This will be my final post on Clayton Crockett's and Jeffrey Robbins' Religion Politics and the Earth: The New Materialism. In my prior posts, I briefly described the authors' "Death of God" theology, and then the concept of new materialism. In short, while I can't get on the same page with the authors from a theological perspective, I share a lot of common ground with them on their belief that theology needs to speak to the central predicament of our age: human economies are based on assumptions of infinite growth, but we live on a planet with finite resources. Already, we are beginning to test the limits of those resources, and we are arguably already feeling the first economic tremors of the crisis that this predicament could trigger.
So…I thought it would be interesting to talk about the authors' proposal for a new "logic" and the way it would interact with the judicial system, which is so heavily dependent on classical systems of reasoning and rhetoric.
First, the "logic" of new materialism.
The philosophical waters here are a little deeper than what I am used to, but I think I've got the gist of it.
The first world is dominated by two important assumptions about human thought. The first of those is that the "rules" behind human reasoning are based on some sort of objective reality that is outside of humanity. That is, we assume that our systems of reasoning, inquiry, and logic (handed down to us from the Greeks) exist outside of our own language and experience. The second is that our brains are essentially machines which process the world based on those "rules." These systems of rationality are not themselves good or evil, but neither are they "real" in the sense that most of us believe.
Crockett and Robbins point out that human thought is "emergent." We possess brains, which are unimaginably complex and flexible (i.e, they possess plasticity). And, by adapting to our experiences with the world (and other humans that are in the world) – we slowly grow to develop ways of thinking. Those ways of thought, however, are ultimately grounded in a physical universe to which we are connected. Or, as Crockett and Robbins put it, our thinking must ultimately "flow back" into the Earth out of which it came.
Much of what the authors have to say here reminds me of Fritjoff Capra's work on physics and mysticism. However, as death of God theologians, they want to avoid the "new-agey" language of interconnectedness, lest it suggest a "spiritual" dimension to our world that is distinct from their own concept of the spiritual. It seems to me that they do a few more gymnastics than are necessary, but that they eventually end up in a good place: the concept that human thought itself is integrated with, and dependent on, the well-being of our world.
Which brings us to a sort-of "crisis" of human thought. During the last century or so, we have developed two very distinctive ways of thinking. One of them, grounded in mathematics, has given birth to half of the academic disciplines: the physical sciences, economics, psychology, etc. The other has given birth to the so-called "humanities": art, literature, etc. Thus, we have come to think it two distinct and largely disconnected ways. (I am tempted to call this "quantitative" versus "qualitative" reasoning, but I don't do that because I'm not sure I follow all the nuances here, and the authors don't put it that way).
Crockett and Robbins propose a solution – a sort-of "new logic" – as a means of rediscovering our interconnectedness to the world and harmonizing the two forms of analysis I described above. It involves reconnecting our way of thinking to our being itself. We should look, they say, to a "logos" – or an ultimate nature of the universe. Or, to use an Eastern term, we are seeking a "dao," or a rhythm between and among opposites. This way of "thinking" is less rigid, more poetic, and more self-aware than the classical models of rationality that dominate our world.
This way of "thinking" would pose several problems when it comes to judicial processes, but two of them stand out more than the others in my mind. The first one is that a poetic, "dancing" logic would create unpredictable outcomes.
Although those in the legal academy differ on the purpose of law, most agree that one of its chief functions is to provide citizens with a means of understanding the limits of acceptable behavior. In order to do this, it must be possible for people to predict how the state will react to its behavior. If I run this stop sign, what will the state do to me? How would I be punished? What if I run the stop sign because of a medical emergency? Does that change anything? If I make a contract with Susan in which she is obligated to provide me with five crates of apples, will I have a recourse if she does not deliver them? What will happen to me if I don't follow through with my agreement with Joe? Can I get away with giving him less than he paid for?
The courts rely on, and are supposed to implement, a system of rigid, analytical logic, so that people can rely on the courts to act (or not act) given a particular set of behavior. And, to borrow a phrase from Pirates of the Caribbean, society is going to change if the law suddenly stops becoming a rule and "more of what you'd call a guideline."
Yet it seems to me that a shift to legal analysis with more plasticity could also have some positive benefits. People are less likely to get trapped in technically illegal positions that are relatively innocuous, and – by the same token – more serious consequences can be visited on those who are guilty of particularly egregious conduct.
I also think that the journey to "new logic" is already underway on some levels. Several important Federal doctrines are already implemented under broad lists of "considerations" that must ultimately be addressed by the court on a case-by-case, and fact-by-fact basis. These "consideration" based doctrines reflect something of the interconnected, wholistic approach that the new logic would suggest. It is not difficult to conceive of economic, or even environmental doctrines based on the "broad consideration" model.
The second major problem posed by the "new logic" in a judicial context relates to the implementation of nonlocal, nonindividualistic remedies for wrongful behavior.
A form of analysis that takes into account a connectedness to our world is ultimately going to lead to the need for remedies that involve effects that cannot be felt in any one place or by any one person. Judicial systems are not very good at dealing with these sorts-of things.
To illustrate: many forms of corporate behavior, while not creating any immediate, apparent problems, can lead to all kinds of long-term consequences for the environment, as well as for other people in other times. Polluting the ground today may cause groundwater issues for another generation. Making a contract for delivery of goods with a third world producer may lead to inhumane treatment of people in another society.
Courts struggle to deal with these things because they are used to enforcing rights for individuals in the society in which they exist. Courts are good at making sure a person who is injured in a car accident is compensated. They are not so good at making sure that the economy of a foreign country, 100 years from now, is not decimated as a result of ongoing deforestation.
Developing systems for dealing with these issues is going to be tricky and will probably require a lot of trial-and-error. But it can be done. It will involve re-thinking how constitutional protections are extended, particularly to noncitizens, as well as numerous changes to international law (an area in which I am not qualified to speak). The political processes to get these ideas in place will be difficult.
However, I think they can be done. Already, the courts are comfortable with the idea of "next friends," who can bring claims on behalf of those who are legally incompetent to do so. The idea of the "next friend" may be one good place to begin in conceptualizing these changes.
And the bottom line is this: these changes have to be made. Already, the clock is ticking. We are running out of time. And if our best lawyers…and theologians, and poets, and politicians, and scientists, and filmmakers don't begin to focus on the problem, future generations may inherit a planet that is almost unrecognizable.
Other posts on the blog tour:
Bo Eberle: 1 & 2 posts on the energy proposal & a review of the book.
Joel Harrison & Matt Bernico: digital culture & religion.
Tad DeLay: the politics of energy this thursday!
Joe Carson: questions for the assumptions of radical theology.
Jonathon Snyder: digital culture.