My high school history teacher had a one-liner he liked to drop into our history lessons. It went something like this:
“Before I had kids, I had two theories about parenting. Now, I have two kids, and I no longer have theories about how to be a good parent.”
It’s a clever turn of phrase, always good for a chuckle with new parents. And it hits at two near-universal truths. First, that parenting is a tough and messy business. Second, that most of our lofty theories, especially the ones that are supposed to guide our behavior, are really just so much BS.
It’s easy to sit in a comfy chair when you have no kids, fully rested, and think it’s best to never yell at your kids. But when your four-year-old is smearing fecal matter on your new carpet or headed straight toward an open ledge, sometimes you gotta do what you gotta do.
The way the joke resonates with people, it shows that at some level we know that most of our theories are kind of BS.
So why have theories at all?
A few scholars have taken the position that the best and most honest way to judge human behavior is to avoid theories.
A law clerk named Andrew Jordan recently published an excellent law review article called Constitutional Anti-Theory. If you’re at all interested in the US Constitution and how it is applied I couldn’t recommend it more highly. The basic summary of the article is that sound decision-making in applying the Constitution does not require a coherent theory. What judges and policy-makers do when they apply the Constitution, whether they admit it or not, is weigh certain criteria and values, such as the right to privacy, safety concerns, freedom, the stability of the judiciary and the government, and try to come up with a fair and equitable result based on the facts presented to them. Judges hear facts and apply them to the facts and the law as they understand them. This is what they do. By adding a universal theory about how to interpret the Constitution, this creates an intermediary layer that simply prioritizes one of these values over another.
According to Jordan, there is no reason we should have to do this.
Jordan’s argument isn’t new. Former Judge Richard Posner, perhaps the most influential jurist over the last fifty years, published another law review article called Against Constitutional Theory over twenty years ago. In it, he criticized Antonin Scalia for making value judgments in the guise of making not making value judgments at all, in the name of Strict Constructionalist constitutional theory. This theory states that we should base all of our judgments of modern-day constitutional arguments based on how the original founders intended the Constitution to have been written. This ran counter to how most judges have interpreted the law throughout history, as a corpus of decisions and precedents that evolve over time. It wasn’t an accident that Scalia was also the most conservative Supreme Court judge over the past half century. By intellectually pushing the judiciary to tether decision-making to a bygone era, this was forcing an anti-progressive stance on the way decisions had to be made.
Posner wasn’t a fan of this approach. He considered himself a pragmatist, someone who looked at the specific facts of the cases presented to him, weighed the harms and injuries suffered by the parties, and then tried to make decisions to deliver the most equitable result. As a high-level appeals judge, almost all of the cases he reviewed dealt with difficult facts and circumstances, and to make the right decision was rarely easy. He argued that what he wanted was more information, more data, and better social science to guide his decisions. Posner wasn’t interested in more theory, but rather a better understanding of the facts.
Posner and Jordan notwithstanding, many of us feel inclined to adopt theories. To adopt a rule we deem to be universal that we claim governs our actions.
But if we know that as fallible humans, that our actions are sometimes inconsistent, and that life is always messy, why take this step?
One of the most powerful intellectual tricks you can play (on yourself and) on others is to make a value judgment seem like it is not a value judgment at all, but rather a simple application of a universal rule. That way, it’s not your judgment that’s making a decision against someone’s interest, but rather, there’s something more transcendent at work.
Since the time of David Hume, we’ve known you can’t get an “ought” from an “is.” This is what philosophers call the “is-ought gap.” Value judgments must always derive from other value judgments. Any attempt to proclaim a value judgment “this is the way things should be” from a description of a state of affairs, “this is just the way it is” is just a clever slight of hand trick. When we make value judgments, we’re always applying our values. It’s just sometimes we pretend that we’re not.
This may be one of the reasons why it is useful for people and organizations to enact policies or to publicly state a theory or principle that will guide their behaviors. These public stances aren’t useful because they’re universal truths; they’re helpful to convince ourselves and others that our actions will be predictable or consistent (even when they’re not). In a way, they’re like stories we’re selling to those around us. In the story, there is an arc of truth and universality. When in reality, principles and policies are just ways to get other people to do what we want them to do.
Richard Posner, despite his impeccable credentials and respect among other members of the judiciary, was never nominated to the Supreme Court. Antonin Scalia and Clarence Thomas were. Scalia and Thomas are also brilliant, but the scope and breadth of their intellectual accomplishments never rivaled Posner’s.
Perhaps one explanation for why Scalia and Thomas made it to the Supreme Court and Posner did not, is that Scalia and Thomas were much more predictable. By labeling themselves as Strict Constructionalists, these men effectively sent a signal to their conservative colleagues in the legislative branch that they could be trusted to deliver conservative verdicts. And that’s what they did (and are still doing, in Thomas’s case).
Posner was also a Reagan appointee and a conservative, but he was less predictable from a left-wing/right-wing axis than his Strict Constructionalist colleagues. His pragmatic, detail-oriented approach inspired judges around the world, and his opinions were always deeply concerned with making the right decision based on the facts presented to him. His decisions were rooted in context, not ideology.
And that is perhaps why, despite the fact that was one of the greatest legal geniuses ever, he never made it to the Supreme Court.
There’s plenty of evidence that we don’t come to our moral decisions based on reason. Since judges are people, too, it’s safe to assume the same applies to them.
But it’s problematic for judges and other people with authority to admit that their logic is based on moral intuition rather than something greater.
It’s useful for judges, companies, and parents to be able to appeal to something more transcendent than their own judgment. “Because I say so” just isn’t that compelling. “It’s our company policy that we cannot accommodate your request,” is harder to argue with than “I just don’t want to refund your money because then I won’t have your money.” If a judge tells you, “I think what you’re doing is wrong,” that seems arbitrary and unfair, but “I’m simply applying the law,” is hard to dispute. When it’s company policy or transcendent principle, rather than personal judgment, there’s no one individual person with whom you can take up your debate. It’s outside the control of the agents acting out the order.
We may sense that the real motivation for a decision is personal values rather than principled reasons, but the process of depersonalization lends an air of transcendence to any decision, and is a useful tool for persons in power to justify their actions.
It is best to view any theory, principal, or policy that would attempt to impose consistency on the way people act with deep suspicion.
Life is all about making hard decisions in context. Theories and principles that purport to guide our behavior independent of context are almost always an artifice, because the human brain is a modular instrument that was not designed for consistency.
There’s an appeal to the idea of intellectual consistency. It’s a nice thought. But it’s just not how we work. If we’re looking for honesty, it’s probably best to admit that we’re fallible creatures trying to our best to make things work in a messy world.
If we’re looking to rise to power, however, it might be in our best interests to tell a different story. All the better if it’s a simple, clear story where you are the author, where you alone know the answers, and everything you say is consistent and universally true.
That’s the kind of story people like to hear.
 It’s probably useful here to distinguish between theories such as the Einstein’s General Theory of Relativity, Darwin’s Theory of Evolution, and Scalia’s Strict Constructionalist Theory. The former two theories purport to predict and explain, and currently do predict and explain better than any other theories, natural phenomena in the fields of physics and biology. What Scalia’s theory is trying to do, on the other hand, is to provide normative guidance on how people should behave. Evolution is true whether people believe in it or not. There is nothing obligatory or necessary about Strict Constructionalist theory. If people decide to stop trying to interpret the constitution based on the literal intent of the founders, then that is a phenomenon that will simply cease to exist. Regardless of whether people are aware of it or believe in it, evolution will continue as long as there are creatures who are living.