Lafayette College has a set of summer readings for incoming students, and the rest of the college community is encouraged to join in by reading and participating in discussions set up for the student orientation in the early fall, before classes begin. This summer, the readings are Elaine Scarry's "The Difficulty of Imagining Other People" and David Shipler's The Working Poor: Invisible in America. So, being a good faculty member, I spent some of my time in the boonies reading them both (more about some of my other summer reading later). Here some thoughts on Scarry.
First some minor points. Let's leave aside frequent annoying use/mention confusions. Scarry begins by suggesting that the way we "imagine" -- or, sometimes, the way we "picture" -- others determines, at least in part, the way we act towards others. I find this terminology very unhelpful. I would've thought that a necessary condition for imagining, at time t and place p, x's being involved in situation S, is that one doesn't at that time and place perceive x's being involved in situation S. Thus, in the example of imagining a friend that Scarry cites from Sartre, Sartre
asks us to perform the concrete experiment of ... actually stopping, closing our eyes, concentrating on the imagined face of a friend or a familiar room, then opening our eyes and comparing its attributes to whatever greets us when we return to the sensory world.This vocabulary of "imagining" or "picturing" is tied to a further difficulty with Scarry's discussion. When in the mid-20th century white America began in practice to cede to African Americans the rights they had been guaranteed by the 14th and 15th Amendments to the Constitution, they did not imagine that African Americans were human beings and American citizens deserving of rights to life, liberty and property substantively equal to those of other Americans; rather, they recognized this fact, and none too soon.
A further minor point involves Scarry's contention that
The action of injuring others occurs precisely because we have trouble believing in the reality of other persons. At the same time, the injury itself makes visible the fact that we cannot see the reality of other persons. It displays our perceptual disability. For it other persons stood clearly visible to us, the infliction of injury would be impossible.Let's interpret Scarry charitably here to mean that injuring others occurs because we can't believe in the reality of other persons qua persons. This still doesn't make her thesis plausible. Indeed, short of simply defining a sense of believing in the reality of others qua persons according to which a necessary condition of such belief is that one doesn't injure them, Scarry's statement here seems obviously false. (If I remember correctly, a similarly implausible thesis was at the basis of her flawed The Body in Pain.) One quick and dirty example: akrasia. I could believe in the reality of a loved one as a person, know that engaging in a certain action would involve injuring that loved one, not want to injure that loved one, and nevertheless engage in the action, knowing it will injure the loved one, through weakness of the will.
Enough minor points. The main thesis of Scarry's essay is this: "The work accomplished by a structure of laws cannot be accomplished by a structure of sentiment. Constitutions are needed to uphold cosmopolitan values." That is, according to Scarry, without ignoring the importance of sympathy and empathy in accepting others into the ambit of our community, nevertheless constitutional provisions must have preeminence in achieving a society capable of maximizing rights and liberties for all of its citizens.
In order to support this thesis, Scarry asks us to consider the following example:
Picture ... a town in which third-generation light-skinned residents can vote but third-generation dark-skinned residents cannot vote. The light-skinned residents -- through goodwill and large-mindedness -- take into consideration, before they vote, the position of the dark-skinned residents. ... Now contrast this with a situation in which the dark-skinned third-generation residents are citizens and vote for themselves. Light-skinned residents no longer need to act on behalf of the others. Because a constitutional provision enables each group to act on its own behalf, no group any longer occupies the legal position of the other. Even if we stipulate that in the first solution the light-skinned third-generation residents act with maximum generosity and largesse, the second solution is obviously much stronger.This is an absolutely abysmal example. In order to provide an example supporting her point, Scarry would have to provide two cases, similar in all other respects, in which the mere fact of constitutional codification of the situation resulted in one case being preferable to the other. In Scarry's example, however, the second of the two cases contains a significant substantive good lacking in the first case, namely universal enfranchisement. Thus, Scarry's example clearly does nothing to clarify the status of structures of sentiment vs. structures of law.
One might, in Scarry's defense, argue that, although the mere fact of constitutional codification of a given set of rights and liberties does not constitute some intrinsically valuable further good above those of the rights and liberties so codified, nevertheless, given the impermanence of human sentiment, the codification of rights and liberties in structures of law is instrumentally valuable, in that it guarantees those rights and liberties against human frailty.
Would that this were so! As the Supreme Court decision of Bush v. Gore recently demonstrated, constitutionality, stare decisis and judicial philosophy seldom stand in the way of a judge and his, or her, human, frail prejudices (for a breezy read providing a strong discussion of the ways in which the majority decision involved a violation of the previously established judicial philosophies of the members of the majority, see Dershowitz's Supreme Injustice). One might argue that, since Scarry wrote her article in 1993, her fetishization of constitutionality is more excusable -- Bush v. Gore had not yet been decided (although, in a very real sense, it had already been decided, since all of the members of the majority in that decision had, by that time, already been appointed).
Even a cursory study of the U.S. Supreme Court, however, shows that the progressive courts so beloved by liberal academics were really a brief interlude in the larger history of the Court. Thus, in a debate with the future associate justice Louis Brandeis before the Economic League on December 4, 1902, Samuel Gompers, leader of the AF of L, complained
What chance have labor and the laborers for fair play when the whole history of jurisprudence has been against the laborer? There never was a tyrant in the history of the world but who found some judge to clothe in judicial form the tyranny exercised and the cruelty imposed on the people. (Quoted in Strum, Louis D. Brandeis: Justice for the People, 105)Gompers could've been forgiven for thinking of the courts so uncharitably, since, by that time, they had already begun hijacking the 14th Amendment and using its due process clause to protect business against labor, having already failed to use its equal protection clause to protect freed slaves from white bigotry.
Indeed, anyone who, like Scarry, is tempted to fetishize constitutions and to see in the Supreme Court as an institution a protection of liberties against human frailty need only look at the sorry progression of disenfranchisement and marginalization of African Americans after the ratification of the 14th and 15th Amendments, reaching a low point with the 1896 Plessy v. Ferguson decision which stamped the "separate but equal" doctrine with the approval of the Supreme Court, continuing even into the 1920's, when the Court -- with Brandeis as a sitting justice -- upheld private restrictive covenants and "separate but equal" education (in Gong Lum v. Rice (1927)). On this history of the perversion of the constitutional guarantees enshrined in the 14th and 15th Amendments, see Richard Kluger's outstanding Simple Justice.
What's the hard-won upshot of all of this, other than that Scarry is wrong? It is that strengthening sympathy and empathy, and engaging in the hard, slow building of local legislative majorities on the basis of such sympathy, seems the best way to ensure rights and liberties for all citizens.