Current Affairs

The Abdication Temptation

If you want to convince people to surrender to authority, there’s no better way than to cite some “grand unified theory” of law. Professor Dan Farbman walks us through exactly what’s wrong with the theoretical underpinnings of grand unified theories.

A few weeks ago, we witnessed a pair of alarming outbursts from two prominent corners of the conservative legal academy. At the end of March, as we were all beginning to settle into the reality that everything is and will continue to be deeply unsettled, law professors Richard Epstein and Adrian Vermeule chose that moment to offer competing—but related—visions of comfort amidst chaos. In their different ways, they expressed desire for an authority to which we can abdicate our own critical agency. This conservative longing for political abdication is nothing new, but it’s especially enticing and dangerous in the midst of the crisis in which we find ourselves. Given our present fractured politics and a president who is incompetent, nihilistic, and eager for shortcuts, these public displays of abdication and embraces of cozy authoritarianism can quickly transform into something more viral and deadly than the coronavirus itself.  

It began in late March with Richard Epstein’s New Yorker interview. As Isaac Chotiner prodded Epstein with questions, the NYU law professor doubled down on his allegiance to neo-classical economics against the befuddling “science” of the doctors, epidemiologists, and public health experts who have been stirring up panic over the coronavirus with their “facts” and “curves.” Against these experts, Epstein leveraged his own expertise in “standard Darwinian economics,” in which he builds economic “models” to describe and predict “true” answers. “Darwinian” here is likely a gloss on the broader school of “evolutionary” economics which attempts to include the dynamic transformations of systems within its modeling. Epstein also stated in the interview that the mainstream epidemiological models were failing to account for the evolution of the virus itself. It was on this foundation that Epstein built his own model with his own assumptions and “inputs” and then used that model to conclude that most epidemiological models “were not sound” and the coronavirus would not end up being that bad. 

Originally, Epstein estimated that a total of 500 Americans would die as the virus ran its course. He later corrected the estimate to 5,000. At the time Chotiner spoke to him, the death toll was already 2,000. As I write, at least 93,000 Americans have died. It hardly bears saying that Epstein’s predictions were monstrously wrong. Epstein himself seems either unaware of or unbothered by this, having in late April deployed similar analytic tools to inveigh against the tyrannical governors and their shutdowns without any apparent acknowledgement of past mistakes. 

One of the assumptions underlying Epstein’s economic modeling is, as he described in the Chotiner interview, “general equilibrium theory.” What Epstein means by this is simply that he believes in the foundational assumptions of neoclassical economics: that free people, pursuing their own interests in free markets, will build the best and most efficient society. Economics is a complex field and I don’t want to be reductive, but “general equilibrium theory” is more or less a form of faith in mathematical models, in which the messy complexities of the world are sidelined as manifestations of imperfect design. 

But most proponents of “general equilibrium theory” and neoclassical economics more generally perceive themselves as proponents of a “neutral” “science,” no matter how contradictory or (in the obvious case of Epstein’s economic-epidemiological modeling) wildly incorrect their conclusions end up being. Wildly incorrect conclusions tend to emerge, like a hive from an allergy, as a natural consequence of the application of a “neutral” grand unified theory to the world. There is, of course, nothing “neutral” about Epstein’s ideas, either in their structure or their consequences; his assumptions just so happen to conform to a dangerous combination of libertarian anxiety about state ordered pandemic precautions and skeptical wish-casting that the coming cataclysm will be less cataclysmic than we fear. Little surprise, then, that they were so eagerly adopted and circulated by the Trump administration as soon as they were published.

Richard Epstein’s devotion to his theory against scientific consensus and subsequent facts on the ground represents one kind of abdication of situational critical thinking to an external source of truth and power. A unitary theory, adhered to faithfully, releases its disciple from the need to critically engage with the complexity and contradictions of the universe. The disciple can plug a problem into his theory and get an answer. What a soothing prospect—especially when the answer tends to suit one’s priors and political intuitions.

A day later, in the Atlantic, a conservative of a different stripe, Adrian Vermeule, took to the public square to advocate another kind of abdication. Vermeule began by attacking the most prominent grand unified theory in the American conservative movement: originalism. In brief, originalism describes a theory of constitutional interpretation which proposes that we should understand the constitution as it was originally understood when it was ratified. It promises clear answers to complex questions by seeking the “true” meaning of the language in the Constitution. In the name of these true meanings, originalist judges often find license to overturn legal precedents that have gotten it “wrong.”  Right now, we are living at the apex of originalism’s influence on the courts and our constitutional discourse, thanks to concerted efforts by the Federalist Society and other conservative organizations. Thus, in arguing that originalism has outlived its utility to conservatives, Vermeule was raining on a parade organized by his own allies. He suggested that the problem with originalism is that it sets up a theory of interpretation as “the faith” that all movement conservatives must pledge to follow. As it turns out, Vermeule is not opposed to faith; he would simply rather conservatives forthrightly build a dear leader of their own design and then demand obedience not through theoretical coherence, but rather through a “common good” abdication of agency to the power at the center of the state. In his own words, “just authority in rulers can be exercised for the good of subjects, if necessary even against the subjects’ own perceptions of what is best for them.”

Both Epstein and Vermeule’s arguments are troubling in their own way. Superficially, both expose a combination of hubris and irresponsibility that gives those of us who teach law a bad reputation. When asked what qualified him to offer a counter-model to the epidemiologists, Epstein responded: “One of the things you get as a lawyer is a skill of cross-examination.”  As a tool in service of skepticism and curiosity, cross-examining is great! But as a license to hold forth authoritatively on subjects about which we know little, it is less great. Epstein’s blithe insistence on his own expertise, access to truth, and lack of politics—juxtaposed against the use that his paper was immediately put to in the White House—is a distressingly familiar picture of an archetype of academic self-delusion. Vermeule’s hubris is of a subtler sort. He seems to believe that his dispassionate embrace of authoritarian moralism, couched as armchair critique of originalism, is a part of an even-handed intellectual colloquy. But how long until we see the article in the hands of an aspiring strongman’s henchman like Stephen Miller, or an actually committed totalitarian like Viktor Orban? It is an alarming reminder of the use that academic imaginations can be put to by those with power.

For all this, I sit down not to write another takedown of Epstein or Vermeule on my own account (I’m happy to incorporate the many that have already come and those that are yet to come by reference). Rather, I want to focus on the element that seems to divide the two pieces but that actually unifies them: the persistent desire to find a reason to displace our own agency and critical engagement with the world, instead bringing in some external authority to guide us and to launder and ratify our substantive political desires.

While Vermeule’s call to abdication to a higher authority is more overt, it is actually the abdication modeled by Epstein that troubles me more. Vermeule proposes a world of willing submission where we sacrifice our agency openly to a trusted leader (“the emphasis should not be on liberty as an abstract object of quasi-religious devotion,” he writes, “but on particular human liberties whose protection is a duty of justice or prudence on the part of the ruler.”) But Epstein’s adherence to his grand unified theory, and the confidence that it inspires in him in his own access to truth, allows him and others like him in the legal academy and beyond to abdicate responsibility and self-soothe without saying so.

In a world of complexity, contingency, nuance, mess, and confusion it is tempting to seek about in the dark for Occam-shaped razors, universal theoretical apparata, and grand unified theories. The natural temptation is worse for lawyers and those of us who write about law. It is the lawyer’s job to synthesize and order the mess of facts, precedent, and political dispute into a coherent package. It is a short bridge from recognizing the power of this kind of synthetic argument to believing that reality can be described according to these syntheses. 

This is the bridge that lawyers and legal academics keep crossing (and the bridge that their critics keep trying to burn). The most canonical iteration of this mistake—at least to students of American legal thought—is the invention of “Classical Legal Thought” at the end of the 19th Century. In the last decades of the 1800s, a group of legal scholars were hard at work rationalizing and imposing order on American legal education. From the mess of cases decided in the courts, these scholars divined some useful clarifying principles: There were some cases that were primarily about property law, others that were more about contract law, and still others that were about tort law. In designing a new law school curriculum, these distinctions were useful. You could teach the topics in distinct courses and identify thematic through-lines through disparate lines of cases. (This value was too successful—these topical divisions persist as the backbone of the first year curriculum at most law schools.) 

But the utility of these synthetic concepts was dangerous and intoxicating. These lawyers and academics started to think that they were more than practical devices for observing chaos, complexity, contingency, and politics. Little by little, they started to hope and believe that all of that chaos could be tamed by the whip and discipline of formal concepts. We could find, they thought, true and transcendent principles of “private law” or “contract” which could guide lawyers and judges and help work the law clear until it operated as a pure science, governed by sharp and articulable logics. They could, in other words, remove the mess of human politics, biases, and irrationality from the law. Law could be a neutral science and the answers it generated could be right or wrong, true or false. All that was required was the right theory applied with precision by the right practitioner.

The fantasy of legal formalism and the dream of synthetic theories of legal truth had a hard time in the 1920s and ’30s. In the buzz-saw of the Great Depression and the unfolding of the New Deal, a group of critical scholars who we now remember as the Legal Realists (though they were often not entirely happy to be lumped together) pointed out that one after another of these grand theories failed to map onto the lived experience of the law “in action.” These scholars argued that there was no “right theory” to be found and that the law was what it seemed: a complex, sometimes contradictory, often political, deeply contingent invention of human beings. The answers to legal questions were not to be found in theorems, but in a rich and curious inspection of the facts on the ground. Along with William James, these critics argued that ideas like “truth” and “right and wrong” were rooted in context and experience, not in ideal forms.

Richard Epstein’s approach emerges from a half-learned lesson from the realists. He is a committed adherent of neoclassical economics who has consistently pledged faith to the proposition that it is possible to understand the law through the modes and methodologies of the supposed “science” of economics. But Epstein, like so many other legal academics writing today, has not learned the more radical lesson of the realists. Hard-line legal economists like Epstein have replaced one kind of grand unified theory (law as formal logic) with another (law—and everything—as economic science). The very idea of a grand unified theory was anathema to the realists, but instead of dying, the idea fractured and proliferated. Today we find legal academics who adhere to singular interpretive methodologies: originalism, textualism, economics (behavioral, evolutionary, neoclassical, etc.). To a devotee of one of these grand unified theories, the value of adherence is precisely the same as it was to the formalists of the 19th century. The theory is a tool that may be applied to a problem and, once applied, a right or true answer can emerge from the other side.

For those of us who find ourselves chased by doubt, uncertainty, and the enormity of the unknown (in other words, all humanity) the promise of clear answers whose roots lie in external facts rather than our own imperfect minds is a balm. We soothe ourselves with the hope of “neutral principles” and rightness. As law professors, we not only self-soothe but stand before our students who ask us to soothe them. It is our job to teach our students to apply something that looks like order to the chaos of human interaction and state control. Between our own desire to soothe and be soothed, the temptation is great to mistake the rhetorical practice of ordering for the fact of order itself. We are tempted to read the famous Robert Frost poem wrong…to believe that our choice of the road less travelled by has indeed “made all the difference.” We know that we should grow up and recognize that the choice of paths in the yellow wood was arbitrary and that the order we have imposed on it is a thing we have made for ourselves. But it is hard to live and teach from this Kierkergaardian ledge of “objective uncertainty,” and so we buy another round of Grand Unified IPA and soothe ourselves with the balm of neutral principles and right answers.

But what does this have to do with Epstein or Vermeule anyway? In the end, perhaps very little that is directly linked to their recent public silliness. The underlying danger that both pose is not specific to their arguments. Rather it is in their promise of balm through abdication—either to a theory to rule them all or to a dear leader who will guide us and lift the pain of present struggle from our shoulders.  We are living in a moment of overwhelming anxiety and uncertainty. What makes this moment so terrifying is that no one seems to know the full extent of what is happening to us and perhaps worse, no one has any idea what will happen to us. We are living in a world of prognostication and uncertainty. We are in the shadows of curves, battered by waves of logarithms and worst-case scenarios. 

Those armed with grand unified theories are more tempted than ever to pull them out as life rafts of neutral truth. Arrayed against the doom and uncertainty being offered by the “supposed” experts, grand unified theorists can proclaim expertise rooted in their own interpretive methodology. The wish-casting in which we all indulge in our private moments can be translated into argument. This is familiar ground for legal grand unified theorists. Do you wish that the 2nd Amendment protected the individual right to bear arms despite the run of precedent? Originalism can help with that! Do you want the Voting Rights Act to be unconstitutional? Federalism is your friend! Think Roe v. Wade was wrongly decided? Mix Originalism and Federalism in equal parts for a calming digestif. Contrarian truth claims are what grand unified theories do best.

Usually this hardly matters. Few things are less important in the general course of life than the hot-take contrarian truth claim of the grand unified law professor. But when our wishes are so urgent and our desire for contrarian balm so great and our president so feckless, the certainty at the end of the rainbow of grand unified delusion can start to look actionable. When that happens, we need to reach into our disaster stores for some of Oliver Wendell Holmes, Jr.’s “cynical acid” and (along with a vigorous hand-washing) apply it liberally. Many roads diverge in the terrifying yellow wood of our collective quarantine. Our choices cannot be dictated by delusive certainty. Nor should they be surrendered to the whims of a square-jawed authoritarian father figure. We should make them as grownups—doing the best we can in a world of doubt and trying not to get people killed. Ages and ages from now, with a sigh, we may safely impose an order to the present that it does not have and will not have had. But we are not there yet. For better or for worse, we must choose our path through the wood ourselves.

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