Teaching

Here’s a quick question I have about teaching jurisprudence. There’s an interesting literature on the nature of rights that will be familiar to many people, and I think it is a good thing for undergraduate jurisprudence students to be exposed to it. However, in addition to reading Hohfeld, Hart, Raz, and some others, one might wish that they had an easy way to apply the complexity of rights theory to their interpretations of the Bill of Rights (we’re talking about US students here), otherwise we lose a bit of traction with the kind of law that interests them most. As such, I want to start gathering suggestions for good readings on how papers such as “The Nature of Rights,” illuminate the constitutional right to free speech or the constitutional right to bear arms, etc. In short, what’s the best way to demonstrate to my students that wading through all that conceptual analysis can make a difference to how they think about their constitution? I’m sure there are some obvious readings, but I thought I would draw on the wisdom of those who have found particular papers fitting this bill useful and enjoyable to teach.

I am teaching Nietzsche (Beyond Good and Evil) for the first time this term, and I have run into some puzzles I am hoping some of the more experienced Nietzsche scholars on this list can help me work through. The points are two; these have come out in class discussions and I’ve been uncertain how to respond. I’ll put them as tendentiously, contentiously, and ignorantly as I can, and plan on backtracking as quickly as I can once knowledge is imposed upon me.

1. Nietzsche seems to suggest contradictory things as to what sort of social arrangements his view would prescribe (if it would prescribe anything; more on this next). On the one hand, he indicates that the oppression of the “free spirits” by the moral codes of the herd (”one long coercion”) are necessary for the development and fruition of the greatness of spirit and exfoliation of the will to power in those spirits. On the other hand, he also indicates that hierarchical societies — with abundant sacrifice of the lower forms of human life for the sake of the development of the higher forms — are a precondition for the highest development of the type “human being.” These seem like contradictory prescriptions. The best I can do with them is to think that his view is analogous to Marx’s on the communist revolution. The idea in that case is that capitalist societies overproduce to a point at which, after the revolution, the superabundance of material goods “launches” the new communist arrangements successfully. Here, the idea would be that the “long coercion” does likewise for the development of free spirits or “philosophers of tomorrow” — in effect the hierarchical societies would build on the obstructive “capital” of the long period of “rule of the rabble” under the usual run of moral codes. Beyond this, I am stuck.

2. I wonder what prescriptive force the view has for individuals at all. Suppose, on the one hand, you are (or take yourself to be) one of the free spirits. Then what the hell do you care what Nietzsche thinks? You are in the business of creating your own values, you accept no one’s rules or values but your own, etc. Nietzsche is just another source of noise; in fact, his is just another will for yours to overcome. So there’s no normative point to his view if you’re one of the free spirits. 

On the other hand, if you’re not a free spirit — if you’re one of the herd — Nietzsche has, so far as I can see — given you absolutely no reason to accept any of his ideals. It may be that some ideal of human greatness is possible only through your exploitation and slavery, but on the other hand by hypothesis such ideals get no grip on you (if you could appreciate them, you would be noble, not despicable). So, once again, who the hell cares what Nietzsche has to say?

So: is there any prescriptive point to the view at all, by its own lights? 

Does anyone one know if Rousseau had read Hume’s essay “Of Original Contract”? I’m teaching Hume this year in my second year history of political thought course, in between Locke and Rousseau. Hume showed that political legitimacy and obligation cannot be based on actual consent - the poor unilingual peasant has no real exit option. Remnants of an actual consent theory persist in Rousseau’s Social Contract, as in the footnote to 4.2, which says that residency implies consent and hence legitimacy of institutions only in a free state, where people have the right to leave. Yet Rousseau also advances the new view that the idea of free agreement between equals can help us design legitimate institutions, as in 1.6 of the Social Contract, where the idea of a social contract is clearly not legitimating whatever is agreed to, but rather helping us figure out what we should agree to, in order to preserve our freedom. If Rousseau had read Hume’s essay, it seems he would have distinguished these two types of consent and these two roles consent can play more clearly. I’m hoping someone can help me out with the biography / history (though also with the interpretation, if I’m missing something). For a clear misreading of this history, and its relation to Rawls, see here and compare to pp.336-7 of A Theory of Justice, in particular note 2, where Rawls says that he does not accept the whole of Hume’s argument, but believes that it is correct as applied to the political duty for citizens. (What part did Rawls not accept?)