Stanley Fish on education, law and society.
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At one point in “The Wizard Of Oz,” Dorothy (Judy Garland) picks an apple and the tree she picks it off protests: “Well, how would you like to have someone come along and pick something off of you?” Dorothy is abashed and she says, “Oh, dear — I keep forgetting I’m not in Kansas,” by which she means she’s now entered an alternate universe where the usual distinctions between persons and objects, animate and inanimate, human beings and the natural world that is theirs to exploit do not hold. In Kansas and, she once assumed, everywhere else, trees are things you pick things off (even limbs) and persons are not. Persons have an autonomy and integrity of body that are to be respected; trees do not. A person who is maimed has a legal cause of action. A tree that has been cut down has no legal recourse, although there may be a cause of action (not, however, on behalf of the tree) if it was cut down by someone other than the owner of the property it stood on.
All this seems obvious, but what the tree’s question to Dorothy shows is that the category of the obvious can be challenged and unsettled. I thought of this scene on the last day of my jurisprudence course when we came to the chapter on animal rights and the rights of objects . The question of the day was posed by Christopher Stone’s landmark article “Should Trees Have Standing? — Toward Legal Rights For Natural Objects” (1972), and was answered, it would seem, in Genesis 1:26, when God gave man “dominion over the fish of the sea, and over the fowl of the air, and over the cattle and over all the earth and over every creeping thing that creepeth upon the earth.”
The dominion of man over animals and nature is established theologically, and it is established again in the modern period by classical liberalism’s privileging of individual rights exercised by beings endowed (by either God or nature) with the capacity of choice. From Locke to Mill to Berlin to Rawls, the centrality of the free-standing deliberative individual actor is an article of faith; and if there is a center, there must be a periphery where entities that are neither free-standing nor deliberative live out their marginalized, dependent, objectified lives.
The fact that this realm of the less than fully enfranchised has at times included children, women, blacks, Native Americans, Asians, homosexuals and Jews as well as animals and trees tells us that there is a counter-narrative in which standing has been extended in an ever-more-generous arc. Stone quotes Charles Darwin observing that while man’s sympathies were at an early stage confined to himself and his immediate family, over time “his sympathies became more tender and widely diffused, extending to men of all races, to the imbecile, maimed and other useless members of society, and finally to the lower animals.” In the same spirit, the philosopher Richard Rorty urges that “We should stay on the lookout for marginalized people — people whom we still instinctively think of as ‘they’ rather than ‘us.’” Indeed, we should “keep trying to expand our sense of ‘us’ as far as we can.”
And how do we do that? Rorty’s exhortation suggest that it’s just a matter of will; just keep trying. But that advice underestimates the difficulty Dorothy gives voice to when she chides herself for forgetting she’s no longer in Kansas. Hers is not a failure of memory. Hers is not a failure at all, but the inevitable and blameless consequence of having a consciousness informed by certain assumptions about the classification of items in the world, assumptions that deliver those items already catalogued and labeled, exactly in the manner Darwin labels those to whom sympathy is being extended “lower animals” and drops the adjective “useless” ever so casually, that is, without thinking. Rorty is no less limited (not a criticism, but a description) in his vision of things when he restricts the category of the unjustly marginalized to “people.” What about cats, trees, stones, streams and cockroaches?
The obvious answer to this not entirely frivolous question is, “you can’t think of everything,” and that’s the right answer. Despite imperatives like “broaden your thinking” or “extend your horizons or “widen your sense of ‘us,’” thought is not an expandable muscle that can contain or comprehend an infinite number of things. Thought is a structure that at once enables perception — it is within and by virtue of thought’s finite categories that items emerge and can be pointed to — and limits perception; no structure of thought can enable the seeing of all items, a capacity reserved for God. It follows that when you have a change of mind (of the kind the tree is trying to provoke when it addresses Dorothy) you won’t see more; you will see differently. A system of distinctions (and that is what thought is) will always privilege some categories of being and devalue others, sometimes even to the extent of not recognizing them. And when one system is succeeded by another and new things come into view, some old things will have been consigned to the category of chimera and, except for histories of error, will have vanished from sight. (Thomas Kuhn’s “The Structure of Scientific Revolution” is a primer on the process.)
Another way to put this is to say that changes of mind tend to be local and piecemeal, not systemic. Wholesale conversions like Paul’s on the road to Damascus do occur, but more often a change will affect only a small corner of one’s conceptual universe. After her conversation with the tree, Dorothy may no longer place trees and persons in completely different compartments, but much that she used to think, she will still think.
So what? Say we have been persuaded to the thesis that the things we see and the categories we place them in and the value judgments that come along with those categories are functions of ways of thinking that have their source in culture rather than nature, what follows? Is there a new tool in our arsenal?
Nothing and no are the answers to the two questions. A realization that what we see depends on cognitive structures that could change doesn’t change them. Knowing that there are things you haven’t thought of and couldn’t think of (unless the furniture of your consciousness were transformed) doesn’t give you the slightest hint of what those things might be. The every-thing-is-socially-constructed thesis, however exciting and powerful (or dreadful) it might seem as a revolution in epistemology, cannot itself initiate a revolution in any other realm; it has no political implications whatsoever.
And I say this even though each movement on the intellectual left — feminism, postmodernism, critical race theory, critical legal studies — believes that the thesis generates a politics of liberation. It doesn’t; it doesn’t generate anything. Consciousness-raising has always been a false lure, although changes in consciousness are always possible. It is just that you can’t design them or will them into being; there is no method that will free us from the conceptual limitations within which we make invidious distinctions and perform acts of blindness. The best we can do is wait for a tree to talk to us.
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