A Hanging Judge

Philosophy and Literature 26 (2002): 224-38.

Denis Dutton

CORNERING THE MARKET ON CHUTZPAH,” blared the headline on one review, and in tone it wasn’t alone. It’s not often that a book by a public intellectual has received as much media attention—mostly vilification and scorn—as Richard A. Posner’s Public Intellectuals: A Study of Decline (Harvard University Press, $29.95). Three reasons for this stand out. First, there’s the sheer audacity of including a list of the top hundred public intellectuals, drawn from a larger list of 546 names. This invites endless dispute over how the list was generated, who is on it, who is left off, where each one stands, and why. Second, there is the fact that Posner has managed in the book to offend half of the public intellectuals you’d expect to be called on to review it—almost as though he made a list of potential reviewers and worked in a swipe at each. Finally, he has tapped into the deep antipathy humanist intellectuals have to seeing a beloved topic treated quantitatively, with statistics and applications of social and economic theory, replete with graphs and algebraic formulae. And after all, what topic is more beloved by the intellectuals than they themselves? That Posner would actually treat such important people as a demographic type, sorting them in terms of race, age, field, politics, sex—why, he even asks why so many are Jews. It’s outrageous . . . and delicious.

Definitions first. The idea of an intellectual, Posner says, should not be identified merely with having highbrow, cultivated tastes, being especially creative, or having high intelligence. All of these things are possible without being an intellectual, which Posner thinks ought to denote the application of the mind to “political matters in the broadest sense of that word, a sense that includes cultural matters when they are viewed under the aspect of ideology, ethics, or politics (which may all be the same thing).” There is therefore a vague redundancy in the term “public intellectual,” since the placing of ideas in a larger public context, acting as social critic, is what the intellectual most essentially does. In our age of vast communication media, it is also done conspicuously in public, through op-eds, public radio interviews, and on TV clips with the regulation public-intellectual bookcase as a backdrop. This concern with larger moral issues means that for Posner paradigm individuals would therefore include the likes of John Dewey, Bertrand Russell, Hannah Arendt, Arthur Koestler, Edmund Wilson, Susan Sontag, and most powerfully in Posner’s mind, George Orwell: people who write about literature, art, science, and so forth from a broadly political or ideological perspective. For example, when Allan Bloom writes about rock and roll, he is not doing so as a music critic but as a philosopher who sees it as a symptom and source of social degradation. That’s echt public intellectual work (and rather bad work in this particular case, Posner believes). That it is done for a broader public is also a crux for Posner, who leaves John Rawls off his list his list, because as influential as Rawls is as a philosopher, he does not address a larger public in the way that Richard Rorty and Martha Nussbaum do.

The decline referred to in Posner’s title is a decline in the actual worth of public intellectuals’ work, not in their media celebrity, which has grown roughly inversely to the value of what they do. This invidious situation has followed, in Posner’s view, the proliferation of academics in the ranks of public intellectuals. From the nineteenth century, with such names as Thoreau, J.S. Mill, Herbert Spencer, Matthew Arnold, and Tocqueville, to well into the twentieth, with the likes of Max Eastman, Edmund Wilson, H.G. Wells, and Dwight Macdonald, the great tradition of public intellectuals had its life outside of universities. Although there remain nonacademic public intellectuals today—Susan Sontag, Roger Kimball, Tom Wolfe, Gore Vidal—they are a severely diminished species. Universities, which have expanded so enormously in the twentieth century, offer “to anyone who wants to embark on a career as a public intellectual” the requirements for the job: “leisure, credentials, and financial security.” For academics who otherwise keeps their noses to the scholarly grindstone, and even for those who don’t, there is but small cost for entering into the market as a public intellectual, small cost for doing bad work there, and small cost for withdrawing from the market. The media for their part have column space and air time to fill, and they are all too willing to give a platform to public intellectuals to pontificate, predict, warn, scold, handwring, entertain, and occasionally inform their audience.

Posner’s discussion is wide-ranging and digressive, animated by a skepticism that never quite falls into cynicism: dour amusement is more his style than bitter condemnation (besides, since Posner is himself the preeminent public intellectual in the American judiciary, he can ill-afford to dismiss everyone else who is doing what he does). The public intellectual is selling credence good, ideas and arguments that solicit agreement, and therefore demand some kind of authority in order to be accepted. This authority is attained through having academic credentials indicting a high degree of specialized knowledge: being an academic expert in astrophysics, aboriginal peoples of Tierra del Fuego, copyright law, or Latin poets. Since this is accompanied by being “professor” so-and-so at a university, and since the specialty is beyond the grasp of the lay audience, it helps to have one or two further warrants: celebrity and commitment. Celebrity is understood here as an intrinsic value: being familiar face on the television screen or regular name on the op-ed page is a value in its own right. Commitment is perhaps more substantial, and can contribute to both celebrity and authority: it means that the public intellectual has stood behind a cause or position in a way that requires a sacrifice or risk of some kind. Posner mentions eco-catastrophist Paul Ehrlich’s decision to be sterilized after fathering a single child, therefore putting the fight against overpopulation, as he then saw it (about 1970), into his personal life. This commitment seems at least a real, if not major, sacrifice (many people choose anyway to have one child, or none at all, without worrying about world population). On the other hand, Posner treats as fatuous the well-known photograph of Edward Said throwing a stone, risk free, at Israeli soldiers, who were not responding. As risk-takers, public intellectuals like Ehrlich and Said, Posner remarks, “are our Havels and Solzhenitsyns, writ small.”

Commitment and sacrifice are issues Posner alludes to more than once in Public Intellectuals: for the individuals who partake in public-intellectual work in the media today, the performances have the quality of a risk-free lark. I know that in New Zealand the self-image of many an academic is of a brave battler who “speaks truth to power.” In fact, here as in the United States, academics, far from being marginalized outsiders are, in Russell Jacoby’s phrase, “consummate insiders.” They are the very ones with the power—and the security of having well-paid jobs from which they can be fired only with the greatest difficulty. Yet they often flatter themselves that they are lonely Socrates-types, independent seekers of truth, living at the edge. An American example Posner gives is that of Cornel West, who in self-pity calls himself “isolated,” caught between “an insolent American society and an insouciant black community.” Of course, Posner remarks, it doesn’t help his recognition in the black community that this wealthy Ivy-League professor seems more at home talking about Hegel, Gramsci, Lyotard, and Jameson than formulating practical social policy (Posner’s book predates West’s recent rap CD). In any event, most academic intellectuals take no risks whatsoever in expressing conventional left-leaning (or politically correct) views in the public arena, which is undoubtedly part of the reason their pronunciamentos are not regarded with much seriousness by the public.

There is another point Posner makes in connection with public indifference to public intellectuals. The image of the independent outsider calls on the academic to display overt originality—academics are expected to avoid spouting “conventional wisdom.” At the same time, the media find more entertainment value in talking heads that express unusual or jarring ideas of any stripe. The result of these two factors is to drive the opinions of public intellectuals to extremes, or at least to present mostly the extremes, in order to up the drama of public debate. Posner observes: “Because there is no correlation between the originality and the political and social utility of an idea, the academic emphasis on originality, and the superior marketability of extreme positions in the market for public-intellectual work, are frequently at war with the accuracy, utility, and practicality of the academic public intellectual’s predictions and recommendations.” After all, the best sense that might be expressed on a public issue might well turn out to be boring, and boring is not what the media want. The overall effect for public intellectuals’ extreme pronouncements is that they tend to be received with about as much alarm as the predictions of Chicken Little.

This is not a dumbing down that can be laid at the feet the media. As Popper and Kuhn understood, bold, risky hypotheses are, infotainment demands aside, at the heart of great advances in the sciences and scholarship generally. Posner points out, however, that bold and risky propositions are not something that usually have much merit in the realm of the social and political. In fact, it’s the more frequently the reverse: the best public-intellectual work in the past “has consisted in seeing through the big new economic and political nostrums.” In this respect, George Orwell remains exemplary for Posner. Orwell may not have been a genius in the sense of having a prodigious memory, “lightning-fast analytical capabilities, a taste for theory, or bold new ideas.” But he was able to see what was plainly before him and describe it in “unforgettably vivid prose.” “These are not,” Posner dryly adds, “typical academic gifts.” Rather than being captivated by big ideas, Orwell was skeptical of them, especially when there were purported solutions to problems in the public realm. Typical academics, on the other hand, are not oriented toward political reality: “They tend to be unworldly. They are, most of them anyway, the people who have never left school. Their milieu is postadolescent.” They often work alone, without developing the social skills and sensibilities that would give them political insight. Here is how Posner summarizes the academic public intellectual:

A proclivity for taking extreme positions, a taste for universals and abstraction, a desire for moral purity, a lack of worldliness, and intellectual arrogance work together to induce in many academic public intellectuals selective empathy, a selective sense of justice, insensitivity to context, a lack of perspective, a denigration of predecessors as lacking moral insight, an impatience with prudence and sobriety, a lack of realism, and excessive self-confidence. The “on the one hand, on the other hand” approach to politically or ideologically charged issues—the kind of approach that can understand slavery in its historical context, that sees the bad along with the good abolitionists, that seeks a functional explanation to (for us) bizarre practices such as clitoridectomy and infibulation, that acknowledges that Nazis were fervent environmentalists and public-health fanatics, and that Bill Clinton was the consolidator of the Reagan Revolution—this approach is uncongenial to the academic temperament. The typical academic is a Platonist, not an Aristotelian.

In enumerating examples of poor performance by public intellectuals, Posner is devastating. One of his themes is that the public and journalists have a short memory; he remedies this by reminding readers of predictions made by public intellectuals in the past. While there is amusement how often the pontificators have fallen on their faces, Posner’s point is also positive: the quality of public intellectual work might actually improve if better score were kept of their prophetic utterances. His ultimate recommendation of websites to record academics’ predictions might be itself unrealistic (though independent webloggers are beginning to keep track of these things). But surely Posner is right in principle. Tabloid news organizations typically solicit predictions from psychics and clairvoyants at the beginning of the year; almost none will publish a results-rundown at year’s end. If they were to do so, like financial magazines that rate stock funds, it might not stop readers from believing in clairvoyants, but it at least would begin to put paranormal authority in perspective. Posner is only suggesting that we treat our public intellectuals with the same common-sense skepticism. The point isn’t that they will never be wrong—that would be an unreasonable demand. But if we find that they are even less accurate than whatever we’d expect from chance, then we are justified in doubting the value of their opinionizing.

Public intellectuals’ stock-in-trade is prediction. They tend to be trendy in the literal sense that much of what they foretell is extrapolated from trends. Paul Ehrlich’s famously wrong predictions of ecological disaster are good examples of this. Ehrlich backed one of his “coming scarcity” predictions in his famous bet with economist Julian Simon over the price of industrial metals. Ehrlich was relying on the inflation of metal prices in the 1970s; Simon won by taking into account the longer, three-hundred-year downward trend in all commodity prices. In general, those who would extrapolate scarcity from production and consumption trends underestimate the limitless and unknown ingenuity of humans in dealing with problems that become acute (replacements are found for expensive industrial metals, new recovery techniques are introduced, etc.). Ehrlich, who also predicted massive worldwide famine in the early 1980s, where optimistically “only” half a billion people would starve to death, was out of his depth and in any event motivated by a catastrophist ideology.

More curious was the almost complete inability of credentialed experts to foresee the fall of the Berlin Wall and the ultimate end of the Soviet Union. Again, Posner notes, lacking any real grasp of the brittle instability of the Soviet system, the best the experts could do was predict that the future of the Soviet Union would continue as pretty much like its past, i.e., the trend would persist. Safe, it seemed, but spectacularly wrong. Other predictions, from people Posner terms variously Declinists and Jeremiahs, look even more ridiculous. Sociologist Robert Bellah’s predictions of economic disaster for the 1990s seem quaint, as do Lester Thurow’s prognostications about Germany, and especially Japan, overtaking the United States as the economic powerhouses of the twenty-first century. The left-liberal Paul Krugman takes it in the neck from Posner, as does Daniel Bell, who argued for years that in the late twentieth century has-been America would no longer be a “hegemonic” world power, but would be overtaken by a more vital socialism.

But Posner is just as critical of right-wingers. He points to the conservative Jeane Kirkpatrick, who predicted that “communist regimes, unlike right-wing autocracies, would never evolve into democratic societies.” Another conservative commentator on political and economic affairs, Edward Luttwak, proclaimed the Soviet invasion of Afghanistan a success in 1983. He later worried that Gorbachev’s glasnost and perestroika would strengthen the military power of the Soviet Union. In 1992 he predicted that the United States was likely to become a third-world country by 2020, having been overtaken by superpower Japan. Naturally, he predicted that the use of American ground forces in Operation Desert Storm against Saddam Hussein would not be effective, leading to thousands of U.S. casualties. Since Posner’s book was published just before the September 11th terrorist attacks, I regretted that Posner was unable to report on Luttwak’s pronouncements on the recent situation in Afghanistan. But searching the Web, I turned up a Boston Globe article in which Posner recounts some of the absurdities committed by public intellectuals in the aftermath of the attacks, including further bad guesses by Edward Luttwak. The parade of false prophecy marches on, and it’s a pleasure to see a Judge of the Seventh Circuit Court of Appeals standing at the edge of the crowd of spectators throwing spitwads.

Posner analyzes the question of whether public intellectuals pay a price for making erroneous predictions. He takes eight public intellectuals who have been seriously wrong in predictions to see how their media mentions stacked up in 1999 compared to 1989. For his list of false prophets the weighted average increase in mentions was 40%. The damage Edward Luttwak suffered for a decade and longer of wrong predictions and analyses was 44 media mentions in 1989 and 398 in 1999, while Robert Bork, another wrong intellectual, was the only one whose media mentions actually declined. This sounds like no damage at all, except that statistician that he is, Posner sets it against a larger control group of public intellectuals: their weighted average media-mention increase in the same period was 108%. There is a price to be paid, though it is not high.

Why do such modest consequences attach to bum predictions by public intellectuals? Posner suggest that in the first place, public intellectuals’ forecasts are, unlike scientific hypotheses, not intended to be tested. Public intellectuals usually appear in print and on TV screens as representatives of an ideology or stereotyped position—conservatism, welfare liberalism, feminist victimology, libertarianism, and so forth. By representing a position they create public solidarity with it, confirming prejudices of that segment of the audience that already agrees with them. This affects the attitude toward public intellectuals of their ideological confreres: like-minded academics will tend to rally around each other—you’ll not see fellow environmentalists criticizing Paul Ehrlich no matter how daft his forecasts (even when the predictions are alarmist and wrong enough to damage the Green movement). A second reason, as mentioned earlier, is that there is no system by which the predictions of public intellectuals can be collected in one place and evaluated. And finally, Posner adds that the lack of scorekeeping shows that the views of public intellectuals are just not important to most people anyway.

In these respects, Posner’s account of public intellectuals in their relation to audience and media looks to me like a more literate and educated version of what the checkout-line tabloids and women’s magazines do with psychics and clairvoyants. The predictions of these seers are often outrageous prophecies about the doings and sufferings of celebrities, or public disasters of high entertainment value and higher improbability. The predictions are never later on checked or recorded as falsified by the publications in which they appear. Neither do the readers who take an interest in such predictions seem to be concerned with verification or falsification. The interest centers mostly on the amusing character of the prediction itself: NASA scientists will discover the actual Garden of Eden on satellite photos! An infestation of rattlesnakes will make downtown San Diego uninhabitable! Bill Clinton will divorce Hillary in order to marry a black woman—who will turn out to be his cousin! These kinds of predictions are little more than downmarket versions of, to site some instances from Posner and elsewhere and add exclamation points, Residual DDT in the environment will reduce Americans’ average life expectancy by ten years! (Paul Ehrlich in 1970.) Time is on the side of the Soviet Union in its struggle with the West! If there is any hope for us, it lies in the Third World! (Richard Rorty in the 1980s.) The Soviet Union has already won in Afghanistan! (Edward Luttwak in 1983.) The United States is doomed in its war against Saddam Hussein (Robert Fisk in 1991.) The United States is doomed in its war in Afghanistan! (Robert Fisk in 2002.) Japan is destined to become the world’s economic superpower, and will trample United States in the coming century! (Lester Thurow almost any time). And just as Madame Omniscia of the Weekly World News missed Princess Diana’s car crash, the expert Sovietologists missed the fall of the Soviet State.

Beyond questions of prediction, Posner’s argument is arranged around many other digressions on the contributions or foibles of individual public intellectuals. The scattered nature of these digressions is an organizational problem. Carol Polsgrove in The American Prospect was reminded of her grandmother’s attic: “here an elephant table brought home from Africa; there a cuckoo clock.” One reviewer complained of the inclusion of a separate chapter on ethical criticism and one on Orwell and Aldous Huxley. As both of these superb chapters were originally published in the pages of PHILOSOPHY AND LITERATURE in 1998 and 2000, I’m not complaining. Posner also indulges his pet obsessions, particularly the failure of the liberal intelligentsia to appreciate the real nature and magnitude of Clinton’s misconduct in the Lewinsky scandal (Ronald Dworkin is the target here), or to understand the essential issues involved in the subsequent impeachment trial, or to grasp the constitutional legalities and implications of the aftermath of the near-tie vote between Bush and Gore in Florida. These discussions have annoyed many reviewers, and they do have about them a sense of score settling. On the other hand, the book’s more central systematic pretensions have also drawn fire: for instance, using Lexis/Nexis mentions to establish public intellectual notability does produce odd results. Sidney Blumenthal, who happened to be in the White House during the Lewinsky scandal, comes in at number 8, with Jean-Paul Sartre at 64 and John Kenneth Galbraith at 69. But haggling over placements on the list is as pointless as taking it as a wholly reliable tally of who counts intellectually today: the list is derived mechanically to avoid being anybody’s personal preferences. Posner himself comes in at 70, just ahead of Solzhenitsyn and Camus. No one should gripe: he is in fact the most cited sitting judge in the United States.

The chapter on the “Jeremiad School” of public intellectual traces the varieties of public pessimism back to The Education of Henry Adams and Spengler’s Decline of the West. Posner identifies the jeremiad as showing up on both the right and left sides of the political divide, although it is primarily a right-wing phenomenon, where it assumes that (1) the 1950s were America’s last echo of a golden age, (2) the 1960s began the slide into barbarism, that (3) the present is an era of decadence, and (4) the future is bleak. The blame of course rests with modern liberalism and the permissiveness it instilled, along with feminism, multiculturalism, and so forth. Much of the rot is traced back to John Stuart Mill’s On Liberty, while the proof for our fallen (and falling) state derives from “telling anecdote and selective statistic.” Posner says, “Declinist works get much of their rhetorical force from contrasting an idealized past, its vices overlooked, with a demonized present, its virtues overlooked.” His main targets are Gertrude Himmelfarb and Robert Bork, though he cites liberals or leftists such as Robert Putnam (Bowling Alone), Jeremy Rifkind, Christopher Lasch, and even Richard Rorty as falling into the category. Irving Kristol and Jacques Barzun also cop flak.

In many respects Posner has what could be considered conservative political and economic views, but right-wingers of the declinist camp obviously drive him crazy. He begins a pan of Robert Bork’s Slouching towards Gomorrah by pointing out the faulty use of Yeats in the title, which refers to a messiah of some unknown stamp, whereas Bork thinks culture is slouching into unredemptive decadence, which is a rather different notion. The seeds of our decay were already sown by the men who drafted the Declaration of Independence; On Liberty was just a landmark on the slide toward the dreaded 1960s. Posner notes Bork’s idea that “a sign of our decay, our loss of romance and gravitas” was the fact that in World War I soldiers sang into combat, whereas in World War II they wisecracked a lot, and admired informal-nice-guy Eisenhower over stuffed-shirt MacArthur.

Posner objects to Bork’s casual way of using evidence, which, considering that Bork is a former acting attorney general and federal appeals judge, surprises Posner (at least he affects surprise). The worst example of this for Posner is the way Bork chooses to disregard prevailing scientific opinion on evolution and treat creationism as a new shift in science, rather than a rejection of science itself. Part of what makes this so deplorable is that Bork elsewhere in his book is willing to accept what science has to offer when it proves, in Posner’s description, “ineradicable inequalities among people.” This is just another example of the general tendency of public intellectuals to pick and choose among conveniently appropriate scientific theories: “The Left believes steadfastly in evolution and in the statistical evidence linking cigarette smoking to lung cancer and other diseases, but turns skeptical when confronted with the application of the theory of evolution to differences between the sexes and to homosexual orientation, or with statistical evidence indicating differences in intelligence.” (Earlier in the book, Posner had damned the late Stephen Jay Gould’s critique of the concept of IQ in The Mismeasure of Man and in his later attacks on The Bell Curve, by Richard J. Herrnstein and Charles Murray. In fact, Posner shows that Gould and Herrnstein and Murray have much more in common than Gould wanted to admit; their differences are matters of emphasis and degree.) Finally, Posner gives over considerable space to criticizing Bork’s views on abortion, including late-term partial-birth abortions, always as ugly in description as they may be unavoidable in life. Bork is quoted as saying that “the systematic killing of unborn children in huge numbers is a part of a general disregard for human life that has been growing for some time.” But Posner points out that there is nothing “systematic” about it; the government is not requiring abortions, simply permitting them. Moreover, Posner observes, given “his concern for the disregard of human life, Bork might have been expected to discuss America’s continued employment of capital punishment at a time when almost all the nations that we consider our peers have abolished it.” Posner wants to know why capital punishment isn’t as much as sign of cultural callousness for Bork as abortion or assisted suicide. And on Posner goes, pointing out Bork’s comparison of white males in universities with Jews in Nazi Germany (just a shade exaggerated), his call for censorship of the media, and his apparent hope that a “deep economic depression” or maybe a nice “cataclysmic war” could bring about the spiritual regeneration he thinks we so badly need.

Richard Rorty is another public intellectual who suspects that only “a great, huge recession” will lift the veil from the eyes of “the masses” and enable them to see that it’s not bureaucrats who are the enemy, but “the bosses.” An attractive idea, perhaps, though we have only to think of the Weimar Republic to remind ourselves that when you impoverish a people, you can’t always guarantee they’ll vote for the most sensible solution to their problems. (There’s something so charming about prophets who fantasize vast disasters for the world in order that their theories may yet be validated: this is how Jerry Falwell and Pat Robertson came so idiotically to grief on September 11th, and it represents the psychology of many a Green catastrophist, as well as the likes of Bork.) In any event, Posner is more indulgent with Rorty than with other members of the accredited left, since Rorty’s skepticism about principles appeals to him. To call Rorty “our Orwell” is overstatement, as Rorty seems so solidly an establishment insider; but then maybe Orwell could have ended as establishment, had he lived to become wealthy off the royalties of Nineteen Eighty-Four and had snagged a lucrative writer-in-residence post at an Ivy-League college. What makes Rorty our Orwell is that he combines “an unreflective egalitarianism based on sympathy with human suffering and hostility to fat cats with a strong dislike of the unpatriotic Left, and in expressing his views in beautiful prose, at once limpid and passionate.” Nevertheless, Rorty is an academic whose sheltered life has known none of the hardships—war, bad health, poverty, communism and colonialism—that Orwell experienced at first hand. Rorty’s technical philosophy is far beyond the public and his public-intellectual criticism has an unworldly air to it. Posner mentions in particular his criticism of the unpatriotic Left, which he finds commendable, except that what Rorty is attacking “is not the intellectual manifestation of a totalitarian world power but a comical sliver of university life, the raw material for academic novels and fevered conservative denunciation.” The actual Left Rorty commends to us is merely nostalgic, while his view of history is “pessimistic, almost Spenglarian, cursory, and wholly without practical suggestions.” When he does come up with something practical, such as his suggestions about Social Security in an op-ed piece in the New York Times, he gets it wrong in ways that Posner convincingly shows. Richard Rorty may call himself a pragmatist, but that doesn’t mean he has much of anything practical to recommend.

On the other hand, he is refreshingly unprincipled as well, and I think this in the end is why Posner prefers Rorty to the philosopher he uses as a foil for him, Martha Nussbaum. Both are welfarist liberals, but unlike Rorty she is prone to support her opinionizing with references to illustrious dead philosophers such as Aristotle. Posner regards this as a rhetorical ploy to give weight to views that ought to be the province of sociology or economics, areas where, he claims, she has no real competence. It can also get her into trouble, as it did in the Colorado homosexual-rights trial, where she tried to tie her enthusiasm for homosexual rights to her understanding of Greek views of homosexuality. It did not turn out well. Posner analyzes that case, and also makes pertinent remarks on some of Nussbaum’s recommendations to improve the lot of women in the Third World. Always the realist economist, he dissects some of the practical constraints on women’s education in poor countries. Equal education for boys and girls everywhere is an unexceptionable idea in the rich West, but in a poor country where all resources are stretched to the limit, money must come from somewhere to fund extra places in an education system, and the costs have to be weighed against the benefits. It is ghastly to even raise such questions, but ghastly is something Posner is willing to face: what if higher education for some girls means less lower-level education for everyone else, particularly girls and boys at the worst-off levels of society? What about a society that because of economic or customary constraints has little scope for employing better-educated girls, or is structured so that they are needed at home? Posner says that as far as he can see, more education for girls in the Third World is in fact a positive good, especially in affecting birth rates, but he notes that he can arrive at this conclusion without any of the philosophical paraphernalia Nussbaum employs to drive to the same conclusion.

Posner also suggests that the West must at least consider the functional foundations for customs we may well deplore in foreign societies, such as female genital mutilation. Here, as in the earlier discussion of education for girls in the Third World, his short digression on genital mutilation is peppered with footnotes to empirical sociological and ethnographic studies that place the issues in their actual indigenous context. At the end of his paragraph on genital mutilation he even cites a 1992 study by Pia Grassivaro Gallo and Franco Viviani suggesting that in Somalia the practice has a functional use in making women who herd sheep and goats less disturbing to their flocks. Sounds far-fetched to me, but Posner does not endorse the study. His only point is to remind readers that even something as bizarre and repellent as genital mutilation could conceivably have a functional base in a remote culture, and though this may not justify a practice, it could well explain it. (In fact the anthropological literature is strewn with theories to explain the existence of slavery, warfare, or cannibalism in this society or that.) Yet in the TLS review of Posner (January 25, 2002), Thomas Nagel uses this citation as a stick to beat Posner over the head. In criticizing Nussbaum, Nagel says, Richard Posner strikes his “favourite pose, that of the cool realist, immune from sentimental moralism. He is scornful of those who would denounce the subordination of women without considering whether it is ‘functional’ . . . .” Nagel then quotes the passage about female sexual odors in such a way that Posner is made to look as though he approves of the explanation. Little surprise then that not long after the appearance of Nagel’s review, Kenan Malik shows up in the New Statesman (April 22, 2002) with the following: “There is also much here that is as sloppy and as rotten as the arguments of those [Posner] seeks to chastise. Take, for instance, his upbraiding of philosopher Martha Nussbaum for her demand that the practice of female genital mutilation (FGM) be banned. Nussbaum, Posner claims, is not up to scratch with the latest anthropological theory that suggests that FGM plays a functional role in third world societies. ‘It has been conjectured,’ Posner writes, ‘that among Somali herders . . . the practice is designed to reduce the emission of female sexual odors, which are disturbing to the herds of sheep and goats, for which the women are chiefly responsible, and also attract predators.’ One can but take a deep breath and admire Posner’s chutzpah.” So begins, no doubt, a chain of citations which will eventually have Posner cast into the role of would-be mutilator of women, down on the floor, rusty razor blade in hand.

Posner, it should not have to be said, is against female genital mutilation and is in favor of education for Third World girls. He emphatically does not “upbraid” Nussbaum for disapproving of it. At the same time, he thinks it’s unwise for the liberal West to dogmatically or unreflectively apply its standards and norms to remote cultures. What counts as dogmatism here will be open to dispute, but one might have thought that such an open and inquiring attitude was a basic precept of any study that involves cross-cultural evaluation. Posner is not being woolly or amoral or relativist. He is only advising caution in making moral judgments. But he takes his thinking on this issue deeper in remarks he makes about the idea of tragedy in relation to the writing of both Nussbaum and Rorty. He argues that a sense of tragedy is alien to both of them. There is no feeling for the losses that inevitably accompany social gains. Tragedy knows there are no pat solutions to the profound problems that afflict the human condition.

Not to harp on examples raised by Nussbaum, I’ll illustrate the point with an item of personal experience. I have an abiding love and fascination for the arts of New Guinea, especially the carving that comes out of the Sepik river region of northern New Guinea. I’ve gone so far as to do fieldwork among carvers of the Sepik in order to learn for myself a little of their craft and to gain direct familiarity with their indigenous aesthetic values, their ways of judging works of art good and bad. Prodigious carving talent flourishes in those parts of Melanesia, as it has for a long time. And yet, though it is uncomfortable to say it, the quality of Sepik carving is not today what it once was: the extraordinary, haunting carvings collected by early Europeans (uncollected carvings from a century ago have long since perished in the insect-infested tropical Sepik) are a long way from the bland, vapid, kitschy, but technically excellent carvings sold to tourists today. Why? The answer is that the early carvings of New Guinea peoples express the values of a darkly passionate, animist, headhunting society. The intense and deadly culture of headhunting in New Guinea resulted, in my opinion, in some of the most powerful art ever made. Some outsiders, especially Catholic missionaries, have tried with modest success to keep alive the New Guinea carving tradition. But the only way really to recapture the somber spirit of old New Guinea carving would be to bring back headhunting. Now headhunting society, for those who know its practices and history, is one of extreme cruelty and brutality; no one in his right moral mind would seek a return to such barbarity. But there, staring us in the face is the tragedy of the situation: the greatest art of Sepik peoples seems to have been contingent on the existence or organized murder. I offer this simply as an observation; the observation contains no implicit recommendation, and the general point is not unique to New Guinea: if it could be shown that the architectural wonders of the ancient world, the Parthenon, for instance, depended on a slave system, no one would ask for a return to slavery to revive the art. What I think Posner finds lacking in the social programs of Rorty and Nussbaum is any analogous sense that making an indisputably better world can entail losses. Headhunting is terrible, but so the disapperance of headhunting arts. Nevertheless, the colonial powers knew what they had to do for the sake of New Guineans, and the loss of the arts is tragic.

All this talk of tragedy is far from the overall spirit of Posner’s book, which I find infectiously contrarian and enjoyable in its arrogant, odd, admirably upbeat manner. The means that he finds for skewering scholarly pontificators, deflating abstruse theorizing, and knocking puffed-up philosopher-pundits off their perches make Public Intellectuals: A Study of Decline a rare pleasure. I’m not sure where he stands on capital punishment (his critique of Bork’s pro attitude leads me to suspect he’s anti). But when it comes to intellectual pretension, Richard A. Posner is a hanging judge who prefers a short drop: don’t snap the neck immediately—let ’em writhe for a while. And yet, don’t we academics deserve this treatment from such a fearsomely smart and independent thinker? Yes, in the name of justice, we do.

University of Canterbury
New Zealand