Learning To Be Civil Again

>> Tom Church: This is the Libertarian podcast from the Hoover Institution. I'm your host, Tom Church, and I'm joined, as always, by the libertarian professor Richard Epstein here at Hoover. Richard is the Peter and Kirsten Bedford senior fellow. He's also the Laurence A Tisch professor of law at NYU, and he's a senior lecturer at the University of Chicago.

Now, Richard, you wrote an interesting column about what has caused the decline of the study of western civilization in american universities. This is a topic I think we come back to every once in a while, but there's a specific reason to get into it. And today, Richard, I want to ask you three things, really.

I want to know why western civilization, why the study has declined. I wanna talk about what it actually teaches people, and I wanna know why we can't get the same lessons elsewhere. So let's start with the first one. Let's talk about why we're even talking about the decline of the study of western civilization.

>> Richard A. Epstein: Well, I think the explanation really has to do with the change in the aspiration and the origins of the faculty. When I took this course in 1960, universities were relatively monochromatic places, and everybody, to some extent, was in the western tradition. It wasn't that we had everybody from Brooklyn, New York, although there was a very large fraction of Columbia college, that was.

But the faculty, every faculty member that I had was some or other steeped in that tradition. And they were all believers in the tradition, or at least in some fraction of it. And so for them, teaching these particular books was the expression of what they thought was the sort of highest ideals of the human mind.

And this was the tradition of Columbia College. So if you looked on Nicholas Butler Murray Hall, or Nicholas Butler Hall, and he was president of Columbia until 1944. On the top, you see there's a building with a frieza, and it has Aeschylus, Socrates, Plato, all of the great names from the classic period emblazoned there.

And that was essentially the touchstone of an institution which thought there was much interest in the learning from the ancients and taking it all the way through. And so the system of education that I had started back with some of these very early texts and slowly worked their way through sort of the great landmarks of later time.

The Magna Carta, the French Revolution, the Declaration of Independence. And what you try to do is to get some sense of the sweep of western history, and you were never blind to the sources of its inequities. I mean, there was slavery in western civilization, for example. But what you tended to do was to look at the great achievements rather than the great gaps.

And this was done essentially in three separate courses. What we did is we had an all purpose humanities class that started with essentially the great literature, the Hume, the Thucydides, and stuff like that. You read either the original text in a humanities class or excerpts from them in a social studies class.

And then what you did is you had breakout classes that went in the second year, most notably in the history of music and the history of art. And then there was another unit that I took, which was essentially a course on sociology, which really meant that great thinkers of the sociological movement, Emile Durkheim, Max Weber, and people like that.

And the people who taught it believed in it, and the students like I believed in it. And our job was always to figure out how it is that you look at this tradition, figure out its shortfalls, and how you make it better. By the time you get 20 or 30 years later, the faculty has fundamentally changed.

It is not a bunch of white male professors. It comes from all sides. But not only is there a change in the racial composition and the sex composition, there's also a fundamental change in attitudes. I mean, the thought that I would have described all of these great people as dead white males is simply something that was incomprehensible to me at the time.

But as you know, that's a war cry that was raised against western civilization course at the time that they started to break down in the 80s and the 90s. What happened is they regarded everybody in this tradition as essentially homogeneous, not worthy of study for their differences. And they wanted to go look at something else instead of that.

The fly in the ointment was what is it that they wanted to look for? And there were two problems that they had to face. One is the critique may have been uniform, but the selection of new works was not, very difficult to invent a canon out of current authors because you don't have history and time to give it to you.

So they couldn't quite figure out who would be in it. And there were also disagreements amongst themselves as to what it was that they thought to be the appropriate situation, either in terms of methodology on the one hand or canonical text with respect to the other. So there was essentially a kind of a large degree of fragmentation that resulted.

And as far as I was concerned, and indeed people at Stanford were concerned, the lack of a common foundation makes it much more difficult to have a common discourse when the issues that you have to face are those that deal with the sort of fundamental problems of social civilization.

To what extent do you owe loyalties as a citizen, to what extent do you owe greater loyalties to humanity at large, and problems of that particular sort. And so at Stanford, what they decided to do was to change the situation. And this is to be understood as something of a conservative movement, something to try to back off this kind of lack of structure.

And so there is a piece by Debra Satz, and she turns out to be the dean of Stanford School of Humanities and Sciences. And Dan Edelstein, who is the faculty director of the school's Civic, Liberal, and Global Education Program. And so what they wanted to do was to piece together a program which would have the same kind of cohesive stuff.

And the explanations, I think, completely laudable, they said, by dropping civics, which they mean western civilization, essentially, or something like it, colleges gave fuel to the culture wars. And, of course, at Stanford and everywhere else, there are many cases pitch battles by people who don't seem to have a lot of coherence amongst themselves.

And the effort to put together this kind of a curriculum was an effort to see if we could find something to replace the old western civilization course that will give us a kind of degree of cohesion. So that's essentially what the program is. And what I try to do is to criticize the way in which this thing starts to work out in terms of its practical consequences and its intellectual foundations.

>> Tom Church: Well, Richard, this effort has this characterization that the decline of the study of western civilization comes from, well, some sort of laissez faire economics, right? It's free market. There isn't structure here, so people can take what they want, and so it's falling apart. I have to know what you think about that.

>> Richard A. Epstein: Well, that's the thing that actually got me to be very, very sort of critical of this. I mean, we understand what the real powerful forces were. It's a lack of belief in the curriculum by the new professors who start to staff the kind of curriculum that they start to have.

But what they do is they say that there was another reason that turned to the a la carte curriculum. They had come under the spell. I don't like that word. Like much of society at the time, this is the eighties of a three market ideology. In this vision, individual choice and individual advantage take central plays.

Requirements are cast as paternalistic. Freedom is understood as doing as one pleases. Well, as you know, this show is sometimes called the libertarian. It's probably a more accurate version of what it is to say that I'm a classical liberal. There are clear differences between the hardline libertarian and the classical liberal.

So the term libertarian is used both as an umbrella term for hardline libertarians and classical liberals, and there's an opposition to it. And even the view of the hardline libertarian is they do not like states, but what they really do like is they like contractual cooperation. And the theory is you get gains from trade.

You get them in those situations where you buy and sell goods and services, but you get them equally when you start to form voluntary organizations in which people do things together, including universities. And the basic rule is, if you open up a university in competition with other universities and you start to seek students, what you do is you could promise them the kind of curriculum you think they need.

If they don't want it, they can go elsewhere in an open market. If they do want it, they agree to abide by your rules. The enduring conceit, which is kind of hard to get across, I always accepted it as a student, is that the faculty knows more than the students do.

And so what we do, we're not paternalistic, but we essentially yield to their particular judgment of what it is that we're supposed to learn. And then when you get into the particular class, what you do is you actually argue with your teacher if you think their interpretation of this, that, or the other text turns out to be wrongheaded in some particular fashion.

But the whole point about, quote, laissez faire economics is it prizes voluntary association. It prizes the division of labor. It never believes that freedom is doing as one pleases. What it means is you can do as one as you please, so long as you respect the like liberties of others.

So the constraints against force and fraud and later against monopoly become a very important part of both the libertarian tradition and the classical liberal tradition. And so, in fact, if you go back historically, it was people who believed in this sense of community. And this organizations were the biggest champions of the classical curriculum because they thought, in effect, that we're bringing you people to this university, we wanna turn out people who can do a trade, but we also wanna turn out cultured citizens.

That's why they call the course in some sense, western civilization. So I just find it sort of extremely odd that somebody would again, go back to the anti market. Well, and find out that we're the source of all this kind of difficulty, when I think it's exactly the opposite.

So that's one difficult. The second difficulty is the difficulties that we have in university in terms of day to day administration often result in violent confrontations between protest students and institutions of authority. And you find these every place you go. It turns out, just to look at Harvard Claudine Day, the new president, tries to welcome the students, and she's interrupted throughout the series by a Palestinian group of students who chant that Israeli apartheid is the source of all evil in the Middle east.

Now, they're entitled to have those beliefs. They're not entitled to disrupt the ceremony of their own particular source. And you ask, well, suppose you taught them western civilization in any way, shape or form, is this gonna be able to make a difference in the way in which they think?

And my own view about it, regrettable as it is, I think when you get these close knit ethnic communities with deepen grievances, no generalized cost in western civilization, either the 1960 variety that I defended or the more modern variety, is going to temper the way in which these particular people start looking at these established institutions.

And so what happens is, it's a very hard thing to say, but if you're trying to figure out how you maintain the integrity of institutions, it cannot be all carrots. There must be some sticks involved. And what that means in effect is, you can't constantly appease people who disagree with you by allowing them to control.

If people are gonna come in, regardless of what they believe, and disrupt the interactions of other individuals, you have to put sanctions upon them, either exclude them from the institution or in some cases even sanctions that exist as a matter of law. Because otherwise what will happen is you have the constant problem.

If you give essentially bonuses for good people to abstain from bad or from bad people to abstain from bad behavior, you may stop that one attack, but somebody else is going to show up at the door and demand the same thing the next time around. What sanctions do is they not only get the right result in the particular case, if you administer them correctly, a big if, but it's an outright warning to everybody else not to try the same kind of thing.

And so one of the things that you learned when you sort of taught the western civilization program is that you really had to have the courage to exclude. And so I could remember having discussions about what you're supposed to do in a hobbesian world where everything is solitary, poor, nasty, brutish and short, where you get those individuals who refused to play the game.

And the name, of course, that you gave to those individuals was outlawed, and sooner or later you try to deal with them. But in the end, what happens is if they persist to use force against everybody, against the group, and they don't want to join in on equal terms, you kill them or exile them or some combination of the two.

And that's something I think that western civilization has to reveal and to recognize. It's extremely cautious and you want to do this. It's always been a theme. And in fact, if you go back and you read one of my favorite imperfect books, John Locke, he's always trying to figure out what you're supposed to do when you're faced with something that looks like a revolution, right?

And you try all sorts of compromised devices of one kind or another in order to minimize that. But sooner enough, you have to have an appeal to heaven, as he called it, which meant that some cases, you just have to take after those who will destroy you so that you can start to survive.

And I think some of that spirit or that understanding about the sort of the difficulties of maintaining a social order are often lost in this kind of a curriculum. And I think, in effect, discussing the question of sanctions and banishments and so forth, which is a constant theme throughout all of these particular periods, going back to roman times, is one of the really difficult things that you have to face.

Because what happens is, if you're in a market situation, the basic maxim is, if the use of force is constrained, what you will always do is you will try to make an attractive appearance to the person with whom you want to deal, and you will ignore everybody else.

You will start to look to the most favored trading partner that you could find. And what happens is deals start to get made, and then the velocity of these deals starts to increase. And you could develop a civil society by creating for example, university. But the moment you allow force to become a dominant situation in these games, what you now have to do is to worry about your worst enemy and not your favorite friend.

And it turns out there's no effective way to deal with your worst enemy, who wants to kill you by bribing them, because you get rid of him. And number two will start to pop up and so on. And so the fundamental proposition that one wants to talk about in western civilization is you have to use coercion against coercion.

And what you have to do is to encourage voluntary cooperation through institutions of contract. And that's essentially one of the major lessons of western civilization. Now, we could try to talk about how this works, but one of the things that I fear about the new Stanford curriculum is it doesn't have that core of insight.

>> Tom Church: Well, let me finish with this, Richard. There is a difference between, I think in universities, teaching people what a philosopher or a writer wrote and having them memorize that and teaching people to learn from the lessons that they have written about. And so you just talked about the lessons you learned from western civilization.

Why can't we learn those lessons elsewhere?

>> Richard A. Epstein: Well, it turns out you have to have a set of texts that are relatively uniform to do it. You pick tests that stand the test of time for exactly the reason. What it means is generation after generation comes to it, and they all manage to take something from it.

So if the only thing you want to do is to take a poem written in 2012 in order to deal with some of these situations, you don't know which poem to teach or why. And of course, western civilizations. Only the foundation course. After it's done, what you hope is that people will supplement it by doing exactly what you've mentioned.

Pick specialized areas in which they can take texts of any kind. But the western civilization stuff, being older, works itself into virtually everything that you see in modern times, whereas the modern texts do not work themselves into that way. They can't be ubiquitous. It's not as though you can have a scholarship on something written 30 years ago.

That's gonna be as exhaustive as the scholarship that you have on, whether it's thucydides or maimonides or locke or Hume, whatever it is, where there's a much denser and richer literature. So these are better texts on averages. There's more about them, and it turns out you can really learn a lot of stuff about them.

So I teach in a law school, and, you know, no matter where I'm going, about half the time when I'm there, like today, I said, well, you know, how do you do this when you start going back to ancient times and medieval times? And I'm not doing this to simply tell them, here's some antiquarian stuff.

I'm saying here's a modern problem which seems not to be solved in a way that you would like it, because they didn't seem to observe some of the lectures that had been acquired over the years, so there is no effective substitute. Now, how do I prove that? Well, one of the things I did is you take a look at the Stanford curriculum and what they're putting in its place, and it turns out it just can't do it.

Now, let me mention why. There are no canonical texts. So if you look at the way in which they kind of describe this, what they're trying to do is to get people to say what they think about whatever subject they want to talk about. And it's just fine for people to do that in dormitories.

But as in a class, what you want to do is to have them focus on the test by a known genius or something close to that, in order to structure their own deliberations. So when I teach classical subjects in law school, roman law in particular, what I do is I take a little passage of, say, four pages.

Not four pages, four line. I said, explain what's going on in these things. And it turns out they sit down and they look at it the first time. They don't think there's much to talk about, but they actually think about it. By the time they're done. They take these four lines of text, and they manage to write five pages of commentary on.

And it turns out most of the time, they start to see what the inner logic of these texts were. And what it does is it makes them better. So it's one of the things I'm most proud about as a roman law teacher is I think it's the course in law school anywhere in the country that sends the most people into teaching and into the Supreme Court.

And why is it? Because it's an alternative natural law way of looking at the modern legal problem, which we tend to have very much a much more kind of purposive instrumentalism that we develop in the 21st century. And we had just another argument on privileges and immunities on the faculty.

And so I was going back to the earlier tradition to explain why it was that I thought that the analysis that had been put forward had missed most of the essential points. So I mean, I don't think there is a substitute for this stuff. And what happens is the courses tend to wander.

The other problem that you have with the Stanford curriculum, I'll just mention one course. I mentioned two, actually. One which I wrote about, is they want to have a course on catastrophes. What are going to go on? How do you deal with this? That and the other problem of which you have earthquakes, you have other things.

This is a very long issue because the ancients developed a proposition which is still true today, which is under conditions of natural peril, ordinary property rights are suspended. And you have to explain what that means and why. It makes perfectly good sense. And you could learn a lot about it from that perspective.

But the way this course works is it says, well, we all know that global warming is a crisis that is gripping everybody. And then you try to figure out, well, how you deal with it. Well, look, the same day that I read this thing, 1600 scientists, mainly European come back and say everybody has to worry about climate change.

But calling it a crisis is incorrect. And so then you try to figure out what the explanations are. I can't give all of it, but essentially they say is you're looking at the wrong thing. If you're looking at carbon dioxide, which is a greenhouse gas, but so is water vapor, and it turns out it's a more powerful greenhouse gas and it lasts shorter, but in much larger amounts and so forth.

So if you're trying to figure out what's gonna be a determinant of weather and therefore of climate in the long run, understanding water vapor is at least as important and more important than understanding carbon dioxide. Now, how do you prove this to somebody? I said, well, nobody's ever gone outside and said, gee, it's a high carbon dioxide day.

But you do go out all the time and say, it's a sunny day. I got to get in the shade. And if the shade comes from cloud, you all of a sudden see a temperature change that could be ten or 15 degrees. Well, clearly that system has got to be understood, and it turns out to be, technically speaking, what we call chaotic, meaning in effect, it's a strictly determinate system, but it's extremely sensitive to the initial conditions at any given point in time.

And if you vary these only slightly, you get radically different results. You could, for example, have a high pressure zone that's coming down from the northwest, and you get a rainstorm coming up from the Gulf of Mexico and Houston. And just recently we had two such situations like this.

One which resulted in a torrential downpour which flooded out the area, and the other which had no particular consequences at all. As it turned out, it passed through instead of being blocked by a high pressure zone coming from California. Well, I mean, once you're aware of these kinds of things, then what you want to do is to ask the question, is it a crisis, how much of a crisis it is, and what are going to be the kinds of remedies?

Do you wanna think that you can control this by stopping fossil fuel outfit? What are you gonna do about all the problems associated with mining rare earth metals and all the rest of it? It's a different course. So the fear that I have on that score is that they've already pre committed to one substantive position where I think in effect, if you wanna talk about the question of what's the sources of climate change, you don't posit the answer in the course description and then figure out how you deal with it.

You treat it as a much more open kind of a situation. Well, the other course that I'll just mention briefly is they have a course on citizenship in the 21st century. Well, it's very important because essentially what happens is the 20th, 1st century has large amounts of movements of people back forth across borders.

That means that you have a lot of pressure on citizenship. You have a lot of pressure on dual citizenship. One of the major questions that you have in the United States is whether or not illegal aliens who come to the United States can confer citizens upon their children abort here.

But you can't answer that question unless you know the customary law traditions on citizenship in dual citizenship situation, which developed mainly in the 19th century in the international law treatises. To my view, you wanna do the 21st century, you can't do it without understanding at the very least, the 19th century stuff.

And then you look at those things and you realize, well, they go back even further. So what happens is, if you wanna do the modern stuff, you have to go back and do the traditional stuff. Otherwise, what happens is you just don't have a strong enough foundation on which to make really reliable judgment.

And I find this with my students at NYU in Chicago, is for the most part, they're insufficiently schooled in the great books. So that when you present an issue that comes out of this various tradition, you have to start to explain it from scratch. And I'm willing to explain it from scratch because it's so important.

But I think what really happened when I had this education, which I still trade to this very day, by the way, I took my first year course 63 years ago, and it's not as though I've forgotten it. I can still mention things that Mister Noyes, my late teacher, told me that have stuck with me for that entire period of time as being, my God.

I never really. Thought about it like that. And I think, in effect, they want it. So my view is it's hopeless, but I think it's still, you want to essentially make sure that you understand that you've given up a lot with the western situation, and what you've put into place have been fairly weak substitutes for.

And so, you know, if I were doing what Stanford did, I would try and go a little bit further back to western situations and so forth, because I think that it did serve the person of giving you a common platform on which to talk. But it wasn't just a common sort of things that you looked at.

It was a common sense of worldview about how you think about the sort of the great questions about the crooked timber of humanity. What do you do with imperfect men and women when you're trying to organize a society knowing that they're capable of great good and great evil?

What set of institutions allows you to filter out the one from another? It's something, by the way, which I didn't understand at the time, but really a huge amount of this is actually a study of law in disguise. And so you look at Locke, he's trying to figure out how he came property rights and land and in water.

You look at Hume and you're trying to figure out the rules of a sound society. They were both very much lawyers in terms of the way in which they did it. And to me, going into law school, it was a huge advantage studying that stuff. And it's something which I think you still trade on, at least in my case to this very day.

I think, in effect, they're right to say, we have to get something back. What they're doing is probably better than what they had before. But I think if you understand what's going on, one of the things you would do is be less dismissive of market institutions as an instrumental choice for progress.

And why is that? Because we understand them and understand these markets as profit making institutions. But what we also have to understand is the same form of voluntary association. What they did is they derive and organize our cultural institutions, house the music theater, the art museum, and they also organize our charitable stuff, aid to the poor, the formation of religion, and so on.

It's a great mistake to think of market institutions as only having exchanged the cash. What you have to think of them is a series of social arrangement in which collective action can take place that sometimes works for bad, but in more times than not, it starts to work for good.

And understanding how these voluntary associations and non commercial senses. Work is a part of the position, and you don't get that. If you put it all aside and you assume that what this system seems to believe is that freedom is understood as doing one pleases, that's never been the norm in western civilization.

There are both legal norms and more importantly, what we call imperfect social norms, which are designed very effectively to organize the way in which people work. The imperfect norms, just to give it a sentence. You wanna join some kind of an association, very typically something says, well, you wanna join our country club, that's fine, but we expect you to give x, y, and z money to various charities as a condition.

And that happens all the time. These are not isolated events. And what we have to do is surprise that kind of a tradition. Understand where it works. Because I think one of the things that the hard left does not understand in the way in which social organizations work is that these voluntary organizations are an extremely important buffer between the coercion of the state and the isolation of the individual.

And one reason why the United States over the years has passed somewhat better than Europe has, is Europe is very weak on these kinds of intermediate organizations. They never developed the tradition of that. It's having state universities instead of private universities. A lot of it comes down to this stuff, and I think what happens is the voluntaristic tradition has to be understood for its good stuff.

And I tend to think the modern versions, the modern substitutes for western civilization overlook that very important point.

>> Tom Church: You've been listening to the libertarian podcast with Richard Epstein. As always, you can learn more if you head over to Richard's column, the Libertarian, which we publish on defining ideas@hoover.org.

If you found this conversation thought provoking, please share it with your friends and rate the show on Apple Podcasts, Spotify, or wherever you're tuning in. For Richard Epstein, I'm Tom Church, we'll talk to you next time.

>> Speaker 3: This podcast is a production of the Hoover Institution, where we generate and promote ideas advancing freedom.

For more information about our work, to hear more of our podcasts or view our video content, please visit hoover.org.