Response

Provocation: Everyone is a Philospher!

T.M. Scanlon

Responding to Judge Guido Calabresi, Judge Dennis Davis, Rosalind Dixon, Dieter Grimm, Patrick O. Gudridge, Martha Minow, Margaret Jane Radin, In Tribute: Frank I. Michelman, 125 Harv. L. Rev. 879 (2012)

In the first chapter of his book, Reading Obama, Professor James Kloppenberg offers an account of the intellectual climate at Harvard Law School during the years in which President Obama was here as a student, describing both the influential figures at the school and the writers and ideas they were discussing. Unsurprisingly, Professor Frank Michelman appears prominently on the first list. Surprisingly, Professor John Rawls does not appear on the second list, although one assumes, from Frank’s writing, that Rawls was one of the thinkers Frank was occupied with at the time. More surprisingly, Rawls is the main subject of Kloppenberg’s second chapter, in part because he believes that Rawls’s life and work can be seen as tracing “an arc that characterizes much of American thought in recent decades.” Roughly, or not so roughly, this arc is one that moves from a concern with social justice in the 1960s and 1970s (the time of A Theory of Justice) to a concern in the 1990s (the time of Political Liberalism) with problems of stability and unity raised by deep differences in religion and culture.

There are a number of things that are striking about this suggested parallel. It raises questions about the degree of temporal coincidence between these two movements in thought (Rawls’s and the nation’s) and about whether Rawls’s shift was a response to the alleged shift in national preoccupation. But I was also struck simply by the fact that this was the first time I was aware of a historian treating Rawls as a figure in the history of American political thought. (Always before it had seemed that, from the point of view of intellectual historians, American political thought ended with John Dewey.) But we are growing older. The threshold of history is advancing steadily, and I am sure that soon Frank’s life and thoughts will also be the subject of professional historians’ studies.

This leads to my reason for starting off with Kloppenberg’s hypothesis, which is to ask whether we should also distinguish between the early Michelman and the later Michelman: the early Michelman was concerned with social justice, as in his 1969 Foreword: On Protecting the Poor Through the Fourteenth Amendment, and in his 1973 In Pursuit of Constitutional Welfare Rights: One View of Rawls’ Theory of Justice, while the later Michelman focused on the problem of divergent basic values in society, as in Ida’s Way: Constructing the Respect- Worthy Governmental System and his 2010 Frankfurt lectures, Contract and Common Ground: The Case of Liberty. In what follows, I will raise a question about how we should understand the difference between these two periods of thought, in the course of discussing more general issues about the role of ideas of justice, and the place of intellectuals who have such ideas, in our political and legal lives.

125 Harv. L. Rev. F. 228 (2012) | DOWNLOAD PDF