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]

Garry Chick—Games and Their Rhetorics

Garry Chick
"Games and Their Rhetorics: An Idiosyncratic Appreciation of The Contributions of Brian Sutton-Smith"
(2015)

[13] In a 1964 study, Sutton-Smith and Roberts showed that 8 to 12 year old children were able to attribute playing style-like characteristics to others. They created a categorization of players wherein those who “act (a) like players in games of chance and try to succeed by relying on luck, i.e., are fortunists; (b) like players in games of physical skill who try to succeed by applying physical power, i.e., are potents; or (c) like players in games of strategy who try to succeed by making wise decisions, i.e., are strategists” (15). Children who either lacked followers or gave up in the face of difficulties were regarded as failures. In addition to the children’s sociometric ratings of others, teachers rated the children in terms of their success in the classroom and on the playground. Sutton-Smith and Roberts (1964) found that 76% of the children named as classroom successes were in the top quarter of the distribution of strategists as perceived by other children. Fifty per cent indicated by teachers as successful on the playground were in the top quarter attributed as being potents. Fifty-nine strategists, but only four potents were regarded as classroom successes by teachers while 34 potents, but only 17 strategists, were classified as playground successes. Teachers classified 65% of the children regarded by their peers as either fortunists or failures as failures either in the classroom or on the playground. Sutton-Smith and Roberts (1964) extended their study by further examining the children who were in the top quarters of the distributions in each of the categories. As some children were in the top quarters of more than one category, Sutton-Smith and Roberts created the additional categories of potent-strategists, potent-fortunists, and fortunist-failures. They reported:

Our results show that boys make distinctions among children who succeed by strategy, children who succeed by power, and children who succeed by using a combination of these two types. Boys do not, however, appear to distinguish clearly between children who succeed by good fortune and those who simply fail. To succeed by luck is apparently tantamount to failure.

[14]

Girls, on the other hand, distinguish between children who succeed by fortune and those who simply fail. The largest difference between the two groups is to be found in the girls’ game preferences in which the fortunist-failures are not unlike the success groups in their responses, whereas the pure failure group is atypical and immature. The distinction made by girls between potent-strategists, strategists, and potent [sic] seems not to be a distinction in type as it is with boys so much as a distinction in degree. Potent-strategists have most of the desirable characteristics, strategists somewhat less, and potents even less; but all three groups are superior to fortunists and failures. (31)

Sutton-Smith and Roberts (1964) concluded that children can consistently place each other into categories based on games and that boys, in particular, play games that are analogous to their success styles. Girls tend not distinguish among success styles but do so among failure groups.

p. 16 subject heading:

Games as Ambiguous Agents of Socialization

My note says:
emphasizes that coaches can usurp decision making and encourage bending the rules...but it seems fair to speculate that the games themselves (more specifically, perhaps, the stakes) could have the same effect.

Now:
Lasch, in his chapter on sport, makes reference (pregnant reference I would say, especially if you are both a sports fan and a musician) to a certain irreducable "autonomy of cultural traditions," and he quotes approvingly an ex-pro athlete who holds that "Money" in pro sports "has nothing to do with capitalism." For Lasch, this stands as a "Reject[ion of] the simple-minded radicalism according to which "commercialization" has corrupted sports."

Neither Lasch nor his source, evidently, foresaw the latter career of LeBron James, e.g., wherein the "corrupt[ion]" of sport by "commercialization" can in fact be noncontroversially pinned to quite specific statements and actions. Hence the managerial turn remarked upon above, while it certainly is in evidence in the NBA, is superfluous to the diagnosis of "corruption;" a strong word no doubt, but the only accurate word for a sport where the top points-per-game scorers, per Ryen Russillo (7 June, 2022, ca. 3:35), on average play no more than 60 of 82 regular season games, and often many fewer than that. Per Russillo, in the last five years the number of missed games among the top 25 ppg scorers has gone from 6 to 23 (of 82). He points out that this past season many legitimate injuries contributed to the spike, but ultimately concludes that, "Until the money [i.e. esp. from live television rights] is screwed up, nothing happens," i.e. there is no urgency to shorten the season or legislate participation. Really it makes no difference whether the league is running the players harder than their bodies can take or whether the players are "resting" preventatively at the expense of competitive integrity. The diagnosis of "corruption" follows easily enough from either factor.

The obvious explanation for why this "corruption" is further advanced in basketball than in baseball or football is simple, and also very simply a function of that narrow but undeniable "autonomy" of the sport which follows ineluctably from its structure: a single great player has by far the most impact on team success (and therefore power over team management, coaches, and other players) in a 5-on-5 sport (or at least in this one) as against 9-on-9 or 11-on-11. It has also been ventured by more than a few talking heads that the NFL, in contrast to the NBA, is a "helmet league" which conceals players' faces and hence limits their off-the-field recognizability as powerful celebrities. Unfortunate as all of this is, the onus is on the detractors (can I just say opponents?) of "autonomy" for the West's more decadent "cultural traditions" to show that the structure of the game is at fault rather than the influence of money and careerism. It is, conversely, not nearly so difficult to show that the autonomy is real, since money and careerism have a way of bringing it into higher relief, as here, even in spite of the overall spectacular quality which all major-league American sports (and big-money performing arts endeavors) necessarily share. In other words, money's influence could not vary even so widely as in the above example if the "autonomy" was not real; and so, at least under the present circumstances, given the ability of autonomous factors to serve not just as vulnerabilities but also as defenses, there are ample grounds for rejecting the loudmouth cries of self-referentiality and decadence which are the customary response to assertions of the "autonomy" of any particular "cultural tradition."

Lasch also makes much of the managerial turn, evidently visible already in the late 1970s, which "makes every effort to eliminate the risk and uncertainty that contribute so centrally to the ritual and dramatic success of any contest." That this factor renders sports Ambiguous Agents of Socialization rather than outright positive or negative ones is a point near and dear to my heart, and also, I must add, fully consonant with my own youth sport experiences from Peewee through Babe Ruth. (Later I was fortunate to have an exceptional high school coach, Dave Wicker, who was a calculus teacher and, formerly, an accomplished baseball player, though there were, let's say, ambiguities to spare emanating from just about every other direction.) Lasch certainly understands this ambiguity, yet one of the few unperceptive aspects of his account is that he, as far as I can tell, treats the money issue and the managerial issue separately. It is a bit odd that he finds only "simple-minded radicalism" in the thesis that money corrupts sport; or at least it seems odd in hindsight, since much else in his account is characteristically on point, and because the conceit to "eliminat[ion of] risk and uncertainty" via bureaucratic means is (and it is fair here to also say was) a highly visible trait of the world he lived in, a major area of overlap between the "captialist" and "communist" leviathans.

[16] In the cross-cultural data, they found evidence that, in societies where all three game types [physical skill/strategy/chance??] are present, obedience was emphasized over self-reliance or honesty. In contemporary American sports, for example, coaches have all but completely usurped decision-making. Hence, there is little need for players to be self-reliant. However, coaches value obedience and self-restraint. And, as for honesty, coaches teach how to shade the rules without getting caught. At both the University of Illinois and Penn State University, I have

[17]

had offensive and defensive linemen from the football teams in class. When asked how often offensive linemen are guilty of “holding,” defensive linemen respond “on every play” while offensive linemen answer, “never.” Obviously, there is a difference in perspective but also in training. Offensive linemen are coached in how to hold and not get caught. Roberts and Barry (1976) concluded, “If games build character, that character may be less than ideal” (59). As Sutton-Smith so often emphasized, ambiguities exist not only in how we study play but in play itself.

...

[18] Sutton-Smith went on to critique [certain] studies and their conclusions based on post-1970 research and theorizing. More important, however, is that he recognized that the studies themselves were grounded in the then-extant view that play is an ideal activity for children rather than one that is to be maligned and avoided as in previous times and other cultures (see Sutton-Smith and Kelly-Byrne 1984). Thus, with respect to games, “When Roberts and I called them models of power, we were becoming victims of our own and other males’ macho rhetoric […]” (SuttonSmith 1989, 13). Further, with respect to games, he claimed that

In their own strange ways, they embody tenderness in their affairs as well as toughness. They make players love each other, or love their coaches, or love their supporters, as much as they make them hate each other. What shall we call them: the games as models of toughness and tenderness? Perhaps games as models of Power and Pusillanimity? (13)

My note says:
I would suggest that part of what BSS is groping for here is captured by the universalistic-particularistic distinction. We hate the opponent, but “it’s not personal,” and “game recognizes game.” Sorry, but this does seem to be a guy thing. Time for us to work on our emotions, and also time for the ladies to work on this.

Now:
The year I attended his (in)famous Interim class at CalArts, Art Lande related stories of reffing "high level" basketball, wherein the truly "great" players "love the other team."

[notes emailed to self, 26 April 2021]

---

Garry Chick
Games in Culture Revisited: A Replication and Extension of Roberts, Arth, and Bush
(1959)

[188] Glassford (1976) enumerated several criteria that characterize good systems of classification. These include:

1. Exclusiveness. Members of one class should be excluded from all other classes that are at the same level of analysis. With respect to games, any individual game should be a member of only one class.

2. Exhaustiveness. The classification system applied to any particular concept should include all instances of that concept. A game classification system should be such that any game will fall into one of its categories.

3. Usefulness. A categorization system should be useful in description, analysis, or comparison (or all three) of the objects or events that it classifies. To be useful, a game categorization system must permit cross-cultural or other kinds of comparisons of games.

...

[189] The problem with all of these systems [e.g. from Caillois on], though they may have considerable utility in describing and understanding games, is that they are not exclusive and often not exhaustive. That is, many games can fall into two or more classes. Systems such as that of Caillois (1961) are so broad that it is difficult to exclude many activities that are not commonly thought of as games (e.g., skiing, riding a merry-go-round). The game classifications based on informant perceptions lack utility for cross-cultural comparisons, though it might be possible to construct some composite system based on several emic categorizations. On the other hand, any activity that fits their definition of games can always be categorized into one of the three classes given by Roberts et al. (1959). Though their categorization scheme has been criticized (e.g., Royce, 1972; von Glascoe, 1976), it has the advantage of being both inclusive and exclusive, unlike the alternatives developed by others. For this reason, it is useful in comparative research.

My note says:
Fair criticism of Caillois’ taxonomy. Still, “comparative research” is just one application. A taxonomy which is not useful for “comparative research” could still, imaginably, be useful elsewhere. And, admittedly, I just like the Caillois version. Will have to think about why that really is.

[193] Tables 3 and 4 indicate that the degree of political integration and social stratification have strong positive relationships with the presence of games of strategy. Hence, these results clearly support

[194]

Roberts et al.’s (1959) conclusions about games of strategy and the complexity of the social system. It is worth noting that Table 3 shows that no societies that lack multicommunity organization have games of strategy. In both his writings and in personal interactions after the publication of "Games in Culture," Roberts maintained that games of strategy model hierarchical social organizations, that such models function as socialization devices, and that for each specific society, there is a fit between the array of games present and the more general culture.

My note says:
...this leap straight to “modeling” is actually rather drastic! What if societies “create what they need” or “reproduce something absent”? This is not just a different explanation, it’s the OPPOSITE explanation.

[emailed to self, 26 April, 2021]

The Degradation of Sport

Christopher Lasch
The Culture of Narcissism
(1979)


V

The Degradation of Sport

[100] Like sex, drugs, and drink, they [sports] obliterate awareness of everyday reality, but they do this not by dimming awareness but by raising it to a new level of concentration.

A crucial distinction which deserves to be taken seriously.

...

The uselessness of games makes them offensive to social reformers, improvers of public morals, or functionalist critics of society like Veblen, who saw in the futility of upper-class sports anachronistic survivals of militarism and prowess. Yet the "futility" of play, and nothing else, explains its appeal... Games quickly lose their charm when forced into the service of education, character development, or social improvement.

Yep.

And if so, then the distinction between

dimming awareness

and

raising it to a new level of concentration,

this distinction becomes quite important. It's easiest for play to get forced into service based on what it does well. Failing that, the forcers have to start off by lying about what it does well, which is not too difficult but is at least more difficult than the first way.

The Selective Exaltation of Norms

Christopher Lasch
The Culture of Narcissism
(1979)

[49] The normative concept of developmental stages promotes a view of life as an obstacle course: the aim is simply to get through the course with a minimum of trouble and pain.

Sure. But is this ever such a cut-and-dried case of promot[ing] a very specific view of life? Or, mustn't it be granted that individuals will process/respond differently even to such a supposedly rigid normative concept as the developmental schedule? Isn't there always something like rugged instrumentalism available as a rejoinder to such assertions as this one?