism- including Grotius, Saint Thomas Aquinas, and John Finnis (Banks, O’Brien, p. 82) (as well as Locke, even if merely by implication) to name just some- believe that inherent to the discovery of morality and natural law is the application of reason.

The standard of reason that is upheld by so many ‘natural law’ theorists is, in my opinion, its most important and fundamental element, for, as I view it, everything in life should be and absolutely can be approached via reason. (As Aristotle would say, A is A, i.e., a thing is itself, therefore A cannot be B, or C, or D, ad infinitum, i.e., a thing cannot be both itself and not itself.)

In my view, the very proof for this lay in the fact that it is empirically verified when one sees, or hears, or even feels with his or her skin, the letter “A,” and not any other letter, and thus, no other standard of knowledge should be used, as it would be incorrect, irrational, illogical, contradictory.

This is an epistemological idea, however, that every other major theory of jurisprudence introduced by Banks and O’Brien in their textbook on the American Judicial System, refuses to accept, either by a most obvious and fundamental misapplication of reason, or the complete disbelief that reason is the correct standard, or even a possible one.

For example, consider what I believe to be the profound irony and most basic contradiction of legal positivism.

We are told that according to legal positivism, “law is empirically discovered by reason,” yet on the other hand, we are told that law is “free from moral judgements about what the law should be.” (Banks, O’Brien, p. 85)

But a person cannot be both rational and legally amoral.

In fact there is no such thing as legal amorality.

That which one calls “moral” is how one thinks he should fundamentally treat himself and others, or put another way, what is a right action, and what is a wrong action.

For example, in my view of morality, right actions are ones that a person takes in order to thrive, which means he or she must take care of him or herself first, out of self-compassion, and should, further, do for others, out of compassion for them, whatever he or she is best equipped to do, when he or she can.

I call this the “morality” or “ethics” of “compassion.”

This necessitates political action- specifically, the protection of individual liberty, with safety-nets, to protect the integrity of individual liberty, i.e., protection against a laissez faire state where the utterly immoral people exploit the highly virtuous ones.

But all moral views necessitate political/legal action. Quite literally, a legal view that claims morality should be kept out of law merely confesses that one thinks implicitly that it is moral for the law to allow and prohibit particular actions, but, at least as I see it, either they do not recognize the implication or they are being dishonest.

 

At least legal positivism claimed to be rational. American Realism, according to the outline referenced earlier, is fundamentally skeptical, and “play[s] down the role of established rules (or the ‘law in books’) to discover other factors that contributed towards a judicial decision in order to discover the ‘law in action.’” (Principe, 2)

Moreover, American Realism claims to discover “what is empirically and pragmatically ‘realistic’ about judging” based on “sociological and psychological factors.” (Banks, O’Brien, p. 95) The empirical and the pragmatic and sociological and the psychological however, apparently have nothing to do, fundamentally with reason, only skepticism, which simply means chronic uncertainty.

To be fair to American Realism, at least it can be argued that empiricism could suggest probable guesses based on consistently observed things; at least it makes some kind of appeal to a notion of a more likely truth versus a less likely one, and/or maybe there is a truth, however not graspable by people.

At least then there is a sort of reaching for a semblance of logic. The theory of “critical legal studies” however, claims to “destroy the notion that there is one single ‘truth,’ and that by disclosing the all pervasive power structures and hierarchies in the law and legal system, a multitude of other possibilities will be revealed, all equally valid.” (Principle, p. 2)

If analyzed we see that the claim that there is no single truth is a contradiction in terms. Taken at its word, we must somehow accept it as singularly true that there is no single truth (that A is B, that a thing is not itself) when we are told that there is no single truth.

That is like saying I am not a cat but I am a cat.

That being said, I do concede that this theory of “critical legal studies” has at least one logical concern (although I guess adherents would not describe it as logical in my sense of the term)-  “all pervasive power structures and hierarchies in the law and legal system” should always be scrutinized because application to logic is not automatic and guaranteed, even when the application is referred to as logical, and it has resulted at times in racist, classist, elitist actions. Similarly of feminist legal studies: chauvinism and misogyny can be problems within the legal system and elsewhere which is irrational and immoral which is why I would argue that an honest and consistent application to basic natural law theory would treat all fairly.

Although I have touched on the moral element of natural law briefly already, I believe it deserves more attention. It is one thing to say that it logically follows that morality must dictate law, but it would sell natural law theory short not to also mention in a bit more detail the nature of just how, in my interpretation, consistent and logical natural law theory would inject morality into law, and contrast that with how others might interpret the role of morality in natural law.

Nowhere in the texts I considered upon doing my research does it explicitly say that Natural law theory necessarily posits that all moral principles must be codified into law. In contrast, if we consider how natural law is the basis for “individual natural rights” such as “life, liberty and the pursuit of happiness” (Banks, O’Brien, p. 83) it follows that it is a right thing to do, i.e., a  moral action that the law be made to permit and prohibit certain things- specifically to permit freedoms, and to prohibit violations of freedom.

That does not mean however, that an action which might be immoral, say prostitution, should therefore be illegal.

The moral claim is that the law should protect freedom, i.e., self determination, and thus prohibit coercion; only immoral acts which are coercive in nature require legal prohibition.

Adherents to natural law, throughout history, unfortunately, have not always understood this, despite it being the very meaning of their premise.

For example, in my view, it is a totally misguided idea of morality, based on a totally erroneous reasoning, how, “the Court appealed to natural law principles in asserting that blacks were not citizens entitled to constitutional rights in Dred Scott v Sanford (1857) [and] [i]n Bradwell v Illinois (1873), [when] the Court ruled that women could not practice law because it was ‘in the nature of things’ for them to remain relegated to the ‘domestic sphere as that which properly belongs to the domain and functions of womanhood’ [and further, how] [m]ore recently Justice Clarence Thomas cited natural law and the Deceleration of Independence in criticizing the rationale in Brown v. Board of Education (1954), the landmark case ending racial discrimination in public schools.” (Banks, O’Brien, p. 84)

Those are completely irrational moral claims that do not represent a proper application to natural law, but rather, forms of statism, altruism, collectivism, racism, chauvinism, and misogyny.

Although it is my opinion that classical naturalism, in its most general and popular sense – being explicitly based on the application of reason and morality- is the superior theory of jurisprudence, that is not to say the theory is perfect.

For example, many of the proponents of classical naturalism ascribe, with certainty, that its ultimate basis is in a God. As Banks and O’Brien write, “Natural Law is thought of in divine terms as God’s law.” (p. 81) Now, it very well may be, as I personally speculate, that a God does exist and that all truth is God’s creation, however, if so, it’s yet to be proven. Logic only tells us that there is no proof that a God does not exist but that nevertheless, one could. But a “could” does not justify a “does” and thus those classical naturalists who assert with certainty that a God does exist and that natural law is to be thought of as God’s law are, in my view, being hasty.

Briefly, on other theories of jurisprudence I have deemed inferior compared to classical naturalism, they at least have fair points regarding aspects of law they are critiquing- for example, American Realism, although “skeptical” at least leads us to question that which is asserted as moral-legal fact, and at least Critical Legal Studies dares to question the sometimes corrupting roles of power and higher status within the legal system- where economic status or race or sexual orientation, et cetera, is sometimes a factor when they should never be, and at least feminist legal studies dares to call out where the judiciary has unfairly treated women.

If classical naturalism could be revised and stripped of its contradictions, and if the mistaken applications of it could be made clear, I believe we would have a theory of jurisprudence which would be as perfect and logical as Aristotle’s laws of identity, and non-contradiction.

REFERENCES
Banks, C.P, O’Brian. D.M. (2016) The Judicial Process [Adobe Digital Editions] Retrieved from https://play.google.com/books
Principe, M. (2016) The American Judicial System POL226 Outline #2 Classical & Contemporary Theories of Jurisprudence. William Paterson University