Liberal judges and the intellectual pathology

Fred Hutchison, RenewAmerica analyst

Originally published October 26, 2004

Have you ever noticed how some judicial decisions defy common sense? The cold, abstract words of their decrees often seem to be the very antithesis of things ordinary people have learned about life through experience. What spell has bewitched the liberal judges? After years of wondering, I now have a theory. Judges are the intellectuals of the legal realm. As such, they are prone to the dysfunctions of the intelligentsia. For lack of a better term, I shall call it the "Intellectual Pathology."

One disclaimer. I am not opposed to intellectuals. Intellectuals are indispensable to a civilization. Some folks call me an intellectual. It is the pathologies that some intellectuals are prone to which cause the mischief.

Theory kings

The Creator of Men designed the intellect to serve particular functions within assigned jurisdictions of life. Some problems must be solved through the abstract intellect. Other problems must not be solved through the intellect, or through a sole reliance upon the intellect. When the mind dominates one's whole life, one will become an eccentric. He will try to solve non-intellectual problems intellectually. High school students call such people "nerds," or "geeks." The nerd has finesse in a chess game, but is clumsy in a social setting.

An eccentric has overly developed some faculties and underdeveloped other faculties of his nature. His lopsided nature shows through in queer idiosyncracies. It is no accident that many intellectuals are eccentric. But eccentricity is not necessarily a pathology. A pathology develops when abstract theory trumps reality. A neurotic displacement from reality and a destructive pseudo-wisdom is the result. Pseudo-wisdom combined with power is very dangerous. As a handy shorthand designation, I shall call men of power with pseudo-wisdom "theory kings."

Warnings from Burke and Hegel

Edmund Burke (1729–1797) and Georg Hegel (1770–1831) both warned against the kind of men which I define as theory kings. Interestingly, the two great thinkers were as different as men can be.

Burke, the father of traditionalist conservatism, believed that we should trust the accumulated wisdom embodied in our common cultural inheritance. The wisdom of experience of countless lives which have gone before us is wrapped up the cultural fabric in which we live. Burke felt that we should not trust theory kings, who count themselves progressive reformers and who are guided by abstract ideals, but have no common sense about real life and no appreciation of the cultural heritage. A theory king guiding a society is like a nerd dictating to cool guys how to dance.

Burke believed that abstract theoretical ideas cannot be readily converted into formulas, programs, laws, or pat answers for society, because the ideals are simple and vague and the social fabric is complex and intricate. Bookish theory kings do not understand the exquisitely woven nature of society, and they do not understand the dark and tangled complexity of human nature. The delicate social fabric that is intricately woven over centuries is easily rent by the blunt, crude intrusions of reformist governments. This is especially true of programs, laws, and regulations designed by theory kings.

The rule of theory kings can be worse than the rule of despotic kings. Despots are apt to have common sense about what works. Theory kings can spin out a host of profoundly stupid regulations, support them with learned studies written in technical jargon, and tell the people, "It is for your own good and it is based upon the opinions of experts. Be happy."

Hegel was an innovative philosopher and one of the founding fathers of progressive modernism. He developed the concept of historicism, an exotic theory that forces of history are continually changing man, human values, and society. Hegel is universally beloved by liberals and universally hated by conservatives. One would think that Hegel might be a prototypical theory king. One would expect him to be the natural enemy of Burke. Certainly the intellectual heirs of Hegel are in perpetual conflict with the intellectual heirs of Burke. The fact that Hegel was in concord with Burke in the rebuke of theory kings implies that men of original genius who write enduring classics of the mind have risen above intellectual pathology and the fallacies of the theory kings.

Hegel's warning goes something like this: The full reality of a truth cannot be realized until it is embodied in life. After it is developed and appreciated in living manifestations, it can be abstracted into conceptual principles. But when you start with theoretical abstraction and then try to impose theory upon reality, the results can be disastrous.

Interestingly, history reveals that philosophy invariably comes late in the game to a culture. After architecture, the arts, drama, poetry, literature, and linguistics have had their say, and have been lived in and experienced, then philosophy comes to the podium with its definitions, qualifications, categories, syllogisms, paradoxes, antinomies, theses, antitheses, syntheses, archetypes, prototypes, epitomes, quiddities, accidents, and essences. These are good things if they rest upon a living cultural reality. They are not helpful if they come before life's realities are digested and cultural forms have been refined.

We must know something about life before we can confidently know truths about life in the abstract. The young should read the literary classics, which are about the drama of our humanity, and feel their hearts moved, before they are introduced to the study of philosophy. Interestingly, the literary classics teach one to be an intelligent observer of life, and this is exactly the frame of mind that enables one to relish philosophy and profit by it.

Hegel's idea of an embodied reality has parallels with the Christian doctrine of the incarnation — that the divine Christ dwelled in human flesh. It also jibes well with Aristotle's concept of universals and particulars — that universals have no essential reality until they subsist in concrete particular things.

Lee Harris, author of Civilization and its Enemies, criticizes the "platonic" intellectuals who separate universals and particulars and prefer abstract universals to concrete particulars. A theoretically-minded platonic judge might have contempt for practical reality when it does not jibe with his ideal concepts. If "what is" contradicts the ideal "ought," the judge may have contempt for the imperfect "is" and be tempted to legislate change from the bench.

Now, I think that Harris goes a little bit too far along a certain line. There are universal truths and a universal moral law which really exist that a judge ought to know about. Otherwise, everything becomes relative, and nothing has moral substance and justice disappears. But Harris correctly diagnoses the platonic fallacy as it applies to judicial folly.

The philosopher Plato wrote about an ideal city in his Republic. The philosopher-kings ruled with absolute power. The fabled wisdom of their legendary rule introduced to the West the false hope of a utopia created by government. Plato's conception of philosophy made his system prone to the rule of theory kings. He believed that we can only discover truth by detaching ourselves from the material realm and soaring with our minds into the realm of ideal forms. Plato tells us that the visible realm is but a cloudy and imperfect representation of the absolute truths of the transcendent realities. One must first soar to the heights to comprehend truth.

Imagine a philosopher sailing to the Isles of the Blessed to find the golden nuggets of truth.

"A rumour to the Romans came/ Got partly from a poet's lips, / And part from sunset clouds aflame,/ Seen dimly from the furthest ships // It told how, westward of our hopes / And further far than any dream, With dawn for ever on their slopes, / The Happy Isles are all agleam." (Excerpts, the "Happy Isles," from Fifty Poems, by Lord Dunsany)

Returning home from the Happy Isles with the enchanted treasure, the philosopher proposes to rule and be a philosopher-king. He claims he can turn the Republic into utopia because of his possession of exotic truths about an ideal world beyond the western sea.

Plato's imaginary Republic requires the absolute rule of theory kings. Interestingly, it was not Plato, but Aristotle who was recruited by Philip, king of Macedonia, to teach his son and heir how to rule wisely. The boy's name was Alexander. Yes, boys and girls, it was that Alexander. Stoics and Aristotelians are invited to the courts of kings, but never dreamy Platonists. It is a folly of Democracy to trust platonic theory kings to design their social programs.

From my own experience, I can say that reading Plato is an intoxicating joy and reading Aristotle is arduous and tedious. Let the poets, musicians, dramatists, dancers, and writers read Plato and seek the music of the spheres. Let the students of government and law study Aristotle. Please keep Plato away from the judges.

The model-building fallacy

In modern academia, science and mathematics have great prestige, and the social sciences, like psychology, sociology, and law, often like to ape the ways of science. The unfortunate result is unwarranted presumption about what we can know. Part of the mischief comes from smuggling the model-building fallacy of science into social science.

If a scientist builds a theoretical model and verifies it with empirical tests, he can use the model to predict natural events. Therefore, model-building is very useful in practical ways. However, the fatal deception comes when the scientist thinks that he has used his model to discover a "law of nature." This is wrong for three reasons. 1) Models are extremely reductionistic and simplistic. Mathematical models of weather systems are almost worthless because meteorology is in its infancy in understanding the seemingly infinite complexity of the weather. 2) The model maker understands the model he made because a model is the simple static work of the human mind. The events in nature are the astoundingly dynamic and hideously complex works of a Divine Creator. The fact that a model works in simple ways does not prove that the human model creator understands the works of the Divine Creator. A model works because it parallels some of the patterns and outcomes of nature, not because it comprehends what is really happening in nature. One can predict the pattern of downward acceleration caused by gravity without understanding what gravity is. 3) The laws of nature are hidden from human eyes, especially from the eyes of the theoretical model builder. Allow me to offer an example.

If a scientist makes an android which looks like and accurately behaves like a human being, the android is a model. The scientist would be able to make some simple predictions about human behavior based upon his observation of the android's actions and his understanding of how the android works. Now let us imagine a day when the android maker forgets that the android is just a working model of a man. He makes the bold claim that he has discovered the principles of biology and psychology because his model works. A biologist enters his shop and tells him that he knows nothing about the circulatory system. To prove it he opens the chest of the android to reveal wires, computer chips, motors, gears, and dials. No heart or veins are to be found anywhere. What has the android maker discovered about the "laws of nature" which govern human nature? Nothing. He has made a clever model that simulates human nature. He understands his model because he designed it. He knows nothing about man other than superficial, observable patterns of human behavior.

The self-deceived dogmatism of model-building science has crept over into other fields as well. Simplistic concepts about man which seem to be confirmed by statistical studies are presented as solid knowledge. Statistics aggregates data and conceals complexity. It conceals most of the real-world things we need to know about being human. It leads to a type of abstract conceptual knowledge that can give judges a false certitude, while making them blind to the realities of the complicated and contradictory human beings who stand before them.

Intellectual group-think

Columnist Jonah Goldberg wrote a column about The Wisdom of Crowds, a book by James Surowiecki. Groups of experts tend to reinforce their own views because experts believe in the authority of experts and tend to unite under "super experts." This helps to explain the group-think of liberal judges. In a previous column, I measured the group-think of the Supreme Court. The decisions of liberal judges on the court had a very high level of group-think. The decisions of conservative judges showed a balance between individual opinion and consensus seeking.

Sobieski's book indicates that crowds are sometimes wiser than closed circles of experts. The ordinary people in a crowd do not understand that it is taboo to question experts. Therefore, they will not be afraid to question expert opinion if it does not make sense. They are not afraid to volunteer fresh new ideas. The group-think of credentialed experts in large establishments tends to stifle creative and independent thinking. Those who question the experts are shamed into silence. If you don't think so, try contradicting an expert some time.

I once had a futile e-mail debate with a philosophy professor about evolution. I questioned several of the points he made about evolution in an Op-Ed piece in the paper. He responded, but never answered any of the facts or logic I presented. His arguments were: 1) The great mass of experts support evolution, and 2) I must be an ignorant fundamentalist if I do not support evolution. He claimed to be trained in logic. I tried in vain to get him to try to refute my logic and my facts. I tried in vain to get him to present his own facts and logic so he could hold down his side of the debate. He stuck to his two points to the bitter end and got increasingly insulting as he did so. His real message was "Stop thinking and trust the experts, you dolt."

Oddly enough, it was for the crime of accumulating facts and using my faculties of critical thinking that he pronounced me to be "ignorant" and "intellectually dishonest." If I had embraced the consensus of the experts without thinking, he would probably have praised my enlightenment, open-smindedness, and intelligence. The tyranny of experts produces some of the most profound stupidity known to man. Trained intellectual powers are used to close down the mind.

The breathtaking follies of the liberal judges are a complicated phenomenon. But part of the problem lies with the group-think of experts. I have given an example of how the group-think of experts has turned an academic philosopher with tenure, training in logic and an honorific emeritus title, into a man who is helpless in a real debate and must resort to intimidation and insults. So it is to some extent with our group-thinking liberal judges. Just as the learned professor uses intimidation to force dissenting students into line, a liberal group-think judge can use the power of law to impose his will upon society in a tyranny of stupidity. Lord save us from the unlimited stupidity and the unreasonable tyranny of the proud theory kings!

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© Fred Hutchison