Tuesday, January 28, 2020

"The Public's Law" Symposium: Rosenblum Comments

[This is the second of three posts from an "author-meets reader" session on Blake Emerson's The Public's Law, held at the American Society for Legal History at its annual meeting on November 22, 2019.  My summary of the book on that occasion is here.  Below is a slight revision of the comment Noah A. Rosenblum delivered at session.  Mr. Rosenblum is a Ph.D. candidate in history at Columbia University and a Program Affiliate Scholar at the NYU School of Law.  DRE.]

Blake Emerson's The Public's Law is a significant intervention that deserves the attention of legal historians in particular.  It was born as a dissertation in political theory.  But we should not hold that against it.  Except for its last chapter, the work is completely given over to history.  Although framed as a normative argument of historical recovery, it intervenes in two important historical debates of special interest to our community.  First, The Public's Law suggests a new dimension to the world of "Atlantic Crossings" in the late 19th and early 20th century that intellectual historians like James Kloppenberg and Dan Rodgers helped frame nearly 30 years ago.  And second, it contributes to ongoing conversations about how we understand the nature and development of the administrative state-and so speaks to both political historians interested in the history of the Progressive Era, the New Deal, and the Civil Rights years, and legal historians writing the new history of administration and administrative constitutionalism.  I'll have more to say about these historiographical interventions later.  For now, I just want to hammer on this book's relevance for legal history.  The Public's Law is more explicit about its normativity than most historians like.  And, because of the disciplinary divisions of the academy, it comes dressed up as a book that's more for philosophers or lawyers.  But it is decidedly a book that intellectual, political, and legal historians will have to grapple with.

I'd like to focus this contribution on three specific arguments advanced in The Public's Law.  Ernst's post has already explained how Emerson traces the way German Hegelianism worked its ways into the thought of leading Progressive reformers, and, through them, into some of the basic structures of American government.  I want to zero-in on three moments in this progression, and highlight how the argument advanced in The Public's Law challenges our received understandings: (1) first, its account of the meaning and ramifications of Hegelianism, (2) second, its description of the legacy of the Hegelian reception in the United States, and (3) third, its reading of the New Deal and the Civil Rights reforms.

So let's start with Hegel, that great American political philosopher.  The ursprung of The Public's Law is in Hegel's legal philosophy.  Emerson suggests that a dominant reading of Hegel is simply mistaken.  In certain corners of the academy and public discourse, it is an article of faith that Hegel's state-theory has an elective affinity--if not more--with totalitarianism, the total subjugation of the individual to the state.  The Public's Law re-reads Hegel's Elements of the Philosophy of Right to show that this is untenable.  Far from subordinating the individual, Der Staat, in Hegelian state theory, exists to help set the individual free.  The problem Hegel recognizes is that, without the state, people in society cannot be free.  They might not have the resources to actually realize their freedom.  They might be enmeshed in social relations that fail to leave space for their agency.  For them to be free, these roadblocks to freedom need to be identified and removed.  To put it in more Hegelian language--which, to be clear, The Public's Law studiously avoids, but we're among friends on the blog, we can use some jargon here, right?--the pathological oppositions between individuals must be aufgehoben-overcome, sublated, integrated and canceled, subsumed into a higher harmony.  The state is the entity that allows for that aufhebung.  The law is a vehicle for and the externalization of that reconciliation, setting the boundaries and erecting the structures that allow for Real Existing Human Freedom.  The state's servants-its bureaucrats and administrators, who elaborate and apply the law-are the agents that help bring that reconciliation about.  They mediate between the "universality" of legislation and the "particularity" of individuals in their specific situations.

Importantly, this freedom is a kind of liberal freedom.  As reconstructed by The Public's Law, Hegel's was not a dream of perpetual public engagement.  His goal was a world of free people, going about their regular, bourgeois lives.  Hegel's fundamental public law insight was that, to realize this freedom, people needed a bureaucratic state to help harmonize society according to universal rules of right reason.  And although his argument was initially framed in the midst of 19th century German political debates about the limits of monarchical power, it transcended its context.  Emerson shows that Hegel's position-that freedom required an activist state-was taken up by his public law successors in Germany, like Rudolf von Gneist and Lorenz von Stein, by his critics, like Karl Marx, and, importantly for the story that follows, by Americans who read and studied Hegel, like John Dewey.

This takes me to the second specific argument of Emerson's I want to focus on: the reception of Hegelianism in the United States.  Of course, it's not news that Progressive Era intellectuals had deep familiarity with European thought, and German social and political theorists in particular.  As Mark Peterson has recently shown, American intellectuals have had a "special relationship" with centers of German learning since long before the Civil War, and leading progressive intellectuals pursued higher education from German universities throughout the late 19th and early 20th century.  When those intellectuals helped build the modern American university and scholarly community, they did so on the basis of German models and ideas.  But, while the general fact of German influence on American intellectual life has been well known, not much attention has been paid to the specific influence of Hegel in particular.  Yes, scholars of John Dewey were familiar with the "Hegelian deposit" he claimed his teachers and studies and had left in his mind.  But it was news to me, anyway, that Dewey was not unique.

The Public's Law argues that Hegelianism was a widespread strand of Progressive Era thought.  Emerson shows how a coterie of thinkers, from W.E.B. Dubois to Woodrow Wilson, were shaped by Hegelian influences.  The red-thread tying them together, for Emerson, is their recognition of the social conditions of freedom, to be guaranteed by the state-what I earlier called the fundamental Hegelian insight.  The conditions of social life in late 19th and early 20th century America were different from those in mid-19th century Germany, and the basic legal and political problems were different too.  But American thinkers similarly faced social arrangements that made Real, Actualized individual freedom an impossibility.  For that reason, Hegel's activist, bureaucratic state offered a solution to their problems too.

How that solution was implemented takes up The Public's Law's third chapter.  Ernst has already summarized it, and I commend to you all Emerson's fine institutional analysis about some overlooked agencies of our administrative regime.  I would like to pause here to observe only that Emerson takes a strong position that we can understand some of the key administrative innovations of the New Deal and Civil Rights Era as having been informed by the traditions of Hegelian Progressivism that he has reconstructed.

This takes me to what I see as one of the two major historiographical interventions The Public's Law effects.  It argues for a coherent, institutionally effective vision of administration, at work in at least one strand of American administrative design.  This is a bolder argument than it sounds.  The dominant story about the history of the administrative state has focused on the way particular agencies and state capacities have been built out in response to particular, salient social problems: an issue emerges; people organize around it; eventually we get an agency that deals with it.  Rinse, repeat.  Emerson suggests this is only part of the story.  In fact, administration was also seeking to realize a more global vision.  A strand of American institutional development emerged from the idea-and with the goal-that the state could set us free.

The second powerful historiographical intervention of the book is to point out how deeply rooted this tradition was.  It may have come from Europe.  But by the early 20th century it was firmly ensconced in the thought of leading American political and legal thinkers.  The right way to understand a key, influential strand of American Progressive thought, then, is not as a via media between communism and capitalism, or a pragmatic adaptation of European socialism, or a negotiated settlement between a tradition of vested common law rights and continental droit administratif, but rather something wholly different and distinctive: Hegelianism, pure and simple.

I think both of Emerson's interventions are rich and thought-provoking, and should open new avenues for research even as they push those of us working in the field to revise our received understandings.  Of course, scholars will find reasons to argue with the story The Public's Law tells.  But rather than challenge its conclusions, I would like to close by pushing Emerson a little on how far he sees his argument reaching, and the choices he made in putting it together.  To that end, three brief questions.

Let's start again with Hegel.  I am board with the idea that Hegel had a major influence on German thinking about public law, and that some leading American intellectuals read and were influenced by Hegel's thought.  But, in The Public's Law, Hegelianism is often reduced to the single insight that freedom has social conditions.  And I wonder what's left of Hegeliansim when we make it so specific.  After all, as Emerson knows better than most, Hegel was a capacious thinker.  His public law theory was only one small part of a massive system that included a very influential theory of history.  His was also a deeply metaphysical philosophy.  In The Public's Law, that metaphysics mostly drops out.  Is it fair to call Progressives like Mary Follet "Hegelian," when none of them subscribed to Hegel's metaphysics? And to what extent can we understand German administrative state theory and Hegel's successors and critics without grappling with the way that Hegel's theory of freedom fit into a comprehensive, totalizing system? The sneaking suspicion: given how thin "Hegelianism" here can be, are we sure these thinkers are best characterized as "Hegelian," since the basic idea that man needs government to help set him free under conditions of modernity is hardly limited to Hegel.

This takes me to my second question: how we should think about the meaning and influence of Hegel's understanding of freedom.  In Hegel's system, the synthetic unity of the state is closely connected to the spirit of the people that it embodies.  The individuals should be free, sure.  But that freedom itself is necessitated by Geist-is a single moment in the progressive realization of the world spirit, which ties together the individual, the people and the state.  That volkish tendency helps explain why Hegel could be a refuge for nationalists, or worse.

It is for this reason that I am puzzled by The Public's Law's attempt to separate out Wilson's racism and-Progressivism's occasionally ugly organicism-from Hegelianism.  As we know, race-thinking of different kinds played a major role in the thought and political work of many Progressives, just as it did for Hegel and his successors.  And while that thinking could take a universalist turn-in the hands of Feuerbach or Marx, to think of Hegel's successors, or I suppose Dewey to think of American Progressives-it didn't have to.  We can argue about whether we can successfully hive off this race thinking in a project of rational reconstruction-I think The Public's Law suggests very successfully that we can.  But I want to stay in the realm of historical transmission for a moment.  Did Hegel's race thinking cross the Atlantic along with his understanding of freedom? Why or why not? What about the thought of Hegel's successors and critics? Many challenged his understanding of freedom as not sufficiently emancipatory.  Did their analyses cross the Atlantic as well? More generally, I would like to invite Emerson to reflect on what aspects of the Hegelian tradition did or didn't find their way to American shores, and how he sees them interacting with the strands of Progressive thought we are more familiar with-it's business-mindedness, for example, or regulated-capitalist mindset.

This points me to a final provocation-about the role of ideas in history.  The Public's Law moves between ascribing Hegelian thinking a causal force, and suggesting that certain institutions can be read through a Hegelian lens.  This is most visible in Emerson's discussion of the institutions of progressive administration, where he argues that some of the New Deal Era agencies were directly informed by Hegelian Progressivism, while merely suggesting that the Second Reconstruction agencies are fruitfully understood in their reflected light.  What causal force do Emerson mean for Hegel to have here? As we all know, there were many pressures on the design of agency institutions in these years.  High philosophy is not usually thought to be one of them.  Does Emerson mean to be adopting a kind of ideal theory of history, in which Hegel's ideas about freedom and government are working themselves out through a progressive realization over time, in the United States, the land of the future? Is this a Hegelian story about Hegelianism? What is the implicit understanding about the causal role of ideas in history at work in this book?

The questions are friendly, I promise.  I found the book tremendously enlightening.  And I strongly suspect that other scholars working on administrative law, in legal history, and in intellectual history will feel the same way.

--Noah A. Rosenblum

[Professor Emerson's response is here.]