Kenneth Anderson—The Therapeutic as Rights Talk

Kenneth Anderson
"A New Class of Lawyers: The Therapeutic as Rights Talk"
(1996)

[1072] ..."social trustee professionalism"... Professional life was guided not only by technical expertise, but additionally it "promised to be guided by an appreciation of the important social ends it served. ...
[1073]
... a marriage of technical expertise and social purpose... Morally, it was based on authority and not merely on efficiency...

Over the last thirty years, Brint notes, this idea of the professions "has become increasingly disconnected from functions perceived to be central to the public welfare and more exclusively connected to the idea of 'expert knowledge'". ...

... From a sociological perspective, expertise is now a resource sold to bidders in the market for skilled labor. ...

The shift in attitudes of the professional classes, or at least those holding market-ready knowledge, has resulted in what Brint calls a "separation of community orientation and expert authority." It goes far, he believes and I agree, towards explaining the increasing gap between the (ever-remoter but evermore powerful) expert and the (increasingly resentful) mass of others, who are themselves in the grip, rather than control, of the market.

Both Brint and Kronman emphasize the instrumentalist, transactional, mobile ethos of the contemporary professional, and both stress that these characteristics are consistent with creatures who do not believe themselves to have any grip on "ends," such as the public welfare espoused by the older social trustee professionalism, except as temporarily and contingently defined by bidders in the market for expert services. Brint goes even further, based upon his empirical research into the attitudes of professionals, and notes that today:

even people in the original fee-for-service professions rarely point to the social importance of their work as justification for social distinction. Instead, they justify differences between themselves and other people by discussing the kinds of skills involved in their work . . . 'I see no reason to think that our

[1074]

work is more important to society than the work of an electrician or an auto mechanic,' said one life scientist, expressing the views of many. There is an appealing note of democratic egalitarianism in this statement, but in the background there is, more importantly, the triumph of expertise as a basis of distinction that requires no moral vaulting.

Well, that is a darn good point, and it darn well ought to apply to artists too, who tend, IMHO, to find ourselves wildly both under- and over-valued in relation to electricians and auto mechanics, depending on who is doing the (mis-)valuing.

One might therefore think...that the moral condition of the contemporary professional is essentially relativist, a refusal to take stands on the ends of social policy. Expertise, as Brint puts it in his well-wrought phrase, is its own vaulting; it needs no other, and indeed is capable of recognizing no other—except the bidding of the market.

If there is to be any legitimate basis for own-vaulting, it would be found, I think, in the particular manners and processes of acquiring the expertise, less so (perhaps paradoxically) in how it is dispensed. Surely these formal processes of education and training have changed as drastically as, and concurrently with, those other, broader social processes which have delivered the separation of community orientation and expert authority and are ever further stratifying the matter of being in the grip, rather than control, of the market.

Perhaps this makes it very difficult (and meaningless too) to sort out the effects of one from the other; I cannot help but think regardless that becoming a musican and becoming a doctor actually were more similar processes in times past than they are now, even though the rhetoric of the contemporary Cultural Entrepreneur by which this comparison has been colloquialized is of quite recent vintage.

Brint notes this simulataneous relativistic refusal to take stands on the moral ends of social policy coupled with the contemporary professional's assertion that expertise is its own authority and source of legitimacy in observing that on social issues

many professionals now have views that are better described as libertarian than liberal. Professionals very frequently want government to stay out of issues involving moral choices, and they even tend to take a stance in favor of community self-determination when it comes to the purposes of education and other socializing institutions. This tells more than is immediately apparent about the character of contemporary professionalism. Very little could be as distant from the spirit of the old professionalism—with its emphasis on community stewardship and cultural authority—as this shift toward libertarian views on issues related to cultural choice and social relations. It is the political hallmark of a new "expert" stratum with strong interests in marketable knowledge and weaker concerns about the relationship between community and authority.

Yet Brint's does not seem to me to be the only interpretation of this data.

I sure hope not
,

because

equating a

libertarian

belief
in

community self-determination

with

a
contemptible

weakness

of

concerns about the relationship between community and authority

this

seems

rather

jaundiced

.

From my own experience, I would suggest...that the apprently modest instrumentalist claim that professionals
[1075]
do not privilege ends masks, for many lawyers and perhaps a wider range of professionals, not a deficit of ends, but instead an excess of them. Many professionals, especially lawyers, in my experience, in fact have such a deep attachment to ends that any discussion of them with those who might disagree is quite literally pointless.

I think he is on to something very important here.

The silence of expert elites about ends can wrongly appear to betoken indifference or a modesty about an attachment to ends. Whereas, I would suggest it may actually stem from a belief that there is no point and no moral need to convince anyone, especially those who might disagree with you, of the virtue of one's ends. The diffidence may be strategic. It is better to be silent as to ends in any form of discourse that would require you to acknowledge other views as equal in stature to your own; it is better to present your own as the fait accompli...
[1076]
... In my own experience, the professional world is filled not with people who have no fixed beliefs, but with people who have so very, very many—but are unwilling to admit to them as such because that would require arguing their merits without the crutch of reporting them as expert opinion. If there is anything to this observation, then contemporary professionalism consists of considerably more than the auction of skilled services in a market. Such strong attachments to social ends lead to a hierarchical and anti-
[1077]
democratic division between the experts and everyone who lacks the credentials and language to challenge the pronouncements of the experts.

Well, color me simplistic, but if the very idea of expertise is so much permitted to exist, then there cannot be any real basis on which non-experts might challenge experts in their own practices. It seems to me the real question is how a community produces its experts and how their mandate is bestowed. And at that point the reclamation of expertise from the relativist refusal to take stands on the ends of social policy would seem not merely to suggest but to require a localist (which is NOT the same thing as a libertarian!) orientation.

It is not implausible to characterize this division as a class divide between professionals and the rest of society. But this observation brings us to consideration of a theory that can account for it in class terms, the so-called theory of the New Class.

Tell me more.

[1090] When lawyering becomes the means to infuse therapeutic ends into the public and private by privileged access to the dividing line between them, then notwithstanding all its talk of rights, it becomes a profoundly illiberal profession. In one of my own very few conversations with Lasch, in 1991, I put this to him. He responded that he saw lawyers as an essentially New Class conduit for the authoritarianism of the regime of public therapy. This Essay has, therefore, sought to set out at least the form of argument...for what that might mean, in order to ask what happens to lawyers and the law when the dominant paradigm of social control becomes therapeutic but its language remains the language of rights.

Beyond that, Lasch said, the issue really was the transformation of rights talk from a liberal discourse...into a therapeutic discourse. Yet, he went on, the specification of that transformation was something that needed to be examined from within the law
[1091]
and the legal profession; it was a task, he thought, peculiarly appropriate to lawyers and peculiarly difficult for intellectual historians like himself.

So perhaps Kronman ought to look further afield than he does for an answer to the unhappiness of lawyers; perhaps he ought to take a frankly class, and not just market, view of lawyers, and consider their place in a specifically therapeutic society. If he were to do so, he might well conclude that today's lawyers are, if anything, over-professionalized, and unhappy in part because they sense, as others sense, the brittleness of professional identity and its inability alone to sustain the human spirit... Brint too, having demolished one version of the New Class thesis, perhaps ought to consider the continued relevance of another, that of the New Class in service to monopoly capital maintaining its grip upon a culture of several narcissisms.

As for Lasch, the issue of the New Class and its lawyers is authoritarianism. In an age when the therapeutic has appropriated rights talk, and with it lawyers, turning it and them into agents of New Class authoritarianism and social control, the real question that needs to be answered is why there exists the continued "hegemony within the public culture of an essentially indeterminate and at the same time absolutist discourse of rights." The answer Lasch gave by the end of his life was that it predominates because, far from being merely a language of individual liberty or even unbridled individual license...it is today a language of state authority, a language of therapeutic paternalism; those who actually dream of being "liberals," in Morris' sense, will not reclaim rights talk any time soon. ...

Lawyers are deeply complicit in this colonization of the language of rights by the culture of therapy. They participate because it serves the agenda of a class that, unfamiliar with democracy except as an impediment to its social engineering, is incapable of any form of discourse that is not directed from the top to the bottom. Expertise, particularly in the social sciences, is a language of hierarchy and social control, and lawyers today, as a professional formation within the New Class, deploy the language of rights to the end of making the therapeutic coercive in the public sphere.

It is not a glorious profession because it is not a glorious class, and lawyers are right to be unhappy.

[emailed to self, 9 December, 2021]

Krens' Footprints and Oteiza's Paradox

Oteiza’s paradox consists in that while New York’s world-class artists will consider him as their equal (Serra conceded to a reporter that he thought Oteiza was the greatest living sculptor, and Gehry called him one of the three or four fundamental artists of the century), the Krensified franchise museum will reduce him to a local artist whose value is seen as quite negligible.

But Oteiza is only one instance of this paradox. The same thing happened to the great Eduardo Chillida. Initially, when Basque critics charged that there would be no work by Basque artists at the new museum, Krens always countered that one gallery would be devoted to Chillida. But then he refused to buy Chillida’s work. When the Guggenheim was about to open its doors in Bilbao, a snubbed Chillida had to complain in the Basque press that Krens was unwilling to purchase any of his work—purchases that, needless to say, would be done with Basque taxpayers’ money. Krensification means that the museum mandarin from New York has the right to levy money for the purchase of art from the host society and then spend these public funds of the franchised public the way he best pleases. If this implies humiliating the most consecrated local artist, then so be it.

But the key lesson for local artists to be learned from Chillida’s case is something else. It has something to do with the repositioning of the artist as deserving a global or local audience. Chillida clearly belonged to the international elite art community when New York’s Guggenheim exhibited his work in 1981. Then the Guggenheim purchased Chillida’s work. But in the 1990s and in his home Basque Country, was he still a global artist whose work deserved to be collected? Krens decided that he was not. Suddenly, in the eyes of the Guggenheim, Chillida had become a minor artist unworthy of his interest. His work did not deserve the new museum’s international space. When I asked Krens about it, his cryptic reply was that his modus operandi was to buy two works and receive one for free. In other words, Chillida was unwilling to bend to the Krensified museum’s patronizing rules and had been punished for it.

Joseba Zulaika
"Desiring Bilbao: The Krensification of the Museum and Its Discontents"
in Learning from the Bilbao Guggenheim
pp. 158-159

Besides a "paradox," I also smell a rat: members of the "international elite art community" indeed stoop to the level of local yokels when they demand the "elite" treatment on the basis of their local origins. They reduce themselves when they deal in terms of honor and status at the expense of practical considerations. They reduce themselves when institutional conduct "implies" things about them rather than does things to (or for, or with) them. In my home town, a long way from Bilbao in geographic terms, even the nonelite like to turn this trick. I have since grown to despise it.

If art itself shows a "tendency to reproduce something absent" (O. Rank), then so too must we permit the audience to meet their own "dynamic need of equalization" via occasional indulgences in novelty. Behemoth art franchises can suck all the air out of the room, but they also (and this too is something of a paradox) are importers of rare goods otherwise unavailable locally. Infusing more local work into these behemoths is the worst of both worlds. That is not their ecological function. Use them to equilibriate yourself as needed! Otherwise ignore them! Nobody can "humiliate" you without your permission! Not even a Yale MBA!

It's hard to take seriously the notion that "the Krensified franchise museum" is either necessary or sufficient to "reduce" an "international elite" artist "to a local artist whose value is seen as quite negligible" on the local level. Anything ever-present will be taken for granted. There is more than a ring of truth to the notion that a prophet will never be recognized in his own land. There is also a material reality, a reality which transparently unethical behavior by the gatekeepers (and there does seem to have been some of that here) can too easily obscure. When the local scene's greatest export demands to be acknowledged in every local endeavor (as many of them do!), he himself has become the behemoth who sucks all the air out of the room. Frankly, there is no "key lesson for local artists" here that they do not learn quickly on their own. Perhaps it is only elite success which causes them to forget.

(Please forgive my indulgence in masculine pronouns here on the grounds that the principals happen to be men. True "murderous rage" over the failure of a project is such a guy thing, no?)

---

As MASS MoCA evolved into an element of the Guggenheim Museum's expanding international network, it raised the issue of the cultural preservation or homogenization of local identities. Would a conceptual museum of avant-garde art overshadow the humble folk art traditions of North Adams? Would the preservation of the old factory buildings also preserve a local working-class identity? Under any circumstances, making a museum the arbiter of local identity risks undermining the cultural understandings that support any social community. In a fragile economy, making that community financially and emotionally dependent on a transnational museum adds irony to tragedy.

Avant-garde art is usually associated with metropolitan centers. It diffuses slowly to other areas. Tourism may accelerate this process, as it did with modern music and dance in the Berkshires, but it does so within limits. Local museums outside a metropolitan setting rarely present avant-garde works. They perform educational and curatorial functions. They commemorate local histories. They preserve fossils found on native soil, paintings and sculptures by regional artists, and encyclopedic—rather than topical—displays.

We do not know whether Conceptual and Minimalist art, and its descendants in feminist and other installations, can command an audience in rustic or humble surroundings. Until now, the summer visitors who patronize arts festivals in the Berkshires come for mainstream modernist and Impressionist works. They fill evenings in their vacation schedules.

The MASS MoCA proposal essentially argued that space does not matter: art can be appreciated anywhere. The North Adams site was a "museum of space," in one meaningless expression, which meant that it was to be considered an outpost of global culture rather than a local social institution. Thomas Krens theorized that visitors would go to North Adams to see a definitive display of a highly specific art that was created elsewhere. While this strategy works for the Guggenheim's core museum in New York and the Clark Art Institute in Williamstown, few people thought it would work for North Adams. But who creates the social and spatial context in which a specific cultural strategy "works"? Could avant-garde art "work" without a critical mass of avant-garde artists to produce and view it, without a public already trained to "see" it?

Sharon Zukin
The Cultures of Cities (1996)
(pp. 103-104)

"Outposts" are indeed no substitute for (and can be highly destructive of) "local social institutions." About that there is no doubt. But again, the Localist Paradox: access to "global culture" is a necessity and a human right which "local social institutions" can't always provide. Bollocks on any art czar who would banish "global culture" from "rustic or humble surroundings!" Or vice versa!

Zukin's gambit here is very much a "populist resistance to change," though she has earlier written of that orientation as if it were someone else's and not her own. "Avant-garde art is usually associated with metropolitan centers." Fine. But to question in this context whether "art can be appreciated anywhere" the volk are not "already trained" (Yikes!) I find rather shockingly contemptuous of these ruralites. I for one can say that I've seen some rather remarkable things happen in some rather unlikely places. Yes, I have seen truckers sobbing openly after a free jazz blowout, and I have seen rural children stage a swoon-in over a brass quintet. Certainly I have not seen these things everywhere I have performed. I have never seen anything like them in the city! Supply and demand is not too facile a construction here! Localism reproduces something present!

Appreciation by everyone, everywhere, all at once, is not the point. Also not the point: giving people exactly what they say they already want, or more of what they already have. Probably North Adams did not need a whole Guggenheim, but I'll bet that someone in North Adams needed modern art, and damned if they didn't get some!
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Local and personal reality is always more granular than a distant consumer of print can do justice to. Both the genius and the folly of print is how impersonal it can be. None of what I write on matters such as these is to be taken "personally," but I realize that it cannot help but be taken this way. I happen to recognize many elements of these stories even though I have never been to Bilbao or to North Adams. Such public-facing print accounts are undoubtedly reductive; still, they are tools the rest of us can use to guide ourselves through similarly fraught territory. For me there are lessons here, just not the ones the authors explicitly state.