Twenty Years Ago
4-6-87 Monday. I lectured on freedom this morning. That’s the first subject dealt with by [Joel] Feinberg in his book Social Philosophy [1973]. The hardest part was explaining the difference between constraint, the absence of which constitutes freedom, and inability (or disability), the absence of which constitutes power. The students kept trying to collapse the concepts. Finally we concluded that Feinberg has this in mind. There are some things that we, as human beings, are unable to do, for instance walk on the sun or fly like an eagle. These are inabilities. Within the class of things that we’re able to do, by nature, such as assault other humans, there are things that we’re constrained not to do. These are the things that Feinberg calls “unfreedoms.” So there are two kinds of incapacity: inability and constraint. Social philosophers are primarily concerned with the latter. All told, we had a nice discussion. I now understand Feinberg better.
Afterward, I ran into Jody Kraus in the hallway. We decided to go to the Student Union Building for coffee. There, we discussed [John] Rawls’s theory of justice, especially as it concerns rights. Jody made many interesting comments. Then I told him about the article I read on the Critical Legal Studies (CLS) movement. [Andrew Altman, “Legal Realism, Critical Legal Studies, and Dworkin,” Philosophy & Public Affairs 15 (summer 1986): 205-35.] Jody is going to the Yale Law School this fall. Many of the CLSers are at Harvard, which, in my opinion, is the better of the two schools. I told Jody, who didn’t know much about CLS, that the CLS attack on [Ronald] Dworkin is simply the realist attack on [H. L. A.] Hart all over again. Whereas the realists claimed that legal rules sometimes conflict, in which case Hart’s theory gives no guidance to judges, the CLSers claim that legal rules and principles sometimes conflict, in which case Dworkin’s theory gives no guidance to judges. Moreover, the CLSers (Duncan Kennedy, Roberto Unger, and Morton Horwitz of Harvard are examples) insist that legal doctrine is fundamentally incoherent, so they deny Dworkin’s claim that there is a “soundest theory of the law.” As a result, any judicial decision is bound to express a judge’s political or other preferences and not be based on rules and principles. This supports another CLS claim, that there is no clear dividing line between law and politics. Law just is politics. I’m still worried about the CLS movement. Perhaps some day I’ll be a CLSer myself, but so far I’m not. I’m just trying to understand it. [I’ve never been a Critter.]
This afternoon, while rereading Charles Fried’s Contract as Promise [Charles Fried, Contract as Promise: A Theory of Contractual Obligation (Cambridge and London: Harvard University Press, 1981); I finished reading this book on 11 December 1982] on the balcony, I got a call from one of my students, Tuan N. Tuan is doing average-to-good work in the course, but apparently he isn’t satisfied with that. He asked me if [sic; should be “whether”] he could drop the course and receive a “W” (for “withdrew”) on his transcript. “Absolutely not,” I said. The nondiscretionary drop date has passed, so any drop at this point gives me discretion to award a grade of “E” to the student. “If you drop now,” I said, “I’ll give you an ‘E,’ not a ‘W.’” He then explained to me that he has a “high, very high GPA” (grade point average) and that even a “B” would be a problem for him. That made me mad. “Of course you have a high GPA,” I said; “anyone would if he or she kept dropping courses whenever there was danger of getting a ‘B.’” As you can see, I have little patience with students who are always looking for the main chance. They’re so caught up with their grade-point averages that they fail to see what’s really important. Personally, I never pulled strings like this. I chose my classes ahead of time and took what came. I see no reason why others shouldn’t do the same. In fact, if I had my way, there would be no such thing as a grade of “W.” Once the course starts, the students are committed to completing it as best they can.
As you can see, I’ve a bit of the disciplinarian in me. But it’s part of my job, and should be. Students typically lack self-discipline, and my job is to instill it. It’s also a reasoned sort of disciplinarianism. That’s why I object to graduate programs such as that at Oxford [University], where students are pretty much free to read and write anything they want. I prefer a structured program where certain thresholds of competence must be crossed and certain tests passed. I expect a lot from my students, but then, that’s what college is for. It should be a rigorous challenge. Tuan and students of his ilk give college students a bad name. Most tragic of all is that they are future leaders. It’s the “something for nothing” syndrome applied at the university level.