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Philip Bobbitt*
Philip Bobbitt is the Herbert Wechsler Professor of Jurisprudence at Columbia Law School
and Senior Fellow at the Strauss Center for International Security at the University of Texas.
He holds degrees in philosophy (Princeton, A. B.), law (Yale, J. D.), and history (Oxford, D.
Phil.). He has served in a number of capacities in the US government and has published seven
books: Tragic Choices (with Calabresi), Constitutional Fate, Democracy and Deterrence,
U.S. Nuclear Strategy (ed., with Freedman and Treverton), Constitutional Interpretation,
The Shield of Achilles: War, Peace and the Course of History, and, most recently, Terror and
Consent. He is a fellow of the American Academy of Arts and Sciences and a former trustee
of Princeton University.
It is said that if you passed yourself in the street you’d have only a vague feeling of having
seen that face before. Partly, I suppose, this must be the result of the transposition of
left to right by mirrors that take our asymmetrical images and make new faces out of
them; partly, it must be related to the phenomenon of simply no longer seeing the familiar,
and of not registering the slight if cumulatively transformative changes of aging. And,
partly too, it must be related, somehow, to our inner lives, which on the contrary so
frequently do bring us face-to-face, as it were, with our thoughts and memories.
All these phenomena can be found when searching for one’s intellectual face—the
distortions that inevitably occur when one’s work is reflected in that of others, the
inevitable change in perspective that comes with time, the contrast between the
persona inferred from our work and our true selves.
If I were to describe my intellectual persona, I would probably recognize some
combination of these features: an Anglo-American Christian; a philosophically
inclined writer; a man who is politically progressive on a good many social issues
but fundamentally orthodox in his convictions; one admiring and moved by excellence in the arts; thoroughly wary of the social sciences; patriotic in an unironic
way; someone who prefers the company of patricians to that of aristocrats. I have
tried to map currents that move beneath the apparently transitory and unique,
while insisting on the decisive role of chance and character. I have tried to conceive
and execute works that are worthy of lasting, though the coherence of these works
as a whole may be apparent, if at all, only on reflection; and I have been willing
*
Email: [email protected]
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to pursue and stand behind my own voice, disclaiming any work not recognizably
mine. I did not see the point in writing something that someone else would write,
and so I never belonged to a school or movement. I have many doubts whether I
have succeeded. I am accustomed to failure, and to not quite fitting in with the
readers and critics of my day. With that provisional portrait, let me offer no more
than a sketch—one’s face seen in a storefront as one passes by or in the reflection
of a window of a fast-moving train.
1. Ludwig Wittgenstein, Tractatus Logico-Philosophicus
and Philosophical Investigations
I group these two works together, although one is commonly thought to be a complete
repudiation of the other, because Wittgenstein himself wished them to be published
as a single work. They actually address a single problem—how do we account for
the fact that language reflects the operation of the world that is independent of our
ideas?—from a remarkably innovative and coherent point of view that I think of as
“topological.” Insofar as my own work, especially in constitutional law, has been
seen as antifoundationalist, I think this can be traced clearly to the influence of
Wittgenstein’s great achievements.
2. Winston Churchill, The History of the English Speaking
Peoples
No doubt this will confirm for the editors of the New Left Review my essentially boyish
view of history; still, I must acknowledge—perhaps because I was a boy when I first
read these volumes—that they have without doubt shaped much of the sentiment
with which I approach trans-Atlantic affairs. Beginning when I was eight, my grandmother gave me each of the books as they appeared, from 1956 on. I devoured them;
I suppose there are passages I can still quote and, while I would like to say that the
Marcus Aurelius I read at the same time had a similar impact on an impressionable
youth, I do not really think that is true.
3. Charles L. Black, Jr., Structure and Relationship in
Constitutional Law
In this book Charles Black resurrected what is known as “structural” argument and
gave it a scope and depth it had not had since John Marshall. For my work, however,
the most important aspect was simply getting me to think about constitutional law
in argumentative terms. My efforts to create a “standard model” of the forms of argument—historical, textual, structural (these first three comprising what is usually and
carelessly called “strict construction”), ethical, prudential, and doctrinal—doubtless
would never have begun without my reading this slender and powerful work of genius.
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4. John Wain (ed), Johnson on Johnson
That same grandmother of mine also gave me a beautiful leather-bound edition of
Boswell’s Life of Johnson though it was not until I read this collection of Dr. Johnson’s
commonplace writings—especially his prayers—that reverence, grace, and the role
of conscience began to loom so large in my thinking. I am too ignorant to say for sure,
but I surmise that the present-day school of theology known as Radical Orthodoxy
captures something of my views, and, while this is said to be a postmodern development, it sounds to me like Samuel Johnson.
5. Sir Michael Howard,War in European History, and
Thomas Schelling,The Strategy of Conflict
Yes, I realize I am hoarding again by counting two books as one and, this time, not even
by the same author. However, the impact of these works on my own thought has proceeded in this dyadinal way: first, Schelling’s book presented a strategic environment that
had a unique dynamic owing to the presence and horrific lethality of nuclear weapons;
then Howard’s comprehensive and elegantly rendered history showed the continuity of
the strategic context, and how this radically new world was derived not simply from its
immediate predecessor but from all that had gone before. My book Democracy and Deterrence could not have been written without Schelling (though my thesis—that extended
and not central deterrence was responsible for the cyclical shifts in nuclear declaratory
policy—is not addressed in The Strategy of Conflict), and my book The Shield of Achilles could
not have been written without Howard (though here, too, my principal thesis—that nothing fundamental happens in the constitutional order of states without a corresponding,
fundamental change in strategy and vice versa—is not addressed by Howard who, like
Henry Kissinger, is not especially concerned with the role of law in relation to strategy).
6. Gilbert Harman, The Nature of Morality
Harman argues that shared moral intuitions provide the ground for moral claims and,
thus, that in the absence of such a community of convictions it would be a mistake to
claim that someone is holding an irrational position with respect to actions that are
consistent with that person’s own convictions even if not shared by the person proposing to analyze those actions. Relying on our own views, we may conclude that the
other party is evil though not that this person is reasoning erroneously. Harman was
important to my Dougherty Lectures in 1978, which became Constitutional Fate, for
two reasons: (1) I wished to claim that the constitutional arguments made by adherents
to different constitutional formal styles were incommensurable but not incomparable,
and that when these forms clashed their legitimacy remained secure, and that the
clash was to be resolved by a resort to conscience; and (2) it was Harman’s influence
with his publisher, Oxford University Press, that resulted in my book’s publication
after another publisher had held the manuscript for some time, only to reject it, and I
had put the book away and decided not to publish it at all.
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7. Alvin Plantinga, God, Freedom and Evil
Plantinga’s important work criticizing naturalism merely reinforced attitudes I had
held since reading Nietzsche (though I am not a Nietzsche scholar, and I concede
that this may have been a sophomoric—I was, after all, a sophomore—misreading on my part). I was and remain deeply skeptical of the view that all philosophical
inquiry into the nature of the human condition is coterminous with scientific inquiry
because all human behavior is governed by deterministic causes (if we could only discover them empirically). It was Plantinga’s arguments in modal logic, however—see
also his wonderful The Nature of Necessity—that spurred me to develop my claims
that judicial review required the possibility of error, and, thus, that justice did not lie
in developing a technology of decision making (for example, a theory that would allow the
decider to render just decisions by following its rules) but, rather, in the development of a
system that required a recursion to the conscience of the decider. This was a vital though,
I must say, on the whole an ignored part of my book Constitutional Interpretation.
8. Betty Sue Flowers (ed.), The Shell Global Scenarios
The particular volumes in this series that influenced my own thinking were done in
the years 1991–92, when Flowers was the inspirational editor. Scenario planning
is a much misunderstood technique for making decisions about the present, not for
making guesses about the future. Indeed, because it creates multiple possible worlds,
it is obviously going to be wrong were prediction its objective. It is sharply contrasted
with strategic planning, which seeks to extrapolate a single, likeliest future from the
available information.
It was my experience with the scenario process that led me to formulate “Parmenides’ Fallacy”— the notion that we should not compare present states of affairs
with the past in evaluating the policies that have gotten us to where we are; rather,
we should compare a current situation with alternative possible situations that
would have eventuated had we followed different policies. This is true, prospectively
as well: it is a sophist’s argument to deride a proposed policy—say, a social security reform or free trade—by simply saying we will be worse off after the policy is
implemented than we are now. That may well be true. However, it might also be
true of the wisest policy because other alternatives—including merely doing nothing—would make us even worse off in the future. I should also note that Professor
Flowers’s Jungian paper “The Economic Myth” provided the initial elements for my
notion of the “market state.”
9. Niccolò Machiavelli, The Prince and The Discourses on
the First Ten Books of Livy
I have long believed—and am in the process of writing—that Machiavelli wrote one
great book, which I shall call “The State,” and which is composed of two parts, one
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dealing with principalities (which we know as the posthumously published The Prince)
and one dealing with republics (which was posthumously published as The Discourses
on the First Ten Books of Livy). Seeing his work this way helps us understand many
aspects of Machiavelli’s thought (his republicanism, his Christianity) as well as why
he was so woefully misunderstood by his contemporaries, still in the grip of Aristotelianism, who did not appreciate the emergence of a new constitutional order.
For my own work, this book—“The State”—was important in two respects. First,
it led me to the controversial claim that dictatorships were better structured to obey
deontic moral rules than democracies, which have, necessarily, a duty of consequentialism to the public’s welfare, entirely apart from whether the steps that promote that
welfare are in accord with all fundamental moral imperatives. Second, and for me
more importantly, Machiavelli’s work evoked the sensibility that is reflected in my
contribution to Tragic Choices, after the fact, so to speak, because this coauthored work
originated in a series of lectures given by Guido Calabresi. I would characterize the
sensibility in this way. Mankind lives in a necessary condition of scarcity owing his to
imaginative faculties. One of these constraints is that our values often clash, indeed
will always clash. In such circumstances, the best we can do is to shore up those values that are threatened, knowing that in doing so we risk jeopardizing other values
that we must, in time, reinforce even at the cost of compromising those values we
have been supporting. Thus each reform measure contains within it the necessity of
its eventual abandonment and reversal.
10. Kurt Gödel, The second incompleteness theorem
Gödel proved in 1931 that no internally consistent set of axioms could prove all facts
about natural numbers (this is the first Incompleteness Theorem); for any system
there will always remain true propositions that are unprovable within the consistent
system. The second incompleteness theorem demonstrates that were a system capable of proving all other propositions, it could not prove that it was wholly internally
consistent.
This insight was crucial to my developing the forms of constitutional argument
into modalities of argument. A modality is the way in which a proposition is determined to be true. A proposition of constitutional law (say, “it is unconstitutional
for Congress to prevent the president from removing members of his Cabinet”) is
true with respect to the modality of historical argument if it can be shown that
the ratifiers of the Constitution sought for it to be, and expected that it would be,
unconstitutional for Congress to prevent the president from removing members
of his Cabinet (by the way, they did not). However, the one proposition of constitutional law that this modality cannot establish is that the historical argument is
itself a valid form of determining the truth of a proposition of constitutional law. If
the ratifiers, in fact, wished their opinions to be given legal force, historical argument cannot validate this because it assumes that we should give legal effect to
the intentions of the ratifiers. This was an important argument in Constitutional
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Interpretation because it enabled me to reject the calls for a privileged modality or
a hierarchy of forms of argument.
Looking over this list, I have two reactions: first, that—-excepting the Shell Global
Scenarios—most of these works were read in my teens and twenties (and some earlier).
This suggests a deplorable lack of growth on my part and supports Scott Fitzgerald’s
claim that we all have just a few ideas that we latch onto early and keep repackaging.
It also suggests that one can scarcely overstate the role played by an intellectually
inclined grandparent.
Second, I am pained and surprised by the omissions that glare at me, reproachfully.
Where is Fitzgerald himself (or Eliot or Auden or Larkin or John Berryman)? Where are
Miłoszz and Zbigniew Herbert and Joseph Brodsky? Where are Leibniz (who was
so important to the formulations in Constitutional Interpretation) and Hume (whose
arguments about induction set the terms for Constitutional Fate)? What of Aeschylus and Sophocles for Tragic Choices, or Thomas Hardy’s poems for Terror and Consent?
Where in Heaven’s name is Dante, who was my constant companion when I was writing
Democracy and Deterrence, or Goethe’s Faust, which prefigures the notion of fate in Constitutional Fate, or the Iliad, which kept me company, appropriately enough, during the
drafting of The Shield of Achilles? Even if I were confined to the years of my childhood,
where is Mark Twain or O. Henry or Kenneth Grahame? Where is Shakespeare’s
beating mind or Keats’ teeming brain? (The New Testament, I decided, did not fit the
category from which I was supposed to choose; it is not merely a “book.” I do not say
that because it is divinely inspired—I believe all our works are—the awful pity being
that, like electricity going through copper wire, most of the inspiration is dissipated or
distorted or even perverted by its coursing through the human cortex. No, it was more
like deciding not to choose from the category of musical compositions.)
Well, the man who enticed me into this exercise by appealing to my vanity must have
known from the outset how humiliating the experience would be. It is absurd, is it not,
to write about how great authors with great insights have mysteriously served as muses
of fire, lighting one’s own poor efforts. And, even worse, to realize in the cold light of
self-assessment that one is like Tom Stoppard’s character in The Real Thing: if invited to
appear on the radio interview “Desert Island Discs,” I fear I would find that I really want
to take Buddy Holly’s George Gershwin’s records with me and leave Palestrina behind.
We are what we have become. There is no avoiding this recognition. The face
reflected in the passing train, the man quickly checking his tie in the shop window,
has not the same face as that of the boy and man who was so moved by these works;
he is recognizable but different. And the difference, or much of it anyway, lies in those
dozen or so books.