Justice and elegance for hedgehogs - In life, law, and literature

Boston University Law Review

Volumn 90, Issue 2, 2010, Pages 863-902

  McClain, Linda C ^a,b  

^a Department of Law ^*  (United States)

^b BOSTON UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 77954338333     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (284)

1. MURIEL BARBERY, THE ELEGANCE OF THE HEDGEHOG (Alison Anderson trans., Europa Editions 2008) (2006).
2. As I edit this Article, the novel has been on the New York Times Paperback Best Sellers list for over a year. Paperback Best Sellers: Fiction: Trade, N.Y. TIMES, Feb. 21,2010, §BR, at 20 (ranking The Elegance of the Hedgehog in the top twenty for over a year).
3. Normative and legal pluralism remain topics of intense interest in social and political life and in law and the legal academy. See generally, e.g., WILLIAM A. GALSTON, LIBERAL PLURALISM (2002);
4. Brian Z. Tamanaha, Understanding Legal Pluralism, 30 SYDNEY L. REV. 375 (2008).
5. For example, on recent diagnoses of "values polarization" in the United States and its relationship to value pluralism, see Linda C McClain, Red Versus Blue (and Purple) States and the Same-Sex Marriage Debate: From Values Polarization to Common Ground?, 77 UMKC L. REV. 415,415-20 (2008).
6. RONALD DWORHN, JUSTICE FOR HEDGEHOGS (forthcoming 2010) (Apr. 17, 2009 manuscript at 7-15, on file with the Boston University Law Review).
7. Isaiah Berlin, The Hedgehog and the Fox, in RUSSIAN THINKERS 22, 22 (Henry Hardy & Aileen Kelly eds., 1978).
8. DWORHN, supra note 3 (manuscript at 76).
9. Id. (manuscript at 76-77).
10. See, e.g., RONALD DWORKIN, IS DEMOCRACY POSSIBLE HERE? 7 (2006);
11. RONALD DWORKIN, LIFE'S DOMINION: AN ARGUMENT ABOUT ABORTION, EUTHANASIA, AND INDIVIDUAL FREEDOM 9-23 (1993)
12. [hereinafter DWORKIN, LIFE'S DOMINION].
13. For my assessment of these works, see, for example, McClain, supra note 2, at 420-37 (evaluating Is Democracy Possible Here?);
14. Linda C McClain, Toleration, Autonomy, and Governmental Promotion of Good Uves: Beyond "Empty" Toleration to Toleration as Respect, 59 OHIO ST. LJ. 19,95-100 (1998) (evaluating Life's Dominion).
15. DWORHN, supra note 3 (manuscript at 10-11).
16. See id. (manuscript at 79-109).
17. Id. (manuscript at 252-58). Political morality and rights receive a bit more attention, but here, Dworkin urges the reader to incorporate by reference his previous writings. Id. (manuscript at 208).
18. See supra text accompanying note 1.
19. As it turns out, more than I initially thought; this comparative project would look quite different if I had first happened upon HUGH WARWICK, THE HEDGEHOG'S DILEMMA: A TALE OF OBSESSION, NOSTALGIA, AND THE WORLD'S MOST CHARMING MAMMAL (2008).
20. BARBERY, supra note 1, at cover (citing ELLE (Italy)).
21. Caryn James, Thinking on the Sly, N.Y. TIMES, Sept. 7,2008, §BR, at 23.
22. DWORKIN, supra note 3 (manuscript at 8).
23. T.M. Scanlon, Partisan for Ufe, N.Y. REV. BOOKS, July 15, 1993, at 45
24. (reviewing DWORHN, LIFE'S DOMINION, supra note 7).
25. In previous work, Dworkin argued that "we can improve our understanding of law by comparing legal interpretation with interpretation in other fields of knowledge, particularly literature." RONALD DWORKIN, A MATTER OF PRINCIPLE (1985).
26. See, e.g., BARBERY, supra note 1, at 59; DWORKIN, supra note 3 (manuscript at 11).
27. Interview by Virginia Musumeci with Muriel Barbery (Apr. 15, 2008), http://www.bookbrowse.com/author-interviews/full/index.cfm?author-number=1656 (quoting Barbery).
28. DWORKIN, supra note 3 (manuscript at 144).
29. Dworkin discusses how self-blame featured in the life of Sydney Carton (from Charles Dickens's A Tale of Two Cities): he blamed himself for living a bad life out of "weakness and indolence," and "until his redemption, drank his life away beside the winding sheet in his candle."
30. Id. (manuscript at 126,129). However, Carton also managed to redeem his life "because an extraordinary coincidence made it possible for him to do a far, far better thing than he had ever done."
31. Id. (manuscript at 131).
32. Id. (manuscript at 144).
33. Id.
34. Id. (manuscript at 129).
35. Id. (manuscript at 129,162).
36. Id. (manuscript at 129).
37. Id. (manuscript at 174).
38. Id.
39. See, e.g., id. (manuscript at 166) ("Someone - not you - might say: it is no reason to choose one set of interpretations of our principles that we avoid conflict by doing so.").
40. Id. (manuscript at 139).
41. Id.
42. Martha Minow, Stories in Law, in LAW'S STORIES: NARRATIVE AND RHETORIC IN LAW 24,36 (Peter Brooks & Paul Gewirtz eds., 1996).
43. Id. at 33.
44. Id. at 33-34.
45. Id. at 35.
46. Id.
47. See Ronald Dworkin, Keynote Address: Justice for Hedgehogs, 90 B.U. L. REV. 469 (2010).
48. In support, see generally C Edwin Baker, In Hedgehog Solidarity, 90 B.U. L. REV. 759 (2010);
49. for a critique, see Martha Minow & Joseph Singer, In Favor of Foxes: Pluralism as Fact and Aid to the Pursuit of Justice, 90 B.U. L. REV. 903 (2010).
50. Berlin, supra note 4, at 22.
51. Id.
52. This usage of the hedgehog as monist, or pursuing one big thing, is popular. An internet search revealed, for example, a journal on contemporary culture. The Hedgehog Review, with each issue addressing a single theme, and The Hedgehog Blog: Political and Social Observations from Two Aspiring Hedgehogs Who Love the Isaiah Berlin Essay, which evaluates politicians based on whether they focus on a few big things or on lots of details.
53. HEDGEHOG REV.: CRITICAL REFLECTIONS ON CONTEMP. CULTURE, http://www.vtfgima.edu/iasc/pubhcations-hedgehog-review.php(last visited Mar. 7, 2010);
54. Hedgehog Blog, http://hedgehogcentral.blogspot.com(last visited Mar. 7, 2010). Motivational speaker Jim Collins offers a video series, "The Hedgehog Concept," promising to help people and businesses find their "personal hedgehog."
55. Jim Collins, The Hedgehog Concept, http://www.jimcollins.com/media- topics/hedgehog-concept.html (last visited Mar. 7, 2010).
56. In an editorial, Peggy Noonan invoked Berlin's distinction to criticize President Obama, early in his term, for seeming neither a fox nor a hedgehog. Peggy Noonan, Editorial, Neither a Hedgehog nor a Fox, WALL ST. J., Mar. 21,2009, at Al 1.
57. Berlin, supra note 4, at 22.
58. DWORHN, supra note 3 (manuscript at 76-77).
59. Id. (manuscript at 7).
60. Id.
61. Id. (manuscript at 15). The hedgehog's holism extends to rejecting many other apparent tensions or binaries, for example, between positive and negative liberty and between liberty and equality. Id. (manuscript at 230-31). Some of Dworkin's arguments for unity or a common set of principles recapitulate assertions in his earlier work; some are new. Engaging with these arguments is outside the scope of this Article.
62. Id. (manuscript at 259).
63. Id. (manuscript at 260).
64. Id. (manuscript at 10).
65. Id. (manuscript at 126).
66. Id. (manuscript at 166).
67. Id.
68. Id. (manuscript at 9).
69. Id. (manuscript at 70).
70. Id. (manuscript at 70,76).
71. Id. (manuscript at 71).
72. Id.
73. Id. (manuscript at 260).
74. Id.
75. Id. (manuscript at 11).
76. SeCInZr-PaTtILB.!.
77. BARBERY, supra note 1, at 19.
78. Id.
79. Id.
80. Id. at 21.
81. Id. at 144.
82. Id. at 143.
83. National Geographic, Hedgehog: Erinaceus Europeaeus, http://animals. nationalgeographic.com/animals/mammals/hedgehog.html (last visited Sept. 22,2009).
84. Berlin, supra note 4, at 22.
85. DWORHN, supra note 3 (manuscript at 76-77).
86. Id. (manuscript at 11).
87. BARBERY, supra note 1, at 135.
88. Id. at 135, 173.
89. Renée's love of Tolstoy novels provides another curious linkage between Berlin's essay and Barbery's novel. Berlin originally subtitled bis essay, "An Essay on Tolstoy's View of History." ISAIAH BERLIN, THE HEDGEHOG AND THE FOX: AN ESSAY ON TOLSTOY'S VIEW OF HISTORY (1953).
90. It is to certain scenes in Anna Karenina that Renée's mind turns at crucial times as she reflects on the meaning of life. See BARBERY, supra note 1, at 122-24.
91. DWORHN, supra note 3 (manuscript at 156).
92. Id. (manuscript at 160).
93. Id. (manuscript at 144).
94. BARBERY, supra note 1, at 45 ("[H]as one ever seen a girl raised in poverty penetrate the headiness of language deeply enough to share it with others?").
95. Id.
96. Id. at 47.
97. Id. at 46.
98. Id.
99. Id. at 54.
100. DWORHN, supra note 3 (manuscript at 11).
101. BARBERY, supra note 1, at 253.
102. DWORHN, supra note 3 (manuscript at 199).
103. Id.
104. By contrast relational feminist thought and feminist philosophy about relational autonomy stress the vital importance of relationships to the development of self. However, feminist analysis also recognizes the harms that relationships may produce and that someone who is vulnerable because of a relationship of dependency may be neglected, instead of receiving care and love, or, worse, be subject to abuse and domination.
105. See, e.g., ROBIN WEST, CARING FOR JUSTICE 2 (1997);
106. Linda C McClain, The Uberal Future of Relational Feminism: Robin West's Caring for Justice, 24 LAW & Soc. INQUIRY 477,478 (1999) (book review). An interesting commonality here between Dworkin's and feminists' analyses is that relationships may both foster and threaten dignity.
107. DWORHN, supra note 3 (manuscript at 160).
108. Id.
109. BARBERY, supra note 1, at 288.
110. Id. at 309.
111. Id. at 311.
112. Id. at 319.
113. Id. at 289 ("Madame Michèle ... you know, you are giving me hope again .... [I]t seems it might be possible to change one's fate after all.").
114. DWORKIN, supra note 3 (manuscript at 17-63). Describing and evaluating Dworkin's arguments about forms of skepticism are tasks outside the scope of this Article. As a law professor, not a trained philosopher, I leave that task to others, including participants in this Symposium. My purpose in noting them is to relate them to the skepticism of the main characters in The Elegance of the Hedgehog.
115. Id. (manuscript at 19).
116. Id. (manuscript at 77).
117. Id. (manuscript at 66).
118. Id. (manuscript at 76).
119. Id. (manuscript at 106).
120. Id.
121. See id. (manuscript at 107).
122. BARBERY, supra note 1, at 19.
123. Id.
124. DWORHN, supra note 3 (manuscript at 58).
125. BARBERY, supra note 1, at 107.
126. Id.
127. Id. at 101.
128. Id. at 100.
129. W. at 100-01.
130. Id. at 108.
131. Id. at 107.
132. Id. at 294.
133. Id. at 295.
134. Id. at 23.
135. DWORKIN, supra note 3 (manuscript at 58).
136. Id. (manuscript at 63).
137. BARBERY, supra note 1, at 22.
138. Id.
139. Id. at 23. Paloma refers here to a haiku she formulates: "Follow the stars/In the goldfish bowl/An end."
140. Id. Paloma expresses each of her "Profound Thoughts" in the form of a Japanese poem, either haiku (three lines) or tanka (five lines).
141. Id. at 26.
142. Id. at 24.
143. Id. at 27.
144. Id. at 238.
145. Id. at 51-52, 78-79, 166-67.
146. Id. at 38.
147. Ronald Dworkin, Foundations on Uberal Equality, in 11 THE TANNER LECTURES ON HUMAN VALUES 1 (Grethe B. Peterson ed., 1990).
148. BARBERY, supra note 1, at 38.
149. Id. at 37-38.
150. Id. at 268.
151. DWORKIN, supra note 3 (manuscript at 124).
152. Id. at 125.
153. BARBERY, supra note 1, at 97.
154. Id. at 97.
155. Id.
156. Id. at 98.
157. Id.
158. See Dworkin, supra note 3 (manuscript at 11);
159. supra Part Il.A.1.
160. BARBERY, supra note 1, at 54.
161. One might see parallels between this inversion of values and Nietzsche's idea of the transvaluation of values. However, Nietzsche was contemptuous of the resulting "slave morality," as evidenced in FRIEDRICH NIETZSCHE, ON THE GENEALOGY OF MORALITY (Keith Ansell Pearson ed., Carol Diethe trans., Cambridge Univ. Press 2007) (1887). Barbery, by contrast makes Renée's perspective on the world more sympathetic than that of her "betters." The discerning person perceives royalty and divinity where others see inferiority and insignificance.
162. BARBERY, supra note 1, at 31.
163. Id. at 32.
164. Id.
165. Id.
166. Id.
167. Id. at 32-33.
168. Id. at 144.
169. Id. at 227.
170. Id. at 267.
171. Id. at 37-38.
172. Id. at 54-55.
173. Id. at 58.
174. Id. at 55.
175. Id. at 54-55.
176. Id. at 58. Why? For one thing, phenomenology finds "ontological dignity" in our "reflective consciousness," "the only entity we have that is worth studying, for it saves us from biological determinism."
177. Id. at 59. But she concludes: "No one seems aware of the fact that, since we are animals subject to the cold determinism of physical things, all of the foregoing is null and void."
178. Id.
179. Interview by Laura Lamanda with Muriel Barbery (Aug. 25, 2007), available at http://www.bookbrowse.com/author-interviews/full/index.cfm7author-number- 1656 ("I followed a long, boring course of studies in philosophy. I expected it to help me understand better that which surrounds me: but it didn't work out that way. Literature has taught me more.").
180. BARBERY, supra note 1, at 53.
181. Id.
182. Including those of the author. Evidently, one catalyst for this book was an observation by Barbery's editor. In her previous book, Gourmet Rhapsody, Barbery had Renée speaking "in a way that was extremely crude, stereotypical," "a caricature of a concierge," but her editor observed: "You're a novelist, anything is possible; your concierge could just as well express herself like the Duchess of Guermantes." Interview by Elizabeth Floyd Mair with Muriel Barbery (Apr. 24, 2009), available at http://blog.timesunion.com/books/interview-with-muriel-barbery/1349.
183. See Catharine A. MacKinnon, Feminism, Marxism, Method, and the State: Toward Feminist Jurisprudence, 8 SIGNS 635, 638 (1983).
184. See, e.g., SUSAN MOLLER OKIN, WOMEN IN WESTERN POLITICAL THOUGHT (1979);
185. CAROLE PATEMAN, THE SEXUAL CONTRACT (1988).
186. One example is the Equal Protection litigation pioneered by Ruth Bader Ginsburg, which persuaded the Supreme Court that gender-based differentiation between citizens should receive intermediate scrutiny and be based on an "exceedingly persuasive justification." See Justice Ginsburg's account of this standard in United States v. Virginia, 518 U.S. 515, 531 (1996). For just a few of the many pioneering works in feminist legal theory on these issues,
187. see FEMINIST LEGAL THEORY (Frances E. Olsen ed., 1995);
188. MARTHA ALBERTSON FINEMAN, THE ILLUSION OF EQUALITY (1991);
189. CATHARINE A. MACKINNON, TOWARD A FEMINIST THEORY OF THE STATE (1990);
190. MARTHA MINOW, MAHNG ALL THE DIFFERENCE (1990);
191. Sylvia A. Law, Rethinking Sex and the Constitution, 132 U. PA. L. REV. 955 (1984);
192. Christine A. Littleton, Reconstructing Sexual Equality, 75 CAL. L. REV. 1279 (1987).
193. DWORKIN, supra note 3 (manuscript at 90-91). I am not taking up this aspect of Dworkin's book in this Article. He gives an odd example of feminist critiques of Disney and popular culture for sex stereotyping, but his basic point seems sound: feminist critical interpretations aim to expose "sexist roots and hidden influences" in popular culture.
194. Id. (manuscript at 92). Dworkin previously noted the advent of feminist interpretation and criticism in A Matter of Principle.
195. See DWORHN, supra note 17, at 165.
196. DWORKIN, supra note 3 (manuscript at 87).
197. Id.
198. Id.
199. Id. (manuscript at 86).
200. BARBERY, supra note 1, at 198-99.
201. Id. at 203-04. The use, in text, of Art with an initial capital letter reflects the usage by Renée and Paloma when they speak about art's meaning or role.
202. DWORKIN, supra note 3 (manuscript at 100).
203. Id.
204. BARBERY, supra note 1, at 178.
205. Id. at 185.
206. Id.
207. Id. at 201.
208. Id.
209. Id. at 201-02.
210. Id. at 202.
211. Id. at 203.
212. Id.
213. Id.
214. Id.
215. Id. at 204.
216. Id Renée and Paloma's ruminations on time and timelessness may evoke, for some readers, T.S. Eliot's The Four Quartets.
217. See T.S. ELIOT, THE COMPLETE POEMS AND PLAYS, 1909-1950, at 117-45 (1952). Admittedly, Renée and Paloma disavow religious belief, while The Four Quartets is replete with Christian symbolism and deep theological allusions. Despite these differences, both texts address timelessness. The first quartet "Burnt Norton," begins with a reflection on time and speaks of "the still point of the turning world."
218. Id. at 119. Eliot writes of the burden of daily time - of the "time-ridden faces/Distracted from distraction by distraction/Filled with fancies and empty of meaning/Tumid apathy with no concentration."
219. Id. at 120. Compare, here, Renée's picture of the "unceasing and futile pursuit" of everyday life and its "projects."
220. BARBERY, supra note 1, at 203. In the final part of Eliot's first quartet, he writes of the stillness of a Chinese jar and of a violin.
221. ELIOT, supra, at 121. Eliot, like Renée and Paloma, was attracted to Asian philosophy and aesthetics. He writes of the sudden intimation or illumination of timelessness, of the fleeting moment: "Quick now, here, now, always - Ridiculous the waste sad time/Stretching before and after."
222. Id. at 122. In the third quartet, "The Dry Salvages," he speaks of "the moments of happiness," "the sudden illumination."
223. Id. at 132-33. He writes: For most of us, there is only the unattended/Moment, the moment in and out of time,/The distraction fit, lost in a shaft of sunlight."
224. Id. at 136. The final quartet, "Little Gidding," ends with explicit religious themes of kneeling and of redemption, but also returns to the theme of moments out of time, and of nearly-missed glimpses. Id. at 138-45.
225. BARBERY, supra note 1, at 249.
226. Id. at 250.
227. Id. These passages may suggest a Platonism with which Dworkin would seem to disagree, to the extent they suggest there are universal forms somehow "out there."
228. DWORHN, supra note 3 (manuscript at 9, 13).
229. BARBERY, supra note 1, at 276-77.
230. Id. at 325.
231. Id.
232. Id.
233. DWORKIN, supra note 3 (manuscript at 126).
234. BARBERY, supra note 1, at 288.
235. Id. at 252.
236. Id.
237. Id. at 248.
238. Id.
239. Id.
240. Id.
241. DWORHN, supra note 3 (manuscript at 261).
242. BARBERY, supra note 1, at 177.
243. Id.
244. Id.
245. Id. at 224.
246. Id.
247. Id. at 289.
248. Id.
249. Id.
250. DWORKIN, supra note 3 (manuscript at 176).
251. BARBERY, supra note 1, at 320-21.
252. Id. at 194-95.
253. Id. at 195.
254. Id.
255. Id. at 114.
256. Id. at 128-29.
257. Id. at 238.
258. Id. at 290.
259. Id. at 290-91.
260. Id. at 291.
261. Id.
262. Id.
263. Id. at 325.
264. DWORHN, supra note 3 (manuscript at 128).
265. BARBERY, supra note 1, at 227.
266. Id. at 322.
267. Id. at 241, 253.
268. Id. at 303.
269. DWORHN, supra note 3 (manuscript at 128).
270. Musumeci Interview with Barbery, supra note 19 (quoting Barbery describing her "desire to anchor philosophy to a story").
271. See, e.g., Kim Lane Scheppele, Foreword: Telling Stories, 87 MICH. L. REV. 2073 (1989).
272. Id. at 2074.
273. Id. at 2075.
274. See Minow, supra note 32, at 33.
275. This story might remind readers, particularly feminist theorists, of the challenging issues raised by the commodification (or outsourcing) of care and housework, of the personal and political morality implicated by what Joan Tronto has called "the nanny question." See Joan C. Tronto, The "Nanny" Question in Feminism, HYPATIA, Spring 2002, at 34.
276. DWORKIN, supra note 3 (manuscript at 212).
277. See, e.g., RICHARD A. POSNER, LAW AND LITERATURE (3d ed. 2009).
278. JAMES BOYD WHITE, HERACLES' BOW: ESSAYS ON THE RHETORIC AND POETICS OF THE LAW 93 (1985).
279. Id. at 42, 45-46.
280. See LINDA C. MCCLAIN, THE PLACE OF FAMILIES: FOSTERING CAPACITY, EQUALITY, AND RESPONSIBILITY 4-9, 16-49 (2006).
281. Thanks to Mark Tushnet for this observation when I presented an earlier draft at the Harvard Public Law Workshop.
282. Minow, supra note 32, at 33;
283. see also supra text accompanying notes 32-36.
284. BARBERY, supra note 1, at 325.