Strong Fiber After All

Many of our most important judgments are relative. As Samuel Johnson said, "Of the first building that was raised, it might be with certainty determined that it was round or square, but whether it was spacious or lofty must have been referred to time," because "spacious" and "lofty" are relative terms. And similarly, if more enigmatically, T. S. Eliot said,

What happens when a new work of art is created is something that happens simultaneously to all the works of art which preceded it ... For order to persist after the supervention of novelty, the whole existing order must be, if ever so slightly, altered; and so the relations, proportions, value of each work of art toward the whole are readjusted.

In other words, we respond to a shock to our belief system by trying to reweave our beliefs into a new coherence.

A spectacularly shocking event such as the terrorist attacks of September 11 alters "the relations, proportions, value" of our practices, institutions, attitudes, and historical understandings. We learn, for example, as I wrote in this magazine last month, that civil liberties, being relative rather than absolute, must diminish when the nation is seriously endangered. Not their core but their lush foliage, the product of many decades of expansive judicial interpretations of the Constitution, is a luxury of the safe society we thought we were. In 1989 the Supreme Court, in the name of the free-speech clause of the First Amendment, held that it is unconstitutional to punish a person for burning the American flag. The dissenting justices argued—an argument that failed to persuade most students of constitutional law (myself included)—that the flag is a unique national symbol that the government should be empowered to protect from desecration. This argument seems a great deal stronger today, for it turns out that the social importance of the flag, too, is relative to circumstances.

Privacy has just been revalued downward, as airline passengers discover how little they value it relative to life and so positively welcome intrusive searches of their personal belongings. We also learn (though we actually knew this already) that religion is not all sweetness and light. It raises the stakes in a conflict, and it reduces deterrence, by holding out promises of afterlife rewards that may, to believers, deprive criminal sanctions of all their weight. Hobbes may well have been right that the fear of death is the foundation of human society. The philosopher Richard Rorty has said that "a world of pragmatic atheists ... would be a better, happier world than our present one." Most Americans would disagree, but fewer than would have disagreed just months ago. We should be careful to define "religion" broadly, however. Devout communists worshipped History, and were willing to kill, and even to die, for it.

Before September 11 Jacques Barzun and other social conservatives were much given to hand-wringing over the decline of civility in American life. The vulgarity of television was regularly decried. The lyrics of popular music were denounced. Barzun even called ours a decadent era. His criticism of American culture extended to the phasing out of dress codes at work; the informal-dress movement—lawyers and investment bankers denuded of jacket and tie—struck him as an ominous portent of national decline. I don't think we'll hear much about the social significance of office dress codes until the nation again feels safe about going to the office. The danger from within shrinks in our minds when the danger from without is perceived as formidable. Cultural sickness pales in the face of medical epidemics. To paraphrase Samuel Johnson, before September 11 we may have known that formal dress was square; we could not have known, as we do now, that it was not lofty. There is much in modern American culture to offend the fastidious, and yet the nation's response to September 11 and its aftermath has indicated no weakening of the national fiber. The American character remains robust despite cultural changes that strike critics as revolutionary. Culture and morality will take care of themselves; physical safety and health require active defense.

Presented by

Richard A. Posner

Richard Posner is an author and federal appeals court judge. He has written more than 2500 published judicial opinions and continues to teach at the University of Chicago Law School. More

Richard A. Posner worked for several years in Washington during the Kennedy and Johnson Administrations. He worked for Justice William J. Brennan, Jr, the Solicitor General of the U.S., Thurgood Marshall, and as general counsel of President Johnson's Task Force on Communications Policy. Posner entered law teaching in 1968 at Stanford and became professor of law at the University of Chicago Law School in 1969. He was appointed Judge of the U.S. Court of Appeals for the Seventh Circuit in 1981 and served as Chief Judge from 1993 to 2000. He has written more than 2500 published judicial opinions and continues to teach at the University of Chicago Law School. His academic work has covered a broad range, with particular emphasis on the application of economics to law. His most recent books are How Judges Think (2008), Law and Literature (3d ed. 2009), A Failure of Capitalism: The Crisis of '08 and the Descent into Depression (2009). He has received the Thomas C. Schelling Award for scholarly contributions that have had an impact on public policy from the John F. Kennedy School of Government at Harvard University, and the Henry J. Friendly Medal from the American Law Institute.

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