ts Jeffrey C. illeranaer is Lillian Chavensnn Sadcn Professor of Sociology at Yale University, and-a Director of the Center for Cultural Sociology-He is-also the author of The Meanings if Social Life:A Cultural Sociology (Oxford,3003). Author pharograph: More! Morion- Photo ecfrniii*: Richard L,i['.ilonib.ir:i, Iniage Gamcrucnan .Cover 3rt:Morci Morton, Oru'uis 8,-2005 , : r'.'.M CLASSICAL TU CONTEMi'Oli MO 'Jiii-.-, rhiin-fiphers and social scientists vc tried : .' describe what binds societies ^ether sasd hov the>e social orders ci-> be ucturedin a'"ut 1 ^ I j1? 1 ^-'m merest : crucial, but they aren't enough. Ethical d emotional convictions are necessary-;• welt. Haw then.dcrffii/ individuals live -gecher in societies in the red world? Efrey Alexander s masterful work. The Civil i/iere;-;addEesses-'.this-central paradox of mod-n HJEei-BeeHngs'-forothers—the-solidarity;. -atls ignored "or underplayed by theories of ywsr,.or-:sdfrínterest~r~are..at die heart of... is novel'iixquiry-mto;the meeting piace;be-;een normative .theories of what we think e shoulddo and; empirical studíes-of who e-actually are: Solidarity,'Alexander'shows;, ' a basic-social force:It creates inclusive and ;clusive:-social structures and shows how ,ey can be repaired- Solidarity is "a cam-on secular faith,:-.driving people:-to coexist--id respect one another. It is .not-perfect.-it is 3t .absolute..and-the- horrors - that occur- in: its pses have .been seen-.all too-frequently in:the [rms-of-discrimination,- genoeide:-and -war./-'espite-lts woi-idly-fiaws;-and.contradictions, -owever.-solidarity-andthe projector civil./.-' iciety remain our:best hope; the anridote/ 1 every divisive institution, every unfair istríbution.-every-abusive ■ and- dominating.- - v ierarchy^; lexander shows us chat we dev-k-p our ipacity for social criticism anďdemocratic itegration inside this world of civil vjjues nd in-r fiacre her** - *e can reach beyond íe here and now to d:u ide zoofi by Oxford University Press, Inc. Published by Oxford University Press, Inc. lyti Madison Avenue. New York. New York looifi www.otip.eum Oxford is Li registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press. Library of Congress Catalog! rig-iu-Public.itioii Data Alexander, Jeffrey C. The civil sphere / Jeffrey C. Alexander, p. cm. ISliN-13 1178-0-10-516150-9 1SÜN 0-10-5J6250-I 1. Civil Society. 2. Pluralism (Social sciences). 3. Social interaction. 1. Title. JC337.A47 200Ö 300—dc22 2005027340 To the memory of my mother and father, Esther Leah Schlossman Alexander and Frederick Charles Alexander, who believed in the possibility for civil repair 24689753 1 Printed in the United States of America on a cid-free paper As we look at the problem, we see that the real tension is not between the Negro citizens of Montgomery and the white citizens, but it is a conflict between justice and injustice, between the forces of light and the forces of darkness, and if there is a victory—and there will be a victory—the victory will not be merely for the Negro citizens and a defeat for the white citizens, but it will be a victory of justice and a defeat of injustice. It will be a victory for goodness in its long struggle with the forces of evil. -martin luther king We know of no scientifically ascertainable ideals. To be sure, that makes our efforts more arduous than those of the past, since we are expected to create our ideals from within our breast in the very age of subjectivist culture; but we must not and cannot promise a fool's paradise and an easy road to it, neither in thought nor in action. It is the stigma of our human dignity that the peace of our souls cannot be as great as the peace of one who dreams of such a paradise. -max weber PREFACE t is hard co know what Wittgenstein means when he concludes his preface to the Philosophical Investigations by remarking, "1 would have liked to produce a good book," but "this has not come about." It is not difficult, however, to understand exactly what he is getting at when he follows this lament with the assertion that he cannot delay the publication of his Investigations any longer, for "the time is past in whicli I could improve it." In 1979, I received a John Simon Guggenheim Memorial Foundation Fellowship for a project titled "Watergate and the Crisis of Civil Society." With this topic, whose title must have seemed more than slightly recondite at that time. I meant to signal my interest in solidarity as central to democracy. Interest in "civil society" had emerged from my earlier interest in Gramsci's cultural Marxism, which later had become filtered through Tocquevilles democracy, Durkheim's civic morals, Weber's fraternization, and Parsons s societal community. I published some papers from this Guggenheim research, but not a book. The project plunged rne deeply into television and newspaper archives and produced in me a conviction that there is a cultural structure at the heart of democratic life. It is this paradoxical and contradictory language, I came to believe, that provides a reference for assertions about social solidarity and the putative obligations immanent to it, for demands about economic equality and political responsibility, for scandals over the abuse of office power, and for repairing the rent structures of social life. In the middle 1980s, as I was beginning to think about what a cultural sociology might look like, I spent a year at the Institute for Advanced Studies preface preface in Princeton at the invitation of Michael Walzer, who had been an inspiration in my days as an undergraduate social studies major at Harvard. Fifteen years later, he had become my tutor once again, this time in philosophy and political theory. From that time onward, I saw clearly that, far from being confined to interpretive social science, hermeneutics could be central to normative political philosophy. In the spring of 1989 I spent a month in China at Nankai University in Tianjin teaching a course on democracy and sociological theory. The linked topics grew in importance as I experienced the rush of excitement from the students, who filled every seat and cranny in the lecture hall. As I departed from China, the pro-democracy student movement gathered force in Beijing's Tiananmen Square. Its defeat was traumatizing. Upon my return to UCLA, I spoke with Adam Seligman about my sense that I had seen something new, something that sociological theory could not explain. He pointed me to the new literature on civil society. Six months later, I had written a lengthy draft essay that laid the foundations for this book. A year later, in the fall of 1990, Ivan Szelenyi invited me to speak about civil society to the Hungarian Sociological Association. It was on the flight to Budapest, worrying over whether I had anything new to tell those who were actually participating in the construction of a new civil sphere, that the theory presented here crystallized in its final form. During the academic year 1993-94, I lived in Paris and worked under the auspices of CADIS, the center created by Alain Touraine at the Ecole des Mantes Etudes en Sciences Societies. The interests of this group stimulated a greater appreciation for the role of social movements in civil society, a topic that Ron Eyerman had first placed on my intellectual horizon. With the assistance of Michel Wieviorka and Francois Dubet, I spent spring 1994 teaching a course on sociological theory and the racial underclass in America at the University of Bordeaux. This experience made race central to my thinking about the possibilities for justice in the civil sphere. Over the course of five years during the 1990s, I participated in the annual Prague conference on Critical Theory, Philosophy and the Social Sciences, and engaged in discussions about aesthetics and morality with the Mexican philosopher Maria Pia Lara. It was during a fellowship at the Swedish Center for Advanced Study in the Social Sciences in 1997 that I clarified the relationship between my emerging sociological theory of civil society and some recent developments in political philosophy. At UCLA in the winter of 1996, under the auspices of the interdisciplinary Social Sciences Collegium, I participated in a course titled Beyond Enlightenment: Jews, jewishness and Modernity, organized by David Myers and co-taught with David Ellenson, Arnold Band, and Rabbi Chaim Seidler-Feller. The format, readings, lectures, and discussion convinced me that anti-Semitism could not be left out of the history or sociology of civil society, and that realization helped to frame the approach I have taken here. Adinah Miller, a graduate student in Jewish history at Yale, helped guide me through secondary literature. In 1998-99, I organized a research group at the Center for Advanced Studies in the Behavioral Sciences in Stanford. Over the course ofthat year, I met weekly with Ron Eyerman, Bernhard Giesen, Neil Smelser (the center's director), Piotr Sztompka, and Bjom Wittrock to discuss the dynamics of cultural trauma, how feelings of moral responsibility depend on symbolic extension and psychological identification and respond to the constructions of carrier groups. These discussions in general, and Eyerman s and Giesens work on African-American and German memory construction in particular, triggered my investigations that year on the American civil rights movement and the Holocaust, which informed Parts III and IV of this book. Nancy Cott, who was also a Fellow at the center that year, helped me think through some of the contemporary literature on American feminism. My interest had earlier been stimulated by conversations with Ruth Bloch and by her work. This book took final shape after I moved to Yale University in 2001. as I helped rebuild the sociology department and created, with Ron Eyerman and Philip Smith, the Center for Cultural Sociology. Yale's seriousness and purpose proved critical for finally bringing this long project to a close. I am grateful to the leaders of this great institution and to my colleagues in the sociology department and the Whitney Humanities Center for their support and interest, and also to Ann Fitzpatrick for her clerical assistance during my years as Chair. Nadine Casey has proved invaluable to the task of putting the manuscript into final form and helping to track down references and books. Dedi Felman, my editor at Oxford, was as creative as she was assiduous in her efforts to bring The Civil Sphere to publication. Over the years, I have shared my understanding of democracy and civil society with several generations of students, and through their masters theses and Ph.D. dissertations they have more than paid me back in kind. They x XI will see their own work, in published and unpublished form, cited in the pages that follow, but I should like to mention Philip Smith, Ronaldjacobs, Eyal Rabinovitch, and especially Isaac Reed for research and critical feedback. And there are some critical academic-cum-personal friendships I should like to mention as well: Nick Entrikin for his cultural geography lessons; Ken Thompson for Durkheimian collegiality; Steven Seidman for steadfasdy criticizing modernity; and Roger Friedland for insisting on institutional power. As the ideas in this book took shape, I published some of my initial findings in journal articles and book chapters. For providing these opportunities, I would like to thank Charles Lemert, in whose Intellectuals and Politics appeared the first run-through of chapter 3; the editors of Mondoperai; Carlo Mongardini, who edited Due Dimcnsioni delta Socicta I'Utile e la Morale; and Marcel Fournier and Michele Lamont, editors of Where Culture Talks, for publishing early versions of chapter 4; Andreas Hess and the other editors of Soundings, for publishing the first version of chapter 8; Marco Diani and Jon Clarke, who solicited an early version of chapter 9 for their Alain Touraine; Jonathan Turner, who welcomed the first renditions of chapters 10 and 17 in Sociological Theory; and Mark Jacobs, for pubhshing the analysis of the Birmingham campaign in Culture. In my own edited book, Real Civil Societies, I published much of the material that appears in chapter 2. The material in these earlier publications has been modified in more and less significant ways as they became transformed into chapters for this book. My wife, Morel Baquie Morton, provided the grace, serenity, and stimulation that I needed to complete this book. My parents, Frederick Charles Alexander and Esther Leah Schlossman Alexander, provided the sense of moral seriousness and intellectual engagement without which it would not have been started. They were deeply interested in the fate of the civil sphere and were devoted to its sustenance and repair. It is to their memory that I dedicate this book. CONTENTS Introduction 3 PART I CIVIL SOCIETY IN SOCIAL THEORY 1 Possibilities of Justice 13 2 Real Civil Societies: Dilemmas of Institutionalization 23 Civil Society I 24 Civil Society II 26 Return to Civil Society I? 29 Toward Civil Society III 31 3 Bringing Democracy Back In: Realism, Morality, Solidarity 37 Utopianism: The Fallacies of Twentieth-Century Evolutionism Realism: The Tradition of Thrasymachus 39 Morality and Solidarity 42 Complexity and Community 45 Cultural Codes and Democratic Communication 4S xii CONTENTS CONTENTS PART II STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE 4 Discourses: Liberty and Repression 53 Pure and Inipure in Civil Discourse 54 The Binary Structures of Motives 57 The Binary Structures of Relationships 58 The Binary Structures of Institutions 5g Civil Narratives of Good and Evil 60 Everyday Essentialism 62 The Conflict over Representation 64 5 Communicative Institutions: Public Opinion, Mass Media, Polls, Associations 69 The Public and Its Opinion 71 The Mass Media 75 ': Fictional Media 75 Factual Media 80 Public Opinion Polls 85 Civil Associations 92 6 Regulative Institutions (1): Voting, Parties, Office 107 Civil Power: A New Approach to Democratic Politics 109 Revisiting Thrasymachus: The Instrumental Science of Politics no Constructing and Destructing Civil Power (1): The Right to Vote and Disenfranchisement r t4 Constructing and Destructing Civil Power (2): Parties, Partisanship, and Election Campaigns 123 Civil Power in the State: Office as Regulating Institution 132 ^ 7 Regulative Institutions (2): The Civil Force of Law 151 I The Democratic Possibilities of Law 151 ' Bracketing and Rediscovering the Civil Sphere: The Warring Schools ofjurisprudence 157 - The Civil Morality of Law 1G1 j Constitutions as Civil Regulation 164 The Civil Life of Ordinary Law 169 Solidarity 172 CIVIL SOLIDARITY AND CONTRACT LAW I 73 Individuality 178 Legalizing Social Exclusion: The Antidemocratic Face of Law 184 8 Contradictions: Uncivilizing Pressures and Civil Repair 193 Space: The Geography of Civil Society 196 Time: Civil Society as Historical Sedimentation 199 Function: The Destruction of Boundary Relations and Their Repair 203 Forms of Boundary Relations: Input, Intrusion, and Civil Repair 205 PART III SOCIAL MOVEMENTS IN THE CIVIL SPHERE 9 Social Movements as Civil Translations 213 The Classical Model 214 The Social Science of Social Movements (1): Secularizing the Classical Model 217 The Social Science of Social Movements (2): Inverting the Classical Model 221 The Social Science of Social Movements (3): Updating the Classical Model 224 Displacing the Classical Model: Rehistoricizing the Cultural and Institutional Context of Social Movements 228 Social Movements as Translations of Civil Societies 229 10 Gender and Civil Repair: The Long and Winding Road through M/otherhood 235 Justifying Gender Domination: Relations between the Intimate and Civil Spheres 236 Women's Difference as Facilitating Input 237 xiv i 1 XV CONTENTS CONTENTS Women's Difference as Destructive Intrusion 239 Gender Universalism and Civil Repair 241 The Compromise Formation of Public M/otherhood 243 Public Stage and Civil Sphere 250 Universalism versus Difference: Feminist Fortunes in the Twentieth Century 253 The Ethical Limits of Care i$g :i Race and Civil Repair (1): Duality and the Creation of a Black Civil Society 265 Racial Domination and Duality in the Construction of American Civil Society 268 Duality and Counterpublics 275 The Conditions for Civil Repair: Duality and the Construction of Black Civil Society 277 Duality and Translation: Toward the Civil Rights Movement 2S6 3 Race and Civil Repair (2): The Civil Rights Movement and Communicative Solidarity 293 The Batde over Representation: The Intrusion of Northern Communicative Institutions 296 Translation and Social Drama: Emotional Identification and Symbolic Extension 303 The Montgomery Bus Boycott: Martin Luther King and the Drama of Civil Repair 307 3 Race and Civil Repair (3): Civil Trauma and the Tightening Spiral of Communication and Regulation 317 Duality and Legal Repair 31S The Sit-in Movement: Initiating the Drama of Direct Action 323 The New Regulatory Context 333 The Freedom Rides: Communicative Outrage and Regulatory Intervention 338 Failed Performance at Albany: Losing Control over the Symbolic Code 344 Birmingham: Solidarity and the Triumph of Tragedy 347 xvi 14 Race and Civil Repair (4): Regulatory Reform and Ratualization 359 The First Regulatory Repair: From Birmingham to the Civil Rights Act of 1964 362 Regulatory Reform Enters the Cominuuicatwe Domain: The President's Declaration of Identification 362 Filling in the Symbolic and Institutional Space: Ritual Mobilization and Legislative Action 366 The Second Regulatory Repair: Rewinding the Spiral of Communication and Regulation 370 Freedom Summer: Identification Becomes Concrete 371 Selina and Voting Rights: Ritualizing the Communications-Regulation Spiral 376 The End of the Civil Rights Movement: Institutionalization and Polarization 3S4 PART IV MODES OF INCORPORATION INTO THE CIVIL SPHERE 15 Integration between Difference and Solidarity 395 Convergence between Radicals and Conservatives 397 Recognition without Solidarity? 39S Rethinking the Public Sphere: Fragmentation and Continuity 402 Implications for Contemporary Debates 406 16 Encounters with the Other 409 The Plasticity of Common Identity 409 Exclusionary Solidarity 411 Forms of Out-Group Contact 41T Nondemocratic Incorporation 413 Internal Colonialism and the Civil Sphere 415 Varieties of Incorporation and Resistance in Civil Societies 417 xvii CONTENTS CONTENTS Closing Down the Civil Sphere 417 Opening Up the Civil Sphere 419 Stigmatized Persons and Tlieir Qualities 421 17 The Three Pathways to Incorporation 425 The Assimilative Mode of Incorporation 426 The Hyphenated Mode of Incorporation 431 The Exception of Race: Assimilation and Hyphenation Delayed 443 The Multicultural Mode of Incorporation 450 18 The Jewish Question: Anti-Semitism and the Failure of Assimilation 459 Jews and the Dilemmas of Assimilative Incorporation 461 Anti-Semitic Arguments for Jewish Incorporation: The Assimilative Dilemma from the Perspective of the Core Group 466 Initial Jewish Arguments for Self-Change: The Assimilative Dilemma from the Perspective of the Out-Group 471 The Post-Emancipation Period: Religious and Secular Modes of Jewish Adaptation to the Dilemmas of Assimilation 477 Restructuring Organized Judaism 47S Religious Conversion 483 Secular Revolution 4S5 New Forms of Symbolic Reflection and Social Response in the Fin de Siecle: The Dilemmas of Assimilation Intensify 4SS Irony and Absurdity: New Religious and Secular Literary Genres 4S9 Zionism: The Effort to Withdraw from Western Civil Society 493 The Crisis of Anti-Semitic Assimilation in the Interwar Period: Resolving the Dilemmas of Assimilation by Going Backward 495 Restrictions on Jewish Incorporation in the United States 496 Europe's "Final Solution" to the Jewish Question: Resolving the Dilemmas of Assimilation by Eliminating the Jews 500 19 Answering the Jewish Question in America: Before and After the Holocaust 503 Keepingjewish Idenitity Private: Self-Change and the Utopian Project of Hyphenation 504 The Dilemmas of Jewish Incorporation and Communicative Institutions: Factual and Fictional Media 506 The Dilemmas of Jewish Incorporation and Regulative Institutions: The Law 510 The Failure of the Project: Jewish Exclusion from American Civil Society 511 Antirivil Exclusions from Education 512 Anticivil Exclusions from Economic Life 516 Just Fate or Dangerous Exclusion? 517 Responding to Nazism and Holocaust: America's Decision to Be "With the Jews" 520 Beyond the Assimilative Dilemma: The Postwar Project of Jewish Ethnicity 523 Making Jewish Identity Public: The Multicultural Mode ofjewish Incorporation 530 Making the Good Jew "Bad": Phillip Roth's Confidence 533 The Universality of Jewish Difference: Woody Allen as Cultural Icon 539 The Dialectic of Differentiation and Identification: A Crisis in American Jewry? 543 20 Conclusion: Civil Society as a Project 549 Notes 555 Bibliography 723 Index 787 xviii xix INTRODUCTION 'e LrvE in a cynical age. Some people think might makes right, and sometimes they are the leaders of powerful countries. Sophisticated intellectuals sometimes think there is no right, and relativism becomes the order of the day. The gap between philosophy and empirical social science threatens to become a chasm. Once mired in analytic and technical concerns, philosophy has sprouted new branches. Today, it has become again a great moral science, filled not only with normative stipulations but with empirical assumptions about the world. Sociology has begun to grow out of its pseudo-scientific ivory tower theories and methods, and a newly cultural sociology allows us to speak centrally to the issues of public and everyday life. In this book, the normative and empirical sciences meet, and they do so on the terrain of civil society. The premise of Civil Sphere is that societies are not governed by power alone and are not fueled only by the pursuit of self-interest. Feelings for others matter, and they are structured by the boundaries of solidarity. How solidarity is structured, how far it extends, what it's composed of—these are critical issues for every social order, and especially for orders that aim at the good life. Solidarity is possible because people are oriented not only to the here and now but to the ideal, to the transcendent, to what they hope will be the everlasting. Our new moral philosophies underscore the vital significance for justice of broader and more inclusive social ties, but that they do not, in fact, tell us much about solidarity itself. When we examine the masterworks of classical and modern sociological theory, we find the same thing. Solidarity is pointed to, but it is nowhere systematically interpreted or explained. Where can we look for a better theory? In 19S0, a momentous and 3 THE CIVIL SPHERE Introduction effervescent social movement arose in Poland. It was called Solidarity. After a year and a half of extraordinary success, it was repressed, but it marked the first chapter of a democratic narrative that has continued to this day. The theorists and leaders of Solidarity said they were fighting for a civil society, and those who followed them in time often followed their civil society banner as well. Civil society is an idea that has been heard from before. In the wake of Solidarity and its successor democratic revolutions, there has been a great revival of civil society talk, but too much of it echoes earlier times. We need a new concept of civil society as a civil sphere, a world of values and institutions that generates the capacity for social criticism and democratic integration at the same time. Such a sphere relies on solidarity, on feelings for others whom we do not know but whom we respect out of principle, not experience, because of our putative commitment to a common secular faith. The idea that there can be a secular faith has been anathema to modern sociology, which has falsely equated being modern with being beyond belief. I challenge this old-fashioned perspective of modernity. In its place, I introduce the idea of democracy as a way of life. Democracy is not a game governed by technical rules. It is a world of great and idealizing expectations, but also overwhelming feelings of disgust and condemnation. It is a competitive scene of partisan conflict, but also cosmopolitan disinterest and love. Democratic life shifts back and forth between a transcendental language of sacred values of the good and profane symbols of evil, but these shifts are mediated by institutions that push for agreement in difference, such as voting, the rule of law, and the ethics of office. Civil society is not a panacea. Modernity is strewn with the detritus of civil societies, shipwrecks, such as the Third Republic in France and the Weimar Republic in Germany, whose carcasses came near to suffocating the twentieth century. The discourse of civil society can be as repressive as liberating, legitimating not only inclusion but exclusion. The structure of civil society may rest upon a cultural structure, but it is hardly merely discursive in its shape and form. It is filled with institutions, organizations of communication and regulation. To see what these institutions are up to, we need to recognize first the world of public opinion, which is the sea inside of which the civil sphere swims. Public opinion is the middle ground between the generalities of high-flown discourse and the ongoing, concrete events of everyday life. It is filled with collective representations of ideal civility, but it is also defined by strong expressions of negativity. For every "yes" and "I agree" there is, in every poll, the responses of "no" and "strongly disagree." There are often, in fact, "feeling thermometers" to register, in numeric terms, just how strongly are the passions of civil life. It is no wonder that public opinion has a real, if nonbinding, force. The communicative institutions of civil society are composed in part of mass media. Newspapers and television news are factual media; they record, but they also select and reconstruct in civil terms what "actually goes on" in a society's life. Fictional media—such as novels, movies, and television comedies and dramas—do much the same thing, but at a temporal remove from immediacy and under the guise of high and popular art. Mass media institutions respond to opinion, but they also structure and change it. Public opinion polls seem merely to measure opinion, to make it scientifically factual, but actually they construct it in a palpable way. Civil associations, such as Mothers against Drunk Driving or Moveon.Org, are also vital communicative institutions in civil life. It is traditional to equate such civil associations with voluntary associations, but I am skeptical about taking this path. Voluntariness characterizes the Girl Scouts, hospital volunteers, and the PTA. Each of these is a good thing, but they do not project communicative judgments in the wider civil sphere. The representations that pour forth from the communicative institutions of civil society have influence but not power in the more instrumental sense. This is why, even in the quashed and confined civil spheres of authoritarian societies, communicative institutions can often project representations that have some communicative force. To the degree that a society is democratic, however, the broad solidarity that constitutes "the people" must have teeth in it. There must, in other words, also be institutions of a more regulative kind, which means they need access to the violence monopolized by the state. Voting and party competition create civil power. They allow representatives of civil society not only to insert themselves into state bureaucracy but to formally control it. To represent civil power, however, is not necessarily to serve it. It is because power potentially corrupts that we speak of the duties and ethics of "office." Office can be thought of as a regulative institution. A product of centuries of religious and political conflict, office 5 THE CIVIL SPHERE Introduction functions as an invisible kind of control that warns and periodically publicizes and pollutes actions of the powerful when they slide toward self-interest alone. Voting, party conflict, and office are essential in the construction of social solidarity, and they go beyond merely persuasive force because they have access to the law. It is of more than passing interest that law has rarely been a compelling subject for either empirical or theoretical sociology, still less for social theory more broadly defined. When law has been discussed, moreover, it has usually been treated merely as the means to gain some economic interest or political end, not as a means for establishing civil solidarity. Drawing on certain trends in jurisprudential philosophy, I propose to rethink law as a form of symbolic representation. Law highlights, stereotypes, and pollutes actions that are considered threatening to civil society. The regulatory power of such legal representations is extraordinary. They constitute simultaneously symbolic constructions and normative judgments, and, in the name of the civil community, they can draw upon coercion and even control the bureaucratic state. Even while such control is exercised for the civic good, it often legalizes exclusion and domination at the same time. Law applies the sacred principles of civil discourse case by case, in real historical time; in order to do so, it must identify and punish the profane. Civil society can thus be thought of as an independent sphere. It has "its own" ethics and institutions. But the civil sphere is not separated and ideal; it must exist in the real world. It must be located in time and space. As civil society settles down into everyday social systems, its contradictions become apparent. Real civil societies are created by social actors at a particular time and in a particular place. These founders and their qualities are lionized. It might perhaps be thought one of the abiding misfortunes of civil society that this founding, the actors who did it and the place where it occurred, tend almost always to be seen through a sentimental and nostalgic gaze. The qualities of the founders and the place of their creation are sacralized; they are taken, somehow, as the very essence of civility. The founders' ethnicity, race, gender, class, and sex are essentialized, and so is the city, region, or nation in which these qualities were first displayed. By an alchemy that is less mysterious than it is mystifying, these arbitrary qualities become transformed into necessary qualifications. Those who follow are judged as worthy or unworthy in relation. All this contradicts the Utopian aspirations of civil society, but there is more. The civil sphere is bounded by what might be called "noncivil" spheres, by such worlds as state, economy, religion, family, and community. These spheres are fundamental to the quality of life and to the vitality of a plural order, and their independence must be nurtured and protected. At the same time, their concerns and interests often seem to threaten the civil sphere. The goods they produce and the powers they sustain are sectoral not societal, particularistic not universalistic. The hierarchies in these non-civil spheres often interfere with the construction of the wider solidarity that is the sine qua non of civil life. Real civil societies are contradictory and fragmented. These dynamics create the conditions for suppressing the very existence of the civil sphere. They also create the possibility for its civil repair. The ideals of civil society are never completely negated. They hold before us alternative possibilities, and from these general principles there emerge counterproposals for reform. It is the idea of civil solidarity that allows divisions to be reconstructed. That solidarity can be broadened is the project of civil repair. But civil repair does not happen just like that. Ideals don't just realize themselves. In considering the dynamics of civil societies, social movements must be given pride of place. They are accordions that inflate and deflate civil contradictions, instruments that supply the melodies, in major and minor keys, for expressing its divisions and for repairing or suppressing them. To see how this accordion is played, social movements must be rethought. They are not motivated simply by cognitive perceptions of rational interest, and their success hardly depends on mobilizing resources in the material sense. Social movements are rooted in subjectivity and dependent on symbolic communication. Anchored in the idealized discourses and communicative institutions of the civil sphere, social movements have one foot in some particular injustice and the other in promises about the general good. This reflects the duality of social position in complex social systems and fragmented civil spheres. The civil rights and feminist movements were not only about the particular interests of racial and gender groups. They were about the reconstruction of social solidarity, about its expansion and repair. To be successful, they had to convince people outside their groups; they could do so only by interweaving their particular struggles with universal civil themes. Those who are excluded from civil societies do not gain entrance through the struggles of social movements alone, but through more indirect 6 7 THE CIVIL SPHERE Introduction and incremental processes of incorporation. In the recent life and times of social theory, "assimilation" has become almost a dirty word. In fact, however, it represents, in terms of the promises of civil society, a tremendous achievement. Members of out-groups are, in principle, allowed to become members of the society on condition that they keep their stigmatized qualities hidden behind the wall of private life. Allowing persons to be separated from their qualities, assimilation gives members of stigmatized groups an out. If they learn to wear the primordial camouflage of the core group, they can become members. This is a cruel paradox, but over the last centuries it has often been accepted as the price for entry into civil life. In the course of the twentieth century, other options have emerged. Hyphenation suggests a more horizontal, if still asymmetrical, relationship between the qualities of core and out-group. With mukiculturalism, there emerges the possibility that out-group qualities can be purified—that they can, in fact, become objects not only of tolerance but of respect and even desire. As the multicultural mode of incorporation becomes more than merely a theoretical possibility, the language of incorporation changes from integration to diversity. But the siren song of difference can attract only if it represents a variation on the chords of civil society. If the initial story I tell is relatively uplifting, it is the dark side of civil society that dominates the latter part of the book. For two thousand years, the "Jewish question" bedeviled the history of Western civil societies. Because of the early civil ambition of Christianity and its later political, social, and legal domination. Western antagonism to Jews has never been only religious. Jews have been constructed as anticivil, as the ultimate threat to broad solidarity and the good life. When Jews were emancipated after the early modern democratic revolutions, their millennia-long demonization became ever more closely intertwined with the contradictions of civil society. Despite what seemed the rapid progress of assimilation, for European Jews these contradictions became, eventually, an iron cage, and then an inescapable chamber of death. This mass murder was not because Europeans suffered from ineradicable anti-Semitism, but because in the most powerful and aggressive European society, Germany, the civil sphere collapsed, and it became impossible to keep state violence at bay. In America, Jews did not suffer the same fate, but this was not because their qualities were acceptable. Indeed, until almost halfway through die twentieth century, the status of Jewish Americans was precarious, and in the 1920s and '30s they were increasingly excluded from civil and noncivil life. World War II changed everything. In the aftermath of the Holocaust, the relationship of Jews to the American civil sphere shifted dramatically. For the first time in history, Jewish qualities became respectable, and sometimes even attractive, to masses of non-Jewish people. Civil society is a project. It cannot be fully achieved, even in the fullest flush of success. Nor, despite tragedy and defeat, can it ever be completely suppressed. The contradictions of civil society, divisions of race, religion, gender, and class, can seem like arbitrary and destructive intrusions into its ideal of social solidarity. In fact, however, they are civil solidarity's other side. We would not be so indignant about these contradictions if we were not so fiercely committed to the ideal of a broadly solidaristic humanity, to brotherhood and sisterhood. These contradictions, in other words, are the price of civil society. The idea of civil society is transcendental. Its discourse and institutions always reach beyond the here and the now, ready to provide an antidote to every divisive institution, every unfair distribution, every abusive and dominating hierarchy. Let us grab hold of this old new concept and theorize and study it before it is too late. CIVIL SOCIETY IN SOCIAL THEORY CHAPTER I Possibilities of Justice This book is about justice and about the democratic institutions and beliefs that can sustain justice in our massively complex and highly stratified world. Justice depends on solidarity, on the feeling of being connected to others, of being part of something larger than ourselves, a whole that imposes obligations and allows us to share convictions, feelings, and cognitions, gives us a chance for meaningful participation, and respects our individual personalities even while giving us the feeling that we are all in the same boat. What could be more important than justice? What has been more important to the dynamics of our societies? But what has been more difficult to conceptualize in social theory and philosophy, and what more difficult to explain in social science? Let us begin with philosophy. Because of the hopes unleashed by the defeat of Nazism, because of the Cold War competition with state communism that followed, and, last but not least, because of the unexpected and explosive black social movement for civil rights, justice became central to the revival of political theory in the early 1960s. In his major work Theory of Justice, John Rawls, the central figure in this revival, advanced the simple but radical claim for "justice as fairness."1 We must be so fair that social goods will be distributed only if they can be justified in the "original position." In this hypothetical world, we disencumber ourselves of our existing 13 CIVIL SOCIETY IN SOCIAL THEORY Possibilities of Justice social status and encrusted beliefs, imagining ourselves in a new world where we don't know what we have or who we are. This is a wonderful and liberating standard of high principle. To employ it is to subject distribution to an extraordinary sense of obligation to the whole, to think of others as we would ourselves; it is to act on a pnnciple of true solidarity. The problem, from a philosophical but even more emphatically from a sociological point of view, is why? Why should people act in this way? Why should they put themselves into such an original position? Now, if a philosopher's job is simply to develop searing moral principles, then Rawls succeeded. Still, he has a good deal left to explain: the how, the who, and the why. Without understanding such things, how could we institutionalize his wonderful principles in everyday life? How could we understand why people fight for them and against them? Rawls answers that we need to put on the "veil of ignorance." Only with this piece of metaphorical clothing can we think ourselves back into the original position. We can be fair, in other words, only if we willingly cover our eyes. If we cannot see where we are, who we are, and who others are. then we will be unable to discriminate, and we cannot fail to accept any standard other than a truly humanity-wide solidarity. If we can't see the stick, then how would we know that we might not ourselves be grabbing the short end? j£ But such ignorance is exacdy what does not characterize real life. People never willingly put on the veil. Life is about meaning, and it is discrimination that makes meaning possible. Our distinctive identities, as individuals and collectivities, are central to our projects for life. Identity is meaning, and the meaning of our life gives us vitality. Meaning defines us, and it defines those around us at the same time.2 Rawls can define justice in such a high-minded manner only by avoiding the messiness of life, the work that we must do as members of real societies. His theory is not very helpful to social scientific thinking about justice, and it is also, at the very least, implausible philosophy. In his later work Political Liberalism, Rawls tries to make up for these problems.3 He acknowledges right off that we all have particular beliefs, indeed, that they are often so particular as to be irreconcilable. Because no one set of beliefs can be proven more truthful than another, they are irrational. This is a big step for a philosopher of high and abstract principles to take. Rawls quickly goes on to say, however, drat if we want to have a chance of realizing these ideals, we must be "reasonable" about them. Despite the irrationality and irreconcilability of our beliefs, as reasonable people we must be able to reach an "overlapping consensus'" about the principles that we share. Only by virtue of such an overlap will we then be able to pursue our distinctive values to the maximum degree. But how do we get to be reasonable about the pursuit of beliefs when we are fundamentally unreasonable in finding them? How can we be rational about them when we irrationally "cherish" them as sacred? Rawis's answer is simple. We will be reasonable if we live in a society that has liberal political traditions, not only fair laws and a constitution but a deeply tolerant and humanistic political culture. So we can get there, to an overlapping consensus, if we already are there! But if we are already there, then we do not, in fact, have to get there after all. We would not be so irrational as to keep hold of extreme and possibly divisive beliefs in the first place. In the problems of Rawls I and Rawls II we find an unsatisfying theoretical pattern that has broadly marked thinking about justice and the good society. Rationality and irrationality, principles and creeds, universalism and particularity are treated as resolutely separate, whether they are tilings, activities, measures, or beliefs. Good comes from abstracting away from the particular, from getting away from who we are and setting our sights on the "view from nowhere." Bad comes from the other side, from beliefs we cannot or will not give up, from things that are meaningful in a deep and irreconcilable way. If we are to be moral, according to these philosophical beliefs, we must find a way of staying inside of principle, inside the good, inside of abstraction, and of keeping away, as much as possible, from the concrete messiness, the irrationality of everyday life. When Jürgen Habermas moved to communication theory, he intro-j' duced this pattern of flunking, for the first time, into the Marxist traditionj of critical theory.'' He attached reason and principle to the public sphere,] and all three to democracy. By doing so, he succeeded in pulling neo-\ Marxism away from its tendency toward economism and romanticism, and j its often casual attitude toward democratic politics. He pushed it from Hegel I to Kant, from Marx to Rawls, from Lenin to Dewey. 1 This was an extraordinary achievement. In the course of making these transitions, however, Habermas lost his sociology. The greatness of more traditional Marxist theory was its intertwining of normative and empirical thinking. This combination is notoriously difficult to maintain, and the effort 15 CIVIL SOCIETY IN SOCIAL THEORY can distort both sides. At its best, however, the Marxist tradition allowed critical and Utopian philosophy to connect with the contradictions of social life. This isn't there in Habermas after he turned to discourse ethics. Every philosophy, however, has a sociology, even if only implicit, and ^ in the later Habermas, this empirical theory is no more convincing that in *' the later Rawls. It is fine to say that democracy must be deliberative and reasonable, that there are principles that should guide public discussion. But it's simply not true that such idealizing principles actually grow out of speaking, deliberating, or being active in the public sphere, which is exactly ^ the contention of discourse ethics. In fact, something more like the opposite is closer to the truth. Speaking is encased in language games. Deliberation is a second-order decision, which does not challenge but elaborates presuppositions. Publicness is a social and cultural condition, not an ethical principle; it points to symbolic action, to performance, to projections of authenticity.5 Like Rawls, Habermas senses these problems. We see increasing, if ad hoc references to culture and tradition even as he moves into his later, more abstract and more normatively concentrated work. Public discourse, he allows, does require a background of democratic culture/' Yet, such an acknowledgment, however welcome, undermines the insistence on the purely deliberative nature of public life., Habermas tries to save his rationalist theory in a manner that is similar to Rawls. He claims that although cultural commitments are vital, they belong to the messy sphere of the ethical, not to the high end domain of morals. Culture, identity, and socialization are "% lifeworld issues; they are not the objects of democratic philosophy and social theory. But if identity and meaning constitute critical background for democratic society, shouldn't they be topics for democratic philosophy as well? We do '-, not have to be followers of Nietzsche or Heidegger to think so. Any '/ discussion of democratic morality must be connected to the discussion of culture and tradition, if only to understand why morality is so often the claims of the strong, so often falsely universal, and so prone to camouflage | and cover-up rather than to upholding reciprocity and claims to truth. To [ \ investigate these negative tendencies has been difficult for the theory of I: \ communicative action. Neither Habermas nor his disciples has systematically 'discussed the Holocaust, let alone integrated an analysis of racism and genocide into critical democratic theory. Was this tragic, world-historical event Possibilities of Justice just the lifeworld or the marketplace illegitimately interfering in the otherwise pristine moral sphere? Does it not indicate systemic problems of discourse, and of the public deliberation it informs, in the conception of "right thinking", that is fundamental to the moral sphere itself? This points again to the limitations of theories of justice whose vitality depends on keeping some putatively higher sphere separate from lower order contamination. On the internal grounds of theoretical logic and the external grounds of history and society, such a position is not only implausible philosophically but sociologically as well. Communitarian philosophy aims to avoid these problems by embracing, rather than rejecting, the concrete. In Spheres of Justice, Michael Walzer brings normative thinking down to earth.7 Employing hermeneutic methods to move from the interpretation of meaning to principles of justice, he argues that the plurality and difference of actually existing communities constitute viable moral standards. Walzer celebrates, not denigrates, the fact that it feels good to feel solidarity with particular others, in particular spheres, in particular ways. In order to sustain this immanent morality, Walzer explains, we must be relativistic, tolerant, and truly respectful of other values. The alternative is to dominate other spheres, extending illegitimately the reach of our own sphere-specific morality, which means to allow one sphere to control the production and distribution of goods in others. What Walzer does not explain is why justice would ever prevail. Why would the dominating intrusion of one sphere over another not always take place? Walzer has normative arguments that it should not, but he does not offer a sociological explanation of why it will not. Nor does he explain why, and how, domination and monopoly are so often fought against. Are domination and intrusion really confronted in the name of pluralism and the protection of one's own sphere? Or is it not more likely that such confrontations are carried out in the name of some solidarizing abstraction, in the name of "society" and the interests and rights of the "people"? How would this be different from the kind of universalizing sphere that Rawls and Habermas laid out? These are the paradoxes that haunt moral philosophy. Theories of imperative abstraction turn resolutely away from the meanings that define everyday life. Hermeneutic philosophy cultivates meaning but cannot envision its expansion beyond particular communities. It is tempting to suggest that empirical social theory could solve these 16 17 CIVIL SOCIETY IN SOCIAL THEORY Possibilities of Justice paradoxes in moral philosophy. But when we turn to the social science disciplines, to sociological theory, we run into theoretical problems of a similar kind. « } Contrary to the antiseptic claims of the positivist persuasion, concerns \: for justice have marked sociology from the beginning of its great traditions. \ This is vividly the case for Karl Marx, though he cloaked his moral concern in immanent economic laws. Yet, in less apocalyptic ways, justice motivated the writings of the founders of sociology as well. In Emile Dürkheims first \ book, The Division of Labor in Society, he wrote about the moral superiority iof restitutive over punitive law, and the unfairness of industrial society's economic order. His central concern throughout his early writings was moral regulation." It is the task of society, Dürkheim maintains, to construct, * impose, and continuously sustain appropriate boundaries between right and wrong. Agreements between persons, no matter how voluntary, are regulated by what Dürkheim calls the "noncontractual" elements of contract. You cannot knowingly sell damaged goods to an unsuspecting customer, and you cannot marry somebody if you are already married. In these and many other ways, the moral force of society makes itself felt. Individual i desires and actions must defer to prevailing standards of justice or be stigmatized as a result. In a real empirical sense, one is sociologically compelled to have obligations to others. Dürkheim knew all this, but he did not very well conceptualize how it : actually happened, or even what "society" itself is. In his early work, he spoke about the "growing abstraction of the collective conscience," and later about the central role of powerful modern substitutes for traditional religious life—totemlike symbols, public rituals, and postmetaphysical versions of the rational sacred and profane. In modern societies, Dürkheim suggested, the individual has become the only really sacred thing: people worship the "cult of the individual."'-1 These ideas are enormously suggestive; they are also metaphorical and empirically vague. How is such modern morality actually connected to social ~ action, to institutions, and to social groups and movements in our complex, fragmented, and stratified societies? This Dürkheim hardly begins to explain. How can moral regulation be squared with the rot and murderousness that have marked so much of modern life? Dürkheim died in 1917, in the middle of the first great military conflagration of the twentieth century. Two decades later, as the modern world prepared for a second horrendous war, his closest collaborator remarked that the Durkheimians had never imagined totems as swastikas. They had believed that social morality would be transcendent, universal, and abstract, and that social obligations would reinforce sacred pood, not sacred evil. The mid-twentieth century social theorists Talcott Parsons and T H. Marshall have typically been understood as representing antagonistic traditions, the former the systems-building functionalist, the latter the social democratic utilitarian. Each in his own way, however, developed the con-' nection between justice and solidarity that Dürkheim opened up. In his concept of social citizenship, Marshall politicized Dürkheim by broadening legal membership in the polity to collective moral obligation for members of subordinated economic classes.10 In his notion of societal community. Parsons carved out for Dürkheims diffuse solidarity a distinctive institutional sphere, defined its primary purpose as inclusion, outlined the boundaries it shared with other spheres, and described the inputs and outputs it needed to sustain." But with these later sociological approaches to justice we are also left asking how and why. The cultural and social structures of neither societal community nor social citizenship are well explained. Do they have their own cultural languages other than legal rights? Do they gain their social traction because they are separated from power, or do they have distinctive powers of their own? Why do these solidarizing forces emerge here and not there? Why have they been disfigured in such persistent and striking ways? What about the vicious underside of modern life, the oppression that has marked modern history? Parsons barely touches on the Counter-Reformation and the Holocaust; he takes the relative success of the "American experiment" as his lodestone for estimating the possibilities of justice in modern life.12 Marshall does not write about the civil wars of twentieth century modernity, about the antidemocratic triumphs that have shamed Western civilization. Under the cover of universal history, he is really writing about Britain alone. In the end, both Marshall and Parsons rely on the mechanisms of social evolution—which must, perforce, be shrouded in obscurity—to explain why solidarity must develop and justice will prevail. Into these yawning chasms in philosophical and sociological thinking about justice stepped Michel Foucault. In Foucaults philosophical histories, / we come face to face with the dark side of modernity, with its corruption and authoritarianism, and in a more culturally sensitive, less economistic 19 CIVIL SOCIETY IN SOCIAL THEORY Possibilities ot Justice manner than Marx. Foucault systematically theorizes injustice, not just acknowledging it as a possibility but insisting upon its central place. He shows how it emerges from the abstraction and universalism of modernity, those very qualities which, according to the philosophical and sociological traditions, make justice possible.13 Foucault turns moralizing modernity inside out. The generalized and abstract principles of modernity are bad, not good, the problem, not the solution.: They allow us to treat one another as tilings, to homogenize and thus ignore the distinctiveness of each human being. Professionals, whether scientists, journalists, doctors, judges, lawyers, or priests, use abstract knowledge not to help others but to reinforce their power. Foucault looks at law, civil organization, and government, and he sees not moral regulation and justice but social surveillance and oppression. At the end of his life, he illuminated a path that led away from abstract knowledge and morality. Justice could be found in the personal aesthetic realm. It would unfold in a kind of infinite concrete ness in the cultivation of a unique self. There would no longer be the need for abstraction to some broader and imagined whole. In his Postmodern Ethics, Zygmunt Baumann articulates this understanding well.14 Foucault provided a voice, in philosophy and the human studies, for the awful underside of modernity. Once hidden or residual, this dark side now becomes the primary interpretive or explanatory goal. Foucault does not convict modernity of some historically specific pathology, of a distinctive crime committed by one of the usual suspects—capitalists, imperialists, orientalists, Christians, males, heterosexuals, or the white race. He insists, rather, on a fundamental malady, on an excluding otherness produced by rationality itself. It is ironic that from this systemic indictment emerged postmodern thinking about the other. Race and sex theory, biopolitics and cybertheory, radical feminism and postcoloniality—all came to situate themselves under the sign of Foucault. Yet each has reduced power-knowledge to particular interests and their ideologies. This move has been socially and politically productive, but its theorizing is more instrumental and "progres-sivist" than the Foucauldian vision allowed. The dialectic moves on, the negation is negated, and Foucault becomes the object of interrogation in turn. What about the other side of the other? How could Foucaulťs theory think himself? How could Foucault explain the social movements in which he so actively participated—the struggles against state communism, for prison reform, against abuse of the mentally ill and for homosexual rights—irrationality were indeed so closely tied to power and exercised in such a dominating and excluding way? Is modernity no more than the Holocaust? Has democracy been only a fig leaf for domination and deceit? Can knowledge only reinforce hegemony? Are the social movements for economic, racial, sexual, and gender equality, for human rights and ecology, somehow outside of modernity and democracy, or are they not, in fact, critical movements that are immanent to them?15 [t is not enough to consider only modernity's dark side, any more than'! the theoretical imagination can dwell exclusively on its progress. There has/ been tragedy but also triumph. We have experienced not only despair but hope. There are thinkers who have seen ambiguity and contradiction inside; modernity itself. What would Max Weber have said to Foucault s assertion' that rational knowledge is only enslaving, that power produces domination; alone? Weber theorized these tendencies in his critical discourse about the "iron cage." But this was not the only thrust of rationalization, Weber believed. He understood that subjugation and emancipation, exclusion and inclusion, the ascetic and the aesthetic all were deeply intertwined.lf' Still, Weber's fin-de-siěcle pessimism convinced him that contemporary modernity was tilting toward the darkened side. It was in part for this ideological reason, but also for more technical theoretical ones, that Weber failed to conceptualize the social and cultural structures that could sustain justice and democracy in anything other than a formal way.17 The same insight onto the ambiguities of modernity marked the explo- ; rations of Sigmund Freud and Norbert Elias.!ř! They illuminated the para-| doxes of the civilizing process and the multilayered, continually conflicted; character of emotions and mind. Neither Freud nor Elias believed that the; modern self-control could be achieved without severe cognitive, moral, and' emotional strain. The repercussions for expressive rationality would be violent and punitive. The pressing abstraction, preening consciousness, and insistent moralism of modernity were rooted in the primitive and concrete. Transgressive desires are hidden inside the modern unconscious; they exert their social force in more insidious because less publicly available ways. Such considerations point to S. N. Eisenstadts writings about the implications of the Axial Age, the period during the first millennium B.C.E. when transcendental philosophy and monotheistic religion first arose.'1' CIVIL SOCIETY IN SOCIAL THEOIiY When universal! sm and abstraction are institutionalized, according to Eisen-stadt, they produce not only the possibilities for emancipation and inclusion but tension, alienation, and a restless duality. The articulation of an abstract ethics, and increasing efforts to apply them to the regulation of social life, can never eliminate the dangers of moral violation, social contradiction, and institutional constraint. The tension between the transcendent and the particular cannot be avoided. Modernity is fundamentally multiple and ambiguous. There is no going back from abstraction; it defines the very essence not just of modern but all post-Axial time. But neither is there a place for homogeneity. There will always be fragmentation in the post-Axial age. In this book, I explore the territory between the abstract and the concrete. It is in the theoretical space between them that we can give voice to the heroics and the tragedies of modernity. We must find this voice, because brotherhood and otherhood must always exist side by side. CHAPTER 2 Real Civil Societies: Dilemmas of Institutionalization ital concepts enter social science by a striking process of intellectual secularization. An idea emerges first in practical experiences, from the often overwhelming pressures of moral, economic, and political conflict. Only later does it move into the intellectual world of conceptual disputation, paradigm conflict, research program, and empirical debate. Even after they have made this transition, vital concepts retain significant moral and political associations, and they remain highly disputed. What changes is the terrain on which they are discussed, compromised, and struggled over. The intellectual field, after all, has a very distinctive specificity of its own. Tins secularization process created such basic concepts as class, status, race, party, religion, and sect. More recently, we can see a similar process at work with the emergence of such concepts as gender, sexuality, and identity. The subject of this book, civil society, is being subjected to the same kind of secularization today. Civil society enters into intellectual discourse from the ongoing tumult of social and political life for the second time. We must make every effort to refine it in a theoretical manner so that it will not disappear once again. If we fail, the opportunity to incorporate this idea might disappear from intellectual life for another long period of time. Not only normative theory CIVIL SOCIETY IN SOCIAL THEORY Dilemmas of Institutionalization but moral life itself would be impoverished if this opportunity were missed, and empirical social science would be much the worse as well. There is a new theoretical continent to explore, a new empirical domain waiting to be defined. But we will not be able to make out this new social territory unless we can look at it through new theoretical lenses. Our old conceptual spectacles will not do. To forge these spectacles is the aim of this book. Its ambition is to develop a set of concepts that can illuminate a new kind of social fact and open up a new arena for social scientific study, one much closer to the spirit and aspirations of democratic life. Civil society has been conceived in three ideal-typical ways. These have succeeded one another in historical time, though each remains a significant intellectual and social force today. After situating these ideal-types temporally, and evaluating them theoretically, I will introduce the analytical model at the core of this book, a model which aims to define the relationship between civil society and other kinds of institutional spheres. Only by understanding the boundary relations between civil and uncivil spheres can we push the discussion of civil society from the normative into the empirical realm. And only by understanding civil society in a more "realist" manner can we lay the basis for a critical normative theory about the incompleteness of civil society in turn. Civil Society I ] It is well known that in its modern, post-medieval, post-Hobbesian form, I "civil society" entered into social understanding only in the late 17th cen-j tury, with the writings of figures like Locke and James Harrington.1 Developed subsequendy by such Scottish moralists as Adam Ferguson and Adam Smith, by Rousseau and Hegel, and employed energetically for the last time by Tocqueville, "civil society" was a rather diffuse, umbrella-like concept referring to a plethora of institutions outside the state. It included the capitalist market and its institutions, but it also denoted what Tocqueville called voluntary religion (non-established Protestant covenantal denominations), private and public associations and organizations, and virtually every form of cooperative social relationship that created bonds of trust—for example, currents of public opinion, legal norms and institutions, and political parties. It is vital to see that in this first period of its modern understanding, civil society was endowed with a distinctively moral and ethical force. As Albert Hirschman showed in The Passions and the Interests, the civilizing qualities associated with civil society most definitely extended to the capitalist market itself, with its bargaining and trading, its circulating commodities and money, its shopkeepers and private property. Identified by such terms as le doux commerce, the processes and institutions of the capitalist market were benignly conceived—particularly by the progressive thinkers of the day—as helping to produce qualities associated with international peace, domestic tranquility, and increasingly democratic participation. Capitalism was understood as producing self-discipline and individual responsibility. It was helping to create a social system antithetical to the vainglorious aristocratic one, where knightly ethics emphasized individual prowess through feats of grandeur, typically of a military kind, and ascriptive status hierarchies were maintained by hegemonic force. Montesquieu provided high ethical praise for capitalism in this early phase.- Benjamin Franklin's influential Autobiography, which identifies public virtue with the discipline and propriety of market life, might be said to provide an equally important example of a more popular, more bourgeois, but perhaps not less literary kind.3 The decidedly positive moral and e_thical_torie that:__C_SJ attributed to market society underwent a dramatic transfqrniation_in the early middle of the nineteenth century. The development of capitalism's industrial phase made Mandevifle s famous fable of capitalism's bee-like cooperation seem completely passe.*1 Tlie^pejorative association of capitalism with inhumane instrumentality, domination, and exploitation first emerged among radical British political economists like Thomas Hodgskin in the 1820s and 1830s.3 Marx encountered this Manichean literature in the early 1840s, and he provided it with a systematic economic and sociological theory. His voice, while by far the most important in theoretical terms, was for contemporaries only one among many. Theernerging hatred of capitalism, its identification with all the evils_o£ feudal domination and worse, was expressed among a wide and growing chorus of Utopians, socialists, and republicans. It is noteworthy that, for their part, the new industrial capitalists and their liberal economic spokesmen did not shy away from this new view of capitalism as an antisocial force. Brandishing the doctrine of laissez-faire in a decidedly un-Smithean way, their motto seemed to be, "society be damned!" There exists no better represen- CIVIL SOCIETY IN SOCIAL THEORY Dilemmas of Institutionalization tation of this self-understanding of the supposedly inherent and ineradicable antagonism between an evil, egotistical market, and "society" in the moral and collective sense, than Karl Polanyi's The Great Transformation? which dramatically took the side of "society" against the market. Despite its interpretive power and normative force, however, Polanyi's influential book has reinforced the very theoretical understandings I wish to make problematic here. Civil Society II In social theory, this dramatic transformation of the moral and social identity of market capitalism had fateful effects on the concept of civil society. As Keane7 and Cohen" were among the first to point out, the connotations of this fecund concept became drastically narrowed. Shorn of its cooperative, democratic, associative, and public ties, in this second version (CSII), civil SQciefy--caLne_tp be pejoratively associated with market capitalism alone/^ Marx's writings between 1S42 and 1845 reflected and crystallized this reduction in a fateful way. Not only does civil society come to be treated simply as a field for the play of egoistical, purely private interests, but it is now viewed as a superstructure, a legal and political arena that camouflages the domination of commodities and the capitalist class. For Marx, industrial capitalism seemed only to consist of markets, the social groups formed by markets, and market-protecting states. Society in the collective and moral sense had dissolved into a morass of particularistic interests. Only the submerged and repressed cooperative ties that defined the proletariat's true economic interest could provide a counter-balancing universalism. Only the collectively-binding social organization of the bourgeoisie's class enemy could sustain a social alternative to selfishness that the ideals of civil society provided only in name. As Cohen10 observed in her devastating critique, in Marx's theory of civil society "social, political, private, and legal institutions were treated as the environment of the capitalist system, to be transformed by its logic but without a dynamism of their own." Nothing more clearly illustrates the paradigm shift from CSI to CSII than the accusations Marx made against Hegel, namely, that he had sought, in a reactionary manner, to justify just such a privatized, selfish vision of civil society, that he had identified the civil sphere only with the 'system of needs' that became the mode of production Marx's own work.11 But Hegel actually never did any such thing. To the contrary, he sought to rework the liberal line of CSJ in a more communal, solidaristic way. It is true that the available linguistic resources and the peculiarities of German history had led Hegel, as it had led Kant before him, to translate the English term, civil society, as Btiroeiiich Gescll-schaft, literally "burger but more broadly 'bourgeois* or 'middle class' society.12 But Marx's contention that Hegel, and non-socialists more generally, had identified civil society simply with capitalist class structures was an ahistorical distortion reflecting the sense of crisis that marked the birth of industrial society. For Hegel, the civil sphere was not only the world of economic needs but also the sphere of ethics and law, and other intermediate groupings that we would today call voluntary organizations.13 It is not surprising that in this social and intellectual situation, in the middle of the nineteenth century, civil society as an important concept in social theory shortly disappeared. If it was no more than an epiphenomenon of capitalism, then it was no longer necessary, either intellectually or socially. In the context of the ravages of early industrial capitalism, social and intellectual, attention shifted to the state. Substantive rather than formal equality became the order of the day. Issues of democratic participation and liberty, once conceived as inherently connected to equality in its other forms, became less important. Strong state theories emerged, among both radicals and conservatives, and bureaucratic regulation appeared as the only counterbalance to the instabilities and inhumanities of market life.14 In the newly emerging social sciences, mobility, poverty, and class conflict become the primary topics of research and theory. In social and political philosophy, utilitarian and contract theories assumed prominence, along with the neo-Kantian emphasis on justice in terms of formal rationality and proceduralism at the expense of ethical investigations into the requirements of the good life. The legacy of this century-long distortion of the capitalism-civil society relationship has had regrettable effects. Identifying society with the market, ideologists for the right have argued that the effective functioning of capi-talism depends on the dissolution of social controls. Secure in the knowledge that civil society is the private market, that economic processes by themselves will produce the institutions necessary to promote democracy and mutual CIVIL SOCIETY IN SOCIAL THEORY Dilemmas of Institutionalization respect, they have labored righteously to disband the very public institutions that crystallize social solidarity outside the market place. Such efforts have continued to this day.15 v Yet if, for the right, the capitalism-civil society identification suggested abolishing society, for the left it suggested abolishing markets and private property.itself. If civility and cooperation were perverted and distorted by n capitalism, the latter would have to be abolished for the former to be t restored. In this way, the big state became the principal ally of the left, and ; progressive movements became associated not only with equality but with * stifling and often authoritarian bureaucratic control. This was by no means confined to the Marxist left. For tliinkers from i Walter Lippman and John Dewey to C. Wright Mills, Hannah Arendt, > Jürgen Habermas, and most recently Robert Putnam, the disappearance of • public life became axiomatic to any thoughtful consideration of twentieth ? century modernity.16 Captives of the historical shift in intellectual presup-positions which I have described as CSII, these influential thinkers were i unable to think reSexively about it. They were convinced that capitalism t was destroying public life, that in democratic mass societies an all-powerful s market was pulverizing social bonds, converting citizens into egoists, and allowing oligarchies and bureaucracies full sway. Capitalism and mass societies were conceived as social worlds in which privacy ruled. That this was, in fact, far from the case had become for even the most acute social observers very difficult to see. Because CSI had given way to CSII, they could no longer draw upon the idea of an independent civil sphere. The social conditions that had triggered the demise of CSI still held sway. En a paradoxical manner, the civil society thinking of Antonio Gramsci, which differed significantiy from the reductive understandings of traditional CSII, actually seemed to buttress these fateful lapses in critical democratic thought, whether liberal or socialist. Drawing on a less reductive reading of Hegel, in the early decades of the 20th century Gramsci had developed his own, thoroughly anti-individualistic and anti-economistic approach to civil society. He defined it as the realm of political, cultural, legal, and public life that occupied an intermediate zone between economic relations and political power.17 With this idea, Gramsci meant to challenge the evolutionary line of Marxist thinking, which held that socialist revolution would be triggered automatically, by a crisis in the economy alone. Broadening Lenin's earlier critique of economism, Gramsci suggested that civil society itself would have to be challenged, and transformed, independently of the strains created by capitalisms economic base. Yet, even while Gramsci challenged the instrn-mentalism of Marx's thinking about the civil sphere, he reinforced CSII by-insisting that, within the confines of capitalist market society, there would never be the space for institutionalizing solidarity of a more universalistic and inclusive kind. Gramsci did not associate civil society with democracy. ■ It was a product of class-divided capitalism understood in the broad socio-/ cultural and economic sense. The values, norms, and institutions of civil society were opposed to the interest of the mass of humanity', even if they did provide a space for contesting their own legitimacy in a public, counter-hegemonic way Civil society was inherently capitalist. It was a sphere that could be entered into but not redefined. Its discourse could not be broadened and redirected. It was a sphere that would have to be overthrown.. In this book, my argument is directed in an opposite way. Return to Civil Society I? In recent decades a series of social and cultural events has created the circumstances for a renewed intellectual engagement with civil society._Big state theory, has lost its prestige, economically with the falling productivity of command, economies, morally and politically with the overthrow of state Communism and bureaucratic authoritarian regimes.!H Within social science, ■ is now more interest in informal ties, intimate relationships, trust, ■al and symbolic processes, and the institutions of public life.1" En political and moral philosophy, there has not only been a return to demo-theory, but renewed interest in Aristotle, Hegel, critical hermeneutics and Pragmatism-all marking a return to investigations of the life world ties al culture and community.20 ae problem is that this re-engagement with civil society has largely : a return to CSI. In Democracy and Civil Society, a path-breaking work .ny ways, John Keane defines civil society broadly as "the realm of activities," a realm that includes "privately owned," "marketed," "voluntarily run," and "friendship-based" organizations, phe-na that are by no means necessarily theoretically complementary or cally congenial. Keane goes on to assert, moreover, that such civil ies are at once "legally recognized" and "guaranteed by the state," c1v11- society in social theory Dilemmas of Institutionalization even as they form an "autonomous [sphere of] social life." Civil society is said to be "an aggregate of institutions whose members are engaged primarily in a complex of non-state activities-economic and cultural production, household life and voluntary association," seemingly private activities that Kane identifies as distincdy "sociable" and at the same time "public spheres."21 Similarly, when Andrew Arato22 first employed civil society in his important articles on the Solidarity movement in the early 1980s, he suggested that the civil sphere in its Western form was tied to private property, a traditional understanding that not only contradicts the broad range of references employed by Keane but threatens to render the concept useless for distinguishing democratic from nondemocratic capitalistic societies. A decade later, in their major philosophical rethinking of civil society theory, Cohen and Arato13 severed this connection, and in its place they offered a substantially improved three-part model of society that went well beyond CSI and CSII. Nonetheless, perhaps by relying so heavily on Hegel, this major work failed to define the civil sphere as distinctive vis-a-vis such arenas as family life, and neglected entirely the relation between the civil sphere and such arenas as culture, religion, ethnicity, and race.-4 Here they were following Habermas, who insists on separating rational discourse in the public sphere from the traditions of cultural life.23 ; The same tendency toward diffuseness marked Alan Wolfe's21'' identification of civil society with the private realm of family and voluntary organization, and Adam Seligman's27 insistence that it corresponds to the rule of reason in the Enlightenment sense. Carole Pateman2H claims civil society to be inextricably linked to patriarchal family relations, and Shils-' and Walzer30, while disagreeing with Pateman in virtually every other way, likewise revert to an understanding of civil society that reflects its earlier diffuse and umbrella-like form. Victor Perez-Diaz31 argues, indeed, that only such a 'maximalist' approach to civil society can maintain the necessary linkages between a democratic public sphere and particular forms of economy, state, family, and culrural life. Though Robert Putnam's model for strengthening democracy through voluntary associations does not focus explicitly on the civil society idea, this neo-Tocqueviliian approach looks backward to CSI in very much the same way.32 It is most definitely a good thing that the destructive and overly narrow understandings of CSII have been undermined by the recent revival of democratic thought. But social life at the beginning of the twenty-first century is much more complex and more internally differentiated than the early modern societies that generated CSI. The old umbrella understanding will no longer do. We need a much more precise and delimited understanding of the term. Private property, markets, family life, and religious ideals might all be necessary at some point or another to create the capacities of the civil sphere, but they are by no means sufficient to sustain it. Rejecting the reductionism of CSII, but also the diffuse inclusiveness of CSI, we must develop a third approach to civil society, one that reflects both the empirical and normative problems of contemporary life. Toward Civil Society III We need to understand civil society as a sphere that can be analytically independent, empirically differentiated, and morally more universalistic visa-vis the state and the market and from other social spheres as well. Building upon important directional signals from empirical theoretical traditions in sociology and normative traditions in political theory and philosophy-which I have discussed in chapter r and will elaborate further in chapter 3—I would like to suggest that civil society should be conceived as a solidary sphere, in which a certain kind of universalizing community comes to be culturally defined and to some degree institutionally enforced. To the degree that this solidary community exists, it is exhibited and sustained by public opinion, deep cultural codes, distinctive organizations—legal, journalistic and associational—and such historically specific interactional practices as civility, criticism, and mutual respect.33 Such a civil community can never exist as such; it can only be sustained to one degree or another, It is always limited by, and interprenecrated with, the boundary relations of other, non-civil spheres. The solidarity that sustains the civil sphere amidst the complex and highly conflictual spheres of contemporary life draws from long-standing cultural and institutional traditions that have sustained individual and collective obligation. CSII theories were quite mistaken to link not only individualism (its emergence) but the collective sense of social obligation (its decline) with market society. The individuality that sustains civil society has a long history in Western societies, as a moral force, an institutional fact, and a set of interactional practices. It has a non-economic background in the cultural 30 31 civil society [n social theory Dilemmas of Institutionalization legacy of Christianity, with its emphasis on the immortal soul, conscience, and confession; in aristocratic liberty and Renaissance self-fashioning; in the Reformations insistence on the individual relation to God; in the Enlightenment's deification of individual reason; in Romanticism's restoration of expressive individuality. Institutions that reward and model individuality can be traced back to English legal guarantees for private property in the eleventh century; to the medieval parliaments that distinguished the specificity of Western feudalism; to the newly independent cities that emerged in late medieval times and played such a powerful historical role until the emergence of absolutist states. The economic practices of market capitalism, in other words, did not invent either moral or immoral individualism. They should be viewed, rather, as marking a new specification and institutionalization of it, along with other newly emerging forms of social organization, such as religious sect activity, mass parliamentary democracy, and romantic love.3'1 Just as individualism in its moral and expressive forms preceded, survived, and in effect surrounded the instrumental, self-oriented individualism institutionalized in capitalist market life, so did the existence of "society." Civil ties and the enforcement of obligations to a community of others were part of the fundamental structure of many British towns centuries before the appearance of contemporary capitalist life.35 The notion of a "people" rooted in common lineage, of the community as an ethnos, formed the early basis for an ethically binding, particularist conception of nationhood from at least the fifteenth century.36 Karl Polanyi well described the "double movement" that characterized the emergence of industrial capitalism in the nineteenth century, pitting "moral forces" representing "the moral entity 'man' " against the egoistical, impersonal, and degrading practices of the market. The upshot of this struggle was that the "general interests of the community" created "protectionist measures" regulating the conditions of land, labor, and productive organization inside the very bowels of economic life. "Once we rid ourselves of the obsession that only sectional, never general, interest can become effective," Polanyi writes, "as well as the twin prejudice of restricting the interests of human groups to their monetary income, the breadth and depth of the protectionist movement lose their mystery."37 Still, Polanyi is wrong to describe this "countermovement" as of a "purely practical and pragmatic nature," as producing measures that "simply responded to the needs of an industrial civilization with which market methods were unable to cope."-1" The protectionist movement did not simply grow naturally in response to a moral violation that was there for all to see. Rather, this defensive moral response emerged precisely because there had already existed strongly institutionalized and culturally mandated reservoirs of non-market, non-individualistic force in Western social life. It was from these sources that there emerged protests against capitalism on behalf of "the people."3" To identify civil society with capitalism (CSII) is to degrade its univer-sahzing moral implications and the capacity for criticism and repair that the existence of a relatively independent solidary community implies. The civil spherejmd_ the^market must be conceptualized in fundamentally different terms^ We are no more a capitalist society than we are a bureaucratic, secular, rational one, or indeed a civil one. Yet, to suggest the need to acknowledge the environment outside of economic life is not to embrace the kind of relativism that the pluralism of CSI implies. Michael Walzer has argued eloquently that there are as many spheres of justice as there are differentiated social spheres.4" Luc Boltanski and Laurent Thevenot, in a parallel argument, suggest that complex societies contain several "regimes ofjustificati on, "each of which must be respected in its own right.,! As these American and French theories persuasively remind us, no social sphere, not even the economic, should be conceived in anti-normative terms, as governed only by interest and egoism. They have immanent moral structures in their own right. It remains vital, nonetheless, to specify and differentiate the "regime of justification" or the "sphere of justice" that makes a clear and decisive reference to the common good in a democratic way. This is the criterion of justice that follows from ideals that regulate the civil sphere. The codes and narratives, the institutions, and the interactions that underlay civil solidarity clearly depart from those that regulate the world of economic cooperation and competition, the affectual and intimate relations of family life, and the transcendental and abstract symbolism that form the media of intellectual and religious interaction and exchange. When the domination of one sphere over another, or the monopolization of resources by elites within the individual spheres themselves, has been forcefully blocked, it has been by bringing to bear the cultural codes and regulative institutions of the civil sphere. This, at least, is the thesis that informs this book. Civil and noneivü spheres do not merely co-exist in a kind of harmonious interchange, as functionalist theories of differentiation from Spencer and Dürkheim to Parsons and Luhmann imply. It is not only 32 33 civil society in social theory the pluralization of spheres that guarantees a good society, nor the free play and good will of interlocutors willing to compromise their interests in the face of compering and persuasive claims for moral justification. To maintain democracy, and to achieve justice, it is often necessary for the civil to 'invade' noncivi! spheres, to demand certain kinds of reforms, and to monitor them through regulation in turn. In modern times, aggrieved parties have demanded justice by pointing angrily to what they come to see as destructive intrusions into the civil realm, intrusions whose demands they construct as particularistic and self-serving. In response, the forces and institutions of civil society have often initiated repairs that aim to mend the social fabric. In terms of the normative mandates established by democratic societies, it is the civil sphere of justice that trumps every other. The universality that is the ambition of this sphere, its demands to be inclusive, to fulfil] collective obligations while at the same time protecting individual autonomy—these qualities have persistently made the civil sphere the court of last resort in modern, modernizing, and postmodernizing societies.*12 For the last two centuries explicitly, and implicitly for many centuries before, it has been the immanent and subjunctive demands of the civil sphere that have provided possibilities for justice. As we will see in our later analysis of the tense and shifting boundaries between civil and uncivil spheres, CSIII allows us to revisit the 'capitalism problem' in a more productive way."1-1 When exploitation leads to widening class conflict, it signals strains and inequalities in economic life. When class conflict leads to wide public discussion, to the formation of legal trade unions, to urgent appeals for sympathy and support, to scandals and parliamentary investigations, such expansion signals that market conflicts have entered into the civil sphere. In such situations, the mandate of solidarity, the presumptions of collective obligation and autonomy, come face to face with the demands for efficiency and hierarchy. These conflicts are not accidental; they are systematic to every society that opens up a civil sphere, and they make justice a possibility, though not in any sense a necessary social fact. In real civil societies, extending solidarity to others depends on the imagination. As I have suggested in chapter i, the counter-factual "original position" that inspired Rawls' philosophy ofjustice is assumed in fantasy, as an idealization, via metaphor and symbolic analogy, not through pragmatic experience or logical deduction. It is a matter of cultural struggle, of social Dilemmas of Institutionalization movement, of demands for incorporation, of broken and reconstructed dialogue, of reconfiguring institutional life. Such tense and permeable boundary relationships between capitalist markets and the civil sphere, barely visible during the early reign of CSI, were denied in principle by CSII. Only if we develop a new model, CSIII, can we understand why capitalistic and civil society must not be conflated with one another. If these realms are separated analytically, we gain empirical and theoretical purchase, not only on the wrenching economic strains of the last two centuries, but on the extraordinary repairs to the social fabric that have so often been made in response. Markets are not, after all, the only threats or even the worst threats that have been levied against the democratic possibilities of civil life. Far from the mere existence of plural spheres pro-/ viding the skeleton key to justice, each of the diverse and variegated spheres of modern societies has created distortions and undermined civil promises. Religious hatreds and repression, gender misogyny and patriarchy, the arrogance of expert knowledge and the. secrecy of political oligarchy, racial and ethnic hatreds of every sort-each of diese particularistic and anti-civil forces has deeply fragmented the civil domain. The identification of capitalism with civil society, in other words, is just one example of the reductive and circumscribing conflation of civil society with a particular kind of non-civil realm. Social and cultural movements of every kind, whether old or new, economic or religious, have organized to expose the pretensions of civil society and the hollowness of its promises. The theorists and ideologists who have led these rebellious and critical movements have often concluded, in their desperation and frustration, that civil society has no real force at all. Whether such radical arguments focus on class, gender, race, or religion, their argument is much the same, justice is impossible; revolution and flight are the only options left. In this book, I will suggest that these radical, and radically despairing, arguments for emancipation from civil society are not empirically accurate, even if they are sometimes morally compelling. Generalizing from distorted and oppressive boundary relations, they draw the false conclusion that the civil sphere must invariably be distorted in this manner, not only now but in the future as well. Building on this faulty line of reasoning, they have outlined Utopian projects that reject universalizing solidarity as a social goal or have proposed a reconstructed social order in 34 35 CIVIL SOCIETY IN SOCIAL THEORY which only peaceable relations will reign. I will suggest in the chapter following why the aspiration to universalism simply cannot be dispensed with, and in Part II of this book I will explain why continuous conflicts over the structuring of solidarity are the inevitable result. There is no way to avoid conflicts over boundary relations. They reflect the pluralism and complexity that mark modern and postmodern life, especially in its democratic forms. Between civil society and the other social spheres there is a theoretically open and historically indeterminate relation. Sometimes, the power of noncivil spheres has overwhelmed the universalis tic aspirations of the civil sphere. At other times, its relative autonomy has provided the possibility for justice. CHAPTER 3 Bringing Democracy Back In: Realism, Morality, Solidarity Any discussion of the civil sphere is inextricably intertwined with an analysis of democracy as a political form. Indeed, it was to provide some rationale for political democracy that the early modern approach to the civil sphere (civil society I) emerged. Yet, the promise of civil society III is to take us beyond such political forms as narrowly conceived. Democratic politics, in the sense of voting and associarional liberties, rests upon a broader, suprapolitical base, just as it helps give life to these social and cultural dynamics in turn. As we develop an approach to civil society III, we move from the restricted, if vital, concerns of democratic government to the broader problem of a democratic social life, a terrain that points not only to freedom in the exercise of political rights but to social and cultural freedoms, to inclusion and recognition, and to the problem of justice itself. "Democracy is more than a form of government," John Dewey insisted. "It is primarily a mode of associated living, of conjoint communicated experience."1 In order to get to this broader understanding of the civil sphere, however, we must work through the issues that are raised by democracy as more traditionally conceived.2 We begin by reviewing the two broad approaches that marked the social scientific treatment of democracy in the last half of the twentieth century. After suggesting the limitations of each, I will argue 37 CIVtl SOCIETY IN SOCIAL THEORY Realism, Morality, Solidarity ■ that democracy depends on the existence of solidary bonds that extend beyond political arrangements. Solidarity is civil only if it combines collective with individual obligations. Civil solidarity can be sustained only by a democratic language, a discourse that allows the abstract and universal commitments of the civil sphere to take concrete and imagistic forms. Justice is possible if there is civil solidarity, which itself depends on the vitality of a fluent and provocative moral discourse. Utopianism: The Fallacies of Twentieth-Century Evolutionism In recent decades, as one nation after another has embarked on the long, difficult, and precarious effort to build a more liberal and responsive social order, democracy has once again become a fashionable term. It is ironic that, fifty vears ago, in the early days of the Cold War, social scientists considered democracy to be something rather easily achieved, a heritage that the world deserved and would eventually receive. It was conceptualized as a necessary implication of the classical dichotomies that structured the field, of Gcselhdtaft as compared with Gemeinschaft, of organic versus mechanical solidarity, of rational-legal versus charismatic authority, and, most broadly, of modernity in contrast with traditionalism. We would become democratic by default, simply by virtue of being modern. Systematic distinctions were rarely made within the concept of modernity itself. Non-democratic societies were understood, rather, as not yet modern enough. The classical founders of sociology hardly ever spoke ot democracy, because they conceived it either as unlikely (Weber) or presumed it in the short or long term to be inevitable, part of the evolutionary package ot modern life (Durkheim and Marx). In the postwar period that marked the birth of modern sociology, there was a new concern for democracy, and this discourse took two forms. One language stressed efficiency. Democracy was adaptive because it was flexible. Because it was flexible, it would survive. In Parsons's inimitable phrase, democracy was an evolutionary universal.3 The other vocabulary was taken from the more intentional rationality of Enlightenment thought. In the postwar world, the victors had forcefully introduced democracy to their defeated enemies, and former imperialists to their soon-to-be-emancipated colonies. Constitutions were put into place, 38 legal guidelines established. These normative expectations, it was fondly believed, would be cherished and followed in due course.J We can now see diat these earlier efforts failed to fully understand the requisites of democracy. They were often technocratic and deterministic,5 or hopelessly rationalistic and optimistic.() To continue such theorizing in the present day would not merely be anachronistic; it would be irresponsible.7 We have learned that democracy does not come easily, that the uni-versalism of modernity has often provided a fig leaf for particularity and exclusion. This education has been a salutary one. In normative theory it has been reflected in the renaissance of democratic thought/ The shift which these developments have produced in social scientific understanding has not been as positive. Late modern and postmodern cynicism, materialist and world-weary realism, these have too often replaced the earlier, simplistic faith in democratic morality. Instead of exploring politics, social scientists began to explore society. They investigated the so-called social origins of political arrangements,9 and they downplayed the effects of constitutions and political norms.'0 Conflict models replaced theories about the possibility of social integration." When the specificity of politics was acknowledged, moreover, the independent state was still conceived in a purely instrumental way, as simply another, more independent power bloc within which egoistic interest could be pursued.12 Realism: The Tradition of Thrasymachus This did not mean that political ideals disappeared from the sociological discourse about politics. It meant, rather, that they were now pursued in a tough-minded way. Democracy has come to be considered merely a formal arrangement. It is the distribution of power and force, the balance of material resources, that is important. Equality now becomes the central focus; class conflict and power structure the topics of elaborate analysis.13 If there is unequal economic or political power, it is assumed that dominant groups will pursue their interests by any available means. It is the availability of means that counts, not the nature of ends. It is concrete goals that matter, not the moral frameworks that can encapsulate them.1J Citizenship results from class struggle, rather than class struggle being mediated and channeled by citizenship. Rights are not conceptualized in an independent way. De- 39 - -At* civil society in social theory Realism, Morality, Solidarity mocracy is explained as the product of a truce between conflict groups that have achieved relative but temporary parity,15 a political manifestation of a capitalism whose function is to provide "the material bases for consent."16 In fact, despite the return of democracy in recent decades, critical theories about the political condition of contemporary societies have persistentiy demonstrated little confidence in the possibilities for its realization. When Marcuse attacked capitalist democracies as one-dimensional and totalitarian, he was considered a radical iconoclast.17 Thirty years later, Foucault gained wide acceptance for a historical and social theory that, though less economic and more cultural-political, emphasized the same repressive qualities in Western societies while virtually ignoring the meaning of a democratic state.IH Citizens of Western societies are seen as monitored, as subject to surveillance.1" They are selfish and do not engage in public life.2" No possibility for binding ties of a horizontal kind—much less the idea of a normatively regulated, constitutional democracy—appears in the work ofBourdieu, who created the most expansive sociological theory of recent times.21 When democratic ideas have become the focus of recent social analysis, they are conceived as ideology, not as values, which is to frame them as a cultural means of pursuing strategic ends.-2 Such debunking rhetoric, of course, has the distinct merit of cutting pretentious authority down to size, and for this very reason it has been a mainstay of democratic politics in modern times. In this manner, social science thinking about democratic societies becomes merely an extension of democratic practice. Without gaining more theoretical distance on democracy, however, neither intellectual nor moral reflexivity about the political process can be achieved. The development of a realistic theory of democratic societies becomes impossible. Only the possibility of a realist theory remains. We are left with the tradition of Thrasymachus, an object of praise in an essay written by one of the first sociological conflict theorists.23 Thrasymachus provided the foil for Plato. Against Socrates' vision of an ideal and transcendent justice, Thrasymachus insisted on base motives and the necessary cruelty of political life: " 'Just' or 'right' means nothing but what is in the interest of the strongest party. ... In all states alike, 'right' has the same meaning, namely what is for the interest of the party established in power, and that is the strongest."2"* Such hardheaded caution about idealism clearly is important. In fact, it sometimes seems that the entire tradition of normative political theory has been written with Thrasymachus in mind. In his Politics, the ever-practical Aristotle argued, against Platonic idealism, that well-ordered constitutions would have to be divided against themselves.25 Montesquieu, in The Spirit qf Laws, suggested that, if independent institutions were not pitted against each other, the natural tendencies of human beings for tyranny, arbitrary control, and uncontrolled violence would triumph.26 In his arguments supporting ratification of the U.S. Constitution, James Madison eloquently said much the same. Assuming that base motives and self-interest ruled all politics, he dismissed solidarity as a starry-eyed dream and argued that American democracy could rely only on the separation and balancing of inveterate antagonists.27 Classical social scientific theories of democracy largely followed a similar path, which helps explain the powerful resurgence of realistic thinking in our own day.2K Marx economized Thrasymachus when he argued that democracy was a sham, reasoning that unequal class power ensured that economic interest would dominate political life.2y Weber sociologized Thrasymachus when he argued that democracy depended on the creation of powerful counterweights to state bureaucracies, on the emergence of political demagogues and ruthless party organizations.30 Following upon Marx and Weber, Michels argued that socialist parties and unions became oligarchical because their leaders could monopolize an organizations material resources.31 When Lipset, Coleman, and Trow wrote Union Democracy, they followed in Michels's footsteps.32 They argued that democracy could be defined only organizationally, as a differentiated system of rewards and sanctions sustaining opportunities for effective group competition. This line of thinking is certainly essential to any realistic thinking about democracy. The return to it has been an important antidote to the ideological innocence and theoretical simplification of midcentury social thought. It has also functioned as an antidote to the democratic rhetoric in which state socialist regimes so often engaged. In a world where the idea of democracy has too often been merely an ideological subterfuge for leveling dictatorship, we would do well to remember the separation of powers and the kinds of formal procedures that guarantee it. The self-interested dimension of human action must be firmly respected, as must the significantly self-aggrandizing character of every social group. Even the most idealistic democrats acknowledge that fully participatory decision making is impossible to sustain over 40 4i CIVIL SOCIETY IN SOCIAL THEORY Realism, Morality, Solidarity an extended period of time.-13 Oligarchies do form in every organization. If these elites are not given what they consider their due, they will respond in destructive ways. Democracies depend on social structures that allow egoism to be pursued but that make the aggregation of egoism impossible. No society can prevent the formation of elites, and a society can be democratic only to the extent that the interests of these elites are differentiated in a manner that makes them competitive rather than convergent.34 If society cannot prevent elite formation, it can at least prevent the widespread monopolization of power and resources by any one among them.35 This is not an elitist theory of democracy; it is a realistic one. It is no accident that the virtues of this narrowly institutional approach were most recently renewed by theorists on the post-Marxist Left, who wished to save socialism from the clutches of totalitarian thought. In Germany, Habermas left the Marxism of his early work on the public sphere, studied the evolution of universal morality, and created a democratic theory that emphasizes dialogue and legal forms. In Italy, Norberto Bobbio defended the democratic aspect of socialism by insisting on "mainly procedural mechanisms." In Britain, John Keane returned to the traditional understanding of democracy as "a differentiated and pluralistic system of power," and David Held brought socialist economic thinking and democratic political thought together in a particularly sophisticated way. In France, Claude Lefort pointed to the "institutional apparatus" that creates democracy, the "disentangling of the sphere of power" that "prevents governments from appropriating power for their own ends." In an American inflection of this post-Marxist political turn, Robert Alford and Roger Friedland insisted that class structures were mediated, not only by autonomous states, but by plural groups in civil society.3''' Morality and Solidarity The premise of this book is that a realistic social theory of democracy need not be so narrowly construed. It must, indeed, be hard-headed, focusing on real as compared to ideal civil societies.37 But it need not be realistic in the mechanistic and reductionistic sense. It need not presuppose cynical and instrumental actors, nor imagine a democratic order that is only external and institutional. Cynicism and pessimism need not be the only order of the day.3H To understand democracy realistically, elite conflict and structural differentiation cannot form the exclusive point of our interest. However well intentioned, and however important a window on critically important aspects of democratic life, the tradition of Thrasymachus is not adequate to understand politics, much less the phenomenon of democracy more broadly, more sociologically, and more culturally conceived. Within the narrow confines of Thrasymachus, we have no access to the interior domain, to the "structures of feeling," the "habits of the heart," and the worlds of moral sense and perception that make living together possible. We cannot illuminate the mysterious process by which citizens so often agree, willingly and without coercion, to uphold rules whose utility they scarcely understand and whose effect may be detrimental to their self-interest narrowly understood.3" It is not only difference and antagonism that sustains democracy, but solidarity and commonality.. We need to develop a model of democratic societies that pays more attention to shared feelings and symbolic commitments, to what and how people speak, think, and feel about politics and, more generally, about democratic social life. We need a theory, in other words, that is less myopically centered on social structure and power distribution, and more responsive to the ideas that people have in their heads and to what Tocqueville called the habits of their hearts.w It is for this reason that I stress the critical role of social solidarity. But as I emphasized in the last chapter, I wish to understand civil society as the arena not of solidarity narrowly defined in a communitarian and particularistic way but in universalistic terms. It is the we-ness of a national, regional, or international community, the feeling of connectedness to "every member" of that comnTunity, that transcends particular commitments, narrow loyalties, and sectional interests. Only this kind of solidarity can provide a thread, not of identity in the narrow sense, but of the kind of mutual identification that unites individuals dispersed by class, race, religion, ethnicity, or race. Edward Shils once wrote, following Dürkheim, that every functioning group needs a collective self-consciousness.11 What must be added is that a collectivity so constituted supports a civil sphere only to the degree that collective self-consciousness can extend so widely and deeply civil society in social theory that it can, in principle, include as full members every grouping and individual composing it. Identification over a widely dispersed territorial space can be sustained only by universalizing ties, bonds that transcend particularistic interest groups and identity communities alike.42 Paradoxically, only when there is such a common and unifying thread, one that is supraindivi-dual and extraparticular, can the individuals who compose the various social groups be freed from compulsions of a hierarchical kind. Only through the existence of a universalizing social solidarity can individuals become free and responsible for their putativelv "natural" autonomous rights. Civil society is a form of social and cultural organization rooted simultaneously in a radical individualism and a thoroughgoing collectivism, a combination best captured in Habermas's notion of "the sphere of private people come together as a public."43 The phrase "We, the people," which begins the U.S. Constitution, is a reference that constitutes the "civil" in every struggle to broaden social participation and extend equality.44 Yet if solidarity were extended only to the collectivity as such, it would become a particularism supporting repression, not liberty. Indeed, by understanding civil solidarity only in its purely collective sense, twentieth-century totalitarian regimes justified their governments as "people's democracies."43 In his reflections on the social dimensions of modern citizenship, T H. Marshall underscored the fundamental importance of complementing the collective, communal component of solidarity with the institutionalized protection of individuals. Distinguishing "Socialism II," exemplified by the postwar British welfare state, from "Socialism I," the Bolshevik's communist model, Marshall emphasized the former's insistence that welfare be distributed on the basis of individual rights and obligations rather than according simply to collective membership in the national group.4f' The liberal tradition that largely informed civil society I has often been accused, and often also praised, for approaching the civil sphere in an emphatically individualistic way. It is important to recognize, however, that the major theorists of civil society I understood that such democratic individuality depended on solidarity as well. In his Second Treatise on Government, for example, Locke traced the creation of an independent sphere of fellowship, a "commonwealth" that emerges from the state of nature and is extended, via the social contract, to the civil law regulating social life. This solidarity rests, in turn, upon the capacity for individuation. It is because human beings are "all equal and independent," according to Locke, that "no one ought [Realism, Morality, Solidarity to harm another in his life, health, liberty or possession."47 The Scottish moralists elaborated precisely this interrelation of solidarity and individuation. In Adam Ferguson's History of Civil Society, a response to what he considered the overly rationalistic individualism of contract theory, he argued that an increase in self-control and "subtlety" and a decrease in brute impulse were necessary for the emergence of civil society. At the same time, Ferguson identified civil society with the social bond that establishes "fellow feeling" among the members of a nation.4" Similarly, while Adam Smith, in his Theoiy of Moral Sentiments, emphasized the role of shared values in constituting the "impartial spectator," a kind of third-party observer that ensured universalism and fairness, he also highlighted the individualistic search for recognition and prestige that lay at the base of this newly civil sphere.4" An effort to connect individual and collectivity also lay at the base of Tocque-ville's conception of the sphere of democratic public life. Describing it as based on "self-interest rightly understood," he expressly anchored individualism in the collectively binding, extrapolitical world of legal regulation and, more important, in the cultural mores that undergirded American individualism in his time.5" Complexity and Community In the tradition of normative political theory that most emphatically objects to the consideration of politics in exclusively utilitarian and individualistic terms—the postwar republican tradition that extends from Arendt and Wolin to Unger, Maclntyre, Walzer, Sandel, and, in a rather ambiguous way, to Habermas3'—democracy is understood as a participatory political community whose citizens display commitments to a public interest that transcends private and egoistic concerns. From the perspective of these ideal, and idealized, democratic forms, these thinkers have called for a politics of vision, a vision in relation to which contemporary political life often seems mean-spirited and instrumental. According to this republican and sometimes communitarian ideal, democracy can be sustained only if a sense of altruistic civic virtue permeates political life. The problem here is not with such an emphasis on shared internal commitments and solidarity, which provided a welcome antidote to the tradition of Thrasymachus, much less with the interjection, against purely 44 45 civil society in social theory realistic empirical theories, of considerations of an explicitly normative kind. The problem is with the manner in which these commitments are understood. Too often, the republican tradition has conflated its normative aspirations with behavioral possibilities. Certainly, the moral ought must inform investigation into the empirical is, but this commitment to idealized standards should not obfuscate the existence of norms and values that have a lesser but still significant effect. If political life is not fully participatory, the republican tradition too often judges it to be egotistical and instrumental, as if it were ruled only by interests, not values. If it is not virtuous in a liberal democratic or socialist sense, it too often is judged to be without reference to any conception of virtue at ail.5- Similar problems have detracted from sociological reactions to political utilitarianism. When Robert Bellah and his colleagues demanded new habits of the heart, and Daniel Bell called for a new public household, they too drew upon this idealized republican vision of the possibility for a powerful and controlling civic virtue.5-1 While morally admirable and politically provocative, such Utopian thinking neglects the heartfelt habits that contemporary societies do sustain and the civil accounting that continues to regulate privilege and power, though never in a fully satisfactory way. If we wish to develop an approach to democratic social life that acknowledges the role of solidarity and moral ideals, we must start from a more realistic conception of the difficulties and challenges faced by complex societies. Self-interest and conflict will never give way before some all-embracing republican or communal ideal. Indeed, the more democratic a society, the more it allows groups to define their own specific ways of life and legitimates the inevitable conflicts of interest that arise among them. Political consensus can never be brought to bear in a manner that neutralizes particular group obligations and commitments. To think that it can be is to repeat the fallacy of Rousseau's belief in a communal consensus like the general will distinct from the actual will of particular individuals and groups.54 A much more complex and internally differentiated conception of solidarity and political culture is needed, one that will be more tolerant of individual differences and more compatible with the pluralization of interests. We must recognize that the communal ties that underlie civil solidarity-are constructed in something quite other than an overtly communitarian way. 46 Realism, Morality. Solidarity In fact, one of the enduring normative-cum-empirical contributions of the structural-functional tradition was its insistence that broadly shared moral ties do not mean that individuals and groups pursue similar or even complementary goals and interests.55 At the same time, the pursuit of divergent and conflictual goals does not mean, contrary to the more individualistic strands of the liberal and rationalist traditions, that shared understandings are not highly significant. Generalized commitments inform and influence goals even if they do not create them. Concrete situations have their own exigencies, but they do not create goals and interests out of a whole cloth. The articulation of this more specific level is always informed by the logic of more generalized patterns, by norms and by cultural codes and narrative structures that can provide a common medium of communication between conflict groups despite their often strategic and divisive aims. Without returning to communitarian earlier innocence or liberal-rationalist naivete, this cultural dimension must be studied if any plausible sociological theory of democratic social order is to emerge. This critical insight was hardly confined to the structural-functional school. Hegel also forcefully criticized the theoretical illusion, so common to mechanistic theories, that individuals and institutions are entirely separated from some broader Geist. The reasons actors offer for their actions, he insisted, are in fact deeply embedded in moral conceptions of which they are often unaware. Simmel, too, suggested that social conflicts are embedded in concepts, in implicit, idealized, and highly generalized notions that define the rewards for which conflict groups fighting, and even their conceptions of others and themselves. Walzer has argued that the structure of political obligations is much the same, justifications for political actions and opinions may be forcefully expressed in the language of free will and individual desire; yet the very fact that actors feel obligated to speak or act in these ways reveals that they do so as members of communities. The groups to which they belong impose these obligations in the name of their "higher" ideals. Individuals must act at the level of situationalfy specific demands; in doing so, however, they implicitly invoke the more general understanding of their groups. This does not mean, however, that such actors may not feel themselves bound by communities that are broader and more abstractly defined than those that define their immediate, everyday lives.56 47 CIVIL SOCIETY IN SOCIAL THEORY Cultural Codes and Democratic Communication Particular goals and even the most strategic of actions are framed and sometimes bound by commitments to cultural codes. The tradition of Thrasy-machus explores the base of politics. But power is also a medium of communication, not simply a goal of interested action or a means of coercion. It has a symbolic code, not only a material base.57 It is, in fact, precisely because politics has reference to a symbolic code that it can never be simply situational, for it will always have a generalized dimension as well. This generalized reference makes politics not only contingent and rational but stylized and prescribed. To understand it, we need to employ semiotic theories of binary codes, literary models of rhetoric and narrative, and anthropological concepts of performance and myth. The symbolic medium of politics is a language that political actors themselves do not fully understand. It is not only situationally motivated speech, but deep symbolic structure. In his riposte to functionalist and other equally reductive anthropologies, Levi-Strauss once insisted that kinship exists "only in human consciousness; it is an arbitrary system of representations, not the spontaneous development of a real situation."58 This seminal insight is not only anthropological, nor does it apply only to archaic worlds. Wittgenstein placed this notion at the basis of his later, and most profound, language philosophy.5y In the chapters that follow, it will inform my sociology of the modern civil domain. For I wish to insist on the significance of language in political life, even if I will follow neither structuralism nor Wittgenstein in suggesting we can focus on language alone. As Arlette Farge has written in her investigation of the plebian public sphrere in prerevolutionary France, "the words which give opinions—this will do, that will not do—are a reality and show very clearly that the people of Paris did not blindly accept the conditions under which they lived." It is their "speech whose meaning we must strive to discover," she argues, for "words spoken and opinions pro-nounced could open up distances, cause displacements and organize something which was new to the spheres of saying and doing." It is for this reason, she concludes, that historians "have to cleave to words so as to extract their meanings."60 So must social theorists and sociologists as well. Civil society is regulated by an internally complex discourse that allows us to understand the paradox by which its universalistic ideals have so easily been institutionalized in particularistic and anticivil ways. The breadth and Realism, Morality, Solidarity scope of a civil community led Kant and other Enlightenment philosophers to identify civil ties by such abstract terms as "reason" and "right."1'1 In his discourse ethics, which has done so much to sustain the normative idea of universalism in the present day, Habermas has translated this Enlightenment philosophical vocabulary into a theory of rational speech acts. Making the willingness to cooperate immanent to the efforts that speakers make to gain understanding in conversations, and generalizing from this thought experiment to the macrosociological sphere of civil public life, Habermas has effectively limited analysis of public discourse to such concepts as reasonableness, reciprocity, and fairness. Only such references, he has insisted, can create completely "transparent" communication. As I also mentioned in chapter I, similar strains of abstract universalism permeate Rawls s theory of justice, which rests on the hypothesis that actors can develop solidaristic distributive principles only by denying any actual knowledge of their own particular personal fates. Dürkheims discussion of the growing "abstraction of the collective conscience" and Parsons s of "value generalization" and "instrumental activism" reveal the same effort to tie civil solidarity to an abstract and contentless conception of rationality/'3 Universalistic ties, however, do not have to be articulated by abstract references to reason or right, to a discourse that transcends the arbitrary in a completely transparent way. Such references do, of course, inform foundational documents like the American Declaration of Independence and the French Declaration of the Rigjits of Man. But to limit our thinking about democratic discourse to such symbols alone is to commit what might be called the fallacy of misplaced abstractness. Strange as it may seem, universalism is most often articulated in concrete rather than abstract language. -Reworking the narratives and codes of local and particular cultures, normative demands for civility and mutual respect express themselves in figurative images, salty metaphors, hoary myths, and binary oppositions. Universalism anchors itself, in other words, in the everyday lifeworlds within which ordinary people make sense of the world and pass their time. For the French revolutionary saits-coiilcttes and the colonial American patriots, the civil society they fought for was not abstract. For the French, it was the "beloved nation," often portrayed iconically as a woman, Marie, the goddess of liberty.6-1 Revolutionary Americans metaphorically inscribed critical reason in the prophetic narratives of the Old Testament and freedom in such icons as the Liberty Tree.'"1 48 49 civil society in social theohy That civil language is symbolic and experiential, not only rational in the moral or strategic sense, that the very effort to speak uniyersalism.. must always and everywhere take a concrete form, opens our consideration of civil society not only to the particularistic but also the repressive dimensions of modern democratic life. Because meaning is relational and relative, the civility of the self always articulates itself in language about the incivility of the other. This paradox in the very construction of the language of civil society is intensified by the contradictions that inevitably accompany organizational efforts to institutionalize it. There remains the possibility of justice, but it is devilishly difficult to obtain. These are the dilemmas we take up in the chapters that follow. STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE £ -5* 5° CHAPTER 4 Discourses: Liberty and Repression Social scientists have written much about the social forces that create conflict and polarize society and about the interests and structures of political, economic, racial, ethnic, religious, and gender groups. But they have said very little about the construction, destruction, and reconstruction of civic solidarity itself. They are generally silent about the sphere of fellow feeling, the we-ness that makes society into society, and even less about the processes that fragment it. For reasons I suggested in Part I, civil society is conceived here as a sphere or subsystem of society that is analytically and, to various degrees, -empirically separated from the spheres.of political, economic, family, and religious life. Civil society is a sphere of solidarity in which individual rights and collective obligations are tensely intertwined. It is both a normative and a "real" concept. It allows the relationship between universalism and particularism, so central to philosophical drinking, to be studied empirically, as a condition that determines the status of civil society itself. Civil society depends on resources or inputs from other spheres, from political life, from economic and political institutions, from familial and religious life, from territorial organizations, and from more narrowly constructed primordial communities. In this sense, it can be said that civil society is dependent on these spheres, but this is true only in a very partial sense. 53 STRUCTURES AND DYNAMICS Of- THE CIVIL SPHERE Civil society—and the groups, institutions, and individuals who articulate their "interests" in civil society terms—pulls together these inputs according to its own normative and institutional logic. This is to say that the solidary sphere we call civil society has relative autonomy and can be studied in its own right. It is homologous with, to some degree independent of, and sometimes a match for the other "societies" that constitute the subject of contemporary social science—the economic, die political, the familial, the ethnic, the religious.1 Against the new utilitarianism, and other recent installments in the tra-dition of Thrasymachus, I wish to defend the position that there is, indeed, such a thing as "society," and that it can be defined in moral terms.2 In the chapters that follow, I will show how the liberating and repressive stipulations of this moral community articulate with organizational power via such regulatory institutions as party and legal systems, voting, and "office," on the one hand, and with such communicative institutions as mass media, public opinion polls, and civil associations, on the other. Civil society is also constituted by its own distinctive structure of elites, by the institutional oligarchies that direct the legal and communications systems, the influentials who exercise persuasion through civil associations, and the "movement intellectuals" who lead social movements.3 But civil society is not merely an institutional realm. It is also a realm of structured, socially established consciousness, a network of understandings creating structures of feeling that permeate social life and run just below the surface of strategic institutions and self-conscious elites. To study this subjective dimension of civil society, we must recognize and focus on the distinctive symbolic codes that are critically important in constituting the very sense of society for those who are within and without it. These codes are so sociologically important, I would argue, that every study of social division and conflict must be complemented by reference to this civil symbolic sphere. Pure and Impure in Civil Discourse Binary codes supply the structured categories of pure and impure into which every member, or potential member, of civil society is made to fit. It is in 54 .Discourses: Liberty and Repression terms of symbolic purity and impurity that centrality is defined, that marginal demographic status is made meaningful, and high position understood as f deserved or illegitimate. Pollution is a threat to any allocative system; its sources must either be kept at bay or transformed by communicative actions. <:•■■ like rituals and social movements, into a pure form. Despite their enormous behavioral impact, however, pure and impure y categories do not develop merely as generalizations or inductions from structural position or individual behavior. They are imputations that are ! induced, via analogy and metaphor, from the internal logic of the symbolic 1 code. For this reason, the internal symbolic structure of the civil code must become an object of study in itself, just as there is no developed religion that does not divide the world into the saved and the damned, there is no civil discourse that does not conceptualize the world into those who deserve inclusion and those who do not.4 Members of national communities firmly ) believe that "the world," and this notably includes their own nation, is filled T with people who either do not deserve freedom and communal support or i are not capable of sustaining them (in part because they are held to be '( immoral egoists). Members of national communities do not want to "save" such persons. They do not wish to include them, protect them, or offer them rights, for they conceive them as being unworthy and amoral, as in some sense "uncivilized."5 | This distinction is not "real." Essentialism is a contingent social attri- ■ bution that, in theoretical terms, must be emphatically rejected. Actors are r not intrinsically either worthy or moral: they are determined to be so by f being placed in certain positions on the grid of civil culture. When citizens f make judgments about who should be included in civil society and who f should not, about who is considered a friend and who an enemy, they draw.. * on a systematic, highly elaborated symbolic code. This symbolic structure was already clearly implied in the very first philosophical thinking about | democratic societies that emerged in ancient Greece/' Since the Renaissance | it has permeated popular thinking and behavior, even while its centrality in C philosophical thinking has continued to be sustained. ^| While this symbolic structure is a structural feature of every civil society, | it takes different forms in different nations and regions, and its elements are j; specified and weighted differently in the more conservative and more radical | versions of its ideological forms.7 The nature of these civil codes can be 1 STRUCTURES AND DYNAMICS OF THE CIVIL SPHEHE Discourses: Liberty and Repression generated speculativelv by a kind of thought experiment: Upon what kinds of motives, relations, and institutions would a self-regulating, democratic community be likely to depend?. I will speak from within such speculative philosophical reasoning in my presentation of the details of the civil code below. It is important to recognize, however, that the code's symbolic contents are, in fact, the historical residue of a long and diverse series of nitty-gritty movements in social, intellectual, and religious lite—of classical Republican ideas, of Judaism, Christianity, and Protestantism, of Enlightenment and liberal thought, of the revolutionary, socialist, and common law traditions. Despite their historical diversity, however, the cultural implications of these variegated movements have been drawn into a highly generalized symbolic system that divides civic virtue from civic, vice in a remarkably stable and consistent way. It is for this reason that, despite divergent historical roots and variations in national elaborations, the language that forms die cultural core of civil society can be isolatedas. a general structure and studied as a relatively autonomous symbolic form." Richard Rorty observes that "the force of'us' is, typically, contrastive in the sense that it contrasts with a 'they' which is also made up of human beings—the wrong sort of human beings." From this follow certain understandings about democracy as a way of life. If "feelings of solidarity are necessarily a matter of which similarities and dissimilarities strike us as salient," then "such salience is a function of a historically contingent final vocabulary.'"' The basic elements of this "historically contingent final vocabulary," or cultural structure, can be understood semiotically. They are sets of homologies, which create likenesses between various terms of social description and prescription, and antipathies, which establish antagonisms between these terms and other sets of symbols. Those who consider themselves worthy members of a national community (as most persons do, of course) define themselves in terms of the positive side of this symbolic set; they define those who are not deemed worthy in terms of the bad. It is fair to say— indeed, it is vital to insist—that members of a community "believe in" both the positive and the negative sides, that they employ both as viable normative evaluations of political communities. For the members of every democratic society, both the positive and the negative symbolic sets are thought to be realistic descriptions of individual and social life. The binary discourse occurs at three levels: motives, relations, and in- stitutions. Motives are attributed to political actors in response to the question that seems always to be immanent in civil democratic life: What kinds of people are necessary for viable democracies to form? Social relations are conceptualized as legitimate and illegitimate in response to the question: How do such civil and uncivil people get along? Finally, institutions are categorized in response to the question, What kinds of organizations would be formed by these lands of persons, with these kinds of relations?10 The Binary Structures of Motives Let us first discuss motives. Code and counter-code posit human nature in diametrically opposed ways. Because democracy depends on self-control and individual initiatives, the people who compose it are described as being capable of activism and autonomy rather than as being passive and dependent. They are seen as rational and reasonable rather than irrational and hysterical, as calm rather than excited, as controlled rather than passionate, as sane and realistic rather than fantastical or mad. Democratic discourse, then, posits the following qualities as axiomatic: activism, autonomy, rationality, reasonableness, calm, control, realism, and sanity. The nature of the counter-code, the discourse that justifies the restriction of civil society, is already clearly implied. If actors are passive and dependent, irrational and hysterical, excitable, passionate, unrealistic, or mad, they cannot be allowed the freedom that democracy allows. On the contrary, these persons deserve to be repressed, not only for the sake of civil society, but for their own sakes as well. CIVIL MOTIVE5 Active Autonomous Rational Reasonable Calm Self-con trolled Realistic Sane anticivil motives Passive Dependent Irrational Hysterical Excitable Wild-passionate Distorted Mad STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE Discourses: Liberty and Repression The Binary Structures of Relationships The Binary Structures of Institutions On the basis of such contradictory codes about human motives, distinctive representations of social relationships can be built. Democratically motivated persons—persons who are active, autonomous, rational, reasonable, calm, and realistic—will be capable of forming open social relationships rather than secretive ones; they will be trusting rather than suspicious, straightforward rather than calculating, truthful rather than deceitful. Their decisions will be based on open deliberation rather than conspiracy, and their attitude toward authority will be critical rather than deferential. In their behavior toward other community members, they will be botind by conscience and honor rather than by greed and self-interest, and they will treat their fellows as friends rather than enemies. Given the discursive structure of motives and civic relationships, it should not be surprising that this set of homologies and antipathies extends to the social understanding of political and legal institutions themselves. If members of a national community have irrational motives and distrust social relationships, they will naturally create institutions that are arbitrary rather than rule regulated, that emphasize brute power rather than law and hierarchy rather than equality, that are exclusive rather than inclusive and promote personal loyaltv over impersonal and contractual obligation, that are regulated by personalities rather than by office obligations, and that are organized by faction rather than by groups that are responsible to the needs of the community as a whole. civil relations anticivil relations Open Secretive Trusting Suspicious Critical Deferential Honorable Self-interested Altruistic Greedy Truthful Deceitful Straightforward Calculating Deliberative Conspiratorial Friendly Antagonistic If actors are irrational, dependent, passive, wild-passionate, and unrealistic, on the other hand, the social relationships they form will be characterized by the second side of these fateful dichotomies. Rather than open and trusting relationships, they will form secret societies that are premised on their suspicion of other human beings. To the authority within these secret societies they will be deferential, but to those outside their tiny group they will behave in a greedy and self-interested way. They will be conspiratorial, deceitful toward others, and calculating in their behavior, conceiving of those outside their group as enemies. If the positive side of this second discourse set describes the symbolic qualities necessary to sustain civil society, the negative side describes a solidary structure in which mutual respect and expansive social integration has broken down. civil institutions Rule regulated Law Equality Inclusive Impersonal Contracts Groups Office antecivil institutions Arbitrary Power Hierarchy Exclusive Personal Bonds of loyalty Factions Personality |^ These three sets of discursive structures are tied together. Indeed, every J element in any one of the sets can be linked via analogical relations—by | homologous relations of likeness—to any element in another set on the same side. "Rule regulated," for example, a key element in the symbolic j. understanding of democratic social institutions, is considered homologous | with "truthful" and "open," terms that define social relationships, and with | "reasonable" and "autonomous." elements from the symbolic set that stip- ulates civil motives. In the same manner, any element from any set on one " f side is taken to be antithetical to any element from any set on the other. According to the rules of this broader cultural formation, for example, ,.,..,| "hierarchy" is thought to be inimical to "critical" and "open" and also to ~T "activistic" and "self-controlled."" 58 59 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE Discourses: Liberty and Repression Civil Narratives of Good and Evil When they are presented in their simple binary forms, these cultural codes appear schematic. In fact, however, they reveal the skeletal structures on which social communities build the familiar stories, the rich that guide their everyday, taken-for-granted politkallife,12 The positive side of these structured sets provides the elements for the comforting and inspiring story of a democratic, free, and spontaneously integrated social order, a civil society in an ideal-typical sense. People are rational, can process information intelligently and independendy, know the truth when they see it, do not need strong leaders, can engage in criticism, and easily coordinate their own society. Law is not an external mechanism that coerces people but an expression of their innate rationality, mediating between truth and mundane events. Office is an institutional mechanism that mediates between law and action. It is a calling, a vocation to which persons adhere because of their trust and reason. Those who know the truth do not defer to authorities, nor are they loyal to particular persons. They obey their conscience rather than follow their vulgar interest; they speak plainly rather than conceal their ideas; they are open, idealistic, and friendly toward their fellow human beings. The structures and narratives of political virtue form the discourse of liberty. This discourse is embodied in the founding documents of democratic societies. In America, for example, the Bill of Rights, which constitute the first ten amendments to the U.S. Constitution, postulates "the right of people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and guarantees that no person shall "be deprived of life, liberty, or property, without due process of law." In so doing, it ties rights to reasons and liberty to law. The discourse of liberty, is also embodied in the great and the little stories that democratic nations tell about themselves, for example, in the venerable American story about George Washington and the cherry tree, which highlights honesty and virtue; in English accounts of the Battle of Britain, which reveal the courage, self-sufficiency, and spontaneous cooperation of the British in contrast to the villainous forces of Hitlerian Germany; in the reverent French folklore about the heroic, honest, and cooperative resistance against the Nazi occupation. Whatever institutional or narrative form it assumes, the discourse of liberty centers on the, capacity for voluntarism. Action is voluntary if it is intended by rational actors who are in full control of body and mind. If action is not voluntary, it is deemed to be worthless. If laws do not promote the achievement of freely intended action, they are discriminatory. If confessions of guilt are coerced rather than freely given, they are polluted.13 If a social group is constituted under the discourse of liberty, it must be given social rights because the members of this group arc conceived of as possessing the capacity for voluntary action. Political struggles over the status of lower-class groups, of racial, ethnic, and religious minorities, of women, children, and homosexuals, of those who are constructed as criminals and as mentally, emotionally, and physically handicapped—these conflicts have always involved discursive struggles over whether and how the discourse of liberty can be extended and applied. Insofar as the founding cultural myths and constitutional documents of democratic societies are universalistic, they implicitly stipulate that the discourse can always be further extended, and that it eventually must be. The elements on the negative side of these symbolic sets are also tightly intertwined. They provide the elements for the plethora of taken-for-granted stories that permeate democratic understanding of the negative and repugnant sides of community life. Taken together, these negative structures and narratives form the discourse of repression.14 If people do not have the capacity for reason, if they cannot rationally process information and cannot tell truth from falseness, then they will be loyal to leaders for purely personal reasons and will be easily manipulated by thern in turn. Because such persons are ruled by calculation rather than by conscience, they are without the honor that is critical in democratic affairs. Since they have no honor, they do not have the capacity to regulate their own affairs. It is because of this situation that such persons subject themselves to hierarchical authority. These anti-civil qualities make it "necessary" to deny such persons access to rights and the protection of law.13 Indeed, because they are conceived as lacking the capacity for both voluntary and responsible behavior, these marginal members of the national community—those who are unfortunate enough to be constructed under the anticivil, counterdemocratic code— must be silenced, displaced, or repressed. They cannot be regulated by law, nor will they accept the discipline of office. Their loyalties can be only 60 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE Discourses: Liberty and Repression familial and particularistic. The institutional and legal boundaries of civil society, it is widely believed, can provide no bulwark against their lust for personal power. The positive side of this discursive formation is viewed by the members of civil communities as a source not only of purity but also of purification. The discourse of liberty is taken to sum up "the best" in a democratic society, and its tenets are considered to be sacred. The objects that the discourse creates seem to possess an awesome power that places them at the "center" of society, a location—sometimes geographic, often stratificational, always symbolic—that compels their defense at almost any cost.lf' The negative side of this symbolic formation is viewed as profane. Representing the "worst" in the national community, it embodies evil. The objects it identifies threaten the core community from somewhere outside it. From this marginal position, they present a powerful source of pollution.17 To be close to these polluted objects—the actors, structures, and processes that are constituted by the repressive discourse—is dangerous. Not only can one's reputation be sullied and one's status endangered, but ones very security can be threatened. To have one's self or movement identified in terms of these objects causes anguish, disgust, and alarm. Collective representations of this polluting code are perceived as a threat to the very center of civil society itself. Everyday Essenrialism Public figures and events must be categorized in terms of one side of this discursive formation or the other, although, when politics functions routinely, such classifications need not be sharply articulated or explicit. Hegel put it this way in The Philosophy of Right: "In an existing ethical order in which a complete system of ethical relations has been developed and actualized, virtue in the strict sense of the word is in place and actually appears only in exceptional circumstances when one obligation clashes with another."1" Even in routine periods, however, it is their specification within the codes of this underlying discourse that gives political things a civil meaning and allows them to assume the role they seem "naturally" to have.19 Even when they are aware that they are struggling over these classifications, moreover, most political actors do not recognize that it is they who are creating them. Such knowledge would relativize reality, creating an uncertainty that could undermine not only the cultural core but also the institutional botindaries and solidarity of civil society itself. Social events and actors seem to "be" these qualities, not to be labeled by them. The discourse of civil society, in other words, is concrete, not abstract. It is elaborated by narrative accounts that are believed to describe faithfully not only the present but also the past. Every nation has a myth of origin, for example, that anchors this discourse in an account of the historical events involved in its early formation.20 Like their English compatriots, early Americans believed their rights to have emerged from the "ancient constitution" of eleventh-century Anglo-Saxons whose primordial qualities guaranteed that the structures they forged would take a civil form.21 The specifically American discourse of liberty was first elaborated in accounts of Puritan saints and later in stories about revolutionary heroes. It was woven into the myth of the independent and democratic yeoman farmer, then into tales about upright cowboys and law-making sheriffs, and still later into pulp fiction about doggedly determined and honest detectives and the dishonest and deceptive malcontents they eventually ferreted out.22 Likewise, the American discourse of repression was made palpable through early religious accounts of miscreants and antinomians and scurrilous stories about selfish and authoritarian loyalists and aristocrats in the Revolutionary War. Later, it was elaborated in accounts of wild Indians and "papist" immigrants and then in regional myths about treason during the Civil War. Such accounts seemed to justify not only exclusion but violence.23 For contemporary Americans, the categories of the pure and the polluted discourses seem to exist in just as natural and fully historical a way. Democratic law and procedures are seen as having been won by the voluntary struggles of the founding fathers and guaranteed by historical documents like the Bill of Rights and the Constitution. The qualities of the repressive code are embodied in the dark visions of tyranny and lawlessness, whether those of eighteenth-century British monarchs; Soviet, Chinese, or Vietnamese communists; or Islamic rulers or terrorists. Pulp fiction and highbrow drama seek to counterpose these dangers with compelling images of the good.21 When works of the imagination represent the discursive formation in a paradigmatic way, they become contemporary classics. For the generation that matured during World War II, for example, George Orwell's Nineteen Eighty-Four, so filled with gothic tales of suspicion, disloyalty. Gal- ea 63 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE culation, and secrecy, made the discourse of repression emblematic of the struggles of their time. Within the confines of a particular national community, the binary codes and concrete representations that make up the discourse of civil society are not usually divided among different social groups. To the contrary, even in societies that are rent by intensive social conflict, the constructions of both civic virttie and civic vice tend to be widely accepted by all sides. What is contested in the course of civic life, what is not at all consensual, is how the antithetical sides of this discourse, its two symbolic sets, will be applied to particular actors and groups. If most of the members of democratic society accepted the "validity" and "reality" of Nineteen Eighty-Four, they disagreed fundamentally over its relevant social application. Radicals and liberals were inclined to see the book as describing the already repressive or at least imminently antidemocratic tendencies of their own capitalist societies; conservatives understood the work as referring to communism alone. The Conflict over Representation Some events are so gross or so sublime that they generate almost immediate consensus about how the symbolic sets of civil society should be applied. For most members of a national community, popular national wars clearly demarcate the good and the bad. The nation's soldiers are initially taken to be courageous embodiments of the discourse of liberty; the foreign nations and soldiers who oppose them are deemed to represent some potent combination of the counterdemocratic code. In the course of American history, this negative code has, in fact, been extended to a vast and variegated group, to the British, native peoples, pirates, the South and the North, Africans, old European nations, fascists, communists, Germans, Japanese, Vietnamese, and Islamic terrorists. Identification in terms of the discourse of repression is essential if vengeful combat is to be pursued.-5 Once this polluting discourse is applied, it becomes impossible for good people to treat and reason with those on the other side. If one's opponents are beyond reason, deceived by leaders who operate in secret, die only option is to read them out of the human race. When great wars are successful, they provide powerful narratives that dominate the nation's postwar life. Hitler and Nazism formed the backbone of a huge array of Western myth and stories, providing master 64 Discourses: Liberty and Repression metaphors for everything from profound discussions about the final solution to the good-guy/bad-guy plots of television dramas and situation comedies. Whether "terrorism" and "September nth" will have the same narrative power remains to be seen. For most events, however, discursive identity is contested. Political fights are, in part, about how to distribute actors across the structure of discourse, for there is no determined relation between any event or group and either side of the cultural scheme. Actors struggle to taint one another with the brush of repression and to wrap themselves in the rhetoric of liberty. In periods of tension and crisis, political struggle becomes a matter of how far and to whom the discourses of liberty and repression apply. The effective cause of victory and defeat, imprisonment and freedom, sometimes even of life and death, is often discursive domination, or hegemony, which depends on just how popular narratives about good and evil are extended. Is it protesting students who are like Nazis, or is it the political authorities who are pursuing them who are like Nazis? Are members of the Communist Party to be understood as fascist, or does this describe the members of the House Un-American Activities Committee who are interrogating them? Are Islamic militants engaging in violent, antidemocratic behavior, or does this behavior belong to the American military pursuing them? When the Watergate crisis exploded inside American political life in autumn 1972, only the low-level functionaries who burgled the Watergate building were labeled conspirators, polluted by the discourse of repression, and arrested.2'' The presidential candidate of the Democratic Party, George McGovern, and his fellow Democrats were unsuccessful in their efforts to apply this discourse to President Nixon, who was the Republican candidate for reelection, to his executive staff, or to the Republican Party. Each of these entities succeeded in maintaining the purity of their civil identities. At a later point in the crisis, however, such a reassuring relation to the cultural structure no longer held. Staff, party, and eventually the president himself were re-represented and polluted. As a result, they became subject to humiliation, displacement, arrest, and incarceration. The general discursive structure, in other words, is used to legitimate friends and delegitimate opponents in the course of real historical time. If the independence and autonomy of the civil sphere were to be fully maintained, of course, the discourse of repression would be applied only in highly circumscribed ways, to such groups as children and those who commit Ö5 STRUCTURES AND DYNAMICS Ol- THE CIVIL SPHERE Discourses: Liberty and Repression serious crimes, to categories of persons, in other words, who are not in sufficient possession of their rational or moral faculties to participate freely and autonomously in civil life. It has often been the case, indeed, that subordinated, rebellious, or marginal individuals and groups have sustained civil representations over significant periods of time. In such ages of equipoise, conflict groups can understand one another as rational individuals without indulging in moral annihilation. In normative terms, this sympathetic representation articulates the moral aspiration of a civil society. Over any extended historical period, however, the strains and fragmentations that mark real civil societies are bound to take their toll. It is impossible for the discourse of repression not to be brought into significant play and for opponents not, at some point, to be represented as dangerous and even as enemies of the most threatening land. It may be the case that such opponents are, in fact, ruthless enemies of the public good. The Nazis were morally heinous killers, and it was wrong to deal with them as potential civic participants, as Neville Chamberlain and the other appeasers did. What is important to understand, however, is that the discourse of repression is applied whether or not its objects are really evil, with the result that a social fact—an objective reality—is created even if none existed before. The symbolism of evil that had been applied by the Allies in an overzealous way to the German nation in the course of World War I was extended indiscriminately to the German people and governments during the interwar period. It produced the debilitating reparations policy that helped establish the economic and social receptiveness to Nazism.27 The social application of polarizing symbolic identifications must be understood in terms of the internal structure of the discourse itself. Members of rational, individuaHstic. and self-critical societies experience themselves as vulnerable because these very qualities make them open and trusting. Beneath the surface, there lurks the fear that such trust will be abused if the other side is devoid of redeeming social qualities. The potential for dependent and irrational behavior, moreover, can be found even in good citizens themselves. Secret conspiracies by dishonest persons disseminate misleading information that might lead even the best intentioned citizens, on what would seem to be rational grounds, to turn away from the structures or processes of democratic society itself.2H In other words, the very qualities that allow civil societies to be internally democratic—qualities that include the symbolic oppositions that allow liberty to be defined in any meaningful way—mean that the members of civil society do not feel confident that they can deal effectively with their opponents, from either within or without. The discourse of repression is inherent in the discourse of liberty.2" This is the irony that tears at what Rogers Smith calls "the divided heart" of civil society. It must somehow be managed for the project of democracy to succeed.30 66 67 -T CHAPTER $ Communicative Institutions: Public Opinion, Mass Media, Polls, Associations ivil society is defined by a particular kind of social relationship, one that has to do with universalistic solidarity. In a complex, far-flung, and relatively anonymous social order, this historically unusual kind of relationship can be widely accessible only if it is articulated symbolically, as a generalized language that can be spoken by many different kinds of people. Hence the importance of the discourse of civil society, the language of binary oppositions I have just described. At the same time, however, these collective representations of an imagined community can and must be articulated in more specific and mundane ways. Members of civil society act not only within a cultural environment but within an institutional one. In comparison with generalized symbolic patterns, institutions focus on goals and norms, rewards and sanctions; in a word, they constitute social organization. Social organization operates inside of a cultural milieu: An institution can think only inside of the categories that culture provides.1 At the same time, organizations are as strongly oriented by pragmatic as by ideal concerns. The actions that unfold inside organizations are much more specific and contingent than the generalized categories of culture. As a result, although the structures and activities of institutions are oriented by the discourse of civil society, they cannot be determined by them. 69 STIIUCTUHES AND DYNAMICS OF THE CIVIL SPHERE Public Opinion, Mass Media, Polls. Associations The institutions of civil society crystallize ideals about solidarity with and against others in specific terms. They transform general conceptions about the purity and impurity of motives and relations into specific, normative, sometimes sanctioned, one-time-only social relationships. They articulate specific claims and binding demands for inclusion and exclusion, for liberation and for repression. In so doing, they issue orders, arrange bargains, make exchanges, produce statements, create interpretations, offer rewards, threaten and often confer punishments. The institutions of civil society make it possible for the pure and impure criteria of civil society to permeate the other, noncivil spheres of social life. Civil institutions intrude into noncivil institutions and groups; they are continuously restructuring them and being restructured by them in turn. Institutions such as law, office, party organization, and "free and fair" elections articulate solidarity in concrete and specific ways, not only through the definitions of moral behavior they project but by sanctions and rewards. These form what I call the regulatory institutions of civil society, and we will discuss them in chapters 6 and 7 below. These more "material" forms, however, by no means exhaust the organizational structures of the solidary sphere. The inclusive and exclusive relationships established by civil society are articulated by communicative institutions as well. It is important to lay out their structure and process before we move on to consider civil institutions of a more regulative kind. From the cultural and symbolic lifeworld of civil society, intuitive criteria are created that shape behavior in more organized and formal domains. Civil society in this sense should be understood not merely in terms of contrasting symbolic categories but as structures of feeling, the diffusely sensed obligations and rights that represent, and are at the same time evoked by, contrast-, ing solidary ties. Collective representations of such social relationships are broadcast by civil society institutions specializing in communicative, not regulative tasks—by the mass media, public opinion polls, and voluntary organizations. The structures of feeling that such institutions produce must be conceptualized as influence rather than authoritative control, or power in a more structural sense. They institutionalize civil society by creating messages that translate general codes into situationally specific evaluations and descriptions.2 Before we analyze these organizations of influence, however, we must discuss the lifeworld of public opinion which anchors communicative and regulative institutions alike. The Public and Its Opinion There is an intuitive, phenomenological sense of civil society. This structure of feeling, which is at the same time a feeling of structure, is evoked and objectified by the notion of "the public." In the minds of most democratic theorists, it seems, the notion of the public points to the existence of an actual group, to actual deliberations, and to an actual place. According to this concrete notion of the public, members of a closely knit polity meet with one another in the same physical environment, vigorously debating the events that affect their lives. Inspired by the ancient Greek polis, Arendt insisted on the importance of such a concrete understanding—on "being seen and being heard by others"—in her republican analyses of democracy.-' Influenced by Arendt and the classical aspects of the socialist tradition, the early Habermas also laid heavy emphasis on the public as a concrete space.4 In his normatively informed historical reconstruction, Habermas claimed that the republican inclinations of the bourgeoisie first emerged in opposition to the private and hidden activities of the king's private household in patrimonial absolutist regimes. This bourgeois preference for open, transparent, and public relationships culminated in the conversation-filled coffeehouses and salons of the eighteenth-century British and French commercial centers. According to Habermas, it was in these public houses that the emerging middle classes debated plans for democracy in a straightforward, rational manner. This republican equation of public with face-to-face interaction has extended well beyond the normative and Marxist traditions. Max Weber, in his neglected essay on the critical significance of the "Western city, and other observers of early modern Europe as well,5 have drawn attention to the manner in which the Renaissance city-states sustained remarkably high degrees of concrete public life, constructing open places for political discussion that objectified and focused the postmcdieval experiences of expanded solidarity. Meetings of the aroused publics of these city-states not only exposed official corruption but allowed demands for greater economic equality to gain normative legitimation for the first time. The preference for thinking of publicness in concrete, face-to-face terms extends, in fact, well beyond the rationalist tradition of Enlightenment thought. Walzerand Mayhew, for example, have argued for the religious origins of the early modern public, demonstrating how the dualistic, dialogic nature of Protes- 70 71 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE ■ "'sill I tant religiosity and the egalitarianism of its sect organization opposed the secrecy and hierarchy of medieval life/' As my earlier analyses of symbolically articulated solidarity indicate, however, the civil spheres of large, differentiated, and plural societies can no i longer be understood in such concrete terms.7 This does not mean that the traditional idea of the public no longer plays a role in contemporary societies, but that it now assumes a symbolic rather than concrete form. The symbolic representation of traditional public functions is a regulating idea, one that carries with it an obvious force. But it is not the concrete public as a face- f to-face association that is fundamental to contemporary civil societies. It is the idea of that public as it has inserted itself into social subjectivity as a structure of feeling. In order to gain influence, actors must speak the language > that makes the democratic public into a regulative ideal.H The normative P reference of the public sphere is a cultural structure, the discourse of civil ^ society. | It is as "public opinion" that public space has its most fundamental | repercussions in the present day. Tocqueville insisted that it is the peculiar | force of public opinion vis-a-vis the political sphere—not the force of the | concrete public composed of face-to-face associations—that distinguishes f democratic from authoritarian rule. In a democracy, he wrote, "public opin- | ion is in effect the dominant power." It is because this "guiding power," for | example, "asserts itself through elections and decrees" that "in exercising t executive power, the President of the United States is subject to constant \ and jealous scrutiny."1' .1 Public opinion articulates the cultural structure of civil society, defining democratic and antidemocratic opinions, publics, representative figures, and : regulative institutions. Such binary structuring marks the history of political thinking about the role that public opinion can play. Theorists ambivalent " about democracy have conceived the public's opinion in both ways, as :, gullible and easily swayed, irrational and emotional, and as constituting the potential for tyranny, even as, at the same time, they have found inside ; public opinion a deep reflection of the rationality, individuality, and inde- ; pendence that marks democratic life. In The American Commonwealth, James Bryce recognized in public opinion a "din of voices" that "talks incessantly" and "complains," has an "inability to recognize facts," an "incapacity to imagine a future," and is "swayed only by such obvious reasons as it needs little reflection to follow." He claimed to observe that, "quick and strenuous Public Opinion, Mass Media, Polls, Associations in great matters" and "heedless in small matters," public opinion has "dulled the sense of responsibility among the leaders in political life" and "is a danger to the people themselves." In the next breath, Bryce asserts that "public opinion is a sort of atmosphere, fresh, keen, and full of sunlight [that] kills many of those noxious germs which are hatched where politicians congregate." He continues that "selfishness, injustice, cruelty, tricks ... of all sorts shun the light," that "to expose them is to defeat them," that "it is the existence of such a public opinion as this, the practice of freely and constantly reading, talking, and judging of public affairs . . . that gives to popular government that educated and stimulative power which is so frequently claimed as its highest merit."10 Though Tocqueville preferred democratic opinion to the particularism of aristocracy, he also spoke darkly of the potential tyranny of the majority as the unforeseen product of the influence of public opinion. Emphasizing the binary of dependence-independence, he complained "I know of no country in which there is so little independence of mind and true freedom of discussion than in America."11 More optimistic democratic thinking, by contrast, grants to public opinion the civil qualities that democracy requires. In his idealistic celebration of the public opinion poll, published in 1940, George Gallup evoked the central category of truth. "Public opinion listens to many propagandas, most of them contradictory," he writes, insisting that in the clash and conflict of argument and debate public opinion tries "to separate the true from the false." Public opinion is critical, not submissive; experimental, not dogmatic; and oriented to the individual, not the mass. It needs criticism for its very existence, and through criticism it is constantly being modified and molded. It acts and learns by action. Its truths are relative and contingent. ... Its chief faith is a faith in experiment. It believes in the value of every individual's contribution to political life, and in the right of ordinary human beings to have voice in deciding their fate. Public opinion, in this sense, is the pulse of democracy.13 To the degree that civil society exists, the taken-for-granted, apparently mundane but enormously important phenomenon of public opinion emerges. To refer to public opinion is to indicate, to invoke, and to represent the pure and impure ideas, feelings, and evaluations that members of society 72 73 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE Public Opinion, Mass Media, Polls, Associations hold about one another. Commenting upon the ongoing, unpredictable, | and seemingly unstructured events and figures of social life, public opinion k consists of factual accounts, emotional responses, and moral evaluations of their extent and effect. Tocqueville saw this clearly, but he limited the phenomenon to American political life. Marx did not see this at all, and Weber was unable to give to public opinion a theoretical place in his descriptions of modern life. By contrast, Dürkheim insisted on the omnipresence of opinion, though he ascribed it to the influence of "society" and identified it with the "collective consciousness" rather than with the civil sphere and democratic life.11 Gabriel de Tarde, similarly affected by the effervescence of the new Third Republic in France, also emphasized the centrality of opinion, relating it the dynamics of fashion, the currents of conversation, and the institutions of newspapers, all clearly associated with the communicative domain.14 <■ American social thinkers in the early twentieth century, such as Walter | Lippmann and John Dewey, also recognized the centrality and independent power of public opinion, but too often their deeply republican normative suspicions and their insufficiently developed social theories made them believe this independence to be on the wane.15 Since these early formulations, and indeed in part because of them, the social scientific discourse about public opinion has been reduced to quantitative surveys of individual attitudes. Public opinion is rarely seen as a highly significant macrosociological topic in its own right. The tradition of Thrasymachus makes it hard to see \ this kind of invisible source of influence; only the visible exercise of power | is given free reign.u' v.t; Within the constraining yet at the same time nubile structures of public feeling there flows the economic divisions, ethnic segments, and ideological i, polarities that fragment democratic social life. Groups with diverse power, f interests, and capital of various kinds produce and compel sharply differing | views of one another. It has been the stock-in-trade of social scientists to i demonstrate that public opinion depends upon—in technical terms, "varies | in relationship with"—more particularistic groups and concrete structural | processes, such as class formations, ethnic and regional groupings, education, j race, and mobility rates. Even in segmented and multicultural societies, t however, there remains an element of public opinion that orients itself to the society qua collectivity, to an audience of citizens and to institutional 1 actors only insofar as they are members thereof. To elaborate this proposition | 74 in theoretical and empirical detail is, indeed, one of the main ambitions of this book. Members of different and conflicting groups certainly have their own opinions about many things, but it is only their "public" opinions that make these ideas evident. If they are to have broader influence, these opinions have to be couched in terms of the regulatory idea that a broader society exists, both as a normative and a real audience, outside of their particular groups. Publicly broadcast opinions may be expansive or restrictive in their attribution of the capacity to engage in the discourse of liberty; they may appeal to the public fact of civil solidarity in order to demonize significant segments within it and reduce the civil community's size. In either case, the social role of public opinion is pretty much the same: it mediates between the broad binaries of civil society discourse and the institutional domains of social life. Public opinion is the sea within which we swim, the structure that gives us the feeling of democratic life. The Mass Media The media of mass communications—radio, television, newspapers, the Internet, magazines, best-selling books, and movies—constitute one fundamentally significant articulation of the imagined and idealized civil domain. In both fictional and factual forms they create the characters that people civil society and establish what might be called its communicative boundaries with noncivi! domains. Fictional Media The symbolic forms of fictional media weave the binary codes of civil society into broad narratives and popular genres. They provide a continuous flow of representations about ongoing social events and actors. Yet in comparison with factual media, such fictional forms operate at a temporal remove from these other representations of daily life. What they gain in return is a much greater cathartic impact on the self-understandings of civil society, on the structures of feeling that define its identity as a civil place. Though their avowed purpose is entertainment, not enlightenment, this very distinction 75 STRUCTURES AND DYNAMICS 0I! THE CIVIL SPHERE ignores die necessarily aesthetic framing of rational acts.!7 Fictional media create long-lasting frames for democratizing and anticivil processes alike. They constrain action by constituting a teleology for future events, even as they seem merely to be telling stories about people and life in an ^historical and fictional way. Expressive media stipulate events and figures that are relevant to members of civil society. Drawing on the repertoire of dichotomous categories, their plots make these events and characters "typical," placing them into revealing and easily interpretable situations that represent civil and uncivil motives and relations. Insofar as television, movies, and popular fiction depict action in particular social spheres, they do so by communicating an image of these actions—sometimes idealized, sometimes extremely harsh—in relation to the standards for participation in civil society, and they broadcast these narratives to some of the individuals and groups that compose society at large.1" Historically, it has been the media of high culture that have played this aesthetic-educative role. It was through the narrative structures of its fiction, in the works of writers like Balzac and Flaubert, and not only through their own actual life experiences, that educated members of French society came to form an understanding of the harsh class relations and cruel authoritarianism that distorted French institutions, both civil and uncivil, in nineteenth-century industrial society. It was through Dickens's extravagant and wildly popular novels that the English middle classes were not only informed about the crushing poverty of early capitalism but were taught to sympathize with the plight of the poor and to support sentimental social reform. The structures of these and other popular narratives, including those by such influential, socially oriented women novelists as Jane Austin, have often been called realistic, and their observational detail and down-to-earth qualities certainly made them seem so at the time. In retrospect, however, we can see that they were decidedly melodramatic and moralistic in their representations. The social forces responsible for restrictions on participation, differences of wealth, and cultural prejudices were explained by narratives that constructed and punished selfish, greedy, and irrational antagonists. In so doing, the novels mobilized public opinion against polluting threats to the ideals of civil society. !'J In her enormously influential novel, Uncle Tom's Cabin, Harriet Beecher Stowe represented race relations to antebellum Americans in exacdy the same melodramatic and empathy-provoking way. 76 Public Opinion, Mass Media, Polls, Associations Her narrative greatly affected public opinion. "Less than a year after its publication in March 1852," writes historian Doris Kearns Goodwin, "more than three hundred thousand copies of the novel had sold in the United States, a sales rate rivaled only by the Bible." Beecher's novel stimulated the formation of antislavery civil associations and social movements. Frederick Douglass, the abolitionist leader, described it as a "flash" that lit "a million camp fires in front of the embattled hosts of slavery." In this cultural but very real manner, this fictional reconstruction helped to trigger the Civil War, and thus to abolish the slave relationships that so severely undermined the civil pretensions of American society.20 Such sociological students of literature as George Lukacs, Leo Lo wen thai, and Ian Watt have argued that novels like these merely reflected actual social life. Nineteenth-century novels were realistic, or moralistic, because they depicted the nature of capitalist society, its class domination, patriarchy, poverty, and racism. Such a perspective, however, ignores the existence of civil society as a differentiated social sphere. If fictional writers were indeed deeply affected by the deprivations of economic, racial, and familial life, they were responding not only to actual situations outside of themselves but to their own inner desires, as members of the civil sphere, to speak on behalf of oppressed groups to society at large. Through their fictional work, in other words, they gave voice to the idealized aspirations of civil society itself. As Peter Brooks writes in Realist Visions, "The discovery of the ugly is part of the process of disillusioning in which realism deals," with the result that "realism as the ugly stands close to realism as the shocking, that which transgresses the bounds of the acceptable." This exploration of the aesthetically profane fuels the nineteenth-century novel's broader social and moral ambitions. England develops a recognizable "industrial novel," one that takes on the problems of social misery and class conflict, and France has its "roman social" . . . Balzac and Zola, for instance, both write their principle works following a revolution that. . . confronts them with the stark question; To whom does France belong?21 Elizabeth Long studied the fictional heroes that peopled post—World War II American best-sellers.22 She found that these collective representations reflected not only the economic strains in American society, but also broad 77 STRUCTURES AND DYNAMICS OF THE CIVIL SI'HEHO Public Opinion, Mass Media, Polls, Associations cultural themes of individual achievement and independence. In the 1960s, | she found, these characterizations gave way to heroes who experienced anguish about this very individualism and wdio wanted to live in a more collective and socially involved way. These representations contributed to the turn toward more activistic and critical interpretations of American culture at a time when the boundaries of civil society were being aggressively challenged as unfairly restrictive. Until recendy, scholarly attention remained focused on such high culture. _ f To understand the expressive media of contemporary civil society, however, ': one must see that popular folklore and folk dramas have always performed similar kinds of sentimental education for the less educated members of society. In the postmodern era of television and digital communication, in fact, the long-standing relation between high and low culture has been inverted. Mass entertainment has increasingly displaced high culture as the principal medium of expressive communication for members of contemporary civil societies, a fact that postmodern concerns with "mediatization" have identified but understood in an overly critical way.2-1 The racially bifurcated civil society of America in the 1950s was symbolized, and reinforced, by such family television dramas as the Ozzie and Harriet Shaw, which represented the idealized qualities of American civil life in the dramas of white families only. At the same time, such satiric comedies | as Amos and Andy represented African-Americans in polluted terms that | implicitly justified their exclusion from the civil sphere. During this same period, the violent colonization of the native peoples of North America, | which had created the grossly unequal relations between white European | settlers and American Indians, was represented by the Western genre. Be- Ji cause these plots largely associated Indians with violence and cunning and | allowed civility to be represented primarily by white settlers, they implicitly justified the exclusion of Indians, their subjugation, and even their murder | by representatives of white civil society. As Americans experienced the shocks of the 1960s and 1970s, the conflicts between movements for liberation and the repressive backlash movements against a more inclusive society found their symbolic expression, and explanation, in such popular evening sitcoms as the All in the Family, which depicted the conflict between a conservative and prejudiced white working-class male and his long-haired, rebellious, but ultimately sympathetic son. During the years of the highly ' polarizing Vietnam War, anticolonial and antiwar sentiments were broadcast ; not only through rational arguments and social movements, but through such expressive and popular television entertainments as M.A.S.H., which featured the cynical portrayal of Army physicians in the Korean War and interpreted American military intervention in comedic and often critical terms. Americans experienced the protagonists and antagonists of such televised dramas as personal acquaintances, iconographic symbols of collective sentiments, they became part of everyday speech in those turbulent years. Such representations communicated in direct and emotionally powerful ways, allowing Americans to express their civil judgments in figurative rather than intellectual language, which made it easier, in turn, to identify with one or another solidary group. When the patriarchal distortions of American civil life were being challenged in the 1970s, the Mary Tyler Moore Show provided an attractive, widely influential representation of the new woman in the form of the comedy's doughty, resilient, anxious but always independent and competent heroine. Thirty years later, when the incorporation of women had deepened, the stars of Sex and the City celebrated a female version of. civil society in which personal autonomy and moral obligations were continuously recombined. New understandings of gay and lesbian Americans were symbolically configured through increasingly insistent and normalizing fictional reconstructions of their civil competence. Sometimes these were assimilative and normalizing, as in Will and Grace, but often, as in Queer Eye for rhc Straight Guy, they were multicultural and pluralistic.2A In the wake of the Civil Rights movement, and its transforming effects on the class structure of the African-American community, The Cosby Show emerged as the dominant American entertainment program of the 1980s. Sympathetically interpreting the greatly expanded black middle and professional class to white Americans, this televised entertainment can be seen as critical to the civil reconstruction of a group that had earlier been seen in almost entirely repressive terms. For the first time, an African-American adult male was represented as the warm, wise, loving, intelligent, and highly successful breadwinner of a "normal American family." The contrast to the restrictive racial representations of the family broadcast by Ozzie and Harriet three decades earlier could not have been more evident. During the same decade, Alex Haley's television miniseries, Roots, watched by record audiences in 1977 and rebroadcast several times since, performed a similar civil-aesthetic function. Reconstructing black Americans as rooted rather than 79 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE Public Opinion, Mass Media. Polls, Associations rootless, as resistant victims of oppression fiercely committed to self-improvement and worldly success, the drama allowed white ethnic Americans to experience .a new solidarity with their black contemporaries.25 Two decades after Cosby, the Latino family comedy George Lopez became the longest-running series with a Hispanic cast in television history. Interviewed by the Daily News about the show's success, the actress who played the main character's wife suggested that "people just see us as people" and "funny is funny."2*' In the midst of this new interracial climate, the Western genre pitting cowboys against Indians virtually disappeared. Its themes of violent race-based conflict and civilizational vulnerability were displaced into battles | between democratic Americans, or earthlings, and threatening invaders from imperial, anticivil empires located somewhere in outer space.2' Factual Media ; In contrast to this fictive manner, the news side of the mass media articulates public opinion and specifies the solidarities of civil society in a less visibly constructivist and much more immediately influential manner. For most members of civil society, and even for members of its institutional elites, the news is the only source of firsthand experience they will ever have about _ ■> their follow citizens, about their motives for acting the way they do, the kinds of relationships they form, and the nature ot the institutions they might potentially create. The factual as compared with fictional status of the news media makes them more significant in affecting immediate social decisions, from die formation of social movements to affairs of state. The reputation of news media—their very ability to represent the public to itself—depends on the belief by their audiences that they are merely reporting on the social world, not constructing it, that they are describing the social world factually, in an objective manner, rather than representing it in artistic or moral terms. In creating the world of society immediately and without remove, news draws upon what the French film theorist André Bazin called the ontology of realism.2" Emphasizing speed, accuracy, and neutrality, news presents itself as homologous with the real world, as the New York Tunes slogan, "All the News That's Fit to Print," so vividly suggests. . s :■ Yet every news judgment remains an interpretation of significance, one : 80 that is achieved by typifying previously unrecognized events in discursive categories that are already understood.:'' News media select a tiny range of sites from the enormous onrush of people and events that characterizes everyday social life. Merely by informing members of society about what events "exist," they have already made decisions about which events matter, about what is happening and what is at stake in social life. In their very representation of social facts, in other words, the news media represent public opinion as well.3" In answering their famous four questions—"who, what, where, and why"—the lead paragraphs of news reports characterize the people who make these events, why they acted in the way they have, and what effect their actions will have on the structure ofsociety. Do these newly observed actors deserve to be inside or outside of civil society? Do they threaten "us"—the news audience—in a manner that suggests we should mobilize against them, or do they allow us to feel good about ourselves, so much so that we might wish to reach out and lend them a helping hand? The role of binary oppositions is critical here. Contrasts between purifying and polluting motives, relations, and institutions permeate news accounts, linking the presuppositions of civil society to the seemingly random outpouring of social events. Sensationalist, yellow journalism presents overtly exaggerated judgments, emphasizing the negative and frightening figures and events of social life. It would be a mistake, however, to think that more professional and sophisticated journalism fails to adhere to the structured pathways of civil society discourse as well. From the structured and generalized categories of civil society discourse to the diffuse but more historically and socially directed phenomenon of public opinion to the institutions of news, there stretches a continuum from synchronic to diachronic, from structure to process, from inflexible to flexible, from general to specific, and from unresponsive to flexible. Even in regard to an ongoing event, news media may shift in their interpretations, moving from civil to uncivil framing devices from one week to the next, from one day to another, even from hour to hour.31 These discursive constructions create reactions in civil society itself They can trigger violent actions, or the formation of social movements. They can reach deep into the inner workings of noncivil spheres and prepare the path for reconstructive repair. Media interpretations can roll back and make more restrictive the solidarities of civil society in turn. Because they control such vital interpretive tasks, the factually oriented 81 STRUCTURES AND DYNAMICS OP THE CIVIL SPHERE Public Opinion, Mass Media, Polls, Associations institutions of mass communication, more than the fictional ones, create chronic tensions between the Utopian aspirations and relationships of civil society and the powers and authorities outside the civil sphere. When they apply polluting categories to an event or actor, news reports create public relations problems for "sectarian" religious institutions, "abusive" family relationships, "secretive" or "greedy" corporations, "elitist" scientific institutions, and the "partisan" or "manipulative" actors of political life. To broadcast news reports that construct groups and institutions in such profane terms is to problematize their relation to civil society.32 Even the occasional news report, or expose, can lead to a torrent of public demands for internal reforms. Once the reforms are made, factual media often monitor the affected institutions to make sure that their reconstructed relationships remain congruent with the idealized standards of civil society. The argument over whether news media first emerged from the bourgeois sphere, from private economic life, during the early days of capitalist society is controversial and important precisely because it calls into question the very capacity of such communicative media to create tension between civil and noncivil spheres. If news originated merely as a means to promote commerce, how could it function as anything other than a commodity, particularly inside the advertising-saturated milieu that marks television and print news today? Habermas may be the best-known critical theorist to have tried this strategy of genealogical deflation, but he is by no means the only influential voice who has taken aim at the news media in this way. From Karl Marx to C. Wright Mills and Pierre Bourdieu, social scientists have proclaimed that the news media cannot be factual, that they cannot obtain the relative autonomy from market demands that would allow this potentially critical interpretive medium to sustain the moral autonomy of the civil sphere.-" In fact, however, news media first emerged as a means to advance not only economic claims but political, religious, and ethnic ones.34 As early modern societies began to cohere in wider and more inclusive communities, moreover, public declarations about the factual nature of social life did, in fact, come to have much greater effect. As diverse and competing publics— plebian, Catholic, Protestant, Jewish, immigrant, black, socialist, and conservative—formed to contest particularistic and restrictive forms of social control, they created more independent news media in turn. Far from being a threat to the civil and solidarizing function of the 82 media, bourgeois commercialization actually encouraged it. News media that could sustain themselves in their own terms, by their own sales, were more independent of particularistic publics. Such financially independent media allowed the members of civil society, who were also members of these particular groups, to participate vicariously in an anonymous civil collectivity and, at the same time, to articulate their individual wills as consumers. So the creation of increasingly large commercial markets for news from the early nineteenth to the early twentieth centuries actually pushed the process of media differentiation further along.35 The project of professionalizing journalism did so as well. Without market sales and mass advertising, independent media would have had to continue to depend on private individual wealth or on the financial resources of such particularistic noncivil spheres as churches, trade unions, and political parties. The emergence of professional norms of objectivity, while in no sense eliminating the journalist's interpretive function, relegated the more dogmatic and explicit political opinions of private media owners to the editorial page.30 To the degree that civil society becomes independent, which marks the degree to which there is a democratic social life, the audience for media of mass communication, whether fictional or factual, becomes the broad "society" rather than particular interests within it.-17 This more inclusive social reference depends, in turn, on the institutional differentiation of mass media organizations. This involves, on the one hand, impersonal markets for information and fictional forms, which allow communication to be acquired via negotiated exchanges among buyers and sellers rather than through more personalized and clientalist relations that involve political and ethnic loyalty, class relationships, or ideological control. Differentiation also depends on the emergence of professionalized occupational ethics emphasizing objectivity and creative autonomy. Such ethics, along with self-regulating guilds, allow producers, writers, directors, and reporters more freedom to offer flexible interpretations responsive to shifting events. They can focus simply on "what is real and accurate" and "what will seem believable and dramatic" rather than on more dogmatic interpretations that merely authenticate loyalties to particular groups and particular institutional spheres. As the messages they formulate relate to society at large, they become more truly media of persuasion and less masked instruments for hegemony and domination. To the degree that this occurs, fewer groups and categories of person are polluted by the categories that justify exclusion from civil society.3M S3 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE Even in this more differentiated and civil situation, however, dichoto-mous evaluations of persons and events continue to be made, for pollution and purification are structural features of civil society as such. Even when media take society ns their reference, their understandings of it are subtly fused with particularistic ideas and influenced by pressures from other spheres. Political parties, social classes, economic exigencies, religious faith, ethnic and racial animosities, gender and sexual groupings—these and other fissures continue to segment even the most differentiated civil societies. Institutions of mass communication crystallize the stereotypes and misunderstandings such fragmentation implies, even when they idealize some social event or institution in civil societal terms. The very differentiation of media, moreover, makes them the focus of continuous efforts at manipulation by elites in other spheres. Their independence makes them vulnerable to "public relations," to staged events, and to more direct forms of corruption like bribes. For in the mass markets for influence and symbolic capital, media are not onlv sellers but buyers at the same time. Already in 1835 Tocqueville could discern the intrinsic connection between newspapers and the independent public opinion upon which democracy depends. The press, "lays bare the secret springs of politics and obliges public men to appear before the court of public opinion." It is "through the press that the parties speak to one another without meeting face-to-face and understand one another without direct contact." While an "individual newspaper has little power," the power of the press "in general" is "second only to that of the people."3y Critics of the media have always insisted, to the contrary, that their independence gives newspapers and television license to violate civil norms, to misrepresent, to distort, to pander, and to stereotype. Not long after Tocqueville s defense of their civil status, for example, a Virginian congressman objected strenuously to the role played by Northern newspapers in promoting the antislavery cause, associating media effects with antidemocratic passions and violence. "Newspapers, pamphlets, tracts, and pictures," he complained, were "calculated, in an eminent degree, to rouse and inflame the passions of the slaves against their masters, to urge them on to deeds of death, and to involve them all in the horrors of a servile war."*"1 In response to such efforts at pollution, journalists have identified their professional autonomy with the positive attributes of civil discourse, emphasizing the truthfulness of their reporting and its promotion of rational thought and independent action. In 1731, when Benjamin Frank- Public Opinion, Mass Media, Polls, Associations lin was attacked for printing what was considered an offensive advertisement, he published an "Apology for Printers" that made the case in precisely these terms. Printers are educated in the Belief that when men differ in Opinion, both sides ought equally to have the Advantage of being heard by the publick; and that when Truth and Error have fair Play, the former is always an overmatch for the latter: Hence they cheerfully serve all contending Writers that pay them well, without regarding on which side they are of the Question in Dispute." Public Opinion Polls Public opinion as an active social force is a relatively recent phenomenon in human societies, as are the media of mass communication that inform the public about the "facts" of social life. Public opinion polling is a more recent institution still. More directly and explicitly than the media, polls define the contours of the public even as they take the measure of "its" opinion. Perhaps because polls are so ubiquitous in contemporary life, their broad theoretical relevance has rarely been conceptualized; when they have been subjected to attention, their communicative role has scarcely been appreciated. By aggregating individual opinion into a group form, polls give objectivity to "public" opinion. In making it visible and numerical, they also make it constraining, allowing this ephemeral, materially invisible cultural phenomenon to become a much more specific, politically more powerful communicative force. Publicized polls provide "hard data" about the life-world of the civil sphere, allowing it to be construed independently of other exigencies and institutions. Polls represent this life world as filled with reflection, as based on the responses of independent and thoughtful people. The very process of polling attributes to its interviewees rationality and sincerity, converting the members of civil society from a passive, voiceless, and potentially manipulable "mass" into a collective actor with a voice and intelligence of its own.42 In 1940, George Gallup published an intellectually ambitious defense of polling, a few years after his own polling institutions had surfaced as a major factor in America's national political life. Gallop addressed "the various STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE Public Opinion, Mass Media. Polls, Associations questions and criticisms" that had been generated by this "new instrument," for example the claim that it undermined democracy by making the public appear "stupid and unreliable."'13 Gallup replied by linking the new technique to the liberating rather than the repressive side of civil discourse. The method of random sampling, he suggested, provides a set of "factual observations" that are more "realistic" than the merely subjective claims about public opinion projected by this or that activist group.''*' What endangers public opinion is the possibility that it can be " controlled.""'^ "One can never be sure that the letter, telegram, or petition avalanche is the product of a genuine protest, or merely the organized effort of a small but powerful pressure group parading as a majority."'1" The issue of outside pressure acknowledges that anticivil motives and relations can pollute the play of communicative institutions. "When aggressive minorities are on the march," Gallup asks, "how is the Congressman to decide where the truth—or where the greater truth—lies, especially when, as so often happens, the minority represents itself as the majority?""17 This danger can be addressed, Gallup argues, only by scientific polling. It purifies public opinion by supplying truthful information to the peoples representatives: "The sampling referendum offers a gauge of strength for the claims and counterclaims which reach the American legislator."4" This "new instrument" can "bridge the gap between the people and those who are responsible for making decisions in their name," he wrote.41' "The public-opinion polls provide a swift and efficient method by which legislators, educators experts, and editors, as well as ordinary citizens throughout the length and breadth of the country, can have a more reliable measure of the pulse of democracy."5" In his second book, a decade later, Gallup once again responded to critics who tried to frame polls in an anticivil way. Acknowledging that a "good many" of those polled were "ignorant and uninformed"—character traits that would suggest the necessity of antidemocratic institutions—Gallup argues that these weaknesses can be overcome by random sampling. Polls reveal that a majority "usually registers sounds judgment on issues." Polling is legitimate because "democracy . . . requires merely that the sum total of individual views add up to something that makes sense."51 Polls allow the collectivity to achieve rationality even when individuals are not rational themselves. In reality, of course, polls not only reveal but construct "the publics" shifting attitudes toward the continuous, fragmented, and difficult-to- i: interpret flow of ongoing social events. Their forced choice questions or- ganize the public's opinion in a manner that makes it seem homologous with, and therefore responsive to, the binary codes of civil society. Do whites think that African-Americans are lazier than whites? More inclined than whites to steal and to engage in violence, often of a sexual kind? Are Jewish Americans loyal to their country? Are Communists? Is the president trustworthy or faithless, deceitful or honest? Is he his own man or likely to rely on the judgments of others? Clearly these are as much simplifying constructions of public opinion as measurements of it; they simultaneously mirror and apply the pure and impure categories that the discourse of civil society ^ provides. It is precisely this circularity that makes polls so fundamentally important ; to the independence and self-understanding of civil society. It is also what allows them to exercise such a diffuse but often decisive form of communicative control over economic, political, and even cultural spheres. During the two-year Watergate crisis in American society, an upheaval that decided :i the fate of so many powerful individuals, institutions, and elites, decisions about the precise wording of poll questions triggered large-scale political [ effects.53 If it was not literally true that "the public," as revealed through i public opinion polling, ruled during this crisis, it is certainly true that other, ■ more traditional collective actors could exert their force only by presenting themselves as acting in the public's name. Political parties, lobbying groups, institutional elites, and powerful individuals could appeal for their just deserts I only if they evoked the public's opinion.55 When public response registered in small but fateful numerical shifts in the polls, seismic changes in state institutions would follow. :........ Insofar as the news media themselves rely increasingly on polls to report ; on public opinion, polls become an even more powerful, doubly objecti- fying social force. There develops a kind of sub-rosa dialogue, what literary I theorists call intertextuality,''4 between these two communicative institutions. Because pollsters rely upon news-mediated constructions of recent events, they are formulating questions not about the public's opinion in some open-I ended sense, but about what the public wants to know about a situation l that has already been communicatively constructed in reference to the bi- naries of the civil sphere. Polls are asking, in this way, about what the public wants to know about itself, insofar as this self has already been symbolically r defined by the news. Rather than asking what people know about a situa- 86 87 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE tion, polling questions are directed to what people can be expected to know in die current situation, given the context of opinion as it has developed already. The questions of pollsters, then, are not neutral or detached, in the scientific sense of value-neutrality, but typifications, in the phenomenolog-ical sense, based on information that is already known.55 Polling questions are collective representations that try to extend the horizon of civil ideas, the structures of feelings that the public have already expressed, to information and events that have not yet been processed. It is this already familiar quality of polling questions that ensures the relevance of polling results to the diffuse and anxious concerns of public opinion more broadly defined. It also ensures that polling results will be relevant to news media in turn, that they will be able to examine polls and report back to civil society about what "it" thinks about itself. In a detailed study of Hong Kong newspapers and polling agencies during the hi^h-stakes battle between mainland Chinese officials and the island's British governor general, Christopher Patten, Agnes Ku has documented such intertextual dynamics in a crisis that seemed to threaten Hong Kong's very existence as a civil society.5" Drawing upon long-standing codes and narratives in Hong Kong political culture, leading newspapers tended initially to portray Patten as an honest democrat, despite his colonial associations, and China as an oppressive and threatening force. Polling agencies relied on these constructions and formulated forced choice questions that "discovered" increasing public support for Patten's demand that China make promises about ensuring Hong Kongs democratic status after its ties with Britain ended. However, as the tension between China and Britain mounted, and its destabilizing implications became more evident, public anxiety increased. Newspapers reported Chinese accusations that British demands for democracy were hypocritical, that they merely masked Great Britain's continuing colonial intent, and China's suggestions that Patten was determined to proceed no matter what the consequences for Hong Kongs economic well-being. In the midst of these new factual representations from the mass media, opinion polls began reporting that Patten's sincerity was being more frequently questioned and that he was being connected much more frequently than before to the antidemocratic themes of colonialism. The percentage of "don't knows" on questions about support for Patten's suggested reforms increased dramatically. This "fact" was immediately highlighted by leading newspapers, which now began to represent the crisis not Public Opinion, Mass Media, Polls, Associations as a last-ditch effort to protect Hong Kongs emerging democracy but as an indication that the island's economic future, and even its long-term social viability, was now under siege. The result was a gradual if grudging acceptance of the authority and strategy of the People's Republic of China in the transition, an authority that was, in fact, fundamentally ambivalent on the matter of Hong Kong's democratic aspirations. Because polls are so often taken as crystallizations of the opinion of civil society as a whole—no matter what the actual fault lines created by the civil sphere's internal stratification—publishing poll numbers constitutes an event to which democratically elected politicians must offer a response, either in words or deeds. In democratic societies, the effects of these public representations happen quickly, primarily because the electoral franchise, which I will later discuss as a basic regulating institution, allows public opinion to directly intrude upon the state. In France, in 1991, only six weeks after assuming office as the nation's first female Prime Minister, the socialist Edith Cresson confronted a shocking decline in civil support. The International Herald-Tribune headlined "Cresson Meets Enemy: Public Opinion Polls" on its front page. Despite her close association with French President Mitterand, Cresson's initial moves had "fallen Sat," constructed in dangerously anticivil terms. Her maiden speech to parliament had been "tedious and unfocused" and her economic policy had "alienated" both workers and middle class professionals. It was no wonder that, according to the subhead, "Only a Fourth of Electorate Approves Her Performance in First Six Weeks."57 Cresson left office shortly thereafter. In the summer of 2005, U.S. news media sympathetically broadcast, as "factual information," the drama of Cindy Sheehan staging an antiwar vigil outside the Texas White House of President Bush to protest her son's death in Iraq. The palpable effect of their construction 011 die American civil sphere, however, became apparent only with the nation-wide publication of opinion polls. The lead story in the Philadelphia fH the role of constitutions. In the first place, this regulation is needed to select the most qualified political representatives of civil society and put them into the state: "The aim of every political constitution is. or ought to be, ^ first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society." Once these representatives become rulers, however, regulatory institutions must try to prevent their separation from the community: Constitutions must "take the most ■; effectual precautions for keeping them virtuous whilst they continue to hold their public trust. "8f' Civil institutions regulate political power, then, not only by putting their representatives into the state, but by making efforts to control them when they are there. To exercise such control is an enormous challenge. Even when they have a boundary with civil society, state institutions try to build walls. The horse-trading, organization building, and calculations of social and economic costs and consequences, even the very nature of government decisions themselves—all these dimensions of governing are often exercised in secret.87 Those who pull the levers of state power would prefer to do so behind the curtain of the state. For the institution of bureaucracy, Weber put the issue of state secrecy very well: "The bureaucracy's supreme power instrument is the transformation of official information into classified material by means of the notorious concept of the 'service secret.' In the last analysis, this is merely a means of protecting the administration against supervision."'"8 To the degree that society is democratic, however, the regulatory institutions of civil society struggle to push the curtain aside, to regulate just how the levers of government are pulled. For one thing, there remains the continuing role of party power. Rulers remain party members. Even when they forget their promises to voters, even if their ideological commitments dissolve away, there remains the threat of upcoming elections, the civil power of voters, and the potential accusations of the political opposition. For another, there is the continuing role of communicative institutions, which continuously crystallize public opinions about the behavior of power holders and channel these back to those exercising power in the state. But there is also something else, an institution that almost never comes up in discussions about regulating state control. This is the institution of office.^ When those who are elected to power take up their positions in the state, this institution can prevent them from simply becoming another cog in the state machine, from becoming the servant of social rather than civil power, and even from acting in a purely self-interested way. When the representatives of civil society, and their high-level appointees, take up the reigns ot state power, they enter into an '"office," a publicly defined role regulated by ethical and legal constraints on both corruption and self-interest. Because we take the office role for granted, it seems banal, part of the common sense of social life; but it is this very omnipresence that compels us to make the effort to conceptualize office in a distinctive way. In fact, office is an immensely significant social invention. It institutionalizes a universalis tic understanding of organizational authoritv that has emerged only STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE Voting. Parries. Office recently in human history, growing gradually with the creation of the civil sphere. In societies where social solidarity is greatiy constricted, the reach of civil obligation is so narrow that the very idea of "official" duties is difficult to conceive. In his ethnography of a small village in southern Italy, Edward Banfield documented an extraordinary gap between those who produced state power and those who were its recipients. "A zealous official is as rare as a white fly," a retired government worker informed him. "From the President of the Republic down to the last little Italian," a landowner remarked, "there is a complete lack of any sense of duty."1'0 Without solidarity, civil power cannot be produced, and without its moral pressure the officeholder will not feel an obligation to civil society in turn. Without such a sense of civil obligation, indeed, officials will not be attentive even to social power. The merchants of Montegrano are well aware of the importance to them of good roads. They would not, however, expect to be listened to by the authorities who decided which roads are to be improved. A Montegrano man might write a letter to the provincial authorities in Potenza or to the newspaper there, but it is unlikely that his doing so would make any difference. In fact, the officials would be likely to resent what they would consider interference in their affairs. . . . Official position and special training will be regarded by their possessors as weapons to be used against others for private advantage.91 When solidarity is more expansive, and the pressures of "society" become more explicit and powerful, office becomes an outpost of civil society direcdy inside the state. Office becomes another regulatory institution of the civil sphere, and this distinctive role definition is by no means without weight. In Aristotle's treatise on politics, immediately after offering his famous definition of democracy as ruling and being ruled in turn, he testifies that "from rule thus conceived" follow the "common characteristics of democracies." The first of these characteristics is "election to office," and in all but three of the others "office" is involved in a central way.''2 The institution of office cannot, of course, prevent power from corrupting, but it creates a normative counterideal to the exercise of ruthless power, such that deviation from office standards can be legitimately presented as moral 134 depravation, sometimes even as criminality. Power holders take up offices, not merely jobs. Even when they are inside the state, they are subject, in principle, to civil power.'B Of course, the structural challenges to making this principle effective are great. Because access to government decision making is restricted and secrecy is the rule, there is a dearth of the kind of factual information that makes legal regulation possible. For this reason, communicative institutions become central to office's regulating control. Normatively oriented "leaks" from inside the state allow journalists to extract "facts" about power's deviation from civil obligation. These facts become "news" when media bring them from the darkness of state secrecy into the public light of day. When there is a developed civil sphere, conmiunicative institutions can, at any moment, leverage putative office regulation into "affairs" and "scandals." They do so by painting the holders of office in anticivil ways. Rather than acting honestly, they have been duplicitous. Rather than allowing their office to be transparent, they have shrouded their administration in secrecy. Rather than being cooperative with those who opposed them politically, they have been aggressive in exercising their power, treating their constituents not as citizens but as special friends or vicious enemies. Rather than being independent of social power, they have been submissive to it or have been captives of their own bureaucracies. They have been selfish rather than solidary, emotive rather than calm, irrational rather than rational. It is the existence of office regulation that allows such public claims about the deviance of authorities to be broadcast in a legitimate way. While such polluting claims often cannot be sustained, their symbolic damage can be immediate, whether or not legal sanctions follow.''4 The institution of office demands that particularistic personal and ideological commitments be separated from, and subordinated to, obligations of a more universalistic and collective sort. There is a sense, of course, in which the duties of office are inherently particular, for they are tasks set by the organization at hand. But when an organizational role is an office, it has not only a position in the division of labor but a status in moral terms. There is the obligation to carry out one's duties regardless of the personal stake, and this obligation is not something specific to this or that particular organization but one imposed by society at large. "Office" has a morality in and of itself, and it is one common to every such institutional position, no matter what its specialized task. The moral obligation is to wield power on behalf of 135 STRUCTURES AND DYNAMICS OP THE CIVIL SPHERE Voting, Parties, Othce others. In this generic manner, office connects power and interest to the conventions and logic at civil society.1'3 Legal sanctions can enforce the incumbents respect for office, and these sanctions are backed up by punishment and force. But office is much more than a code of law. It is an ethic of responsibility, a norm of impersonal and universalistic behavior in which members of civil society are socialized from their earliest years.'"' In his standard work on public administration, Frederick Mosher calls responsibility "the most important word in all the vocabulary of administration," and he argues that it is sustained not only objectively— "according to the law and the organization chart"—but by "subjective or psychological" reinforcement as well. The "meaning" of responsibility, Mosher suggests, "is more nearly synonymous with identification, loyalty, and conscience that it is with accountability." With the ethic of responsibility, the question becomes not "to whom and for what one is responsible"—a question for the organizational flow chart—but "to whom and for what one feels responsible.""7 For those who wield power in an office, the compelling object of responsibility is larger than the specialized task, pointing beyond the organization as such to the community writ large. It is the civil society that ultimately compels the deep sense of responsibility upon which the institution of office depends, and which it regulates in turn. Within the social sciences, this understanding has scarcely received the attention it deserves. Administrative science and organizational studies have focused on the relationship between means and ends. Their central questions concern whether an organization can effectively carry out its tasks. Are the members of an organization responsive to the goals at the top? What is the relationship between line and staff? Are they tightly connected or decoupled? Modern administrative studies have found organizational rationality not nearly as effective as Weber once claimed, though debates over the sources and consequences of such departures from means-ends efficiency continue to rage.'JK From the perspective of a sociological theory of democracy, however, these are not the central questions. Organization is not only a more and less efficient means; it is also an end, a value conimitment that mediates broader cultural patterns in distinctive \vays.'J1' Offices are created in response to objective, systemic pressures for accomplishing some goal, but they are more than merely a marker in the division of labor. Through the institution of office, civil society can exercise regulating control on organizational means, on how the ends of political 136 power are actually pursued. When authorities personalize office, its civil character is reduced, and power becomes identified with clique, party, ethnicity, or ideology rather than with the broader solidarity of the community at large. Some sense of a higher responsibility is necessary if political institutions are to be made responsive in broader and more civil ways. Office obligations must be separated from personal ones if organizations are to play a central role in democratic life. In Union Democracy, Lipset and his colleagues made office obligation a critical variable in distinguishing between democratic and undemocratic trade unions. "In most one-party unions," they write, "it is difficult for members to distinguish in their own minds between the organization and the leader or leaders who have controlled it for decades."100 The result is that "the incumbents habitually use the loyalty that exists for the organization as a means of rallying support for themselves." Financial corruption and political manipulation are the inevitable result. Democratic institutions, by contrast, create an environment that offsets this fusion of person and office. "In a union with a legitimate two-party system," they observe, "it becomes possible and even necessary to distinguish between the current officeholders and the organization as a whole." Though pathbreaking in its articulation of the connection of office obligation to democracy, this analysis interprets the regulatory power of democracy in an overly social-structural way. Because contenders for organizational position in two-party systems "have objective chances of gaining power," Lipset and his colleagues write, they also "have an interest in maintaining the attachment of all members to the organization" rather than simply to the person of the leaders themselves. From the perspective I am developing here, however, maintaining this sense of broader responsibility depends on much more than being afraid of being thrown out of office. The meaning of office obligations also is crucial, whether or not officeholders experience solidarity with the values at the wider community. Though Weber laid the foundations for the objectivist, social structural approach to organization, it was in his religious studies that the framework for a more culturally oriented understanding of office obligations emerged. In these writings, Weber discovered an intimate historical connection between the sense of office obligation and Protestant, particularly Puritan, notions of a "calling," or Benif."n This inward ethic, Weber believed, obligated religious leaders to morally regulated, impersonal forms of action, 137 STRUCTURES AND DYNAMICS Of: THE CIVIL SPHERE which were expressed in their commitments to God's will, on the one hand, and their equally fervent sense of obligation to members of their own religious sects, on the other. The failure to bring these insights from his religious studies into his sociology of organization and politics severely limited the contemporary relevance of Weber's work.1"- Linking justice and interpretation, Michael Walzer has been one of the few social theorists to address this gap between cultural sociology and organizational theory. In both historical and philosophical investigations, he has explored how office can be nested within communal obligations and their cultural presuppositions. As "a place of authority under 'constituted authority,' " Walzer writes, office is a "position which the political community takes an interest in."103 The Protestant Reformation made the impersonal and moral notion of office central to political life, just as the nineteenth century movement tor civil service reform had the effect of restricting partisanship inside the secular democratic state.'"4 Walzer explicitly relates these office-transforming developments to the broadening of social solidarity and the inclusion of new members into the community, the "extension of trust or 'friendship' beyond the family and of citizenship beyond race, ethnicity, and religion.""15 justice in public activities, he argues, can be realized only if officeholders are responsible to the broader community; injustice, correspondingly, can result from the "isolation of office."100 Separating "the office from the man," then, should be seen not simply as a functional necessity but as an institution deeply rooted in the culture of democratic society. It can, in fact, be traced all the way back to fundamental understandings within Western Christianity. The Church was the first great "rational" bureaucracy of Western life. What is less widely appreciated, however, is the distinctive manner in which this organization forged with imperial and local European "states" a relationship that adumbrated the regulatory institutions of modern democracies. This ability to control state power came not only from the organizational efficiency of the Church, but from its autonomy and sometimes even opposition vis-a-vis earthly powers that Weber called "hierocratic domination," which made Western church-state relations different from those that existed in other powerful civilizations."17 This hard-won autonomy depended, at least in part, on the sacramental understanding of priestiy office. In his classic text on the relation between church and state, the cultural historian Gert Tellenbach argued that, already 138 Voting, Parties, Office during the Middle Ages, "the clergy as a class owe their position in the main to the tact that they are the instruments of Christ," not to their personal qualities or even to their pastoral skills. "The grace that works within him" is what counts; the priest "passes on what has been given him'" to "the people under his charge."""* It is "the grace inherent in the office which ultimately determines clerical rank." according to Tellenbach, such that "fidelity or negligence in the performance of official duties in general will be one of the reasons for reward or punishment before the heavenly tribunal.""" The challenge for Christianity was not only to preserve this separation of earthly incumbent from divine office inside the Church but to spread it throughout medieval society, for only in this manner could humanity's religious salvation be attained. One of the principal obstacles to this expansion was the overreaching powers of feudal social hierarchies. Lordship implied compulsory control in every kind of social domain. On his local estate, for example, the lord "would often build a church, where lie installed a priest of his own choosing, either a serf or some other acceptable man.""" From the churchly perspective, such practices polluted the independence of sacramental office. Not only did lords not consider the qualification of religious grace, but they often neglected to pay their priests, demanded that they devote themselves to such secular tasks as managing feudal property, and let churches fall into disrepair. The "Investiture Controversy" brought these strains to a head. Investiture refers to the act of establishing religious office, which invested priests with divine grace. It was bad enough for lords to block the religious investiture of local churchly office; when the kings who assumed divine right began to exercise such blocking power on a broader expanse, however, the challenge to Church authority became acute. In 1046, Henry III marched on Rome and deposed Pope Benedict IX, establishing a "royal theocracy" which gave him the right of investiture of priests, bishops, archbishops, and even popes.111 His successors were able to maintain this practice of "lay investiture" for most of the next seventy-five years, a hegemony that created extraordinary political, theological, economic, and military strife. When Henry V and Pope Calixtus II finally worked out a compromise in 1122, at the Concordat of Worms, it established the cultural framework for office regulation in a permanent way. The emperor conceded to the Church free elections of bishops and popes and gave up investiture of them with STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE I Voting, Parties. Office ring and staff, the traditional symbols of their spiritual duties. For his part, the pope merely granted to the emperor the right to be present at such churchly elections and to invest bishops with their temporal rights and duties. This unprecedented separation of office obligations from power hierarchies had far-reaching implications, setting the pattern for making state offices responsive to civil power in secular democratic life. In fact, the matter of the integrity of office obligations became central to the overthrow of absolutism in the French Revolution. When the divine grace regulating religious sacramental power was corrupted by the buying and selling of religious office, it was called the sin of "simony." As Western societies became larger and more complex, and there emerged the first great absolutist states, the buying and selling of office continued, undercutting office obligations of a more secular kind. This corruption was called "venality." For centuries, the French kings had sold offices in the state or offered them on fixed terms for rent. The instability of such arrangements had even produced, in 1467, a royal declaration that made offices into a position for life."2 This security did not, however, prevent incumbents themselves from reselling their offices to third parties or from passing their offices on as patrimony to sons and heirs. By the eighteenth century, the labyrinth of venality had become so extensive that "men would acquire offices only because they brought tangible and worthwhile advantages."UJ While the continuous exactions of bribes and favors that such a system induced "provoked regular complaints from aggrieved SLibjects," according to a historian of this practice, such general venality "was grudgingly accepted as inevitable."11'1 The sale of judicial offices, however, was quite another matter: "It was repeatedly denounced by estates and other representative bodies as opening power over the lives and properties of the king's subjects to untrained and unsuitable men of wealth, likely to buy and sell justice itself.""5 Venal deviation from judicial office obligations, in other words, seemed to undermine the very possibility of an independent civil sphere. Outrage against this pollution of democratic principles, from many different sectors of French life, permeated the run-up to the revolution of 1789: "Venality was invariably denounced in the preambles to edicts, as an abuse to be eradicated, a burden on the public, the corruption of justice, socially and economically mischievous."11 fl On the night of August 4, 1789, when hereditary privileges were abolished and the principles of democracy established, the French National Assembly abolished the venality of offices. The official decree, issued on November 140 3, 17S9, linked purification of office institutions to the possibility of justice: "Venality of judicial and municipal office is abolished from this moment. Justice is to be dispensed freely"117 When the civil sphere has real autonomy vis-a-vis the state, office represents the most immediate hands-on institution for controlling the instrumental force of political power. It constitutes a kind of master role that allows power to be trusted because it is understood to be regulated by the collective-cum-individualistic commitments of civil society. Offices of great power pose potentially great dangers for the civil sphere if that power becomes unregulated and deployed in an anticivil way. For such high offices, there are elaborate rituals of transition that mark the ascension from citizen to ruler. These rituals culminate in "oaths of office." In these public avowals before the mass mediated public, the neophyte incumbent solemnly promises not only to uphold the law but to follow' principle, to forgo self-interest and ideology. In the United States, the president-elect stands symbolically before the nation, one hand on the secular scripture of the Constitution, the other raised to God, and swears an oath, administered by the chief justice of the Supreme Court, to "faithfully execute the duties of the office of the president of the United States." Such rituals of office transition are hardly confined to the "civil religion" of the United States. In 1989, after a decade of revolutionary political struggle, newly democratic Poland installed a member of the Solidarity party, Tadeusz Mazowiecki, as prime minister. After his election by a nearly unanimous vote of the assembled parliament, according to the report by the New York Times, "the new Prime Minister then strode to the speakers platform and, his voice wavering, told the legislators that he was moved by the 'proof of trust.' " Mazowiecki seemed to acknowledge that this trust was on loan from the wider community, which had established this office to carry out its democratic will. "I can count on this moment becoming significant in the consciousness of my compatriots," he declared, "so that we can revive Poland by common effort, not because of my person, but because of the needs of Poland and the historic moment." The prime minister then made a gesture that underlined the role that a broad and inclusive understanding of social solidarity must play in sustaining a sense of office responsibility. Despite his own persecution by the former communist state, which had once declared martial law against his own Solidarity Party, "Mr. Mazowiecki strode to the benches of the Communist cabinet, and shook the hands of 141 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE Voting, Parties, Office its members, beginning with General Kiscak. He [only] then received the warm wishes of Solidarity's leaders, who ascended the steps to the Government bench one by one to shake his hand."llH Between the various regulatory institutions of civil society there are some endemic strains. Waging a successful electoral campaign depends on fierce loyalties to particular political parties. When the successful partisan ascends to office, he or she must rule in the name of the entire community. The dividing line between campaigning and governing, however, is not so clean. The staff of the party campaigner tend to become staff of the White House, such that in every effective government there is always something of the permanent campaign. The universaHsm of the institution of office, then, exists in tension with the particularity of party politics. But if the discourse of civil society can never be fully institutionalized, its idealization constitutes a continuing source of normative tension and control. When the newly elected Republican mayor of New York City, Rudolph Giuliani, endorsed a liberal Democrat, Governor Mario Cuomo, for election to the U.S. Senate, his action was praised as exemplary of universalistic office obligations. Noting the challenge that partisan campaigning presented to office obligation, the New York Times, in its lead editorial, noted that "throughout a tough mayoral campaign," Mayor Giuliani had "promised repeatedly that he would put the interest of the city above partisan considerations." That he kept his promise strengthened the link between civil solidarity and office and demonstrated that an inner sense of responsibility can exert powerful controls in democratic life. In thousands of dinner-table conversations and man-on-the-street interviews, citizens have wished for officeholders who acted on principle rather than party loyalty or short-term political gain. . . . Mr. Giuliani has lived up to his own strict and demanding definition of the central obligation of his office.11'1 The idea of office is so powerful that the communicative media of civil societies engage in continuous, if often ineffective surveillance of high officials. When anticivil behavior is discovered, its polluting effects are not merely sanctioned but deeply feared. During the Watergate crisis in the early 1970s, John Dean, the presidents counsel, warned "there is a cancer on the Presidency." When the disgraced President Richard Nixon was driven from 142 office, two years later, his successor, Gerald Ford, declared that "our long national nightmare is over." Anticivil actions by powerful officeholders are experienced as threatening the sacred center of civil life. "Scandal" derives from the early Greek scandalon, which meant an obstacle or "a cause of moral stumbling."120 When its modern usage emerged in the sixteenth century, it was associated with scurrilous individual conduct. The meaning of scandal, however, eventually developed in a much more collective and social way. "No longer a relation between two people, between someone who scandalizes and someone who is scandalized." writes Eric de Dampierre, it became "rather an event which breaks out at the heart of a collectivity of people."121 Citizens are scandalized by the affront to office, and this pollution threatens their idealization as citizens and the power and very independence of civil solidarity itself No wonder that, as scandals unfold, metaphors about pollution abound. Reporters dig up dirt about foul play; officials find themselves mired in a swamp and covered by mud. There are calls for special investigators who are clean as a whistle, for blue ribbon commissions and white papers, for a powerful broom that can sweep the slate clean.1" If the movement from sacred to secular power shifted representations of office violation from "simony" to "venality," the institutionalization of democratic society marks this deviation from civil standards as "abuse." The tried and true temptations of power, of course, never really change. High officials in democratic societies are not only tempted to sell their power to the highest bidder, but they have continued to do so in impressively consistent ways. In terms of the theory of civil society, such behavior in itself is not of particular interest. The response to it is. It is constructed as deviance, not norm, as surprising and shocking, as not at all what is expected, and, in every respect, it is represented as the abuse of office. When Joseph Ganon, the mayor of Bridgeport, Connecticut, was sentenced to nine years in jail for organizing a public works payoff scheme, the New Haven Registers five-inch banner headline screamed: "Nine Years for Ganin; judge scolds him for running office 'CONTAMINATED BY CORRUPTION.' "123 In June 2000, California's elected insurance commissioner was discovered to have collected bribes and campaign contributions from the insurance companies that his office was supposed to regulate. The Los Angeles Times news coverage of the breaking scandal, while presented as factual reporting, reads in retrospect more Like a morality play about the rigors of moral regulation in the political sphere. "Somewhere along the way," the Times H.1 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE reporter intoned in his front-page story, the commissioner "chose to neglect his duties as a public steward and put his own political interests first." Office authority had failed to control personal power. As one political observer put it, "the seductive quest for power overwhelmed his ability to say no." Other critical politicians claimed that the commissioner had never conceived of himself as a representative of civil society. He "was elected basically as an agent of the [insurance] industry," and he "chose to use the powers of the office of commissioner to extract contributions to . . . engage in a perpetual campaign." It is no wonder that, "on the eve of the toughest questioning yet about his role in the scandal swamping his department," the commissioner chose to resign.12'1 It remained to the Times' political columnist to draw the civil moral. Though acknowledging there had been "an unseemly feeding frenzy by the blood-sniffing sharks," by the "news media and by political opportunists," he protested, "that's the nature of our democratic system and how we rid ourselves of rotten officials." Better to have scandal than to "knuckle under to his self-serving abuse of power." By abandoning his office responsibilities, the disgraced commissioner had, at one and the same time, abandoned the members of civil society whom he had been elected to represent. He "forgot to represent the people who elected him." Instead, he "tried to enrich himself politically" and "coddle misbehaving insurance companies." For the conimissioner to think he could get away with this was "dumb," but it was more than this: "It was an abuse of power."123 Less frequent but more serious departures from office regulation occur when power is deployed to pit one segment of civil society against another. In March 1991, news about the police beating Rodney King, an unarmed African American, spread like wildfire across the communicative media of Los Angeles. Though this violence was palpably racial in character, it was represented, most centrally, as a violation of office obligations and was constructed not in racial but in anticivil terms. According to the Los Angeles Times, eyewitness accounts "suggested that what should have been a relatively simple arrest. . . escalated wildly out of control."120 According to Ronald Jacobs, who has made a thorough analysis of news coverage of the affair, the media's extensive use of such adjectives as "violent," "wildly," "pounding," "pummeling," and "brutal" created a set of "symbolic relations" that constructed the confrontation in terms of the discourse of civil society."127 Initially represented as an abuse of authority by individual police 144 Voting, Parries, Office officers, the scandal soon focused on the authority at the top of the police department, the chief of police himself. Criticisms of the chief's racial in-sensitivity and authoritarianism were at every point connected with his failure to exercise office power in a responsible way. The people of Los Angeles have been unable to hold their chief of police accountable for anything—not his racial slurs or racial stereotyping; not his openly-expressed contempt for the public, juries and the Constitution he is sworn to uphold; not his spying on political enemies or cover-up of that espionage.12" Whether it is the local police on the city streets or the chief of police, to the degree that a society- is democratic, office regulates every level of state power, from the humble to the grandiose. The actions of the president of the United States, who fills an office that is sometimes referred to as "the most powerful job in the world,"are subject to continuous scrutiny. His willingness to submit to the moral regulation of his office is a serious source of concern, not only inside American civil society but outside it as well. Indeed, long before the U.S. head of state's actions had global significance, the civil regulation of this executive office was considered a principal challenge for the nation's democratic life. In 1776, when the thirteen British colonies declared themselves to be an independent and democratic nation, the United States of America embarked on an armed struggle against British hegemony. In the decades preceding this conflict, the colonists had fiercely interpreted the economic and political demands of the British king, George III, in terms of the negative discourse of civil society: as arbitrary, abusive, and in every manner corrupt.12'J After the successful conclusion of the American Revolution, the Americans were determined to establish more civil control over political power. In the late 1780s, the new nation's founding fathers created a Constitution. Their aim was to overcome the political weakness of the interregnum period, during which the postrevolutionary Articles of Confederation had allowed individual state governments great leeway at the expense of the national center. Yet even as they created the position of national president, the constitutionalists sought to regulate this new executive power via office controls. They worried that the autonomy of presidency might open the door to personal and autocratic authority. During the national debate over ratifica- 145 1 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE Voting, Parties, Office tion. James Madison—who was, in fact, to become the new offices fourth occupant—reminded his countrymen that "the overgrown and all grasping prerogative of a hereditary magistrate" posed a potent clanger to liberty.1-1" The danger was not criminality in the ordinary sense. It was the threat to civil morality. It was this more extraordinary danger that the Constitution's provisions about impeachment were intended to address. Article II, section 4, stipulated that congressional representatives of the American people could remove a president from office on the grounds of "treason, bribery, or other high crimes and misdemeanors," an ambiguous formula that achieved clarity only in its intention to reach beyond the routine compromises of political life and ordinary criminal law.131 This broadly civil ambition had been highlighted during the drafting convention in Philadelphia. As an influential delegate from Virginia, Madison had asserted that the impeachment provisions must not only cover presidential "incapacitv" and "neglect"—problems that refer to administrative deficiencies—but possible "perfidy" as well, an action referring to anticivil motives. In fact, when Madison's fellow Virginian, George Mason, suggested that "maiadimnistration" be added to the impeachment clause, Madison objected. Petty misconduct was not the point. This was too instrumental an understanding of presidential obligations. Administrative failures were about job rather than office; they failed to underscore the issue of civil control. As James Iredell, a future U.S. Supreme Court justice, asserted during the North Carolina debate over ratification, impeachment "must be for an error of the heart, and not of the head."13- The intention was to compel the holder of presidential office, despite his supreme power as head of state, to keep faith with the civil sphere, to maintain his solidarity with the wider community. As Alexander Hamilton put it, the grounds for impeachment "are those offenses which proceed from the misconduct of public men, or, in other words, from the abuse or violation of some public trust . . . [from] injuries done immediately to the society itself [that] agitate the passions of the whole community."133 In the centuries that followed ratification, the impeachment powers of Congress were often evoked but rarely employed. Social conflict and political partisanship frequently made the exercise of presidential power controversial, an object of severe criticism from the institutions of communication and regulation. Only when the integrity of civil society seemed threatened in its fundaments, however, did the regulation of presidential office evoke the civil power of impeachment. The first instance occurred three years after the conclusion of the U.S. Civil War, when President Andrewjohnson. who had succeeded to office after Lincoln's assassination, had deeply alienated the coalition of Northern Republicans that had led the nation into victory over the South. Johnson was impeached by the House of Representatives, which accused him of malting "intemperate, inflammatory and scandalous" speeches and of bnnging his office into "contempt, ridicule, and disgrace."'34 With one vote to spare, Johnson escaped conviction in the Senate.135 When the second instance of presidential impeachment occurred, 106 years later, the occupant of the office resigned before the Senate could record its opinion. For President Richard Nixon, however, the writing was on the wall. He would not have been so fortunate as his predecessor had been in the century before. The Watergate scandal, which consumed American civil society between 1972 and T974, followed upon the extraordinary social, cultural, and political polarization of the iy6os, a period marked by intensive and increasingly divisive conflicts over such issues as civil rights, sexual motes, war, the environment, and feminism. In 1968, the backlash against leftward currents had allowed Richard Nixon to gain the presidency. In the course of his first term, Nixon employed his presidential power to suppress not only the extralegal political violence of the fringe Left but legitimate mainstream opposition as well, and he did so by employing methods that, to a growing number of his contemporaries, seemed repressive and antidemocratic.13'' It was eventually revealed that President Nixon had directed his staff to hire teams of secret agents to burglar the private offices and residences of the liberal opposition and that, on the basis of "enemies lists," he and his subordinates intended to blackmail leading political figures and representatives of communicative and regulatory institutions. These efforts to circumvent the civil regulation of national political power represented an extreme of partisanship, one that moved from agonism to antagonism and exacerbated the already massive divisions of civil society in a dangerously antidemocratic way. When, in the summer ot 1972, legal officers inside the executive branch launched preliminary investigations into Watergate-related activities, President Nixon engaged in a cover-up, hiding and destroying evidence and issuing a continuous stream of disinformation to legal authorities and journalists alike. Reporters for the Washington Post, a leading communicative institution inside the nations capitol, eventually gained access to critical insider accounts. News stories narrating polluting 147 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE constructions of presidential behavior eventually caused a major scandal to erupt. A leading contemporary journalist was not alone in his identification of the Watergate scandal as "the most profound Constitutional crisis in our history."137 As the scandal intensified, there was not only great fear and indignation, but growing concern for the institution of office, about whether American civil society would be able to continue to regulate state power. When President Nixon suppressed the early investigations from inside the executive branch, this popular anxiety compelled the U.S. Senate to establish a Select Committee with subpoena power to conduct public hearings. Testimony before this committee, in the summer of 1973, cast a shadow over the president's motives and his political relations, and threw into bold relief the danger his presidency posed to civil institutions. Time and time again, the committee's leading members linked revelations about office abuse to the growing fragmentation of civil solidarity. In one of the summer's most memorable confrontations, a Republican senator dramatically denied that there was, in principle, any connection between partisanship and anticivil behavior: "Republicans do not cover up. Republicans do not go ahead and threaten . . . and God knows Republicans don't view their fellow Americans as enemies to be harassed [but rather as] human being[s] to be loved and won."'38 This passionate rhetorical affirmation of the homology between partisanship and solidarity echoed the efforts of national leaders to legitimate party organization of the electoral process one hundred and fifty years before.1-19 Toward the end of these Senate hearings, a witness revealed that President Nixon had tape-recorded critical meetings inside the Oval Office. The Select Committee voted to direct its chairman, Senator Sam Ervin, to command the president of the United States to release these tapes. When Nixon refused to do so, Senator Ervin called a press conference. In what he later called his "impromptu comments," Ervin emphatically emphasized the separation between role and incumbent, proclaiming that office regulation was critical to preserving the civil power of the people. I venerate the office of the President, and I have the best wishes for the success of the present incumbent of that office, because he is the only President this country has at this time. A President not only has constitutional powers which require him to take care that the laws 148 Voting, Parties, Office be faithfully executed. . . . Beyond that, the President of the United States, by reason of the fact that he holds the highest office in the gift of the American people, owes an obligation to furnish a high standard of moral leadership to this Nation.140 Impeachment was in the air. Defenders of the president repeatedly called attention to the fact that no evidence had been presented of criminal wrongdoing. His critics responded that office obligations answered to a higher standard. Responding to the former treasurer of the Republican Party's Committee to Re-Elect the President, Chairman Ervin demanded: "Which is more important, not violating laws or not violating ethics?"1"" At times, the defense of the higher standard of office obligation even recalled its religious origins, with assertions that the "laws of men" must give way to the "laws of God."'42 The president, for his part, continued to resist not only senatorial demands but court orders to release the tapes, which would later turn out to reveal incriminating examples of office abuse. Finally, Special Prosecutor Leon Jaworski, who had been appointed by the president himself in the wake of a "firestorm" of controversy, accused NLxon of asserting that the president alone possessed "ultimate authority to determine when to prosecute, whom to prosecute, and with what evidence to prosecute" and of blocking every effort to "take the President to court." Such constructions of executive power as supremely self-interested highlighted the confrontation between personal authority and office obligation. To accept tins presidential "contention," Jaworski publicly asserted, "would sharply limit the independence that I consider essential if I am to fulfill my responsibilities as contemplated by the charter establishing tin's office."143 With the president continuing to maintain control over the tapes, and with alarming accusations of repressive power circulating with increasing intensity, the House of Representatives formed an Impeachment Committee. As one of its leading Republican members asserted during the public hearings, "No man should be able to bind up our destiny, our perpetuation, our success, with the chains of his personal destiny."1''4 The committee voted out three articles of impeachment. The first charged the president with obstructing and impeding the administration of justice, of violating his constitutional duty "to take care that the laws be faithfully executed." The second charged that President Nixon had, directly or through subordinates, "abused the powers vest in him."145 As another Republican member as- 149 STRUCTURES AND DYNAMICS OP THE CIVIL SPHERE serted, this article "really gets at the crux of our responsibilities here for it directed attention toward the president's oath and his constitutional obligations."14'' The third article accused the president of acting "in derogation of the power of impeachment" by failing to produce materials duly subpoenaed by the House. In a solemn and widely televised roll call vote, these articles were accepted by a bipartisan House majority. Public opinion polls demonstrated that President Nixon's support had plummeted in the course of the impeachment proceedings. The Republican leader of the Senate announced that he considered conviction a certainty, and President Nixon resigned from office.'"17 If the Senate had, in fact, gone on to convict President Nixon of high crimes and misdemeanors, he would have been compelled to leave office by the force of law. In a democratic society, law formalizes the obligations of officeholders to act in a civil way. Law is the ultimate regulatory institution of the civil sphere, the sanction at the base of the medium of civil power, the efficient cause bending state power to civil will. The highest political official in the land, the most powerful bureaucrat, the most persuasive ideologue, and the most fearsome monopolist of social power—in a democratic society, each one of these can be trumped by civil power in its legal form. It is to the operation of this other regulatory institution of the civil sphere that we now turn. CHAPTER 7 Regulative Institutions (2): The Civil Force of Law he there even more concrete mechanisms by which the subjective and very immaterial entity called civil society, this solidarity that is a "people of individuals," comes to shape struggles for particular power and interest? The communicative boundary of civil society affects noncivil spheres by crystallizing diffuse public opinion, and it gains its effects exclusively through persuasion and influence. As we have seen, however, there are more concrete ways in which civil society exerts its influence. Through the institutions of voting, political party, and office, the criteria of civil society are defined in more hard-headed ways, involving sanction and not only suasion. These institutions compose the regulative as compared with the communicative boundary of civil society, and they compel states to enforce civil obligations vis-á-vis such other noncivil institutions as families, states, religions, and primordial communities. To be fully effective, however, this regulative boundary must be fortified bv law. The Democratic Possibilities of Law Law is at once the most familiar and the least understood regulative institution. In large part, this is because it has been approached under the STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE tradition of Thrasymachus. Under the aegis of Weber's instrumentalism, Durkheim's functionalism, and Marx's economism, social scientists have approached law as a coercive form of technical regulation: a modern response to demands for functional efficiency, market predictability, and authoritative control. Such an approach has the virtue of distinguishing law from civil institutions of a more conmiunicative kind, but it ignores law's relation to culturally oriented norms and sanctions, the manner in which law sits, in Habermas's felicitous phrase, between Faktizitiit and Geltung: between the behavioral level of factual reality and the realm of value.1 Of course, law comes in different guises, and in this sense it is misleading to speak of "law" per se. Law often concerns itself with functional adaptation, with establisliing the conditions for equilibrium, with creating more efficient means of administration in order to allow actors more effectively to secure material goals or communities to promote their particular values. In modern societies, as Weber has demonstrated, virtually every authoritative decision must eventually be articulated in a rational-legal form.2 But these noncivil purposes and effects do not exhaust what law is about, as Robert Post has recently pointed out in his insistence on the democratic side to legal regulation.3 The aspiration toward which democratic law aims is a civil society. In fact, to the degree that the civil sphere gains authority and independence, obedience to law is seen not as subservience to authority, whether administrative or communal, but as commitment to rules that allow solidarity and autonomy. Demands for democracy have often been protests against illegality. For the American revolutionaries, George III embodied anticivil repression. In the Declaration of Independence, published in 1776, that British ruler was polluted as much for his denial of law as for his departures from other sorts of democratic behavior. He has refused his assent to laws, the most wholesome and necessary for the public good. . . . He has forbidden his Governors to pass laws of immediate and pressing importance. . . . He has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers. More than two centuries later, in the aftermath of a tumultuous contested election in the newly independent Ukrainian Republic, the opposition leader, Viktor Yushchenko, vowed to supporters that, if he won a second The Civil Force of Law presidential run-off election, he would "restore the letter and the spirit of the law."4 Though laws certainly are elaborated in complex organizational settings and are backed up by force, they can aspire to a moral status. To the degree that societies are democratic, law can crystallize the seemingly oxymoronic commitment to individuality and collectivity that defines the sphere of civil life. Law can enjoin infringements on the scope of individual action and offer protection for the self's private, interior life. It can, at the same time, restrict the scope of individuality by prohibiting individuals from injuring fellow members of the civil sphere, whether by cheating, lying, or by threatening them with physical force.5 For these reasons, law can be a highly significant boundary mechanism for civil society, crystallizing universalistic solidarity by clarifying its application to particular and contingent situations. Through its substantive, hands-on, case-by-case stipulations, the law can become a powerful conduit for civil morality in the universalizing sense I have defined it here.1' Armed with the law, public representatives can intervene physically to prevent family abuses, such as wife-battering and child molestation. The formal and explicit charge is simply that the abusive family member has broken the law. At a deeper level, however, this intervention is legitimated on the grounds that participants in the familial sphere have not only sphere-specific duties— as father and husband, wife and mother, cliild and sibling—but also obligations to a wider community defined in civil terms. Because of this double obligation, women and children, who may be relatively powerless in the family sphere, can be made legally equal to males, for they can claim legal membership in an overarching civil sphere. When workers sue their employers for unfair labor practices, or when consumers take producers of defective products to court, they are hoping that the law can create possibilities for justice by mandating a similar extension of solidarity7 Whether courts intervene in such disputes depends on where they draw the line between civil and noncivil spheres. Where this line is drawn changes continuously over historical time. That democratic law has the right, indeed the obligation, to intervene on one side of this line does not. The translation of universalizing solidarity into legal force allows civil society to reconstruct struggles over power, money, and primordial value. Throughout the variety of noncivil spheres, claimants can make the demand for their "civil rights." The substance of these claims varies nowadays, from 152 153 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE The Civil Force of Law demands for facilities by disabled persons, for the rights of homosexuals to "civil" unions, for protection from gender and racial bias, for the free access of consumers and citizens to economic and political information, for the rights of employers to be free from the "harassment" of union organizers. Whatever the substance, these are all demands for more symmetry between the claimants' putative legal standing in civil society and their putatively uncivil status in another sphere. Such demands can be aimed at moral persuasion, and they can be broadcast by the communicative institutions of civil life. But they can be made on legal grounds as well. Collective demands can be addressed, in other words, not only in the court of public opinion but in the court of law. The more differentiated and autonomous the civil society, the more clearly there emerges a more porous legal boundary vis-a-vis noncivil spheres, whose activities become subject to legal-cum-civil regulation. A century and half ago, this legal boundary was much more rigid. "The Supreme Court's decision in Plessy had drawn a line between the sphere of the legal and the sphere of the social," Angela Harris suggests in recalling how the U.S. Supreme Court upheld Jim Crow laws in Plessy v. Ferguson, in 1896." In democratic societies today, by contrast, social conflicts over noncivil goods increasingly involve clashes over just where the legal boundary should be drawn. Lawrence Friedman's analysis of America's "due process revolution," which began in the 1960s and continues today, documents this process. During the course of these decades, state and private spheres alike have gradually been penetrated by egalitarian legal claims. Indeed, boundaries between the legal system and "the general social order" have become so "hopelessly blurred," according to Friedman, that by the late twentieth century, "the legal system [had become] part of the general culture, the general political system, the general economy."9 Spheres of human life, once havens of immunity from law and legal process, were now invaded and (to some degree) conquered [so that] justice is, or ought to be, available in all settings: in hospitals and prisons, in schools, on the job, in apartment buildings, on the streets, within the family. It is a pervasive expectation of fairness.10 Powers in the noncivil spheres can be challenged from a position of legal counterpower. Parishioners bring public actions against church ministers, 154 wives against husbands, patients against doctors, students against teachers. Such clashes will not end noncivil hierarchy; such a goal has no place in a plural society. Their effect, rather, is to increase, or at least to make explicit and to open for contention, the immanent boundary tension between civil and noncivil spheres; the result is to allow the former to interpenetrate the latter so that there can be a process I will later call civil repair." "Where a minority bloc is consistently unable to form coalitions with other blocs because of the prejudice those blocs harbor towards it," writes Kenji Yoshino in a review of laws that discriminate against gays and lesbians, the intervention of courts is necessary: "The judiciary is keeping, rather than breaking, faith with the democratic process."12 In recent American history, the Civil Rights movement of subordinated and disenfranchised black Americans provided a compelling illustration of how such legal forms of civil repair can be made. Half a century before this freedom movement, Justice John Marshall Harlan articulated the legal framework for repairing racial domination in his dissent from the Supreme Court decision upholding Jim Crow apartheid. Harlan maintained that the idealizing legal commitments of America's civil sphere were profoundly in tension with the antidemocratic institutions of the noncivil spheres that bound and often distorted it. The white race deems itself to be the dominant race in this country. And so it is, in prestige, in achievements, in education, in wealth and power. . . . But in the view of the Constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our Constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of Ids surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.13 Contract law is typically regarded as among the most economically imbedded and least likely legal forms to reflect democratic aspirations of the civil domain. Yet contracts can sustain the institutional boundary for civil society in an unobtrusive way. In doing so, they demonstrate how civil society can articulate claims vis-á-vis another sphere without threatening to obliterate the differentiated nature of its more particularistic, noncivil activ- 155 STRUCTURES AND DYNAMICS Of THE CIVIL SPHERE ides. Wliile Hugh Collins agrees that "pre-contractual obligations require a justification which has sufficient weight to overcome objections based on the protection of freedom of contract and the efficient operation of the market," he insists that there is. in fact, often sufficient weight. Such justifications can be established ... in many instances. Where one party lies to another during the negotiations, or carefully conceals some vital information, then this misconduct can be regarded as forfeiting the protection of freedom to contract and as frustrating the efficient operation of the market. Similarly, where one party deliberately induces another to incur expenditure or to disclose confidential information, without any intention of making a contract, then again we can regard this conduct as an abuse of the freedom to negotiate without incurring obligations.'■' Because private transactions are frequently economic, contracts are essential mechanisms in the maintenance of private property systems and capitalist market relations. It was for this reason that civil society II theorists condemned them and that champions of civil society III have tended to ignore them. This is ironic, for contracts are a primary medium through which civil society actually enters into the economic realm, regulating its fundamental transactions in more universalistic wavs. Contracts ensure not only the validity but also the fairness, in civil terms, of private social transactions. The principle that Hugh Collins finds at the basis of British contract law—"the duty to negotiate with care"—expresses this subtle relationship between economic freedom and civil society.15 Because the parties to a contract "may enter into a relation of dependence during negotiations where the actions of one party may foreseeably cause economic harm to another unless care is taken," a situation in which "promises, statements, and conduct may induce the dependent party to act to his detriment," then "the law is likely to impose a duty to compensate for the losses incurred." This demand for reciprocity can be maintained, however, only if the dependent party's "reliance upon the promises, statements or other conduct" is "reasonable."1'' Whether between labor and management or producers and consumers, it is the legal institution of the contract that allows negotiation and reciprocity, and questions of justice, to play some role in economic decision making, rather than leaving these phenomena to the power of purely eco- 156 The Civil Force of Law nomic criteria or bureaucratic command. Contracts are inimical to socialism only in the authoritarian, antidemocratic versions in which states endeavor to suppress markets and economic negotiation in the name of an overarching and undifferentiated collective good. Indeed, by enforcing a formal element of status equality among economic actors, it might be argued that contracts, first established to benefit private market actors during the seventeenth and eighteenth centuries, actually created a precedent for radical and reformist workers to demand "fair wages" and "just contracts" in the centuries that followed. Durkheim argued for precisely this evolutionary development in his neglected essay on civic morals.17 This was also what Marshall had in mind when he asserted that the social aspects of citizenship, which undergird the modern welfare state, were built upon earlier, more narrowly focused legal dimensions of civil rights.1M In light of their harsh personal experiences with the antidemocratic regulation of economic life, it is hardly surprising that, among the critical theorists, it was only the eastern European branch that recognized contracts central role. While they often continued to uphold socialist economics, their experience with political dictatorship made them uniquely sensitive to the institutional underpinnings of democratic life.1'' Bracketing and Rediscovering the Civil Sphere: The Warring Schools of Jurisprudence If classical and modern social science has often made little headway in understanding this democratic side of law, there has been a similar gap in legal theory, whose most influential traditions, or schools, have tended to bracket out the law's moral and civil role. Legal formalism, for example, presents law as a system of logically interrelated postulates. It is by providing order and consistency, formalists argtie, that law takes on value, regardless of its relation to other spheres or to the broader community. With its heavy emphasis on rationalization, conformity, and obedience, Weber's legal sociology represented, in fact, just such a formalist perspective. Weber highlights and praises the purely logical form of legal restraint, the lack ofjudicial discretion such formalism allows, and what he viewed as the law's hermetic resistance to extralegal considerations.2" As a sometime follower of Thrasvmachus, Weber joined this formalist understanding to an emphasis on how the logical and neutral qualities of 157 STRUCTURES AND DYNAMICS OI- THE CIVIL SPHERE law allow it to function as an instrument for power.21 Here the legal approach of the German founder of modern sociology converged with the legal positivism of British jurist John Austin and even, after a fashion, with the legal realism of American pragmatism. These latter approaches also regard the law as reflecting and serving extralegal sources of political, economic, and persona] power. Austin famously defines law as the "general command of the sovereign to govern the conduct of society's members."22 Embracing this so-called imperative theory, Hans Kelsen isolated positive law from morality and emphasized its coercive dimension, describing law simply as a "norm which stipulates a sanction."23 The realist position, despite its democratic origins in late-nineteenth-century social reform, is perfectly compatible with this anti-idealistic spirit. "The law is full of phraseology drawn from morals," Oliver "Wendell Holmes acknowledged in an address to Boston University law students in 1S97. But "if you want to know the law and nothing else," he warned, "you must look at it as a bad man, who cares only for the material consequences of which such knowledge enables him to predict, not as a good one, who finds his reasons for conduct, whether inside the law or outside of it, in the vaguer sanctions of conscience.'"'1 More sociologically inclined realists turned this pragmatic perspective into an investigation not of the law but of judicial behavior.25 Some theorists took legal realism in a neo-Marxist direction. The emigre theorist Franz Neumann, in the wake of his experience with Nazi repression, tried to develop a democratic justification for the rule of law; yet the realism of his neo-Marxist perspective made it difficult for Neumann to appreciate laws moral and civil relevance. Aligning himself with Weber, Neumann declared that "the general law has a socially and politically protective function," a "disguising function [that] in a class society and in a competitive economic, system . . . conceals the realities/"1' The reason that "judges do not like to admit this simple proposition," Neumann claimed, was because they wished "to veil their power."27 The contemporary American version of this realist tradition is Critical Legal Studies, one of whose major theoreticians, Duncan Kennedy, has asserted that the communal interests ostensibly represented by law amount to little more than "coercive actions" that threaten "individual freedom" with "annihilation."2'4 The contemporary economic approach, the Wealth Maximization School, turns this realism in a conservative direction, but the instrumentality of its theoretical logic make it impervious to law s moral qualities, much less its civil implications. According to Richard Pos- The Civil Force of Law ner, one of this school's most influential intellectual spokesmen, "altruism (benevolence) can be interpreted as an economizing principle." judge Posner maintains that the "conventional pieties—keeping promises, telling the truth, and the like'" are maintained not because they embody civil commitments, but because they maximize wealth: "Adherence to these virtues facilitates transactions (and so promotes trade and hence wealth) by reducing the costs of policing markets through self-protection, detailed contracts, [and] litigation."2" What these otherwise antagonistic traditions commonly ignore is the cultural dimension of democratic law, the dimension that anchors itself not only in formal precedent and logic, instrumental rationality, pragmatic negotiation, or coercion, but also in the idealizing, if bifurcated, vision of the motives, relations, and institutions that allow civil society. Such an exclusive "emphasis on fact and strategy," according to Ronald Dworkin, ends up by "distortingjurisprudential issues" and "eliminatingjust those issues of moral principle that form their core."3" H. L. A. Hart puts the matter more simply. In a democratic society, Hart wrote, "a great area of the law [is] imbedded in common sense."31 In fact, the law's civil aspirations are revealed in the heated polemics between the very warring schools that deny them. Explicitly, their thrust and parry revolve around defending and attacking distinctive theoretical and empirical positions. Implicitly, they reveal their shared commitment to the purifying and polluting binaries of civil society discourse. In the language Hart chooses to attack legal formalism, for example, we can distinctly hear the echo not only of theoretical but moral critique. Legal formalism "seeks to disguise and to minimize . . . choice," Hart writes. In doing so, it aims "to secure a measure of certainty or predictability at the cost of blindly prejudging what is to be done in a range of future cases." Legal judgments "can only reasonably be settled," Hart asserts, in an anti-formalist, case-by-case manner.32 In a similar manner, Dworkin accuses legal positivism not merely of being wrong empirically but of harboring barely concealed authoritarian ambitions of erasing the "distinction between law and . . . the orders of a gangster." We feel that the law's strictures—and its sanctions—are different in that they are obligatory in a way that the outlaws commands are not. Austin's analysis has no place for any such distinction, because STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE it defines an obligation as subjection to the threat of force, and so founds the authority of law entirely on the sovereign's ability and will to harm those who disobey1-1 Lon Fuller lodges a similar moral claim against legal positivism, suggesting that Austin "confuses fidelity to law with deference for established authority."34 In an early symposium on the Wealth Maximization School in Pluloso\ and Public Affairs, Edwin Baker criticizes the emerging school of jurisp: dence for violating civil solidarity, "favoring the rich claimant whose use is productive over the poor claimant whose use is consumptive," and Lawrence Tribe pollutes the approach on the grounds that it "anesthetizes mc feeling."33 Even Frederick Hayek, the foundational theorist of laissez-faire ethics, proves unable to separate his legal reasoning from claims that imp] idy evoke civil associations. Attacking pragmatic legal realism for introducing notions of "fairness" and "reason," Hayek actually raises the standard of c society high: "One could write a history of the decline of the Rule of Law." Hayek writes, "in terms of the progressive introduction of these vague formulas into legislation and jurisdiction." The result has been the destruction of civil society, "the increasing arbitrariness and uncertainty of, and the consequence disrespect for, the law and the judicature [s/c]."3f' When Cass Sunstein espouses a realist alternative to such market-drb and formalist approaches, he, too, draws on the discourse of civil society. Indicting strict constructivism for allowing too much free play to private organizations, he claims it runs "afoul of the fundamental constituric norm against naked interest-group transfers."37 Raymond Belliotti, who describes himself as a critical pragmatist, constructs the realistic approach as itself anticivil. Attacking realistic insistence on the "entirely arbitrary" and "personal" element in judicial behavior, Belliotti declares, to the contrary, that there is a "rational constraint that judges report and experience when making their decisions"; contrary to the claims of realism, judicial decision making cannot be understood independently of "the meaning and values that judges who participate in the process attribute to it."3K Owen Fiss, advocating an "interpretive turn" in legal studies that would embrace i tivism and deconstruction, defends his approach by evoking the universal ism of "bounded objectivity": "An interpretation can be measured against a set 160 The Civil Force of Law of norms that transcend the particular vantage point of the person offering the interpretation. [This] imparts a notion of impersonality."3'1 When Jean Cohen makes the case for the Habermasian "new paradigm" of reflexive law, she emphasizes its purely procedural qualities against communitarian and state-centered jurisprudence. The "application of procedures to procedures," she suggests, allows for "reflective choice," for "conscious awareness on the part of those involved and those affected by a particular area of legal regulation."40 Explaining how this new paradigm interprets the new constitutionalization of privacy rights, however, Cohen evokes the structured binaries of civil language rather than the pure reflexivity of speech acts. Earlier forms of public regulation were "paternalistic," she argues, creating forms of "domination" and increased "arbitrariness"; the newly reflexive approach, by contrast, ascribes "competence" and "equality" to intimate associates. Only with the new paradigm, she argues, can "reciprocity" be "presupposed" and can legal actors understand that "the rules imposed on us can only be those that we could reasonably be expected to accept."4' Even postmodern difference theorists define their jurisprudential status by evoking the universalizing morality of civil equality. When Catharine MacKinnon, the feminist exponent of Critical Legal Studies, argues against the "single-standard rule" of gender neutrality, she does not cite empirical fact but suggests, instead, that such gender-neutral standards actually violate egalitarian morality. The single standard, MacKinnon asserts, suggests that "women are measured according to our correspondence with man, our equality judged by our proximity to his measure . . . according to our lack of correspondence with him."42 The Civil Morality of Law Natural law theorists, of course, have been able to address the civil dimension of law in a less inhibited and contradictory way. Believing that "all people at all times will be embraced by a single and unchangeable law" and that "there will be, as it were, one lord and mast of us all—the god who is the author, proposer, and interpreter of that law," Cicero declared that "whoever refuses to obey it will be turning has back on himself because he has denied 161 STRUCTURES AND DYNAMICS OP THE CIVIL SPHERE his nature.Michael Moore, a contemporary natural law theorist, writes simply that it is the role oflaw to "find the moral truth.""'4 For such natural ris;hts thinkers to see the civic and the moral in law is not particularly difficult. Drawing on an overtly metaphysical world view, they believe that goodness exists as a natural fact, and that the law has only to find this transcendental norm to itself become a vehicle of moral expression. This becomes more difficult if one begins with the model of a modern and secular, or at least pluralistic, society. In such a world, the very existence oflaw suggests that sanctions and punishments are separate from general evocations of moral ideals and religious or ethical obligations. To see that, nonetheless, law remains morally constrained is possible only if social theory has room for a differentiated civil sphere. Certainly law is not the same as "morality," in either the philosophical or everyday sense. Institutional rather than overtly symbolic, specific rather than general, and contingent rather than static, law seems to eschew the structure and sacrality of the discourse of liberty. Law is more regulatory than communicative, and, even among regulative institutions, it is only one among many.4" Still, despite these barriers to the self-understanding of modern law, legal theorists themselves, in contrast with social theorists, have often gotten it right. Getting it right depends on recognizing the connection of judicial interpretation to ethical judgment. Such civil sensibility can be present without regard to jurisprudential bent. While he was realist and pragmatic in method, the personal and family background of Oliver Wendell Holmes and the searing experience of the Civil War placed him at the idealistic heart of American civil religion.""' It was Holmes who famously declared law to be the "witness and external deposit of our moral life."'17 Holmes intuitively understood civil as compared to state power. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is entrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees.4" In the melodramatic manner of his time and place, Holmes also understood that law is linked both to moral purity and polluting repression, and he connected this binary moral status to American democracy. The Civil Force of Law The timid and overborne gain heart from her protecting smile. Fair combatants, manfully standing to their rights, see her keeping the lists with the stern and discriminating eye of even justice. The wretch who has defied her most sacred commands, and has thought to creep through ways where she was not. finds that his patli ends with her. and beholds beneath her hood the inexorable face of death.4" So, too, did Hart's understanding go well beyond his own putative jurisprudential school. Tf his legal positivism denied to morality a central role, his civil sensibility compelled him, nonetheless, to "distinguish social rules from mere group habits."5" Insisting that "what is necessary is that there should be a critical reflective attitude to certain patterns of behavior," Hart contended that law "should display itself in criticism," which finds its "characteristic expression" in "the normative terminology of 'ought.' 'must,' and 'should,' 'right' and 'wrong.' "51 The same can be said for Hart's erstwhile jurisprudential opponent, Lon Fuller. Fuller put himself forward as a proceduralist who insists that law works without reference to substantive values, indeed that it must abjure a "morality of aspiration" if it is to be democratic.52 This does not prevent him, however, from describing purely procedural constraints in the terminology provided by the discourse of civil society. Procedural fairness. Fuller declares, depends on legal structures that guarantee such values as transparency, autonomy, and reciprocity. "Our whole legal system," he asserts, "represents a complex of rules designed to rescue man from the blind play of chance and to put him safely on the road to purposeful and creative activity." The product of "a centuries-old struggle to reduce the role of the irrational in human affairs." procedurally scrupulous law creates "the conditions essential for a rational human existence."5-1 Such implicit appeals to civil morality certainly validate the position of Ronald Dworkin, the most visible champion of democratic law in the present day. Dworkin insists that good jurisprudence depends on separating the rules that allow efficient policies from the principles ofjustice that may— or may not—underlie them. Whereas "arguments of policy justify a political decision by showing that the decision advances or protects some collective goal," Dworkin writes, arguments of principle "justify a political decision by showing that the decision respects or secures some individual or group right."54 Democratic law does not exercise repressive power for the sake of 162 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE efficiency, but rather to regulate individual and collective action in terms of the principles of civil solidarity. The criminal law might be more efficient if it disregarded this troublesome distinction, and jailed men or forced them to accept treatment whenever this seemed likely to decrease future crime. But that . . . would cross the line that separates treating someone else as a fellow human being from treating him as a resource for the benefit of others, and there can be no more profound insult, under the conventions and practices of our community, than that." Constiturions as Civil Regulation Democratic constitutions provide perhaps the clearest example of how law can function as a regulative institution of civil society vis-ä-vis noncivil activities. This is because constitutions are fabricated documents, selfconsciously designed to articulate general principles, to establish moral frameworks that will guide the subsequent individual and institutional life of entire communities. As the "law about law," as meta-law whose principles trump even the most fervent expressions of popular sovereignties, constitutions may well appear to be legal documents of a decidedly undemocratic kind. The very idea of a constitution may seem, in Dworkins words, "grotesquely to constrict the moral sovereignty of the people themselves— to take out of their hands, and remit to a professional elite, exactly the great and defining issues of political morality that the people have the right and the responsibility to decide for themselves,"*' Although elections have been traditionally understood as the sine qua nan of democracy, the argument I have developed in this book is that they represent only one element among several that sustain the relative autonomy of civil society. It is the existence of the fully developed civil sphere that defines broadly democratic life. In democratic societies, constitutions aim to regulate governing and lawmaking in such a manner that they contribute to solidarity of a civil kind, in his study of constitutional debate in the newly formed Irish free state, Jeffrey Prager. arguing that constitutionalism "represents the claim that the people possess the authority to regulate the relations among all members of the political community," found that when "beliefs and sentiments shift The Civil Force of Law and as membership in the community expands, so too does the meaning of the constitution."57 As Dworkin puts it, the aim of democratic constitutions is to ensure "that collective decisions be made by political institutions whose structure, composition, and practices treat all members of the community, as individuals, with equal concern and respect."58 Once a democratic constitution is in place, it stipulates that "the validity of a law depend[s] on the answer to complex moral problems, like the problem of whether a particular statute respects the inherent equality' of all men."5-' The aim of a democratic constitution is to ensure that the legal decisions are of this kind. As Adam Przeworski, a contemporary political scientist in the tradition of Thrasy-inachus suggests, constitutions ensure that a democracy becomes something other than a mere "contingent outcome of conflicts."'1" From the other side of the philosophical spectrum, Habermas agrees: "In a constitutional state, the exercise of political power is entrenched in a double code: the regulative mediation of conflicting interests must at the same time be understandable as the implementation of a system of rights."61 Regulative institutions would be unnecessary if civil societies were not binary in their normative codes. If people's motives and relations, and the institutions they constructed, were in fact, or could be so construed, as consistently rational, honest, cooperative, and trustworthy, there would be no need to regulate them from without, to build and sustain organizations to issue threats of punishment and promises of future reward. Communicative institutions would be more than enough. As the master blueprint for every legally based social organization, constitutions are particularly concerned with articulating the suspicions about others that mark the dark side of civil discourse; indeed, thev are institutions for keeping that dark side under control. This was precisely the rationale for the U.S. Constitution, which followed by almost a decade the nation's founding under the decentralized legal constraints known as the Articles of Confederation. That first decade of American existence was marred by chaotic and dangerous conflicts among state, nation, organization, and individual, which generated increasing concern about how the new experiment in democracy could survive. The Constitutional Convention was convened to resolve such anxieties. In order to more eftectively institutionalize democracy, more constitutional regulation would be necessary. The convention's guiding spirit was James Madison, and in the long and 164 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE critical debate over ratification he defended the proposed Constitution by reminding his fellow countrymen that "if men were angels, no government would be necessary."63 Madison's eloquent defense rests squarely inside the binary discourse of civil society. In urging ratification, he continually evokes fears inspired by the discourse of repression, calling attention to dangerous motives, relations, and institutions. Pointing to what he called a "deficit of better motives" among even democratically inclined citizens—the possibility of succumbing to emotions that threaten the very existence of liberty— Madison decries "zeal," "ambition," and, above all, the "common impulse of passion." These motives, he warns, threaten to undermine cooperative social relations, for they lead to "mutual animosity" and the "violence of faction." Left to their own devices—in the absence of some kind of constitutional regulation—such motives and relations create the "instability, injustice, and confusion" that promote institutions of domination, for in such situations actors are "more disposed to vex and oppress each other than to cooperate for their common good." In order to protect liberty, therefore, "neither moral nor religious motives can be relied on," and spontaneous "communication" will only make things worse. This is precisely why Americans must ratify the Constitution, for it relies on external regulation, not on spontaneous cooperation and good faith. Only carefully constructed "powers of government," Madison insists, can control such "dangerous" tendencies. These powers can be found, moreover, only in a constitution that reflects the republican form of government.*'3 If there is a single constitutional stipulation that aims to assuage Madi-sonian suspicion about anticivil emotions and relations undermining democratic societies, it can be found in the Fifth Amendment to the American Constitution, which asserts that "no person shall be deprived of life, liberty, or property without due process of law." Virtually from the beginning of the constitutional period, the U.S. Supreme Court interpreted this statute to mean not only that public and state powers cannot act against citizens in an arbitrary manner but that the authority to determine such a danger to civil society rested with the courts and not the state. The notion of "due process," which promotes civil over state power, emerged from the common-law tradition in England. Henry VIII had awarded the Royal College of Physicians the power to license and regulate the practice of medicine in London. These powers included, in addition to the college's The Civil Force of Law right to levy fines, the right to keep one-half of its profits, and Parliament confirmed the legality of doing so. When Thomas Bonham, a Cambridge University doctor, was fined and imprisoned for not obtaining a college license, he brought suit against the college. In his opinion upholding Bonham, published in i6to, Sir Edward Coke established the precedent that courts could overturn "arbitrary" actions of sovereign and Parliament alike. Such a counter, or regulatory, power is necessary, Coke reasoned, to protect the purity of civil discourse against polluting acts of power. The censors [of the Royal College] cannot be judges, ministers and parties: judges to give sentence or judgment; ministers to make summons; and parties to have the moiety of the forfeiture. . . . And one cannot be Judge and attorney for any of the parties. ... In manv cases, the common will control Acts of Parliament, and sometimes adjudge them to be utterly void: for when an Act of Parliament is against common right and reason, or repugnant, or impossible to be performed, the common law will control it, and adjudge such Act to be void/1'1 Without such a mandate for court review, constitutional rules about due process would be less regulative than communicative, as Albert Dicey tellingly remarked in The Law of (he Constitution. The restrictions placed on the action of the legislature under the French constitution are not in reality laws, since thev are not rules which in the last resort will be enforced by the courts. Their true character is that of maxims of political morality, which derive whatever strength they possess from being formally inscribed in the constitution, and from the resulting support of public opinion."5 Dicey drew two contrasts with the French situation. One was with the British Parliament, where the idea of a constitution "has no application" because the nation is, in fact, "ruled by a sovereign Parliament."'''' The latter "can alter the succession to the Crown or repeal the Acts of Union in the same manner in which they can pass an Act enabling a company to make a new railway from Oxford to London.""7 167 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE The Civil Force of Law With us, laws therefore are called constitutional, because they refer to subjects supposed to affect the fundamental institutions of the state, and not because they are legally more sacred or difficult to change than other laws. And as a matter of fact, the meaning of the word "constitutional" is in England so vague that the term "a constitutional law or enactment" is rarely applied to any English statute as giving a definite description of its character.rM In the United States, because "it is the duty of every judge throughout the Union to treat as void any enactment which violates the constitution," the restrictions imposed by the Constitution "have the character of real laws, that is, of rules enforced by the Courts." Such a system, "which makes the judges the guardians of the constitution, provides the only adequate safeguard which has hitherto been invented against unconstitutional legislation."f,y By creating a written and formal document, and by explicitly establishing a separation of powers between the three branches of government, the creators of the U.S. Constitution gave teeth to due process at the highest levels of power. Still, judicial control over state processes did not become an institution in the regulatory sense until 1803, when Marbury v. Madison established the Supreme Courts authority for judicial review. Justice James Bradley Thayer, whom Felix Frankfurter called "our great master of constitutional law,"70 was regarded as a severe opponent of expanded notions of judicial power. Even in Iris best known argument for judicial restraint, however, Justice Thayer affirmed that the Court could exercise its civil power to guard against the pollution of democratic principles. Because "the people . . . have established written limitations upon the legislature," so must they have the power to "control all repugnant legislative Acts."71 Normally, courts should not declare legislative acts illegal and should respect legislative power. The founding fathers believed that "courts might disregard such acts," Thayer believed, only "if they were contrary to the fundamental maxims of morality."72 Such moral threat would emerge if legislative acts were "so monstrous" as to threaten the very autonomy of the civil sphere, for example, "an Act authorizing conviction for crime without evidence, or securing to the legislature their own seats for life."73 In such a situation, when a government "conflicts with the constitution," then the judiciary itself "must say what the law is . . . and to declare a legislative Act void which conflicts with the constitution, or else that instrument is reduced to 16S nothing."7'1 When Supreme Court justices review legislative acts, Thayer cautions, they must give them every benefit of the doubt. They can do so only by attributing to legislators the most idealized motives and relations. They must ignore, for such purposes of constitutional deliberation, what might have been anticivil motivations in actual fact. In setting out his criteria for thinking about the constitutionality of legislative action, Thayer's reasoning vividly reflects the binaries deeply imbedded in democratic law. It must indeed be studiously remembered, in judicially applying such a test as this of what a legislature may reasonably think, that virtue, sense, and competent knowledge are always to be attributed to that body. The conduct of public affairs must always go forward upon conventions and assumptions of that sort. . . . And so in a courts revision of legislative acts. . . the question is not merely what persons may rationally do who arc such as we often see, in point of fact, in our legislative bodies, persons [who are] untaught . . . indocile, thoughtless, reckless, incompetent,—but what those other [i.e., idealized] persons, competent, well-instructed, sagacious, attentive, intent only on public ends, fit to represent a self-governing people, such as our theory of government assumes to be carrying on our public affairs,—what such persons may reasonably think or do.73 The Civil Life of Ordinary Law It is one tiling to agree that constitutional law aims at institutionalizing a democratic civil sphere among the varied and jostling noncivil domains of complex societies. It seems like quite another, however, to demonstrate that this civil society III perspective might also apply to the legal order in its mundane everyday life, to the law of the traffic light, stickup, tax evasion, and burglary. The connection between everyday law and civil society is not immediately obvious. The link becomes visible only if we adopt what Hart once called, following the later Wittgenstein, the internal as compared to the external point of view. If "the observer really keeps austerely to [the] extreme external point of view," Hart writes, the perspective "does not give any account of the manner in which members of the group who accept the rules view their own regular behavior."7'' The result will be to look at 169 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE The Civil Force of Law everyday law only as a system of sanctions and rewards, unconnected to the actors' subjective moral feelings. In fact, from a purely external perspective, the "description of their life cannot be in terms of rules at all, and so not in terms of the rule-dependent notions of obligation or duty." For such an [outside] observer, deviations by a member of the group from normal conduct will be a sign that hostile reaction is likely to follow, and nothing more. His view will be like the view of one who, having observed the workings of a traffic signal in a busy street for some time, limits himself to saying that when the light turns red there is a high probability- that the traffic will stop. He treats the light merely as a natural sign that people will behave in certain ways, as clouds are sign that rains will come. In so doing he will miss out on a whole dimension of the social life of those whom he is watching, since for them the red light is not merely a sign that others will stop: they look upon it as a signal for them to stop, and so a reason for stopping in conformity to rules which make stopping when the light is red a standard of behavior and an obligation.77 When Paul Kahn undertakes the effort to reconstruct legal scholarship half a century later, he finds a similar example to illustrate his case for an internal approach to legal life. From the outside, social practices look like sequences of events that may be explained without reference to the meanings they bear for the participating individuals. . . . This is the way law appears to the alien who happens to find himself temporarily within the jurisdiction........ He must negotiate around a set of rules, under a threat of coercion, without understanding the significance of the rules to those who see them as "ours." Law is something done to him, rather than some tiling we do.7H Kahn maintains that, to the contrary, it is "forms of understanding that make possible the range of behaviors that we characterize as living under the rule of law." To live under the rule of law is "to understand the actions of others and the possible actions of the self as expressions of. . . beliefs." It is only within such beliefs that "law appears as the legitimate and even 'natural' arrange- 170 ment of our collective life." The aim of legal scholarship must now be to "investigate further the deep structure of law's conceptual universe . . . by offering an interpretation of the . . . imaginative structure of that world.""" To take the internal point of view, in other words, is to consider law as a cultural structure. The signifiers of this structure stipulate general forms of good and bad behavior, but the specific forms, their concrete referents or signifieds, vary widely according to the historical specifics of particular societies. Hart and Honore speak about legal structure as a "fluid and indeterminate language,""0 and Kahn warns that "the terms reason and will are themselves empty of substantive content" in the sense that "they do not provide a specific program." What this deep structure does, rather, is to "structure the debate ... by establishing the larger conceptual order within which we deliberate. For these generalized codes to have their effect, the law is applied and adapted, in often excruciating detail, to putatively significant attenuations of civil responsibility. This is not only to punish and repress, but to construct and, after this construction, to criticize and symbolically expose. This is most overdy the case in highly publicized criminal trials, in which, as Paul Gewirtz observes, "social deviance is explored as well as defined—the twisted deviance ofSusan Smith, the apparently brazen evil of the Menendez brothers." Such trials draw symbolic boundaries. By "defining otherness," thev mark off the ways the guilty defendant is different from the law-abiding public audience.92 By distributing judgments of guilt and innocence, the criminal justice system punishes and symbolizes in a binary manner; and, by so classifying individual and collective actions, seeks implicitly to organize and regulate them.8-"' David Garland writes that "penality projects definite notions of what it is to be a person" and shows how "modern courts will insist that individuals generally direct their own actions, have choice, will, intention, rationality, [and] freedom."'" The possibility of being exposed to legal judgment has an effect that moves beyond persuasion: it compels social action to be sifted through the sieve of civil society. The intention is to keep civil incompetence at bay, and sanctions extend from civil fines and public humiliations to incarceration and, sometimes, to death. The severity of the allocated punishment corresponds to the severity of discursive attribution— of anticivil behavior. From murder in the first degree to manslaughter in the second represents a movement from the most intentional and willed 171 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE aggression to action that, while irreparably damaging, is deemed to have been of a completely unintended kind. Solidarity Such legal attributions of civil purity' and anticivil pollution reflect the intertwining of solidarity and autonomy that undergirds civil society. When Fuller argues that everyday judicial processes belie the notion that "society is composed of a network of explicit bargains,"H3 the alternative reference to which he points is civil solidarity. To legally encode interactions by fair procedures, Fuller argues, is to show that society "is held together by a pervasive bond of reciprocity." Yet in contrast to the ties that bind "a couple deeply in love" or a "small band of men," legal bonds are less diffuse and more differentiated. Large and complex communities cannot depend on intimate communal ties, lifelong knowledge of others' habits, or deep passion. What the legal bonds of civil society reflect, rather, is "a sort of anonymous collaboration among men." Connecting the law to a solidarity that binds and restricts individualism is also the key understanding of Hart, the determined opponent of Fuller's proceduralism. Hart, too, describes law as "a chain binding those who have obligations so that they are not free to do what they want.""6 However, while the "social morality of societies" requires the "sacrifice of private inclination or interest," Hart warns that such morality can be neither habitual nor primordial. It must be self-conscious, artificially constructed. The aim. of the law is "to create among individuals a moral and, in a sense, an artificial equality to offset the inequalities of nature,"87 In complex and differentiated societies, civil solidarity is sustained by legal rules that abstract away from particular endowments, traditions, and circumstances. In tort law, for example, there is an overarching legal mandate—"no harm to others."8" But this basic principle must be construed at a high level of generality and impersonality, so that freedom and diversity are not overly constrained. The solidarizing mandate not to harm others does not, in other words, function as a golden rule, as an ethic of brotherly love. It suggests, rather, "that those with whom the law is concerned have a right to mutual forbearance from certain kinds of harmful conduct," and to protection from "the grosser sorts of harm."8'' These constraints on aggression The Civil Force of Law apply to harm in the physical sense, both to personal safety and to "rules forbidding the destruction of tangible things or their seizure from others."9" More revealingly, however, they apply to subjective harm, to injuries that reflect substantial departures from expectations for reciprocal consideration. So the law of torts forbids "the free use of violence" but also requires "certain forms of honesty and truthfulness in dealings with others."1'1 If one cannot maintain such civil motives and relations, reciprocity is endangered, and legal sanctions follow. In one way or another, those who harm others "are bound to compensate those to whom they have caused harm."'*- The point is to reinforce, via law, the bonds of civil solidarity. When the moral code forbids one man to rob or use violence on another even when superior strength or cunning would enable him to do so with impunity, the strong and cunning are put on a level with the weak and simple. Their cases are made morally alike. Hence the strong man who disregards morality and takes advantage of his strength to injure another is conceived as upsetting this equilibrium, or order of equality, established by morals; justice then requires that this moral status quo should as far as possible be restored by the wrongdoer."3 CIVIL SOLIDARITY AND CONTRACT LAW Contracts function to ensure predictability and economic rationality, but as Dürkheim suggested long ago, they convey "noncontractual" elements as well. They require parties to demonstrate "due care" for others.''4 In 1SS9, in the precedent setting Riggs v. Palmer, a New York court ruled that an heir who had murdered his grandfather could not receive the bequest that his grandfather had willed to him before his death. This might seem simple common sense, but it is informed by deep cultural structures. Contract law seeks to ensure the long-term effectiveness of individual actions; ruling against the reach of such contractual decisions would have to involve com- CD pelling considerations of a more collective kind. By asserting that "all laws as well as all contracts may be controlled in their operation and effect by general, fundamental maxims of the common law," the court stipulated that individuals were not, in fact, free to bargain just as they liked. Contract law had to submit to commonly accepted moral maxims. These most definitely 172 173 STRUCTURES AND DYNAMICS OE THE CIVIL SI'HERE The Civil Force of Law included the idea that to encourage aggression is to undermine the basis for civil relations. "No one," the court declared, "shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity."95 No matter how important, contracts cannot be allowed to threaten the basis of civil solidarity. In i960, in Heunugsen v. Bloomfteld Motors, a New Jersey court was asked to decide whether a car manufacturer was liable for more than "making good" on defective parts, as the purchasing contract explicitly stated. Would the manufacturer also be liable for the suffering of persons injured in a crash caused by these defective parts? In its ruling, the court first went out of its way to acknowledge the priority of contracts. Vis-a-vis freely contracted economic activities, it allowed, civil standards have only limited effect, and this is precisely because economic life is itself thought to involve the exercise of certain civil capacities. "The basic tenet of freedom of competent parties to contract is a factor of importance," the court declared, and if one party to an economic transaction "does not choose to read a contract before signing it cannot later relieve himself of its burdens."'"' The court went on to insist, however, that market behavior must be limited by more than an economic actors putative civil competence: "Freedom of contract is not such an immutable doctrine as to admit of no qualification." Even economic actors have obligations of civil solidarity. Fairness to others, not only instrumental consideration of economic calculation, is also involved. How involved, of course, is a matter of interpretation and degree, but the principle is clear: In modern societies that depend on the automobile, the civil boundary of economic life must be subject to special considerations if due care is to apply. In a society such as ours, where the automobile is a common and necessary adjunct of daily life, and where its use is so fraught with danger to the driver, passengers and the public, the manufacturer is under a special obligation in connection with the construction, promotion and sale of his cars. Consequently, the courts must examine purchase agreements closely to see if consumer and public interests are treated fairly.''1 To explain why the atitomobile company was, indeed, required to cover costs to the injured parties, the New Jersey court quoted from an earlier opinion by Justice Felix Frankfurter. In the United States v. Bethlehem Steel, Justice Frankfurter had linked the very institutional autonomy of the Supreme Court to its willingness to intervene against economic power. Is there any principle which is more familiar or more firmly embedded in the history of Anglo-American law than the basic doctrine that the courts will not permit themselves to be used as instruments of inequity and injustice? More specifically the courts generally refuse to lend themselves to the enforcement of a "bargain" in which one pary has unjustly taken advantage of the economic necessities of [the] other."1* Still, in a differentiated and plural society; the demand for due care to others, so central to the civil sphere, cannot be allowed altogether to push aside the competitive, instrumental behavior that ties economic efficiency to monetary rewards. The conflict between civil and market justice is adjudicated via the flexibility of the eminently civil stipulation, "reasonable."9'' Contracting parties are negligent or abusive, and thus legally liable, not if they fail to exercise absolute care for others members of the civil community, but only if they "fail to take reasonable care to avoid inflicting physical injuries on others."1"" The double contingency of demonstrating care, on the one hand, and reason, on the other, illuminates the complex and ambiguous boundary relation between civil and economic society; It also manifests the broader tension between solidarity and autonomy inside the civil sphere itself. This tension is typified when officers of the court face the inevitable question, as Hart puts it, of "What is reasonable or due care in a concrete situation?" We can, of course, cite typical examples of due care: doing such things as stopping, looking, and listening where traffic is to be expected. But we are all well aware that the situations where care is demanded are hugely various and that many other actions are now-required besides, or are in place of, "stop, look, and listen"; indeed these may not be enough and might be quite useless if looking would not help to avert the danger. What we are striving for in the application of standards of reasonable care is to ensure (1) that precautions will be taken which will aver substantial harm, vet (2) that the 174 175 STRUCTURES AND DYNAMICS ÜF THE CIVIL SPHERE The Civil Force of Law precautions are such that the burden of proper precautions does not involve too great a sacrifice of other respectable interests. Nothing much is sacrificed by stopping, looking, and listening unless of course a man bleeding to death is being driven to the hospital.101 When industrial capitalism emerged in the latter part of the nineteenth century, this balance between solidarity and autonomy tilted toward the latter out of deference to the spectacular effects, and demands, of the newly powerful industrial sphere. At the same time, this release threatened to destabilize the balance that allowed civil society to maintain its cultural and institutional independence vis-a-vis economic life. There was growing anxiety about the new industrialists, the so-called Robber Barons, and their newly established monopolies. In 1S90, the U.S. Senate passed the Sherman Anti-Trust Act. It is revealing of the tenor of that pro-business time, however, that this "protectionist" effort was not justified in terms of social solidarity.1"2 Rather, Congress justified market restrictions by describing the threat that unbound capitalism posed to individual autonomy. The antitrust act held that even as great economic success represented the success of one individual's contractual efforts, it endangered others. It declared, therefore, that "every contract in restraint of trade shall be void." Senator Sherman justified the relevance of civil solidarity to economic behavior in the same manner, not by asserting the priority of collective regulation in itself, but by polluting economic monopolies as antidemocratic. He called them a "kingly prerogative inconsistent with our form of government." In doing so, he recognized the inherent contradictions between civil and economic society. Demanding that similar civilities be respected in both spheres, he advocated legal intervention into the economic sphere in order to ensure this mutual respect.103 If anything is wrong, this is wrong. If we will not endure a king as a political power we should not endure a king over the production, transportation, and sale of any of the necessaries of life. If we could not submit to an emperor, we should not submit to an autocrat of trade, with power to prevent competition, and to fix the price of any commodity.10'1 176 Still, in a rapidly industrializing capitalist society in which economic innovation was considered to depend on maintaining the independence of markets, courts found it difficult to consistently apply such a broad civil restriction on the nation's economic life. For years after its introduction, the Sherman Act was, in fact, evoked only to regulate the behavior of smaller companies. Only some fifteen years after its creation, in 1904, did the Supreme Court apply legal prohibitions against restraint of trade to the contracts established by one of the huge new corporations. In ruling that the Northern Securities Company constituted an illegal combination in restraint of trade and would have to be dissolved, the Court evoked the necessity to maintain a vital and independent civil sphere. Without application of the antitrust law. Justice Harlan wrote, "the efforts of the national government to preserve to the people the benefits ot free competition among carriers . . . will be wholly unavailing . . . thus placing the public at the absolute mercy of the holding corporation."105 In the American version of civil society, it was more often liberty than equality that justified state regulation of economic lite. Even this new standard, however, could not be consistently applied. In 1911, when the Court upheld a decision to break up Standard Oil, it formulated a "rule of reason."'"6 Continuing to fine-tune the balance between civil and economic autonomy, the Court modified the due care provisions of the Sherman Act in an economic direction, albeit in a civilly oriented way. Only contracts that unreasonably, or unduly, restrained trade would henceforth be punished as unlawful. This new principle meant that civil standards would be applied to the motives and relations of economic actors onlv within the established framework of corporate capitalism; they would not be applied to the framework itself. The application of the civil standard of due care was not intended to pollute, and criminalize, the economic facts of size or combination, or the competitive motives of economic acquisition. To do so, the Court concluded, would dissolve the boundary tension between economic and civil life and would threaten the pluralism upon which democracy itself depends. This fine line was underscored a decade later, in 1915, when the Supreme Court found no evidence that U.S. Steel was guilty of the economic "oppression" that earlier had justified its demand to break up Standard Oil. The practices of this giant corporation certainly were intensely economic, but they were not uncivil 177 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE T The Civil Force of Law in terms of the narrow, but justifiable, expectations of economic life. "The business conduct of the Steel Corporation," the Court declared, "has been fair":, it had, in fact, been "conspicuously free" from the kind of "brutality, meanness, and unfairness" that often did characterize business life. Because it was free from such anticivil pollution, it was legally without guilt. "We can rest assured," the Supreme Court declared, "that there has been neither monopoly nor restraint."11,7 Individuality As the effort to balance due care for others with reasonableness indicates, the solidarity that democratic law seeks to establish rests upon the hypothesized existence of idealized actors. Legal agents are imagined to have a natural capacity for autonomy, for the differentiating individuality that specifies solidarity in a democratic, civil way. Despite Lon Fullers professed proceduralism, his jurisprudential writing paid close attention to such an imagined structure of feeling, acknowledging that democratic law "cannot be neutral in its view of man himself." Democratic law needed to rest on beliefs in the civil qualities of actors; it centered, in fact, on motives, on cultural assumptions about agency, understanding, and responsibility: "To embark on the enterprise of subjecting human conduct to the governance of rules involves of necessity a commitment to the view that man is, or can become, a responsible agent, capable of understanding and following rules, and answerable for his defaults.""* Fuller compiled a list of procedural guarantees underlying a democratic legal order. Democratic law is sustained by institutional procedures such as publicity, regularity, generality, clarity, antiretroactivity, and plausibility— not, in his view, by the commitment to substantive ideals and beliefs as such. In fact, these procedures center on an ideal of collective fairness, one that ensures a certain level of acting in solidarity with others. Without this solidarity, the actor's belief in herself as an autonomous, civil individual cannot be sustained. "Every departure from these principles," Fuller writes, would be "an affront to man's dignity as a responsible agent." Maintaining procedural fairness, on other words, is triggered by the need to keep civil values from being polluted. To seek to regulate an individual's actions by "unpublished or retrospective laws, or to order him to do an act that is impossible," Fuller suggests, would be to "convey to him your indifference ! to his powers of self-determination."1"" ; This democratic ideal of self-determination, so critical to civil solidarity, ■ presupposes that individual actors are responsible for their actions. The law ; i can demand responsibility only because it assumes that actors are in full i possession of such civil faculties as rationality, sanity, and self-control. This regulating legal ideal is such that if persons are found to have acted in an i anticivil manner, to have done harm to others, the law can legitimately punish them; it is hoped, of course, that the very threat will deter rational actors from doing so. If actors are judged not to possess the capacity for self-control, however, they cannot be held responsible for undermining civil solidarity in the legal sense. Intention is the key. The law is a system of -I-.--] moral regulation that discursively constructs autonomy, punishes actors so i constructed if they deviate too sharply from this ideal, and allows an escape i valve if they seem not to be capable of autonomy at all.110 This is not to say that the law is unconcerned with harmful action, that i is, with the actual threat to solidarity in and of itself. Civil, as compared i with criminal, law often stipulates monetary rewards and punishments that aim to prevent harm, and to make up for it, whether there was intention or not. In terms of criminal responsibility, however, motives are of primary ■■ ■.' concern. In an influential Harvard Law Review article in 1893, Oliver Wendell ■;■ i Holmes differentiated the specifically "malevolent motive for action," stress- ing that legal liability depends more on motive than on whether or not an action creates harm in a purely objective sense: "A man is not liable for a ' very manifest danger unless he actually intends to do the harm complained __of."m A century later, Reva Siegel, a feminist legal critic, offers the same Zr'l kind of distinction in regard to rape. "Many of the acts which law regulates," -i Siegel insists, "do not exist apart from the language that defines them.""2 The language she has in mind can only be the discourse of civil society. In a civil society, social relations must be consensual, and it is the application of this cultural ideal that separates innocent actions of passion from sexual ■■' crimes. "The physical act of sexual penetration," Siegel writes, "is a rape only ;■■< in circumstances where there is no 'consent.'' " Indeed, it is only the attri- bution of reason that allows courts to decide whether sexual acts are con-: sensual or constitute rape. "As we attempt to determine whether A has 17S 179 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE injured B, we sometimes ask whether A reasonably believes that B 'consented,' or, in other circumstances, what A 'intended' to do to B, or, in yet other circumstances, whether A proximately 'caused' B's predicament.""3 As Siegel's very contemporary discussion suggests, for culpability to be established in democratic law, cause is a matter of attributed intention. In deciding responsibility for harm, democratic law seeks to establish whether an action was voluntary. What decides cause is not determinism in the physical sense, but action in relation to a meaningful frame. At stake are civil relationships, the relations among persons that are sustained by civil motives and that create democratic institutions. As Hart and Honore point out in their treatise, Causation in Law, whether a person is the cause of injury in the purely material sense is not of specifically legal concern. That is a matter for physics, not for the laws that sustain civil morality; it is what philosophers of science concern themselves with, as did John Stuart Mill in System of Logic. Physical causation concerns factors that form the necessary and sufficient "conditions" for the occurrence of a natural or behavioral event. By contrast, as Hart and Honore put it, the law "distinguishes causes from mere conditions.""4 In a civil society, legal cause must attribute some part of physical responsibility to human agency: "After it is clearly understood how some harm happened, the courts have, because of the form of legal rules, to determine whether such harm can be attributed to the defendant's action, [and thus] whether he can properly be said to have caused it."'15 We are only in a position to say that he has caused harm, when we have decided that he is responsible. . . . The expression "responsible for" does not refer to a factual connexion between the person held responsible and the harm but simply to his liability under the rules to be blamed, punished, or made to pay"f' Legal cause indicates a breakdown in civil relations that can be attributed to a deficit in civil motives. What is critical, as Hart and Honore write, is "the notion of a person's reason for acting."117 Attributing reason means assessing the degree of self-control and autonomy. Courts apply a criterion known as the standard of "the reasonable man.""8 Only if an actor has the capacity for reason can his anticivil action be considered voluntary, and only if it is voluntary can he be punished. 180 The Civil Force of Law Someone may discharge a gun by an involuntary movement or pull the trigger in the mistaken belief that it is not loaded; if another person's death is the upshot, these actions of a non-voluntary character are the explanation of the disaster and the cause of it. Such cases, although involving human action, fall under the principles for distinguishing causes from mere conditions."" Extenuating circumstance in a legal sense refers to civil incapacity in a moral sense. In their overview of "the various circumstances which will prevent conduct being consider voluntary," Hart and Honore point to "lack of control, lack of knowledge . . . pressure exerted by others ... a physical movement imparted to the actor's body against his will by some other person or thing"—all circumstances indicating some variation of antidemocratic coercion. There are also constrictions of a more complex and mediated kind, for example, an apparently free choice might actually be "made under pressure from the prior wrongful act, or is not a fair choice because the alternative is serious harm, or may be said not to be a 'real' choice because the alternative is neglecting a duty."120 Legal authorities will exculpate a person responsible for harm in a physical sense if she is judged to have been incapable of civility when committing it. Such civil incompetence can occur by virtue of emotional, mental, or physiological impairment. If an actor is motivated by an "uncontrollable impulse," or is in a condition of "delirium or frenzy," or in "a depression caused by insanity," or even suffering from "acute anxiety neurosis," courts have often decided that they cannot be punished, on the grounds that their harmful actors were committed "without a full appreciation of the circumstances."121 Once again, an idealized principle of individual autonomy is at the core of the evaluation. One necessary condition of the just application of a punishment is normally expressed by saying that the agent "could have helped" doing what he did, and hence the need to inquire into the "inner facts" is dictated not by the moral principle that only the doing of an immoral actor may be legally punished, but by the moral principle that no one should be punished who could not help doing what he did.122 181 STRUCTURES AND DYNAMICS OI' THE CIVIL SPHERE The Civil Force of Law While such qualifications typically refer to mediating conditions, particular categories of person can be exempted from punishment in the same way. For example, because "the acts of young children are often unreflcctive or misinformed," Hart and Honore suggest, their actions are more resistant to blameworthiness. By contrast, because he is "capable of appreciating what he is doing," an older person may well be held accountable in a legal sense. Thus when a boy picked up an incendiary bomb and took it home and later took it to a public thoroughfare and tampered with it, with the result that it exploded and injured a schoolgirl, her injury was held to be caused by the impact of the bomb [and not by the child's action]. But when the defendant left his shotgun in an accessible position in the garage and his thirteen-year-old son fetched it, loaded it, and injured plaintiff's son, this was held a "conscious act of volition" which negatived [sic] causal connection between defendants alleged negligence and the harm.1-1 To the degree that societies are democratic, the various elements that compose the criminal justice system, from courts and evidentiary rules to policing and places of punishment, are held to similar demands for sustaining civil motives and relations. Idealized as the democratic public in miniature, for example, juries are expected to embody the virtues of the civil sphere. According to the old proverb, they are composed of "nine men brave and true." In their selection and subsequent performance, jury members must exhibit civility. "As a representative institution," Gewirtz writes, the jury's members "are screened and are expected to conform to distinctive and circumscribed role behavior," and "only appropriately unbiased people are supposed to serve on juries and to judge."1-4 During a trial, witnesses must take an oath to tell "the whole truth and nothing but the truth," and their honesty and rationality are open to continuous challenge. "When we assert that one person acted as he did because of another's threats," Hart and Honore write, "our point is that this was his conscious reason." If this motive were doubted, an "honest account" on the defendant's part "would setde the question of its truth or falsity."125 In his discussion of criminal trials. Fuller points to the performative, symbolic quality of honesty and propriety. "The required intent is so little susceptible of definite proof or disproof," he observes, "that the trier of fact is almost inevitably driven to asking, 'Does 182 he look like the kind who would stick by the rules or one who would cheat on them when he saw a chance?' "I2'' In Miranda v. Arizona in 19(16, the U.S. Supreme Court introduced a far-reaching reconstruction of policing procedures. This reform had profound organizational, material, and human consequences for the criminal justice system. It was set in motion by a new interpretation, in which the Court majority supplied new social referents, or signifieds, for key terms in the discourse of civil society. The question was how the words '"voluntary" and "free" related to confessions in which an accused person incriminated himself. The goal, according to Chief Justice Earl Warren, was to avoid anticivil repression, to "enable the defendant under otherwise compelling circumstances to tell his story without fear."127 In declaring unconstitutional existing police methods, Warren polluted them by analogizing them with beatings, hangings, whippings, and prolonged incommunicado interrogations, the kinds of despotic methods employed to extort confessions in antidemocratic societies. Acknowledging that such physical brutality had largely given way to psychological coercion, the chief justice cited Blackburn v. Alabama (i960) to the effect that "the blood of the accused is not the only hallmark of an unconstitutional inquisition." In Warrens view, as long as police interrogations continued to be held in secrecy—a prime characteristic of anticivil relations—they would continue to spawn fears that acts of anticivil repression have taken place. Interrogation still takes place in privacy Privacy results in secrecy and this in turn results in a gap in our knowledge as to what in fact goes on in. the interrogation rooms. While such secrecy precluded the justices from having direct evidence about actual interrogations, the chief justice drew accounts from descriptions available in the most widely read police interrogation manuals. From his reading of these manuals, he suggested that contemporary confessions were often still gained by illicit, anticivil methods. Police aimed at creating "an oppressive atmosphere" and gave the accused a sense that there would be "no respite from the atmosphere of domination." In a later case that elaborated Miranda rights, when Justice Sandra Day O'Connor voted to strike out a defendant's testimony, she declared that, to be acceptable, a confession must be the "product of a free and rational will."12" 183 STRUCTURES AND DYNAMICS OY- THE CIVIL SPHERE Even chose justices opposed to such restrictions on police methods felt compelled to acknowledge that evidence would be tainted if it were obtained in a coercive, anticivil way. In his Miranda dissent, Justice John Harlan argued that the very exigencies of policing inevitably blurred the distinction between methods that rely on liberty and those that evoke repression. "Open and fair as they may be," he argued, "the atmosphere and questioning techniques" of interrogation "can in themselves exert a tug on the suspect to confess."1^ In this light, he suggested, quoting Justice Robert Jackson's early dissent in Ashcraft v, Tennessee (1944), that "to speak of any confessions of crime made after arrest as being 'voluntary' or 'uncoerced' is somewhat inaccurate." For this reason, he implied, no standard of absolute voluntariness could hold.'-111 In his 1997 dissent in Brewer v. Williams, a follow-up to Miranda that struck down a later confession on similar grounds, Justice Byron White objected on the grounds that rationality extended further than the Court majority thought. "Men usually intend to do what they do," White asserted, and there is nothing in the record to support the proposition that respondents decision to talk was anything but an exercise of his own free will."131 Legalizing Social Exclusion: The Antidemocratic Face of Law Law addresses the positive ideals of civil society more by implication than by evocation. Rather than pumping up ideals, it concerns itself with demarcating anticivil behavior. The enactment and publication of a legal code crystallizes and threatens anticivil motives, relations, and institutions; its enforcement punishes and stigmatizes them. All of this underscores the binary nature of civil society, the manner in which the civil sphere is simultaneously concerned with inclusion and exclusion, how its regulatory institutions aim to enforce both at one and the same time. To be judged as guilty of illegal behavior and punished is often accompanied by the declaration that the guilty party has acted in a manner that is outside the law. Yet the very application of a guilty verdict actually suggests just the opposite. The activity so stigmatized is very much inside the law once we understand the latter as imbedded in a binary code. The formal and substantive civility that law stipulates in its positive discourse is continually flouted. To the degree society- is democratic, law is 184 The Civil Force of Law an institution of civil regulation. Rather than direct state control, it represents the potential for separating knowledge from power. This means that, in a democratic society, the relation between legal norms and social facts— between the law's signifiers and signifieds—is a matter for civil interpretation. It is not a matter of scientific determination or of simple assertion by the state. Only after being interpreted inside the civil sphere can law be forcefully applied. This is where the flouting comes in. Kenneth Karst has written, for example, that the Fourteen Amendment to the American Constitution has created a "principle of equal citizenship" guaranteeing "the right to be treated by the organized society as a respected, responsible participating member," a principle that forbids "the organized society to treat an individual either as a member of an inferior or dependent caste or as a nonparticipant." However, as William Forbath explains, in the decades that immediately followed passage of this post-Civil War amendment, "the language and institutions of the law confirmed the unfree and subjugated character of wage labor," such that "the common law of employment bore many of the 'marks of social caste.' "L12 Blatant efforts to undermine the legal capacity for civil regulation are endemic in differentiated and stratified societies. Those who have achieved high positions in one or another noncivil sphere, or inside the institutions of civil society itself, can use their disproportionate control of wealth, knowledge, power, race, sex, or salvation to threaten or bribe lawyers, judges, or juries. In an adversarial system, because the talent and resources of legal representation are as critical as they are contingent, representation offers another entryway for manipulation. Such "external" evasions of legal accountability threaten democracy. In such situations, as David Kairys puts it, "law is simply politics by other means."1" The Critical Legal Studies movement, which flourished in the 1970s and 1980s, was particularly sensitive to the manner in which the law became simply another means. Their scholarly critiques of actually existing law were so one-sided, however, that they barely recognized the possibilities for civil repair, much less the realities of its partial institutionalization. Roberto Unger denied the relative autonomy of law altogether, suggesting that it consisted simply in the "reaffirmation of social division and hierarchy" without any relation to "the ideal aim of the system or rights."13*1 During these same decades, external evasion was also the favored topic of legal sociology, which in its American form developed from legal realism and became associated with the anticultural approach 1S5 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE of conflict theory. As a pioneer in the held, Richard Schwartz, attested twenty-five years ago, "in turning to legal phenomena, social scientists have been quick to point out the discrepancies between the idealized model of law and the reality of its operation." Schwartz went on to observe that "instead of reflecting a general value consensus, law often implements the value preferences of small groups who are either strategically placed within the system or able to bring power to bear from without."13" In the "external" evasion of democratic law, the interests of the wealthy and powerful are barely camouflaged. In the "internal" evasion, the veneer of legality is maintained, but substantively it is stripped away. In this way. the internal evasion of law is more insidious, for it constitutes not merely politics by another means. The nesting of democratic law inside civil society's binary discourse sets the stage for its internal evisceration. The ideal and material hierarchies that sustain noncivil domains project themselves across the boundary of the civil society, and anticivil domination becomes justified by ascriptions of competence and incompetence inside the civil sphere itself. In this manner, the discourse of civil society justifies the pragmatics of domination without compromising the law's semantic integrity. "The power exerted by a legal regime," Robert Gordon writes, "consists less in the force that it can bring to bear against violators of its rules than in its capacity to persuade people that the world described in its images and categories is the only attainable world in which a sane person would want to live."1-10 Under conditions such as economic exploitation, patriarchy, and racial apartheid, die rule of law often seems to be sustained. Like cases can continue to be treated alike, and the principle of respecting voluntary behavior can be scrupulously maintained. What is critical is that the capacities of legal persons are defined asymmetrically. When the ability to be autonomous and rational is attributed unevenly, to apply legal rules consistendy inhibits, rather than promotes, real fairness and actual reciprocity in civil life. Anticivil domination is covered with the patina of legality. If the social process here is a subde one, the cultural reasoning is circular in a brutal way. Solidarity can be extended, and judicial impartiality maintained, only insofar as parties subject to law are considered full members of the civil community. If judge or jury sees subjects of regulation as less than fully human, they can construe their actions as displaying anticivil qualities and judge them guilty as a result. Hart speaks, for example, about how legal discrimination is often defended "by the assertion that the class discriminated The Civil Force of Law against lack, or have not yet developed, certain essential human attributes."Ll" For centuries, the anticivil subjugation of women and nonwhites was justified on the grounds that "women or coloured people lack the white male s capacity for rationale thought and decision."'-™ Hart draws from the fictional representations of communicative institutions to elaborate this distortion of the regulative sphere. Huckleberry Finn, when asked if the explosion of a steamboat boiler had hurt anyone, replied, "no'm: killed a nigger." Aunt Sally's comment "well its lucky because sometimes people do get hurt" sums up a whole morality which has often prevailed among men. Where it does prevail, as Huck found to his cost, to extend to slaves the concern for others which is natural between members of the dominant group may well be looked on as a grave moral offence, bringing with it the sequelae [sic] of moral guilt.13" Where the external approach to legal evasion posits hypocrisy or material interest, the internal approach looks to the limits of socially situated human understanding. The judicial attribution of civil motives and relations cannot extend beyond a lawmaker's empathy, and in a stratified and segmented society such capacity for interpretive understanding is often sharply curtailed. In the early twentieth century, when the British Lord Justice Scrutton acknowledged that "impartiality is rather difficult to attain," he clarified that he was "not speaking of conscious impartiality" but rather about "the habits you are trained in, the people with whom you mix." This differential social mixing, he remarked, leads to "your having a certain class of ideas" which are of such a nature that "when you have to deal with other ideas, you do not give as sound and accurate judgments as you would wish."110 If the judges whose rulings articulate the relationship between law and economic society are recruited from or into the upper classes, their ability to apply principles of reciprocity may be undermined by their inability to experience solidarity with members of the lower class, a difficulty in seeing and understanding them as fellow civil beings. In the first century of industrial capitalism, judges applied laws about contract and free association in a grossly uneven manner, effectively restricting substantive economic freedom to the upper classes. They accepted the legality of economic cooperation among early industrialists while polluting the "combinations" among im- 186 STI1UCTURES AND DYNAMICS OI: THE CIVIL SPHERE The Ci\-il Force of Law poverished workers, allowing capitalists free rein while condemning nascent trade unions as "conspiracies" subject to the force of civil and often criminal law.14' Indeed, in his reflections on impartiality, Lord Scrutton was, in fact, thinking specifically of labor disputes: "It is very difficult sometimes to be sure that you have put yourself into a thoroughly impartial position between the two disputants, one of your own class, and one not ofyour own class."142 Rather than direcdy, domination more often distorts legal ideals indirectly, via a process that passes through communicative institutions. The apartheid-like regime ofjim Crow legalized the exclusion of African Americans from the social spheres of Southern white society. It did not ensue, however, immediately upon the withdrawal of Northern troops from the American South, when Reconstruction was rescinded in 1876. Rather, the legal repression emerged gradually over the subsequent two decades, preceded and accompanied by shifts in Northern public opinion. The democratic sentiments of abolitionism, which had been enlarged by the Civil War, were waning, and openly racist sentiments were increasingly being expressed north of the Mason-Dixon line. "It was quite common in the eighties and nineties," C. Vann Woodward writes, "to find in the Nation, Harper's Weekly, the North American Review, or the Atlantic Monthly Northern liberals and former abolitionists mouthing the shibboleths of white supremacy regarding the negro's innate inferiority, shiftlessness, and hopeless unfitness for full participation in the white man's civilization."143 When the law formalizes anticivil constructions, members of polluted social categories—whether determined by class, race, religion, gender, nationality, or sexuality—can more effectively be excluded from membership in civil society. In 1S9S, the U.S. Supreme Court upheld the taxes and literacy tests that excluded African Americans from the political process, "serenely reasoning that such new regulations measured merit, not race."144 By reason of its previous condition of servitude and dependencies, this race had acquired or accentuated certain peculiarities of habit, of temperament, and of character, which clearly distinguished it as a race from the whites; a patient, docile people; but careless, landless, migratory within narrow limits, without forethought, and its criminal members given to furtive offences, rather than the robust crimes of the whites. Restrained by the federal constitution from discriminating against the negro race, the [plaintiff] discriminates against its char- 1S8 acteristics, and the offences to which its criminal members are prone.145 Though the rule of law continues, the equality it formally guarantees actually enforces substantive inequality. The interpretation of civil dignity, and thus the power to punish, is distributed in an asymmetrical way. This paradox was first illuminated by the legal effects of stratification in the very society that initiated political democracy, the city of Athens in ancient Greece. Because Athenian law classified residents into the dichotonious categories of citizen and barbanan, differential treatment of victim and wrongdoer often became essential for justice to be "fairly" applied. The moral code might forbid Barbarians to assault Greeks but allow Greeks to assault Barbarians. In such cases a Barbarian may be thought morally bound to compensate a Greek for injuries done though entitled to no compensation himself. The moral order here would be one of inequality in which victim and wrongdoer were treated differently [and] repellent though it may be to us, the law would be just only if it reflected this difference.1""' The importance of the internal meaning reference for those who create legal exclusion is not shared by the excluded. For members of legally subjugated groups, there is no civil society, and the distinction between persuasion and coercion breaks down. The internal, moral reference of the law disappears, and the legal code seems to represent merely the external, coercive power of class, caste, or state. When the law is "used to subdue," Hart explains, its effect is to "maintain in a position of permanent inferiority a subject group." In such a situation, "for those thus oppressed there may be nothing in the system to command their loyalty but only things to fear."'-17 For dominated subjects, laws lose their subjective status, becoming standards that "have to be imposed by force or threat of force."1414 It is hardly surprising that the subjugated often adopt a purely instrumental relation to the law in turn.14'' Morally speaking, they may be justified in doing so; in political terms, however, such actions can have negative effects. In their alienation from civil law, subjugated groups may feel compelled or even entitled to engage in anticivil behavior in order to protect their material and cultural interests or to create the future possibility for their 189 STBUCTliltilS AND DYNAMICS OF THE CIVIL SPHERE civil inclusion. Legalized social exclusion can compell dominated subjects to engage in aggressive, illegal, and sometimes even violent social actions, with the aim of injuring or destroying members of the dominant group. Such actions are formally anticivil, and they are liable to legal prosecution, but they can also be a tool for reversing the polluting legal categories that have emerged from the distortions of civil society7 and are imposed by the state. Whether such anticivil actions can be socially productive depends on their interpretation by communicative institutions, on whether the illegal activities of the dominated group are sympathetically constructed as protests and successfully engage public opinion. When such engagement produces a subjective restructuring of collective consciousness, illegal protest actions can change voting behavior, alter the composition of state officials, and eventually change the polluting interpretations of overarching laws. We will examine this complex process of democratic change in Part III when we explore the effects of nonviolent civil disobedience in the African American movement for civil rights. In the intensely partisan struggles that mark civil life in complex democratic societies, interpreters of the legal order, intellectuals and practitioners alike, frequently argue that civil society's basic law, the Constitution, supports their own political side. The progressive legal scholar Cass Sunstein, for example, has suggested that the Constitution supports government intervention in economic life. Because "the American constitutional regime is built on hostility to measures that impose burdens or grant benefits merely because of the political power of private groups," Sunstein argues, "some public value is required for governmental action."15" But constitutions supply only general principles. They must be applied in practice, and the interpretation of their intent will change with the times. In the midst of the Great Depression, in 1933, Franklin Delano Roosevelt was elected president of the United States. The regulatory institutions of voting and office were, with his election, effectively responding to an economic crisis that cried out for political change. For five long years, however, another regulative institution of the civil sphere, the Supreme Court, did everything possible to block such change. The Courts majority interpreted government policies supporting working-class organization and protest as promoting anticivil coercion, citing the "commerce clause" that forbade economic interference. This legal blockade shifted only after FDR was elected to a second term. The people had now spoken twice, and public The Civil Force ot Law-opinion was becoming increasinglv sympathetic to labor's plight. In 1937. the Supreme Court abruptly declared that the commerce clause actually did allow the federal government to intervene in the nation's economic life. Officeholders, whether or not thev were directly elected, need eventually to be responsive to the source of civil power from which their right to regulation derives. After the conclusion of this great period of social change, Robert L. Stern, a longtime member of President Roosevelt's Justice Department, reflected on the reasons for the Supreme Court's momentous interpretive shift. If there had been "no change in the membership of the Court," Stern asks, "what had induced Mr. Justice Roberts to switch his vote, after his opinion . . . emphasizing the limitations imposed by the Tenth Amendment upon control of production?" And "what of the Chief Justice, who had joined [Roberts] and . . . nullified the labor relations provisions of the Coal Act?" Stern insists that "the difference in results between the decisions in 1936 and those in 1937" cannot be attributed "to anything inherent in the cases themselves—their facts, the arguments presented, or the authorities cited." What had changed was public opinion, the sea within which every institution of civil society must swim. With evident sarcasm, Stern suggests "perhaps the series of violent strikes had educated Mr. justice Roberts as to the close relationship between labor relations and interstate commerce." More likely, shifts in the public s opinion threatened the Court's civil power, which depended, in the end, on influence and public belief. Civil legitimation was at stake. The consensus among the lawyers speculating on the Court's sudden reversal was that the Chief Justice and Mr. Justice Roberts believed that the continued nullification of the legislative program demanded by the people and their representatives—as manifested in the 1936 election—would . . . seriously undermine the independence and prestige of the federal judiciary . . . without preventing the President from attaining his objective."151 Legal interpretations by judges are one way of crystallizing changes in civil regulation. Voting and new interpretations of office responsibilities are others. These institutions are not necessarily in friendly relation; rather than cooperating, they often conflict. They must also be responsive to the inter- 190 191 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE pretive reconstructions broadcast by communicative institutions, w! ' 1 themselves stimulate and reflect the public's opinion in an uneven, f mented, and continuously shifting way. These complexities and contim cies in the structures and dynamics of the civil sphere are exacerbated by rh<> open-ended nature of its boundary relations. The civil sphere does not exi^c in splendid isolation. It is instantiated in a social world that is often distin unfriendly. It is bounded by spheres whose elites can be antagonistic, wl standards of justice seem inimical, and whose goods are sometimes corro1"--1 and encroaching. It is to the systematic consideration of these contradict of the civil sphere that we now turn. We also will consider how destruc intrusions are subject to civil repair. CHAPTER 8 Contradictions: Uncivilizing Pressures and Civil Repair My coal in the discussion thus far has been to give flesh and blood to civil society, a skeletal concept that has hung in the closet of social theory for centuries but has never been considered in a sufficiently complex and empirical way. Theories of modernization, development, and rationalization have assumed that structures of solidarity .ire broadened in the course of social development, as offshoots of other, \ more visible, and more familiar structural processes such as urbanization, idustrialization, socialization, bureaucratization, and secularization. I have ' insisted, to the contrary, that the construction of a wider and more inclusive ihere of solidarity must be studied in itself. From the beginning of its Dpearance in human societies, civil society has been organized, insofar as it as been organized at all, around its own particular cultural codes. It has een able to broadcast its idealized image of social relationships because it as been structured by certain kinds of communicative institutions, and epartures from these relationships have been sanctioned and rewarded in lore "realistic" terms by institutions of a regulatory kind. In these discussions of civil culture and institutions, I have walked a elicate line. I have wished, on the one hand, to stress their analytical .idependence. They must be considered in themselves, as structures in their own right. Their status cannot simply be read off the condition of the spheres 192 193 STRUCTURES AND DYNAMICS OI: THE CIVIL SPHERE that surround civil society; they are not dependent variables. At the same time, 1 have stressed that, in a concrete sense, these internal modes of organization are always deeply interpenetrated with the rest of society.' At every point they are connected to activities in other spheres. They can reach out beyond the borders of civil society to set standards and create images in the noucivil realms. Conversely, what happens in these other spheres, what is possible and what not, fundamentally affects the structure and operation of the culture and institutions of civil society in turn. The tension between the internal and external references of civil society is not merely a theoretical issue but is a central empirical and ideological concern. To the degree that civil society gains autonomy from others spheres, its solidarity can define social relationships in a more consistently univcrsalistic way. The binary structure of the discourse of civil society suggests, however, that even in the most ideal circumstances, this universalism will never be fully achieved. Social reality is far from ideal. The autonomy of civil society is continually compromised and consistently reduced. Noncivil cultural and institutional exigencies permeate civil society, and the discourse of repression is applied far and wide. The world of the "we" becomes narrowed; the world of the "they" becomes larger and assumes multifarious forms. It is not only groups outside of the nation-state that are disqualified from gaining entrance to civil ;j society, but many groups inside it as well. It is to a systematic model of these boundary processes that our discussion! now turns. In this task, what 1 have called the idealistic approach to civility and the public sphere will not be of much help. Critical republican thinkers, have often embraced the utopianism of civil solidarity not only as a regulatings idea, or norm, but as a possible representation of society itself. They have \ suggested the possibility of creating a social system that is thoroughly civil, | solidaristic, altruistic, and inclusive, a society that is, whether in fact or in.. principle, homologous with the civil sphere itself Writers in this tradition^ pollute the economic marketplace as a world of necessity, one from which, normative ideas of reciprocity are excluded tout court. They reject the political s world as merely bureaucratic and instrumental, as resting always and every-where on domination alone. The economic and political worlds are conceived as "systems," as inherently uncivil, as colonizers ot the lifeworldan \ destroyers of solidarity, which is doomed because it is vulnerable to sphere* of a stronger, more material kind. In some versions of this approach, religio. is also conceived as a dominating sphere, for it grounds understanding hi Uncivilizing Pressures and Civil Repair closed manner that contradicts the open-ended and imiversalistic dialogue that marks civil understanding.- These approaches are wrong not because they make forceful criticisms of the noncivil spheres. Indeed. T will make generous use of such criticisms in the discussion below. Such approaches err, racher, because they ignore the necessity for functional differentiation and complexity, both in an institutional sense and in a moral one. The more developed the society, the more there emerge different kinds of institutional spheres and discourses. To be sure, the "complete" realization of civil society is restricted by these spheres; at the same time, however, the civil sphere must enter into institutional and moral interchanges with these worlds precisely because thev are composed of substances of a very different kind. This intcrpenetration cuts both ways: civil society can colonize these other spheres, not just be colonized bv them.s To avoid the idealistic fallacy, we must recognize that civil society is always nested in the practical worlds of the uncivil spheres, and we must study the compromises and fragmentations, the "real" rather than merely the idealized civil society that results."1 Civil society is instantiated in the real because social systems exist in real space, because they have been constructed in real time, and because they must perform "functions" that go beyond the construction of solidarity itself- Instantiation makes practical but also reduces the ideal of equal and free participation. It compromises and fragments the potentially civil sphere by attaching status to primordial qualities that have nothing to do with one's status in civil society as such. Primordiality is essentializing. It attributes qualities to persons by virtue of their membership in a particular group, one that is thought to be based on unique qualities which outsiders can, by definition, never hope to attain.5 Such primordial qualities can be analogized to physical attributes like race and blood; yet almost any social attribute can assume such an essentializing position, be it language, race, national origins, religion, class, intelligence, sexuality, gender, and region. In different times and in different places, actors have become convinced that only those possessing certain versions of these qualities have what it takes to become members of civil society. They have believed that individuals and groups who do not possess these essentials must be uncivilized and cannot be included. The truth, of course, is that the very introduction afparticularistic criteria is uncivil. Civil primordiality is a contradiction in terms. ]'J5 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE Uncivilizing Pressures and Civil Repair Space: The Geography of Civil Society Civil society is often idealized by philosophers and by lay members all!--* a nniversalistic and abstract space, an open world without limits, an endless horizon. In fact, however, territory is basic to any real existing society. Territory converts the space of civil society into a particular place. Indeed., civil society can become unique and meaningful only as a particular place. It is not just some place, or any place, but our place, a "center," a place chat is different from places outside this territory/' Attachment to this centra] place becomes essentialized. As it becomes a primordial quality, territory divides; it becomes articulated with the binary discourse of civil society. The capacity for libertv becomes limited to those who have their feet on the sacred land, and the institutions and interaction of civil society become distorted and segmented in turn. Nationalism can be conceived, in this sense, as the socialization of a space that is demarcated by the territorial limits of states. European civility-had always been circumscribed by centers, of course, but before the sixteenth century these primordial territories were conceived more locally, as vill;"*"; cities, regions, or simply as the physical areas inhabited by extended kinship networks and tribes.7 In the Renaissance, however, territory began to be viewed nationally. Attachment to place meant connection to the land of the nation. It is important to see that this geographical bifurcation was held to. be true no matter how the national territory was defined, whether as a national community of language and blood, as in the German case, or an abstract universal community of ideas, as in post-revolutionary France.5 matter how defined, only members of this nation were seen as capable of reason, honesty, openness, and civility; members of others nations were not., Membership in other national territories seemed to generate dishonesty, distrust, and secrecy. It made for "natural" enemies. This essentializing restriction on universalism has had extraordinary con-; sequences for the real history of civil societies. One consequence has been the continuous intertwining of real civil societies with war, the ultimate: expression of relationships of an uncivil kind. Kant believed that democracies would never make war on other democracies; he suggested that the qualities of universalism and reason that characterize such societies would incline them to dialogue rather than force, making it difficult to stereotype and. brutalize citizens on the other side." But the democratic quality of other 19a nations is always something very much open to debate, and the territorial bifurcation of civil charisma makes the civility of others much more difficult to discern. This explains why, throughout the history of civil societies, war has been a sacred obligation; to wage war against members of other territories has been simultaneously a national and a civilizing task. Ancient Athens, the first real if limited democracy, whose polls formed the model for every subsequent civil sphere, waged continuous war against its neighboring city-states, fighting against the barbarism that foreign territory implied. For the Italian citv-states, military glory was a central virtue, and their publics defended and extended their civil societies by waging war against foreign vet equally civil communities. The imperial expansion of northern European nations from the sixteenth through the nineteenth cencuries certainly had economic and geopolitical motives; but it was inspired, as well, by the urgent need to civilize those who were enemies of civilization because they were not fortunate enough to be nurtured in the same part of the earth as they.1" It is the great "imperial republics," as Raymond Aron called them, that demonstrate this territorial bifurcation of civility in the most striking way." When the English and French fought against each other from the sixteenth through the nineteenth centuries, they were societies that fundamentally resembled each other, each considering itself to possess a fundamentally civil, if not democratic dimension of social life. Yet elites and common people alike were in each nation convinced that it was only their national territories that allowed them to breathe tree. Napoleonic France conceived its conquests as wars of forced national liberation, placing into the same polluted categories the "enslaved" citizens of nations as diverse as Egypt, Germany, Italy, and. potentially, England itself. Or consider the cencuries-long military history of the democratic United States, whose every war has been fought as a ritual sacrifice so that the oppressed of other countries may be Americanized and free. This is not to say that many of these wars have not, in fact, been exercises in self-defense or democratic liberation. It is to suggest, however, that the connection between national territory and the binary discourse of civil societies has been striking, and that it has inspired atrocious and punitive warsJ- The nationalist understanding of civility, moreover, has also had fragmenting consequences of an internal kind. It has allowed those who have been excluded from civil society to be constructed as "foreigners" and aligned with the territorial enemies of the nations against which wars are 197 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE wa^ed. Those who are excluded are often seen, in other words, not only as uncivil but as threatening national security. In the United States, this has taken the form of nativism, defined by John Higham as the "intense opposition to an internal minority on the grounds ofits foreign connection."13 In the course of U.S. history, virtually every immigrant group has been subject to such pejorative construction, from Indians to African Americans, from Catholic immigrants to Jews, from Germans in World Wir I to Japanese in World War II to Islamic and Middle Eastern immigrants today.1'1 And one could easily multiply examples from other national climes, of how French anti-Semitism turned Dreyfus into a German spy, of how German Nazism turned the Jewish "nation" into an emblem of the international capitalist conspiracy that purportedly threatened the independence of the German state. Such facts are well-known, but their theoretical implications have not been appreciated. The problem is not just that exaggerated fears of extremists and fundamentalists have so often threatened the tranquility of democratic life. It is an issue of a much more systemic kind.15 Because civil society is territorial and spatially fixed, it produces its own enemies. Even in the most civil of societies the discourse of liberty is bifurcated in a territorial manner. In making pollution primordial, this bifurcation makes repression more likely. This is why, in their quest for inclusion into the world of civil society, the excluded so often try to re-represent themselves as patriots. During the rise of German anti-Semitism in Weimar, Jewish organizations widely publicized the tact that tens of thousands of their compatriots had died for the kaiser. Throughout their long struggle for inclusion, champions of the African American community have pointed proudly to the fact that blacks have fought willingly in every major American war, beginning with the Revolution itself. According to T. H. Marshall,--^ was the patriotic participation of the British working class in World War II that created the cross-class solidarity that formed the basis for the postwar creation of the welfare state.1'' If nationalism restricts civility by delineating polluted space "outside" the nation, regionalism re-creates a similar if sometimes less violent restriction for space within and sometimes outside it. For it is not only nations that are centers, but very conspicuously cities and regions. Such intranational centers prirnordialize the discourse of liberty, constructing regional peripheries as lacking the charisma of national civility, as foreign territory inside the nation itself. City and country were for centuries pernicious distinctions, iy8 | Uncivilizing Pressures and Civil Repair ■! ;| of just this kind. The German burgher proverb, "the city air makes us free," *| was intended to be much more than a sociological observation about the J effects of legal rights. Throughout the history of European civil societies, •J peasants were likened to animals or, in the inimitable phrase of Karl Marx, | to "lumps of clay" Regional divisions such as North-South and East-West 4 have always and everywhere carried a surplus of meaning. There is talk of f "the American heartland" and hi France profondc. These regional partitions i have fragmented the civil society of nations, its culture, and its regulative : and communicative institutions. When they have overlapped with exclu- sions of other kinds—economic, ethnic, political, or religious—they have formed the basis for repressive closure movements, for the construction of ghettos, for brutal and aggressive exercises in forced incorporation, and for secessionist movements and for civil wars.17 This geographical dichotomizing of virtue has also, of course, taken transnational forms. For more than two millennia, the West has provided a primordial anchoring for civility, first in the Greek and then in the European imagination. In Orientalism, Edward Said ironically demonstrated how Islamic areas of North Africa and the Middle East became simultaneously "Eastern" and "other" to Europe's imperial powers, preparing and legitimating the grounds for colonial wars of liberation.1" For hundreds of years, "Europe" and "America" have each primordialized the other, positing democratic virtue in themselves, although since the War of 1812 this has not manifested itself in a war.1 space, and function are analytical distinctions, deciphering distinctive pat-f terns of restriction and opportunity in theoretical terms. In more concrete j terms—in terms of empirical institutions, groups, and processes—these three :;| dimensions are not separate even if they are separable. They are simultaneous :ii and overlapping. Polluting temporalities and geographies cannot fail to be-..? come articulated with the potentially uncivil inequalities generated by runes' tion. The institutional effects of functional processes become intertwined • with primordial questions about the capacities generated by race, language, t gender, sexuality, ethnicity, time of arrival, and territorial loyalties, often to the nation. This intertwining makes it even more likely that the reactions to these different kinds of conflicts—functional, spatial, and temporal—will be seen primarily as demands for inclusion into civil society as such, i As I have described them, the boundaries between civil and uncivil i spheres are objective in the sense that they may exist whether or not partic- ' ular actors perceive them as such. Yet although they are objective, they are I not necessarily understood as just or unjust. There are three ideal-typical i ways in which these boundaries can be conceived theoretically, and in which ,; they have been conceived historically: in terms of facilitating input, destruc- ■■■i tive intrusion, and civil repair. Activities and products from other spheres , can be experienced as seriously distorting civil society, threatening the very a\ possibility for an effective and democratic social life. Perceived in tins man-ner, they are feared as destructive intrusions in the face of which civil society STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE can make repairs, via communication, regulation, restructuring, and reform. Yet such interpenetration can also go the other way. The goods and social forms produced by other spheres can be conceived as promoting a more ample civil life. Conservative theorists and politicians and the elites in these noncivil spheres themselves are sensitive to, and are inclined to emphasize, how vital such noncivil "inputs" are to the creation of the good life.33 Indeed, they frequently argue for loosening controls over the production capacities of such spheres, so that the promotion of such inputs can be expanded. Those on the Left, by contrast, are much more inclined to emphasize the destructive intrusions that these interpenetrations entail and the repairs that must be made as a result. Neither side of this argument can be ignored in the effort to theorize civil society. That the econonric sphere facilitates the construction ot a civil society in important ways is a historical and sociological fact that cannot be denied. When an economy is structured by markets, this encourages behavior that is independent, rational, and self-controlled. It was for this reason that the early intellectuals of capitalism, from Montesquieu to Adam Smith, hailed market societies as a calm and civilizing antidote to the militaristic glories of aristocratic life.3"1 It is in part for this same reason that postcommunist societies have staked their emerging democracies on the construction of market societies in turn, whether or not in the neoliberal sense. Industrialization and postindustrialism have also frequently been understood in a positive vein. By creating an enormous supply of cheap and widely available material media, mass production has the potential to lessen invidious status markers that separated rich and poor in more restricted economies. It becomes increasingly possible for masses of people to express their individuality, their autonomy, and their equality through consumption and, in so doing, to partake of the common symbolic inheritance of cultural life. Facilitating inputs are produced from the production side as well. As Marx himself was among the first to point out, the complex forms of teamwork and cooperation demanded by productive enterprises can be considered forms of solidarity; persons learn to respect and trust their partners in the civil sphere only after they have learned to do so at work. Insofar as the economy is conceived as supplying the civil sphere with resources and capacities that promote independence, self-control, rationality, equality, self-realization, cooperation, and trust, the boundary relations between these two spheres is constructed as frictionless, and structural differ- UnciviHzing Pressures and Civil Repair entiation seems to produce integration and individuation in turn. It must be clear to all but the most diehard free marketers, however, that an indtis-trializing market economy also throws roadblocks in the way of the project of civil society. In the everyday language of social science, these blockages are expressed in terms of economic inequalities, class divisions, housing differentials, dual labor markets, poverty and unemployment. These facts become social problems, however, only when they are viewed as destructive intrusions into the civil realm, as economic criteria interfering with civil ones. The stratification of the kind and availability of economic products, both human and material, narrows and polarizes civil society. It provides a broad field for the discourse of repression, which pollutes and degrades economic failure. Yet, in empirical terms, there is no inherent relationship between failure to achieve distinction in the economic realm and failure to sustain expectations in civil society; indeed, to ensure a separation is the very point of constructing an independent civil realm. Still, precisely the opposite connection is continually made. If you are poor or lower class, you are often constructed as irrational, dependent, and lazy, both in the economy and in society as such.35 In this manner, the material asymmetry inherent in economic life becomes translated into projections about civil competence and incompetence. Inside of this translated social language, it becomes much more difficult for actors without economic achievement or wealth to communicate effectively in the civil sphere, to receive full respect from its regulatory institutions, and to interact with other, more economically advantaged people in a fully civil way. Of course, material power as such, power garnered only in the economic realm, can become an immediate and effective basis for making civil claims even without the benefit of translation. For example, though the professional!zation of journalism has tended to separate media ownership and the ongoing interpretation that constitutes news, ideologically ambitious capitalists occasionally buy newspapers and television enterprises and fundamentally alter these central communicative institutions in sometimes decisive ways, as the cases of Rupert Murdoch and Sylvio Berlesconi attest. Yet to the degree that the civil sphere exercises an independent force, economically underprivileged actors can be seen as having dual memberships. They are not just unsuccessful or dominated participants in the economy; they have the ability to make claims for respect and power on the 206 207 STRUCTURES AND DYNAMICS OF THE CIVIL SPHERE basis of their partially realized membership in the civil realm. On the basis of the universalizing solidarity that civil society implies, these subordinated economic actors believe that their claims can find a response. They broadcast appeals through the communicative institutions of civil society; organize social movements demandingjustice through its networks and public spaces; and create civil associations, such as trade unions, that demand fairness to employees. Sometimes they employ their space in civil society to confront economic institutions and elites directly, winning concessions in face-to-face negotiations. At other times, they make use of such regulatory institutions as parties, voting, and law to create civil power and to force the state to intervene in economic life on their behalf These efforts at repair frequently fail, but they have succeeded often enough to institutionalize a variegated and uneven set of worker rights. In this manner, civil criteria might be said to have entered directly into the capitalist economic sphere. Dangerous working conditions have often been prohibited; discrimination in labor markets has frequently been punished; arbitrary economic authority has sometimes been curtailed; unemployment and its most dehumanizing effects have been mitigated, sometimes to a significant degree; wealth itself has been periodically redistributed according to solidary criteria that are antithetical to those of a strictly economic kind. Each of the other noncivil spheres has also fundamentally undermined civil society in different rimes and different ways, especially as they have become intertwined with the segmentations created by time and space. Protestants, Catholics, Muslims, and Jews have been constructed as uncivil and barred from entering into civil life. For most of the history of civil societies, patriarchal power in the family transferred directly into the civil subordination of women. Scientific and professional status has empowered experts and excluded ordinary persons from full participation in vital civil discussions. Political oligarchies have relied on secrecy and manipulation to deprive citizens of information that vitally affects their collective life. The racial and ethnic structures of primordial communities have distorted civil society in terrible ways. As I suggested in chapter 2, in the course of Western history these intrusions have been so destructive that the social movements organized for repair, and the theorists who have articulated their demands, often came to believe that these blockages were intrinsic to civil society itself. Socialists have argued that civil society is essentially and irrevocably bourgeois, that, 20S 0 Uncivilizing Pressures and Civil Repair j» :IS long as there are markets and private property, participants in the economic * realm can never be treated in a respectful and egalitarian way. Some feminists 'f have argued that civil societies are inherently patriarchal, that the very idea of a civil society is impossible to realize so long as men are allowed to dominate women. Zionists have argued that European societies arc funda- y mentally anti-Semitic, and contemporary Islamicists have identified anti- | Islamic exclusion with the Western idea of democracy itself. Ethnic and T~ racial nationalists have claimed that racism is essential and that the civil realm f in white settler societies will always, and necessarily, exclude aboriginals and 1 i - -| nonwhites. | In response to these arguments, radical intellectuals, and many of their f followers as well, have chosen to exit rather than to exercise voice. They ,_| have demanded the construction of an entirely different kind of society, one ; in which the uncivil nature of the spheres that border civil society would j be fundamentally changed. Sometimes these revolutionary demands, and I the reactionary efforts to undercut them, have destroyed civil societies. To h the degree that national regimes have institutionalized some genuine auton- I omy for their civil realms, however, these critics have succeeded in creating f dramatic reforms. Revolutionary efforts usually have failed, but the claims I they lodged have often succeeded in expanding civil society in highly sig- \ nificant ways. The result, rather than exit, has been the incremental but real i integration of formerly excluded groups. This inclusion has not been com- i plete by any means, but it has been substantial nonetheless. To the degree that there is some institutionalization of civil society, * economic, political, and religious problems are not treated merely, or some-- J times not even primarily, as functional problems, that is, as problems that \ concern the institutional or cultural processes within a sphere, but rather as problems of "society." They are treated, both by those making the claims :; and by those on the receiving end, as deficits in civil society itself—forces | that threaten social cohesiveness, integrity, morality, and liberty. Inclusion i becomes an end in itself, not merely a means for this or that particular repair. 1 Conflicts over distribution and equality become, at the same time, struggles | for identity and social recognition, for repairing the fragmentation and dis- ~| tortion of civil life. .* It is to the theoretical elaboration of these dynamics, and to their detailed i empirical illustration, that we now turn. i SOCIAL MOVEMENTS IN THE CIVIL SPHERE CHAPTER 9 Social Movements as Civil Translations n part i of this book, I introduced "civil sphere" as a new topic for sociological analysis, a concept that can illuminate social solidarity as an independent topic in its own right and throw new light on its often tense boundary relations with other domains. In part II, I gave this abstract idea substantive life. I presented the binary discourses that simultaneously open up universaHstic solidarity as a possibility and restrict it as a fact, and I presented the institutions that specify these ideal possibilities, that organize them into one-time-onlyjudgments and sanctions that modulate and control the ongoing flow of social life. In concluding part II, I conceptualized the dynamic forces that bring these civfl structures to life. Civil societies are not perfect forms that float in some idealized time and space. There are only actually existing civil societies. Their discourses become instantiated in rime and in space, and they take on life inside of institutions that struggle with forces of a decidedly anticivil kind. These contradictions of time, space, and function put the structures of the civil sphere into motion. They establish its dynamics, both internally as symbolic and organizational efforts at self-regulation, and externally as efforts to control its boundary relations with the forces outside. The dynamics of the civil sphere lead directly to the consideration of social and cultural movements and to modes of incorporation. The contradictions of civil society make it restless. Its relative autonomy promises more SOCIAL MOVEMENTS IN THE CIVIL SPHERE Social Movements as Civil Translations than it provides. Its commitments of universalizing solidarity are never fulfilled. Declarations of closure are never fully legitimate. Justifications for the limitations imposed by time and space are continuously questioned. Rationalizations for anticivil institutions and their distributions ring hollow. The core groups of civil society are convinced they are right to be there. Those who are not at center stage are convinced that they have a right to be. Yet the very structures and dynamics that distort civil society provide the symbolic and organizational structures for translating its restlessness into demands for progressive social change. The third and fourth sections of The Civil Sphere investigate how such demands proceed, both abstractly and in terms of the world-historical social and cultural movements that have shaped our time. The Classical Model Social movements refer to processes that are not institutionalized and to the groups that trigger them, to the political struggles, the organizations, and the discourses of leaders and followers who have formed themselves in order to change institutional rewards and sanctions, forms of individual interaction, and overarching cultural ideals, often in a radical way. In the history of Western social theory and social science, the most influential approaches to such processes have followed a framework established by the historical understanding of revolutions. Social movements have been identified with, and modeled after, revolutionary movements conceived as mass mobilizations wresting power from an antagonistic state. The revolutionaries7 goal, according to this view, is to replace an oppressive form of state power with one directed toward a different end that makes use of similar means. This classical approach to social movements is permeated by materialism and realism. The intellectuals who organized and ideologized these revolutionary movements viewed them instrumentally, as the most efficient means to achieve the radical redistribution of goods. They accepted as a historical inevitability that these struggles depended upon coercion and violence. According to Sartre, the French Revolution began with a bloody attack on the Bastille; according to Trotsky, the Russian Revolution ended with the storming of the Winter Palace.1 The success of both these upheavals involved pitched battles, and in the months and years following the revolutionary triumph the new rulers employed every possible means, including violence and repression, to keep their enemies, the former rulers, from ever coming back to power again. Alain Touraine is right: "The old social movements were associated with the idea of revolution."- This association produced a distinctive tactical orientation to power, violence, and control. The essential matter of social movements was the control of power, its central images were those associated with the violence involved in asserting this control: the occupation of the Bastille and Winter Palace, the mass demonstrations violently dispersed by the police, the coercive occupations of factories and the militant general strike. As Touraine has pointed out. these tactics were themselves associated with a strategic emphasis on "the central role [of] institutional arrangements [and] the division of labor [and] forms of economic organization."3 Yet these tactics and strategies were less reflections of an unavoidable social reality, he suggests, than reflections of the "materialist social thought which has oriented the Western view of society since the eighteenth century."4 It was because philosophical materialism had created certain "architectonic representations of social life" diat these nineteenth-century social movements took "technological and economic resources" to be "the foundations of a building . . . made of forms of social and political organization."5 In terms of empirical facts, these revolutionary movements were not without cultural form or ethical content. Rather, it was the theoretical frameworks available to their leaders that limited their self-understanding. Revolutionary leaders conceived these movements as instrumental means whose effectiveness depended upon the deployment of coercion and force. Ideals and practicalities seemed to them thoroughly intertwined, knowledge and power seemed one. Touraine speaks of the intellectual "confusion" that limited the focus of revolutionary actors to the economic field. The "me-tasocial warrant of these earlier movements," he argues, was defined by the "cultural model" that had been generated by "industrial society," a model that seemed to suggest that significant social change would have "to coincide with the field of economic relations."(l As a consequence, the revolutionary narrative insisted that only after new forms of economic structure were instituted and technical transformations had allowed goods and services to be redistributed could ethical, moral, and cultural considerations come into play. SOCIAL MOVEMENTS IN THE CIVIL SPHERE Social Movements as Civil Translations As the most powerful ideologist of these nineteenth-century revolutionary movements, Marx did more to establish the classical model than anyone else, providing the metahistorical narrative that highlighted economic and material concerns and that relegated morality and solidarity to the status of issues to be taken up only at a later historical time. Yet before he created the figure of the revolutionary leader whose actions arc dictated by the logic of industrial society, Marx actually had argued in exactly the opposite way. He had agreed with other Young Hegelians that revolutionary actors would have to be transformed in an emotional, moral, and esthetic manner before any more objective, structural changes could occur. As late as his Economic and Philosophical Manuscripts, Marx insisted that private property could not be abolished unless alienation—the subjective basis for objectification— were abolished first: "The supercession of private property is. therefore, the complete emancipation of all the human qualities and senses. . . from the subjective as well as the objective point of view."7 Only after Marx had thoroughly internalized the theoretical logic of political economy did this perspective on revolution shift and did he theorize revolutionary social movements in a manner that excluded the imaginary and the normative. Adopting the framework of social scientific positivism, he came to believe that any truly empirical explanation of the workers' struggle and any effective leadership would have to keep humanism and subjectivity at bay: ideas and feelings about the Utopian future society could not be allowed to intrude upon the struggle to transform the present one. Rather than arguing from emancipated subjectivity, Marx now proceeded from within the rubric of alienated action and external order. In The Holy Family, he wrote that "it is not a question of what this or that proletarian or even the whole proletariat imagines to be the aim."H In The German Ideology, he insisted that "communism is. . . not a state of affairs to be established, an ideal to which reality [will] have to adjust itself.'"' Rather, "it is a question of what the proletariat is and what it consequently is historically compelled to do. Its aim and historical action is prescribed, irrevocably and obviously in its own situation in life.1" It was from within this perspective that Marx separated socialism, now conceived practically as a realistic first stage of postcapitalist society, from communism, conceptualized now as a second stage that could be devoted to normative action and moral order.11 If labor would no longer be exploited in socialism, its instrumental character, the materialism of social life, and 216 impersonal state control would still remain firmly in place. No wonder that strategic thinking and coercion were so critical in Marx's account of the revolutionary struggle for socialism that he described force as "the midwife of every old society pregnant with the new one."1' Only in his preface to the posthumously published third volume of Marx's Capital did his trusted colleague, Friedrich Engels, admit the possibility that future revolutionary struggles could eschew the military violence of the barricades. In doing so, however, Engels was acknowledging how central force and power had been to the self-understanding of original Marxism and, more generally, to nineteenth-century revolutionary thought. The Social Science of Social Movements (1): Secularizing the Classical Model From the classical approach to social movements there emerged the most influential frameworks employed by social scientists, not only for understanding the sociology of revolutionary movements but for studying nonradical social movements as well. In terms of the modern sociology of social movements, one might say that its theorists secularized the classical model, denuding it of revolutionary teleology while maintaining its resolutely rational, distributive, and materialist explanatory frame. Whether inspired by Marx, by Weber, by postwar conflict theorists or by more recent emphases on individual and collective rational choice, the most influential macroso-ciologists over the last three decades have understood social movements as practical and coherent responses to the uneven social deprivations produced by institutional change. Oberschall put the case plainly in Social Conflict and Social Movements, the work that marked the beginning of the most recent secularization phase. Social systems are made up of "positions, strata, and classes," he wrote, which in turn are configured by "the combination of the division of labor with super- and subordination." Every tiling about social movements is said to follow from these apparently simple facts, more or less unchanged since the beginning of social time. Those who are favored have a vested interest in conserving and consolidating their existing share; those who are negatively privileged 217 SOCIAL MOVEMENTS IN THE CIVIL Si'HEUE Social Movements as Civil Translations seek co increase theirs, individually or collectively. Social conflict results from tins clash of opposing interests.Li When this secularization of the classical model focused, by contrast, on more microlevel phenomena, it continued to ignore the moral and affective dimensions of collective action, emphasizing instead the constraints of interlocking networks and the availability of organization. Only such factors, it was asserted, could provide social actors with dependable and efficient means to mobilize the resources they needed to achieve success. Effective organizations and structured networks of personal relationships constitute an intrastructure that allows movements not only to gain power but the leverage eventually to shift the distribution of material things. Whether micro or macro, social movements must always be considered purely in the pragmatic key. Just as classical theorists took their cue from the self-understandings of intellectuals who led nineteenth-century working-class social movements, these modern social scientists were inspired by what they took to be the outlooks of those who led the most conspicuous social movements of their own day.14 "In the course of activism," McCarthy and Zald wrote in their paradigm-defining essay on resource mobilization, "leaders of movements" strategically create not only tactics but also "general principles," and both tactics and principles are defined with the aim of "overcoming hostile environments."15 Movements are exercises in calculation; they aim at the "manufacture of discontent" in order to alter the "infrastructure of society." To be successful, these strategic impulses must have recourse to power. "Organizations" supply power in the proximate sense, for they allow movements to "implement. . . goals." But organizations can become powerful only if generalized resources exist, and it is these external conditions of action, conditions that are outside of subjective control, that determine organizational strength and, ultimately, movement success. Meaning and motivation are not the point; rather, "the amount of activity directed toward goal accomplishment is crudely a function of the resources controlled by an organization." If an organization is powerful enough, it can create a "social movement industry," and this cost-efficient form of production will greatly Increase the chance of success.'" If a social movement for modern macrosociological thinkers resembles a complex maximizing machine, it is hardly surprising that violence and force are treated bv them merely as forms of efficient means. Charles Tilly s early historical studies secularized the classical model in exactly this way.17 He describes violence simply as an effective, more or less routine political resort. "Group violence," he and his coauthors suggest, "ordinarily grows out of collective actions which are not intrinsically violent—festivals, meetings, strikes, demonstrations."1" Particularly in the nineteenth and early twentieth centuries, group violence was simply the most conspicuously efficient means of "pursuing a common set of interests." Deployment of violence depends on whether or not external social conditions make it cost-effective. Can social actors employ violence to increase the marginal utility of their political acts? Examining the "changing conditions for violent protest in western countries," Tilly describes violence in a mechanistic manner, as a natural outgrowth of urbanization and industrialization.'1' It was because violence was so mundane and rational, Tilly concludes, that "repression works." It follows logically that "the imposition of violent penalties—damage or seizure of persons or objects—on collective action diminishes its frequency and intensity."-" The revolutionary model in its secularized form can argue in no other way, despite the often striking incongruity that exists between this model and the contingent, courageous, Utopian, and undulating pathway along which successful revolutions actually proceed. Theda Skocpol's effort to explain social revolutions followed exactly the same line.21 Ideologies, solidarities, and specific regime types are irrelevant in a causal sense. Violent actions, material ends, and determined efforts to seize control of the levers of state coercion must be treated, in her view, as means to ends that are themselves merely means to other ends in turn. Social movement ideologies are not specifications of broader moral concerns but strategies for mobilizing masses. Michael Mann's "organizational materialism," while more pluralistic and antideterminist. offers an approach to social movements via networks of power that differ in result but not in kind.22 Given this general theoretical context, it hardly seems surprising that the most influential sociological investigations into the American Civil Rights movement have argued that it was the development of powerful organizations—"movements centers"23—that were responsible for the movement's successful mass mobilization. Subjective factors, such as leadership charisma24 and or the masses' moral aspirations for a new life,2:" are understood by these secularizers of the classical model primarily in functional terms, as highly 21S 219 SOCIAL MOVEMENTS IN THE CIVIL SL'HGHE efficient means to mobilize organizational resources.-0 The permeation of the Civil Rights movement by Christian religious themes and rituals is described by leading social movement sociologists in terms of strategic effects, as having successfully motivated nonconformist political action by Hnking it with the higher, more legitimate, and more stable social status of church membership.27 In this way, the passionate idealism and the moral emotivism that permeate powerful social movements are reduced to unconscious strategies; they are treated as cleverly employed devices that "get around" the free rider problem.2" They are studied as material and nonma-terial commodities that organizations can manipulate to increase their power and support. The hegemony of this social scientific secularization of the classical model is evident even in efforts to introduce a more cultural approach. Though such efforts ostensibly aim to offer an alternative to this hypostatization of rational choice, they seem often to have had the contrary effect, displacing the symbolic and the Utopian with an overweening concern for the practical. Ann Swidler has suggested, for example, that social movements develop cultural innovations because the latter are less expensive than efforts to change the more fundamental role arrangements of institutions. It is because "most movements lack political power," she writes, that so "many social movements revolve around . . . cultural recodings." By turning to culture, movements "reshape the world . . . through redefining its terms, rather than rearranging its sanctions."-' Though acknowledging the symbolic content of social movement demands, such arguments have the effect of severing the relation between social movement ideology and preexisting discursive traditions. It becomes easier to speak of solidarity as strategy than as shared patterns of representations. The cultures of social movements are shaped by the institutions the movements confront. Different regime types and different forms of repression generate different kinds of social movements with differing tactics and internal cultures. Dominant institutions shape the movement's deeper values.30 This instrumentalization of the cultural approach, its treatment of symbolic items and themes as a tool kit that organizations can take or leave at will, Social Movements as Civil Translations demonstrates the extraordinarv influence that the classical model has continued to exercise over modern social science.31 The Social Science of Social Movements (2): Inverting the Classical Model Yet while the secularization of the classical model dominates contemporary macrosociological approaches to social movements, the role of subjectivity has not gone entirely unrecognized. An increasingly influential network of American social and political scientists led by David Snow has discussed how the cognitive and moral framing of issues plays an important role in generating the discontent upon which social movements thrive.32 Following in the wake of this challenge, William Gamson. an earlier proponent of resource mobilization, took up themes like collective identity and public discourse.33 Klandermans has referred to consensus mobilization,34 and Tar-row has linked radical social movements to collective action frames.35 These reactions against the instrumentalizing and decontextualizing limitations of the dominant approach to social movements draw directly and indirecdy upon earlier theoretical traditions that were established in reaction to the European theories that informed the classical model. In Europe itself, of course, alternatives to the revolutionary model, alternatives that emphasized the emotional and irrational dimensions of group behavior, were at one time widely accepted. Gustave Le Bon's explorations of crowd behavior represented the most influential example, and it informed Sigmund Freud's studies of group psychology.-™ That these alternatives to the revolutionary model ultimately failed to inform the main paths of future social science can be attributed as much to their rejection of liberal and democratic ideology as to the more empirical objections that were raised. Their undiluted emphasis on the irrationality of subjective motives created an empirical blindness to the strategic and contingent, and this seemingly denied that social movements could be guided by more abstract universalis tic and individualistic moral ideals. While acknowledging and sometimes even focusing on such nonrational elements, some important figures in classical social theory continued to link their theorizing to the project of liberal democracy. Still, these writers rarely 220 221 SOCIAL MOVEMENTS IN THE CIVIL SPHERE focused on mass movements for social change. When such movements did come into their purview, moreover, they were often discussed in a pejorative and pessimistic way. This was the case, for example, with Weber's insistence that democratic movements could succeed only in a plebiscitarian form that depended upon demagogic charisma.37 Durkheim treated the democratic public meetings and mass movements he admired as analogues to primitive rituals, an equation that gave short shrift to rationality and contingency.3fl Tarde's studies of the interplay of fashion, conversation, newspapers, and public opinion moved in a very different direction. Yet, although his ideas about the microsociology of social movements represented a more liberal, democratic, and culturally oriented alternative to the revolutionary model, they were never incorporated into what later emerged as mainstream sociology. 39 In the United States, the situation was decidedly different. American pragmatism developed republican and democratic theories about subjective interests and moral identity as alternatives both to the more pessimistic revolutionary model of instrumental motives and material interests and to market-driven theories. Even in the writings of such early American figures as Small"10 and Giddings.41 individual action is stressed along with the institutional forms that mediate between local moral solidarities and national public spheres. Later thinkers continued these themes but emphasized individual creativity and responsiveness in a more explicitly pragmatic way. Though Park was more influenced by European irrationalist thought, he made certain to distinguish between crowds and publics.4- Cooley emphasized subjective communication, "enlargement," and "animation,"43 and Mead provided a systematic philosophy of symbolic understanding and gestural communication.44 As this pragmatic alternative to the revolutionary model matured, however, its relevance to macrosoeiology diminished. On the one hand, responding to the more cynical and more industrialized climate after World War I, Lippman45 and Dewey"' decried what they perceived as the decline of the public sphere, the increasingly instrumental manipulation of political life, and the erosion of moral solidarity. In the threatening and unstable climate of the 1930s and 1940s, they joined their European colleagues in the belief that these developments promoted mass society.47 Alongside this deflation of confidence in moral institutions and collective movements, there emerged ■'Social Movements as Civii Translations t strands of pragmatic social science that withdrew- trom macrosocietal con- 1 siderations altogether. Herbert Dlumer declared, for example, that social J movements "can be viewed as societies in miniature, and as such, represent !, the building up of organized and formalized collective behavior out of what ', was originally amorphous and undefined."481 Blumer's emergentist understanding of social movements, which treated I "social organization," "values," and "institutional structure" as "residuefs]" >, of action instead of acknowledging that they constituted also its very foun- dations, marked a fundamental narrowing of the possibilities of the prag-l matist tradition.4" Historical and comparative considerations were jettisoned; .: theorizing about the differential effects of institutional spheres was ; abandoned. In the work of Turner and Killian,5'1 the major American the- orists of the post-Blumer "collective behavior" tradition, the attention to contingency illuminates important details about movement organization and 5 construction, about how strain is transmuted into a sense of injustice, about i the formation of issue-specific publics and the creation of countermove- r ments and co-optative social control.51 Yet the institutional and cultural t references of these processes are treated as parameters, not as variables. For 3 example, because Turner and Killian presuppose rather than explain the § existence of constitutional guarantees for civil freedoms and, more broadlv, the strength of a solidary civil community, they conceptualize the public as purely an emergent collectivity- constituted by public discussion and debate alone.52 Though the disciplinary prestige and influence of this "Chicago school" 1 approach to social movements virtually disappeared under the impact first of functionalism53 and later resource mobilization theory, it reemerged in ? the recent interpretive strands of social movement theory I referred to above. Building upon the later Goffman's semiotically inspired theory of frame analysis, this work has been highly innovative. Snow and his collaborators, for example, deepen the kind of detailed reconstruction of interpretive practices that Turner and Killian had begun.''4 Rather than speaking simply of frame alignment as such, they develop a continuum of possible framing practices stretching from those that reinforce preexisting normative rules— frame "bridging" and "amplification"—to more ambitious and original practices, which they call frame "extension" and "transformation." Yet such arguments elaborate the subjective dimension of social movements in an social movements in the civil sphere Social Movements as Civil Translations overly microsociological way, treating the interpretive strategies of social movement actors as if they were generated in a purely practical, situationally oriented, here-and-now manner.55 Following Blumer's retreat into microsociology, interactional approaches to social movements constitute more an inversion of the instrumentalism and determinism of the classical model than a true alternative to it. In fact, even the most innovative advocates of framing accept the institutional language and macro sociological map that the resource mobilization model laid out. They perceive their contributions, in Klandemans's words, as pointing to subjective and communicative "mediating processes," not as revealing normative and institutional frameworks that exercise control over resource distribution itself.5*" Even as Tarrow has advocated a systematic opening to framing, he has continued to support Tilly's state-centered, power-oriented view of contemporary societies, suggesting that "ideological" and "organizational" approaches to social movements are more complementary than opposed. Interactionists present cultural processes, Tarrow suggests, simply as another kind of strategic resource, as "solutions to the problem that movements need to solve: that is, how to mount, coordinate and sustain collective action among participants who lack more conventional resources and explicit programmatic goals."57 The Social Science of Social Movements (3): Updating the Classical Model The necessity for a historical-cum-theoretical alternative to the classical approach, one that includes cultural meanings and psychological identities but doesn't leave institutions behind, would seem to lead direcdy to new social movement theory. Originating in Europe but increasingly influential in the United States, this approach is open to contingency and to the subjectivities of actors while exhibiting, at the same time, a strong historical sensibility and institutional focus. Declaring that there has been a world-historical turn toward subjectivity, it connects this transformation in social I movements to shifts in macrostructure from industrial to postindustrial so- \ ciety. Historical transformations in material production are said to have made the class-oriented revolutionary movements of an earlier day obsolete; their f focus on material needs and their realistic epistemology are seen as having been displaced by new movements oriented to meaning and psychological identity. It was Alain Touraine who first formulated this new perspective, but his student Alberto Melucci often explored its implications in a more straightforward way.5H Melucci's early rationale for the approach reveals its continuing emphasis on economic structures as the primary motor of social change. "What changes in the system of production," Melucci asks, "allow us to speak of new class conflicts?" The answer he gives very much follows the classical model. "The mechanisms of accumulation are no longer fed by the simple exploitation of labour force but rather by the manipulation of complex organizational systems, by control over information and over the processes and institutions of symbol-formation, and by intervention in personal relations." In short, there emerged in the 1960s and 1970s a new form of domination, for "the control and manipulation of the centers of technocratic domination are increasingly penetrating everyday life, encroaching upon the individual's possibility of disposing of his time, his space, and his relationships [and] of being recognized as an individual." It was to become more effective at overcoming such forces that social movements changed to a more subjective form. The movement for reappropriarion which claims control over the resources produced by society is therefore carrying its fight into new territory. The personal and social identity of individuals is increasingly perceived as a product of social action. . . . Defense of the identity, continuity, and predictability of personal existence is beginning to constitute the substance of the new conflicts. . . . Personal identity ... is the property which is now being claimed and defended.5'J While drawing special attention to the subjective, affective, and cultural dimensions of contemporary movements, new social movement theory does not frame this as a theoretical criticism of the classical model. It suggests, to the contrary, that this revolutionary model was valid for its time and place. The need to shift theoretical and empirical attention responds to new, specifically economic conditions. With new social movement theory, in other words, contemporary social scientists can embrace subjectivity without giv- 224 225 social movements in the civil sphere ing up an instrumental and materialistic approach to the conditions that foster social movements and ultimately determine their success. The mode of production has changed, new kinds of deprivations have emerged, and new social movements are the logical result. Postmaterialist, postinduserial, information-based societies are structural arrangements that have created new forms of stratification, new conflict groups, new patterns of domination, and new perceptions of the goals and interests at stake. It is because "the model of collective action under industrial capitalist conditions is now exhausted," Melucci believes, that new means are required to produce structural change/'0 Concrete concepts such as efficacy or success [canj now be considered unimportant. This is because conflict takes place principally on symbolic ground, by means of the challenging and upsetting of the dominant codes upon which social relationships are founded in high-density informational systems/'1 While Touraine speaks pejoratively of "the revolutionary model," he argues that it is the historical "decline" of revolution as a mode of practice, not the weaknesses of the revolutionary model as a theory, that has allowed contemporary thinkers to give "the central role to social movements and not to institutional arrangements."6- Though he criticizes the classical model for its myopic focus on institutions, and he sees new social movements as "very distant from the revolutionary model,"''3 it is a specific empirical shift he has in mind, not a general theoretical one. In fact, new social movement theorizing has served as a legitimating bridge between the classical model of social movements and contemporary social life. It has allowed the old theoretical structure to remain in place, changing only its empirical referents. The perspective I am developing in this book suggests that more fundamental revision is needed. The enormous differences between earlier social movements and those of the present day do not concern the relative weight of material versus ideal factors. Even in early modernity, radical movements in western European and North American societies were oriented to cultural norms and personal identities/"1 Recent historians of the French Revolution—Furct and his collaborators in France and the new cultural historians in the United States—have strongly emphasized cultural factors in that 226 Social Movements as Civil Translations prototypically eighteenth-century, preindustrial upheaval/'5 These studies make it abundantly clear that the classical model profoundly misunderstood the French Revolution, which was less the first ultrarational and thus "modern" movement for radical change than an extension of long-standing republican ideas to a new and unprecedented historical situation, one that encouraged the application to France of a more enlightened, democratic understanding of the French state. In a similar manner, recent studies of nineteenth-century working-class struggles demonstrate that the classical model distorted these early radical movements as well, ignoring the decisive effects of local and folk traditions, of egalitarian refractions of democratic and Christian ideas, and of class-oriented versions of the republican ideology that first crystallized in the quasi-civil societies of the Renaissance city-states/'6 It is not enough, then, to update the classical model, any more than it is enough to secularize or invert it. Fundamental theoretical revisions must be made in the very understanding of the dynamics of social change, even in its most radical forms. In his concepts of industrial and postindustrial society, Touraine periodizes Western societies and their core values according to successive modes of production, an approach that gives shifting economic culture particular pride of place. Yet "industrial culture" hardly exhausts the influential value systems of nineteenth-century society. From the spheres of religion, family, gender, race, science, and politics there also emerged broad and powerful cultural orientations. Not all of these spheres triggered social movements as powerful as class conflicts, yet each of these spheres did produce massively influential standards of evaluation that created institutional conflicts and often had fundamental effects on social movements in turn. More importanriy, however, Touraine neglects the possibility that there existed in the nineteenth century an overarching cultural framework of noneconomic ideas, an interlocking set of political-cum-legal-cum-social discourses that allowed contemporaries to speak of a democratic or civil society. To the degree that such a cultural system and its attendant normative institutions were operative, the universalizing moral and political discourse of the civil sphere permeated the more particular and differentiated spheres of nineteenth-century society, including the industrial, and provided a powerful and critical discursive reference for the social movements of that day. 227 1 social movements in the civil sphere Social Movements as Civil Translations Displacing the Classical Model: Rehistoricizing the Cultural and Institutional Context of Social Movements 111 Most of the so-called great revolutions—the English, French, Russian, and Chinese revolutions—were made against an ancien regime, traditional order in which government control depended upon habit, custom, charisma, and, in times of crisis, repression and force. In such societies, the masses ofpersons do not have access to mechanisms that can control the state, either through force of law, public opinion, or publicity, much less through electoral means. The alternative to state control via force is legitimate power, which occurs when obedience is voluntary rather than coerced, when tightness is attributed to power for moral reasons rather than for reasons of habituation or fear. This opportunity' for will formation, to use Habermas's term/'7 can be provided only when a civil realm exists that, to some degree, is separated not only from the state but also from the other, noncivil spheres—of religion, science, economy, family, and primordial communities. As I have suggested in earlier chapters, such an independent civil sphere can exist only insofar as the privacy of individual interaction is protected, institutional independence is guaranteed for the creation of law, voting, and public opinion, and normative symbolic patterns make honesty, rationality, individual autonomy, f, cooperation, and impersonal trust the basic criteria for membership in the binding community that defines "society." That such civil protections provide only formal rights and opportunities, not their substantive realization, by no means negates their historical im- t portance. Only a handful of modernizing societies succeeded in transforming the structures and cultures of Old Regimes in such civil ways. In these societies, radical social movements demanding the redistribution of fundamental resources did not, in fact, depend primarily on material force; neither did they aim solely at mobilizing the most efficient means. Nor was the emergence, success, or failure of such movements simply a question of the fe availability of networks and organization. For the challenge was not merely instrumental. They were not mobilizing against state power as such. To the fc contrary, at least from the early nineteenth century, and often before, radical movements emerged in the midst of, and to some extent were triggered by, die partially realized structures and codes of civil societies, social systems in which civil solidarity was fragmented and institutional independence from noncivil spheres was crippled in systematic ways. In order to succeed, social movements in such societies had to orient themselves not only to the state but to such communicative institutions as the mass media, which could mobilize persuasion rather than force, and to such regulative institutions as ]aw and franchise, which could enforce universalistic civil against oligarchic power. Because social movements in civil societies have to orient themselves in these ways, the question of legitimacy conies to the fore. Vis-á-vis potential supporters, they must present themselves as typifying sacred values, as the bearers of social, national, and even primordial myth, as cultural innovators who can create new norms and new institutions that will allow resources to be channeled in different ways. The power of such movements depends in the first instance less on organizational command and networks of exchange than on subjective commitments of loyalty and solidarity. Such commitments can be produced only when social movements create and sustain new forms of meaning and more attractive forms of personal and group identity. Social Movements as Translations of Civil Societies Only after the cultural and institutional context of eighteenth- and nineteenth-century social movements has been rehistoricized in this way can a coherent alternative to the classical model be presented. I will develop this model more concretely in the case studies that take up the rest of Part ill. In what remains of this chapter, I sketch the main lines of the alternative I have in mind. In every relatively complex society there are differentiated spheres that possess distinctive value regimes, and many if not most social movements emerge and struggle within such spheres to gain justice in a discrete, pluralistic, and self-regulating way.i,H Nonetheless, the most significant idioms, codes, and narratives employed by strong social movements, whether new or old, progressive or reactionary, are independent of their structural position in particular spheres. Indeed, when one examines these tropes one can plainly see that it is their very distance from particular institutional arenas that allows them to offer social movements leverage, that creates the possibility of an escape from immediate institutional demands, that encourages the exercise of agency vis-á-vis institutional constraints that the very existence of a social movement implies. 228 229 social movements in the civil sphere These transcending, overarching symbolic frameworks refer to the imminent realization of a civil society, a sphere that is separated trom other institutional domains even though it may intrude upon them. If to become a member of civil society is to participate in the broad and inclusive solidarity that declares men and women to be brothers and sisters, then inclusion within it creates binding obligations to institutionalize solidarity and to increase participation in political decisions about the distribution of social goods. The benefits of inclusion, in other words, are great. It is no wonder that there are high hurdles to gain membership, and that every new claim has been fiercely contested. Social movements feed off the sense of a wider community. Though they constitute only one particular group, they either (i) claim to "represent" the wider society, its desires and best interests—as is the case, for example, with an environmental or citizens action group—or (2) speak direcdy to "society" on behalf of a particular interest, such as a trade union or an African American or women's group. In order to succeed, social movements cannot be seen simply as responding to actually existing problems, to the strains generated by a particular kind of economy, state, geography, law, family, racial or ethnic system, or scientific domain. Strong movements must be seen, rather, as responding to problems in this or that sphere by persuasively communicating a broader vision of these problems to the society at large. Before a social movement develops, whether it be a workers' movement or a women's liberation movement, few actors are aware that the problems it makes reference to even exist, much less that they can be solved. What legitimates this construction, indeed what motivates it in the first place, is the latent reference to the obligations created by civil society. When one examines the rhetoric of social movements, one sees that images of "fair and open discussion," of "our day in court," of "society" in the moral sense seem always to be there. Behind social movements there is reference to a highly idealized community, one that demands that the universal become concrete. Demands for a concrete universal are made against the backdrop of a Utopian notion of community, according to which rational actors spontaneously forge ties that are at once self-regulating, solidaristic, and emancipatory, and are independent of market rewards, religious faith, family love, state coercion, and scientific truth. Touraine refers to such a self-regulating and self-constituting community as an imminent reality in postindustrial society', and he points to its existence as evidence that there is Social Movements as Civil Translations nothing left of "society" as such.''9 Surely, however, the very language of contemporary social movements suggests that this cannot the case. Self-constituting communities are not realities but rather regulative ideals, ones that have inspired the metalanguage of progressive and reactionary social movements in our time and in the past. It is the existence of this regulating ideal, and its promised or partial realization in the communicative and regulative institutions at a particular time, that allows protests that emerge in one structural sector to be transferred into the domain of civil society. Problems now concern society itself, not just a particular institution. It is for this reason that they have the potential of creating a "social crisis." Collective action, then, can be understood as a struggle for position vis-á-vis the categorical antipathies of civil life: a struggle to represent others in negative and polluted categories and to re-present oneself in terms of the sacred. To move from a problem in a particular sphere of society to a problem in society as such requires that the leaders of social movements exercise creativity' and imagination. This might be called the translation problem, and it is where cultural creativity and political competence both come equally into play.70 Using an organization effectively means something very different from simply establishing membership rolls, hooking up telephone lines, and raising money. It means learning how to translate experiences from the particular to the general, from the mundane to the civil and back again. Movement intellectuals themselves often conceive their task in quite different terms. Viewing the movement's problems as real, they experience translation from particular to general as something that is always already there, rooted in the materiality of the problem as such. The ambition of these "movement intellectuals," however, is actually to reposition particular demands, to shift them from particular institutions to a location inside of civil society itself. Insofar as they succeed, social movements strike up a conversation with society and draw their members' attention to a more generalized understanding of their cause.7' When this happens, the social problem and group managing it enter firmly into the public life of the civil sphere. Successful translation allows movements that emerge as protests in one structural sector—in a particular subsystem, sphere of justice, or segmented community—to be taken up by the civic public. It allows alliances to be welded, mass lines to be formed, and publicity to be made. Domination in a particular sphere is challenged not because it violates a particular institu- 230 231 social movements in the civil sphere Social Movements as Civil Translations tional culture but because it is constructed as violating the collective representations of civil society. In this way, dominating powers are themselves represented as candidates for exclusion, in terms of the very anticivil categories they employ to justify the subordination of others. In the dynamics of this inverse stigmatizing process, archetypical narrative structures come forcefully into play, inflating the challengers and deflating the powers that be. Movement leaders and organizations, initially seen as lonely and downtrodden activists, are transformed into heroic figures embarking on a romantic quest. Melodrama paints the movement and its opponents in black and white, sentimentalizing the conflict in moralistic and often simplistic ways. Distancing devices like irony and comedy are employed to deflate further the importance of now polluted identities.7- Workers and industrial capitalists did not wage a century-long struggle simply over antagonistic material interests, even if one allows for the framing effects of industrial culture. Rather, economic strains were translated into the categories of the civil sphere.73 Machine destruction, wage demands, strikes, and unionization were conducted in terms of "the rights of Englishmen."7"1 The status of workers was upgraded, and they became emblematic of humanity. They now felt entitled to demand full access to such regulatory institutions as the law and the courts, which made critical decisions in the distribution of means. With the help of social movements, the "dark," "soot-covered" workers—the dirty, dependent, violent, and stubborn men who were said to work only with their hands and not with their brains—succeeded in reconstructing their selves and their group in less polluted and more sacred ways.75 They often succeeded, in fact, in inverting the categorical identification of owners themselves, who were increasingly described as secretive in their motives, dependent in their relations, and authoritarian in their institutions. Religious emancipation did not work in a much different way. From the late medieval period on, movements were launched against ecclesiastical hierarchy on the basis of the more inclusive rights that were defined as immanent in the civil sphere. In a similar manner, women in families gradually came to reject the identification of their selves with their patriarchy-defined domestic and mothering roles. Like ghettoized Jews, repressed Protestants, or exploited factory hands, women began to experience themselves as having dual membership, as not only members of a family structure in which loyalty, love, and deference were basic criteria but as members of civil society, which demanded criticism, respect, and equality. In the 1960s youth movements, students rejected subordination in schools, families, and work, arguing that neither parental nor knowledge-based authority justified the subordination and objectification they now seemed to experience in schools and homes. Forming their own communities of strong moral and emotional solidarity, they demanded that the larger society treat them in terms of their citizenship roles. Movements for consumer and patient rights can also be seen as expressions of dual membership, as boundary tensions between civil society and the economic and professional spheres create pressure for redefining where civil obligations stop and more specialized interests begin. Dominated ethnic and racial minorities use their dual membership to demand assimilation or to legitimate multiculturalism. For the physically or mentally disabled, for whom polluting categories like irrationality, insanity, and dependence often assume an essentialism that is expressed in physical form, the process of translation is extremely demanding and has only begun to redefine the meaning of these physical qualities. If one considers environmentalism, one can see how nature itself has been redefined. Once "red in tooth and claw," it is now a potentially rational and cooperative partner and being awarded fall membership status in civil societies. Social movements, then, can be seen as social devices that construct translations between the discourse of civil society and the institution-specific processes of a more particularist type. Social movements are practical and historical, yet at the same time they can succeed only if they can employ the civil metalanguage to relate these practical problems to the symbolic center of society and its Utopian premises. We are very far from the classical model of social movements, with its realism and materialism and its exclusive concern with overturning the practical power of the state. Yet we are also quite a distance from new social movement theory, which describes symbolic arguments as defensive strategies responding to the isolation and vulnerability of actors confronted with new forms of technical domination. Politics is a discursive struggle. It is about the distribution of leaders and followers, groups and institutions, not only in terms of material hierarchies but across highly structured symbolic sets. Power conflicts are not simply about who gets what and how much. They are about who will be what, and for how long. Representation is critical. In the interplay between communicative institutions and their public audiences, will a group be represented in terms of one set of symbolic categories rather than another? This social movements in the civil sphere is the critical question. Far from being only "symbolic," the answers to it are sometimes a matter of life and death. In the course of social conflicts, individuals, organizations, and large social groups may be transferred from one side of social classification to the other in rapid and often bewildering bursts of shifting historical time. Yet, no matter how new they seem, these categorizations are playing variations on the old and venerable codes of civil life. ^34 CHAPTER 10 Gender and Civil Repair: The Long and Winding Road through M/otherhood In a plural and differentiated society, there will always be multiple and fundamentally different spheres of culture and practice—markets, families, scientific institutions, and minority sexual, racial, and ethnic communities. Still, as long as a social system contains one putatively civil sphere—one imminently Utopian world whose culture and institutions are proclaimed to be civil and democratic—this question can always be posed: "What is the relation between the idealizing requisites and demands of the ..civil.sph.ere and the noncivil spheres that surround it? Posing this question is what stimulates social movements. Answering it is what gives them success. In the remainder of Part III, I bring this abstract proposition down to earth. In the present chapter. I focus on the boundary relations between family and civil sphere, and the movements it has generated for social change. The aim of this overview is to establish a prima jack case for viewing the women's movement in terms of civil society. In the chapters following, I develop a much more detailed discussion of civil society and race. Its aim is to show how our empirical understanding of the Civil Rights movement can, and should, be reconstructed in terms of the civil society theory I am developing here. 235 social movements (n the civil sphere Gender and Civil Repair For several centuries, the patriarchal gender relations inside families wer considered complementary to the Utopian claims of the civil sphere, indee as facilitating inputs to them. When revolutionary democratic expectatior challenged this putative reciprocity, patriarchal structures inside the famil and patriarchal translations inside the civil sphere itself pushed back, and compromise formation resulted that made motherhood into a kind of aux iliary civil role. Only in the last century did the new social movements o feminism challenge this compromise. Identifying the restriction of wornei to family roles as a destructive intrusion of gender inequality into the civil sphere, these feminist movements have pushed, with increasing success, for gender equality and civil repair. Justifying Gender Domination: Relations between the Intimate and Civil Spheres It is illuminating of the contradictory nature of civil society and of the infernal, often maddening suppleness that marks its binary symbolic codt that, when the egalitarian codes of democracy were tint institutionalized or a national scale in seventeenth-century Europe, women could be conceived as having no place. As Blackstone, the first great codifier of democratic law put it, once women were married they ceased to have any civil existence ai all: "Husband and wife are one person in law, that is, the very being or lega existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband; under whose wing, protection, and cover, she performs every thing; and is therefore called ... a jane covert [sic]"1 The Active social contracts that, according to early moderr democratic theory, allowed democratic societies to move from the state oi nature into the public world of civil society were represented as having been written by men. With women relegated to the private, invisible sphere of family life, protected first by fathers and later by husbands, what Carole Pate-man called the "sexual contract" always accompanied the democratic one. In a world presented as conventional, contractual and universal, women's civil position is ascriptive, defined by the natural particularity of being women; patriarchal subordination is socially and legally upheld throughout civil life, in production and citizenship as well as 236 in the family. Thus to explore the subjection of women is also to explore the fraternity of men.2 The republican traditions that inspired the first great democratic revolutions were irredeemably masculinist. As Joan Landes pointed out, the very conception of public derived from the Latin pitbliats, meaning "under the influence otpubes, in the sense of'adult men,' [the] 'male population.' "-1 In describing the early American Republic, Mary Ryan explains how female motives were constructed as antithetical to civil ones. "Republican ideol-o! functioned to preserve difference and hence guarantee sexual inequality." despite its connection "to a universalist, egalitarian protest."35 \s citizens, women would be educated beyond their limited horizons md wholly self-oriented concerns in order to embrace the larger 'polity, but ultimately in a passive not an active manner. . . . The 'potential for providing women with a route into the public sphere \jy way of republican motherhood was undermined by the claims of nature. . . . If women's service to the community was viewed as a Junction of her mothering role, the most likely consequence was to offer women political representation in a mediated fashion.36 In the hothouse atmosphere of revolutionary France, this compromise formation proved much less viable, and ultimately less productive, than it proved to be in the more stable, less radical, American scene. By 1791, the Conimittee of General Security had recommended that women's rights to t'e public participation be entirely eliminated. The cultural framing for this recommendation highlighted the uncivil qualities of public behavior were held to be the inevitable product of women's difference. Because their "moral education is almost nil" and because they are "less enlightened cerning principles," the committee's representative told the Convention, "women's associations seem dangerous." Their presence in popular societies, therefore, would give an active role in government to people more exposed to error and seduction. 247 SOClAt MOVEMENTS IN THE CIVIL SPHE11E Gender and Civil Repair Let us add that women are disposed by their organization to an overexcitation which would be deadly in public affairs and that interests of state would soon be sacrificed to everything which ardor in passions can generate. . . . Delivered over to the heat of public debate, they would teach their children not love of country but hatred and suspicions.37 In the United States, the contradictory effects of the compromise formation were far less dramatic, but they were equally fateful and far-reaching. In fact, as feminist historians have long noted, by framing a limited degree of female participation as a facilitating input to the public sphere, Republican M/otherhood provided legitimation for women to make their sphere less hermetically separate than ever before. Yet, as many contemporary feminists also have insisted on pointing out, the nineteenth-century American women who moved into the public sphere justified their participation not by proclaiming their equal civil competence but by utilizing notions of innate difference and the ideology of separate spheres. One leading temperance activist, Francis "Willard, hailed what she called the "omnipotent-weakness which is the incommunicable characteristic of womanhood" to justify women's rights to publicly preach.3" In the 1870s, women made use of what Ryan calls "an arsenal of weapons and an array of avenues through which to influence public policy." But Ryan immediately adds the following qua! -ification: In keeping with the Victorian moral code, [these] female sex reformers used the stereotype of pure womanhood as a point of personal privilege in the matter of prostitution legislation. . . . The politics of prostitution, like female moral reform, was but one rather prickly way to generate gender identity. It placed the woman citizen in a defensive position and identified her by her sexual and reproductive biology. To contemporary feminists, this is an invitation to essen-tialism and a narrow base on which to mount gender poHtics.3y This public m/otherhood role, I would suggest, actually allowed every subsequent phase of female participation to be justified, and narrated, in an anticivil way. According to the editors of the leading contemporary anthology of feminist history: 24S At an ever-accelerating pace between 1820 and 1880 . . . women expanded [the] role [of Republican Motherhood] into what might be called "Reformist Motherhood." Instead of influencing the public domain indirectly through the lives of their sons, women began to extend their role as nurturer and teacher of morals from the domestic sphere into the public sphere through church, missionary, and moral reform groups. Women sought to make the world conform more strictly to values taught in the home—sexual responsibility and restraint for men as well as women, self-discipline for those who used strong drink. [Then,] between 18S0 and 1920 a new role developed that might be called "Political Motherhood." . . . "Motherhood" was becoming less a biological fact—birthing and nurturing children—and more a political role with ideological dimensions."1 During the industrial revolution of the late nineteenth century, another historian has recently observed, Americans "were fascinated by the power and complexity of machines," and "in political debate they used machines as a metaphor for both the electoral system and for parities."41 Yet the ideology of separate spheres remained alive and well. Its gendered metaphors about civil and uncivil society could be readily adapted to the new technological situation. Party structures found their ideal opposite in the gentle domesticity attributed to women. Like their English Victorian counterparts, leaders of American opinion hailed the home as "woman's sphere," a place where wives and mothers conserved family bonds and religious ■ "devotion. Both men and women of the era described women as "angels of the home." To many, women's selflessness and purity were the very qualities that unfitted them for politics. Politics, however, could not function without the virtues women represented. The institutions of political life might resemble machines, but each party fought for deeply held values. At a fundamental level, elections were disputes about faith and family order. ... In 1S86, New York politician John Boyle O'Reilly expressed his abhorrence at the idea of woman suffrage. "It would be no more deplorable," he declared in a public letter, "to see an angel harnessed to a machine than to see a woman voting poHtically."'12 349 social movemlnis in the civil sphere Gender and Civil Repair A sociological student of this period, Eyal Rabinovitch, shows how women's public demands for "shelter and protection" for abused women rested on claims that this victimization prevented them from living up to the ideal of true womanhood.43 Such demands had the paradoxical effect, in other words, of confirming women's "submissive" and "helpless" nature.44 Rabinovitch writes that even publicly active "women could not directly speak unto men with discursive authority," citing evidence that activist women used such tactics as public prayer, weeping, and silent presence to compel men to alter their public behavior.15 "Republican mothers. . . went to great lengths to reject any association with civil independence or autonomy," Rabinovitch concludes, "even as they demanded greater respect and recognition as public actors in civic politics." Indeed, women reformers repeatedly associated their own intentions with "sympathy, sentiment, and passion ac the expense of autonomy and civic independence."""1 Public Stage and Civil Sphere How could this be? How could a clearly particularistic and anticivil understanding ot women also function as the basis for launching their public careers? How could unprecedented female public activism have the effect of underscoring, rather than undermining, the second-class position of women? How could this new intervention of women into public affairs actually function to block the civic repair of female subordination?'17 This paradox certainly underscores the importance of distinguishing between publicness and civil democracy. In the Habermasian tradition most especially, these concepts are blurred, though the confusion widely permeates democratic theory.'1" In terms of the perspective I develop in this book, by contrast, publicness should be seen more in dramaturgical terms. Upon the public stage, performances are projected to audiences of citizens. These performances are diverse, dramatizing a kaleidoscope of ethical positions and political programs. Racists, misogynists, homophobes, and mihtarists all make their cases. So do movements and ideologies of a more expansive and inclusive kind. During the nineteenth century, in fact, m/otherhood was often publicly employed to legitimate equally particularistic but much less palatable ideological claims. American historians have continually observed .--it "-fie r how the "distorted . . . manipulation of gender symbolism" was used "to tnrnish the increasingly stark racial and class partitions of the public." During the [civil] war women were an honored presence, and female symbols were prolifically displayed amid the pageantry of sectional solidaritv. When white dominance was reported in the South, it was portrayed as an act of public purification, a defense of the honor of the ladies. Meanwhile, antiwar Democrats in the North raised cheers to white ladies. Both labor and capital draped their interests in female symbols. The parades of the Workingmen's Party of California mounted wives and daughters in carriages ... in support of their demand for a family wage, and a countersymbol to Chinese immigration, which they pictured as a flood of bachelors and prostitutes. The upper-class opponents of the Tweed Ring in New York characterized the rapacious city politicians as simian featured Irishmen preying on a demure Miss Liberty.4'' When Union victory brought black freedom, Democrats around the United States reacted with a race-based appeal for white women's protection, warning of the sexual threat allegedly posed by black freedmen. From the secession movement of the 1S5OS to the disfranchisement campaigns of the 1890s, southern Democrats drew a strong connection between expansions of federal authority and the sexual violation of white women. Both were encroachments on the patriarchal home; rape and seduction served as consistent metaphors for the perils of excessive government force.-"'0 The difference between civil and public was implicitly understood by the major historical actors of the day. Mrs. J. B. Gilfillan was president of the Minnesota Association Opposed to Woman Suffrage. Representing the powerful if ultimately unsuccessful "anti" movement, Gilfillan dramatically evoked difference as the reason to oppose women's voting rights. She did so, however, by emphatically supporting women's public role. Anti-Suffragists are opposed to women in political life, opposed to women in politics. This is often interpreted to mean opposition to women in public life, which is a profound mistake. We believe in SOCIAL MOVEMENTS IN THE CIVIL SPHERE Gender and Civil Repair women in all the usual phases of public life, except political life. Wherever woman's influence, counsel or work is needed by the community, there vou will find her, so far with little thought of political beliefs. . . . The pedestals they are said to stand upon move them into all the demands of the community'.5! Those who supported women's right to vote polluted such female "antis1" in the most vociferously anticivil terms. Anna Howard Shaw, president o the National American Woman Suffrage Association from 1904 to 1915 contemptuously compared them to "vultures looking for carrion," whc "revel in the dark and seamy side of human nature" and "are always emphasizing the small and mean in women."52 Questioning their sincerity and autonomy, Shaw described the antis as dependent, as mere puppets of powerful male forces, human shields for "liquor interests, food-dopers, child-labor exploiters, white slavers and political bosses." According to her, it wa because the antis were selfish, cynical, and irrational, and thus incapable o honest civil behavior—not because of their sincere loyalty to the values o motherhood—that they emphasized the inherent difference of women fron men and opposed the voting right. Its members were mainly well-to-do, carefully protected, and entertained the feeling of distrust of the people usual in their economic class. Their speeches indicated at times an anxious disturbance of the mind lest the privileges they enjoyed might be lost in the rights to be gained. . . . Their uniform arguments were that the majority of women did not want to the vote, therefore none should have it; that "woman's place was in the home," and that women were incompetent to vote."'3 It is revealing of the influence of the civil sphere that leaders of tht "anti" side felt compelled to justify their exclusionary and essentialist arguments, not only by citing separate-sphere arguments about family and children, but also by relating them positively to more umversalist claims. Wher Mrs. Henry Preston (Sarah C.) White addressed the judiciary Committet of the U.S. House ot Representatives in 1914, she defended the antis not a: faithful mothers and loyal wives but as "disinterested, public-spirited citizen who give their time and sendee to questions of public service without the hope of political reward or preference."5"' In fact, alongside their well-blicized commitments to husband, hearth, and home, the antis consis-tendy framed their opposition to voting rights, as Manuela Thurner has shown, as an antidote to the dangers of partisanship. Women would remain more impartial and universalis tic, the argument went, if they could stand ; from and beyond party politics."55 That women were different from men actually allowed them to keep the dangers of public life at bay. The inent antisuffragist Mrs. Barclay Hazard offered this justification in her js to the New York State Federation of Women's Clubs in 1907. We must accept partisanship, political trickery and office-seeking as jcessary evils inseparable from modern conditions, and the question ises what can be done to palliate the situation. To our minds, the lution has been found by the entrance of women into public life. Standing in an absolutely independent position, freed from all party filiations, untrammeled by any political obligations, the intelligent, If-sacrificing women of to-day are serving the State (though many them hardly realize it) as a third party whose disinterestedness none n doubt.5'' Universalism versus Difference: Feminist Fortunes in the Twentieth Century r pathbreaking synthetic work, The Grounding of Modern Feminism, N / Cott recounts the state of affairs for American women at the beginning of the twentieth century. The woman movement of the preceding ry had, indeed, brought women into the inlets, nooks, and crannies blic life. However, because these movements had been conducted the framework of m/otherhood, "the effort to find release from the y claim,' which Jane Addams had eloquendy described in the iSSos, sing painfully repeated decade after decade."57 Despite the economic changes that had brought women into the paid labor force, despite the improving rates of women's entry into jher education and the professions, and despite the collective and political strengths women had shown through voluntary organiza- social movements in the civil schere If If Pi Gender und Civil Ropair dons, die vast majority of the population understood women not a existential subjects, but as dutiful daughters, wives, and mothers.5!! By the 1910s, girls and women "swarmed" into what had once s; been male-only arenas—"the street, the factory, store, office, even the bershop." Yet the interpretive understanding of these places continue be framed according to the ideology of separate spheres, remaining "tei culturally understood as male."5'' The boundary relations between the mate and civil spheres, in other words, was still conceptualized in tern "facilitating input," even as the behavioral walls separating these spl were being challenged on the ground. Changing boundary relations reqi breaking this sense of complementarity. Male-female relations in the intii sphere would have to be framed as destructive intrusions into the civil spl Only such reconceptualization would trigger the project of civil repair. The time was ripe for the social movement of women to develop a ideology. This new perspective was feminism, which from the perspet I am developing here can be Linderstood as the ideology of genders repair. Steering sharply away from the shoals of difference and otherlu "feminists offered," according to Cott, "no sure definition ot who wo was."''" What they sought, rather, was "to end the classification womar such. The first explicitly feminist mass meetings took place in New York City in February 1914 at the People's Institute of the Cooper Union. '! he handbill publicizing the meetings made the following announcement: "J ject: BREAKING INTO THE HUMAN RACE.""1 With feminism in full gear, and the suffrage amendment passed in 1 this universalizing ethic led to the fight for an Equal Rights Amendir the first ERA. Feminists viewed the ERA as a "civic innovation" that w< give legal teeth to gender repair. Building on the Nineteenth Amende and an emerging consciousness of women's equality with men. a cons tional mandate for equality in every aspect of women's lives would havt potential to restructure noncivil spheres in a dramatic way. The non sphere of most urgent concern was the economic. "By the ryios." 1 writes, "suffragists linked political and economic rights, and connectec vote with economic leverage." Reformers "emphasized that womei human individuals no less than men, had the right and need to use 1 talents to serve society and themselves and to gain fair compensation."(,: As members of the civil sphere, women workers shared a common hu tatus with male workers, and it was this common humanity that would irovide leverage for repairing gender-triggered economic inequality. This early effort at civil repair not only failed miserably in the political rena but had the cultural effect of polarizing publicly active women and rearing a fateful backlash against feminism. As Cott sees it, the demand for ■ n ERA deepened the antagonism between the traditional defenders of women's difference from men and the more radical arguments for gender iniversatism. After the success of suffragism and the advent of the category eniinism, the compromise formation of public m/otherhood could no I longer camouflage the contradictions between civil and intimate spheres. difference and equality, according to Cott. now "were seen as competing, yen mutually exclusive, alternatives." The result was that "the ERA battle ■ if die 1920s seared into memory the fact of warring outlooks among women."63 The ERA's purpose was to allow women to have the same opportunities ind situations as men. It was triggered by the conviction that women cotild 1 lot continue to emphasize their differences from men without the adverse consequence, usually unintended and often unwished for, of reinforcing civil aequality. The problem was that, while antidifference arguments were beaming widely accepted among America's cultural and political avant-guard, hey remained "extraordinarily iconoclastic" among America's mainstream/'4 difference entered the ERA debate in the pivotal argument over the wisdom if abolishing sex-based protective legislation. Opponents of ERA became 1 'iitspoken advocates of such protection, "echo[ing] customary public opinion in proposing that motherhood and wage-earning should be mutually exclusive.The outcry showed the vast distance between arguments for public m/otherhood and arguments for genuine civil equality Opponents of the ERA believed that sex-based legislation was necessary because of women's biological and social roles as mothers. - They claimed that "the inherent differences are permanent. Women will always need many laws different from those needed bv men"; "women as such, whether or not they are mothers present or prospective, will always need protective legislation"; "the working mother is handicapped by her own nature." Their approach stressed maternal nature and inclination as well as conditioning, and implied that the sexual division of labor was eternal.1'" 254 255 mm: pur SOCIAL MOVEMENTS IN THE CIVIL SPHEHE Despite their deep resonance with the traditional values of the intimati sphere, such particularistic arguments for maintaining separate spheres could be fully justified only if they were also vouchsafed in terms of the overarchin: civil discourse. Women advocates for the traditionalist position pollute* ERA activists as civil incompetents, as "pernicious" women who "das card[ed] all ethics and fair play," as an "insane crowd" who espoused "a kind of hysterical feminism with a slogan for a program."''7 The effect of thi equation of feminism with anticivil incompetence was fateful. As the ERJ went down to crushing defeat in the 1920s, the victorious difference dis course had the effect of making feminism virtually a dirty word for decade to come. Without the universalizing ideology of feminism, however, it was impossible to conceive women as fully incorporated into the civil sphere. Evei during World War II, when dire objective exigencies propelled women into the public worlds of factory and office, their participation was framed as facilitating input that preserved sexual difference, not as civil incorporation So Ruth Milkman demonstrated in Gender at Work. Accompanying the characterization of women's work as "light" was an emphasis on cleanliness. "Women can satisfactorily fill all or most jobs performed by men, subject only to the limitations of strength and physical requirements," a meeting of the National Association of Manufacturers concluded in March 1942. "However . . .jobs ofa particularly "dirty" character, jobs that subject women to heat process or are ofa "wet" nature should not be filled by women . . . despite the fact that women could, if required, perform them."™ This framework was, of course, merely a new and updated version of publi m/otherhood. It had the effect of preserving the gender contradiction between civil and noncivil spheres, not of repairing them. There was a contradiction in the management literature on women's war work. It simultaneously stressed the fact that "women are being trained in skills that were considered exclusively in man's domain" and their special suitability for "delicate war jobs." These two seemingly conflicting kinds of statements were reconciled through analogies between "women's work" at home and in the war plants. 256 Gender and Civil Repair "Note the similarity between squeezing orange juice and the operation ofa small drill press," the Sperry Gyroscope company urged in a recruitment pamphlet. "Any one can peel potatoes," it went on. "Burring and filing are almost as easy."'''-' Even in the 1950s, amid American boasts about modernity and its social theorizing about modernization, the equation of feminist demands for uni-versalism with anticivil pollution remained widely accepted. "Most women as well as men," the historian Jane Sherron de Hart writes, "still accepted as one of the few unchanging facts of life the conviction that woman's primary duty was to be 'helpmate, housewife, and mother.' "7() Feminism could not be revived, nor could the civic repair of gender relations become a realistic political possibility, until universalist arguments about gender relations became much more widely accepted. This happened with the creation of feminism's "second wave," which was stimulated by the effervescence of demands for equalizing the status of African Americans, another group whose inequality had been legitimated by the construction of an essentializing difference. Betty Friedan, whose writings earned her the sobriquet of "mother" to this second wave, equated arguments for difference with the "feminine mystique." Her argument should be taken less as an empirical description of women's status in the 1950s—which had, of course, already been partially reconstructed by modern feminism—than as a culturally sensitive polemic against the extent to which sexual-difference arguments had managed, nonetheless, to sustain their mainstream viability. The suburban housewife—she was the dream image of the young American women and the envy, it was said, of women all over the world. . . . She was healthy, beautiful, educated, concerned only about her husband, her children, her home. She had found true feminine fulfillment. As a housewife and mother, she was respected as a full and equal partner to man in his world. She was free to choose automobiles, clothes, appliances, supermarkets; she had everything that women ever dreamed of. . . . The words written for women, and the words women used when they talked to each other, while their husbands sat on the other wide of the room and talked shop or politics or septic tanks, were about problems.with their children, or how to keep their husbands happy, or improve their children's school, 257 '!Sll 1 SOCIAL MOVEMENTS IN THE CIVIL SI1 HERE or cook chicken or make slipcovers. Nobody argued whether women were inferior or superior to men; they were simply different. Words like "emancipation'" and "career" sounded strange and embarrassing; no one had used them for years.71 i The social movement called "women's liberation" rejected the mystiqu of difference and demanded the civil repair of gender relations on the bas of universality. "The first step toward becoming feminists," de Hart write "demanded a clear statement of women's position in society, one that calle i attention to the gap between the egalitarian ideal and the actual position c women in American culture."72 In 1966, on the basts of such sentiment : the National Organization for Women was formed. The organization's state '-, ment of purpose, signed by three hundred women and men, reached bac '". to the universalizing attack on separate-sphere ideology that had marked the long-ago meeting in Seneca Falls. On behalf of women, it demanded "fi participation in the mainstream of American society NOW, exercising j the privileges and responsibilities thereof in truly equal partnership wit men."73 What finally undermined the authority of difference ideology was ff persuasive feminist insistence, which itself became hegemonic among bros segments of the public during the 1970s and 1980s, that gender was a soci construct, not a natural condition. This contextualization allowed ma domination to be labeled as a "sexist" and destructive intrusion into cfv equality. Threatening intrusions demanded energetic civil repair. "Given tt pervasiveness of sexism," de Hart notes, "many feminists saw no possibiHi for real equality short of transformation not only of individuals but also 1 social institutions and cultural values."7,1 As with every effort to furth< institutionalize the idealizing codes of civil society, deepening incorporate and reforming "the system" required deep shifts in boundary relations an fundamental institutional repairs. Thus, "what seemed to be a matter t obtaining equal rights within the existing system, in reality demanded changi that transform the system."75 Instead of feminine difference, women woul be constructed in terms of civic competence. According to one progran mafic statement, published in 1979, feminist transformation involved nod ing less than "a reevaluation of women as workers, of women as mother of mothers as workers, of work as suitable for one gender and not for the other." Gender and Civil Repair The demand implies equal opportunity and thus equal responsibilities. If implies a childhood in which girls are rewarded for competence, risk taking, achievement, competitiveness and independence— just like boys.7'1 The Ethical Limits of Care The ERA may once again have been defeated, but this new commitment to gender equality has increasingly permeated the culture and institutions of contemporary life. It is precisely within this context of a less gender-distorting institutionalization of the promises of civil society that we should understand the growing strength over the last three decades of the radical movements that emphasize the separating particularities of "women's culture" and the moral superiority of a female-generated ethics of care. This contemporary development, I am suggesting, must be viewed as emerging from within feminism itself. It has unfolded not as an alternative to civil discourse, but within the very rubric of an underlying belief in the equal civil competence of women and men. As I will suggest in Part IV of this book, it is exacdy the same for those movements that have sought to restore die vitality of distinctive ethnic, racial, sexual, regional, and religious culture. Contra such group-centered theorists as Iris Marion Young,77 justice has not become simply a matter of accepting the politics of difference. The goal is not to allow group cultures to become so distanced from one another that their particularity can be recognized and separation assured. Difference can be positively recognized only if the particular is viewed, to again paraphrase Hegel, as a concrete manifestation of the universal. This becomes possible only if civil discourse is expanded to include subaltern communities, an expansion that de~essentializes and "purifies" polluted identities, recognizing differences as legitimate by constructing them as variations on the theme of a common humanity.7'1 It should not be surprising that some radical advocates of "women's culture" fail to appreciate that its growing legitimacy has actually depended on expanding the civil frame. As civil ideals become more deeply institutionalized, they become more transparent, less visibly taking on a primordial hue. Feminists themselves, however, often have worried about the failure of difference theorists to recognize the continuing reach of civil universalism. SOCIAL MOVEMENTS IN THE CIVIL SPHERE Gender and Civil Repair Twenty years ago, Ellen DuBois warned that any single-minded focus on "women's culture" risked ignoring "the larger social and historical developments of which it was a part," and thus failed to "address the limitations of the values of women's culture" itself.7'' It was precisely on such gro that there erupted, in the mid-ioSos, a furious debate inside the feminist community over Carol Gilligan's arguments for a distinctively differen male morality in her controversial book /// a Different Voiced This debate, one part of the broader argument about difference and universalism in the postmodern civil sphere, has not died down to this day. Against Lawrence Kohlberg's studies of moral development, Gilligan argues that boys have "a self defined through separation," whereas girls'. "a self delineated through connection." Women thus feel "a responsibility to discern and alleviate the 'real and recognizable troubles' of this world," while, by contrast, men's imperative "appears rather as an injunction tu respect the rights of others."Hi Feminist critics of these claims attacked Gilligan for drawing her data exclusively from women's decision-making cesses—primarily decisions about abortion—and for failing to study parallel processes in male decision making. If Gilligan had done so, her critics argued, she might have found that, beyond the differences she discovers, there is an underlying human universality. Do not men also in some circumstances find themselves siniilarh stretched on the rack between selfishness and responsibility? Were we to listen to men during their process of decision on, say, draft resistance, might we note also their similarly anguished contemplation of their responsibility to their families, to the needs of those who depend on them for care?K2 Gilligan has been attacking a straw man [sic\. ... In cliildhood anc adolescence, there is no trend whatever for males to score at highe: levels than females on Kohlberg's scales. . . . There is no indicatior whatever that the two sexes take different developmental paths witl respect to moral thought about abstract, hypothetical issues.83 What disturbed Gilligan's feminist critics was the possibility that her argument for difference—despite her own heated denials""1 that it was essen-tializing or even gendered—might obscure the difference between then and now between the days of public m/otherhood and the contemporary period of relatively universalist morality. Linda Kerber wrote that "this historian, at least is haunted by the sense that we have had this argument before, vested in different language [about] the ascription of reason to men and feeling to women.,,i!5 The psychologist Zella Luria asked, "Do we truly gain by returning to a modern cult of true womanhood?" Modern women will need not to be always caring and interrelated, if indeed they ever were constantly so. And they are also in situations where being abstract and rights oriented is a necessity. My purpose as a feminist is to train women to choose their actions sensibly and flexibly depending on the situation they confront.86 Can an ethic of care sustain the discursive kinds of commitments to impartiality, fairness, self-criticism, and inclusion that sustain the civil sphere in a trulv democratic society? One influential feminist philosopher, Susan James, has criticized the notion that "the activities typically undertaken by women can be described, without strain, as partial, personal or particular." What she fears is that if "the affections and concerns that go into them are usually directed to particular people and set within specific relationships such as those of mother to child, nurse to patient, secretary to boss, wife to husband," then women could be portrayed as if they "think and behave in ways that are antithetical to the norm of impartiality" that is so essential in constructing a tolerant and democratic world.1" James points out that, if an ethics of care bases itself on such ties as love, as its advocates have suggested, then there is no theoretical room for compelling conuuitment to abstract social rules—"for one another's well-being is enough [by itself] to ensure that differences are resolved and that feelings of resentment, frustration or anger are contained."HM Such an ethic is well and good for the intimate Sphere, but can it actually be extended to the civil one? To extend these practices (or something like them) beyond the private sphere would be to extend them into a territory where people are not bound by emotional ties and may perceive themselves as having little more in common than the fact they happen to be living under the same political jurisdiction."'' 260 261 SOCIAL MOVEMENTS IN THE CIVIL SPHERE Another feminist philosopher, Mary Dietz, wonders whether the moth that bind mother and child, the ties that sustain friendship, and such qui tessentially care-giving institutions as families actually provide the approp ate normative standards. Should they be used as models for the kinds motives, relationships, and institutions that must inform a democratic soi ety? Dietz suggests, to the contrary, that such relationships and institutic might, at least in certain fundamental respects, be anticivil in form. Who would not argue that the growth and preservation of children are vital social imperatives, or that the protection of vulnerable human life is important? BlU surely a movement or a political consciousness committed simply to caring . . . offers no standards . . . when it comes to judging between political alternatives. . . . The mother and the child are in radically different positions in terms of power and control. The child is subordinate to the mother. ... In other words, the special and distinctive aspects of mothering emerge out of a decidedly unequal relationship, even if benign or loving. . . . Tliis is an intimate, exclusive, and particular activity. [Because] democratic citizenship, on the other hand, is collective, inclusive, and generalized, [b]ecause it is a condition [in] which individuals aim at being equal, the mother-child relationship is a particularly inappropriate model. . . . Furthermore, the bond among citizens is not like the love between a mother and child, for citizens are, not intimately, but politically involved with each other. . . . Citizens do not, because they cannot, relate to one another as brother does to brother, or mother does to child. . . . Intimacy, love, and attentiveness are precious things in part because they arc exclusive and so cannot be experienced just anywhere or by just anyone with just any other. That is why love and intimacy . . . must not be made the basis of political action and discourse.1,0 One of the most influential philosophical advocates of this care ethic Joan Tronto, acknowledges that "we do not care for everyone equally indeed, that "we care more for those who are emotionally, physically, ai even culturally closer to us." As a logical corollary to this particularism ar implicit exclusiveness, Tronto admits also that, "in focusing on the prese vation of existing relationships," there is "little basis for critical reflection t Gender and Civil Repair ■ther these relationships are good, healthy, or worthy of preservation."''1 jugh paternalism and parochialism are unwelcome, they are inevitable :igers of care.",J2 Tronto goes so far as to identify "particularity" as the c's central "moral dilemma."'" By way of solution, she recommends that care ethic be "connected to a theory of justice,""4 which would provide ransformed context'"'5 for its application. Yet an ethics of care is consis-ly put forward as an alternative to just such universalizing theories of ce, not as their complement. Advocates of an ethics of care have criticized the discourse of civil society npersonal, mechanistic, and even masculinist. This caricature is produced i binary logic that merely inverts the simplifying dichotomies of civil ourse itself. The discourse of civil society is not concerned only with vidualism; nor does it represent an instrumental and strategic coloniza-by strategic and abstract forms of rationality. It codes altruism and trust, ihasizes honor and truthfulness over selfishness and deception, demands ldliness and openness, and suggests that social relations should be inclu-, egalitarian, and cooperative. Yet however positive and socially oriented, e qualities do not suggest love, and for this reason they do not denote lifeworld-centered "ethics of care." The question is not whether love, , emotional feeling, loyalty, and a relativizing contextualism are good gs in themselves. Certainly they often are. Plural societies need such cal codes. Nor is the question whether women's culture, as distinct from i's, is important to preserve and sustain, often in a separated place. Certainly it is. The question, rather, is whether such qualities can define the ;re of civil justice—indeed, whether identifying ethics by such qualities ild make it possible to mark out a relatively autonomous civil sphere I!, The categorical divisions of the civil sphere have been stable for centu-but the signifieds of these civil and anticivil signifiers certainly have In one historical period, differences of gender, class, race, religion, and lality are taken to be primordial differences and criticized or sentimen-;ed as anticivil by the groups that organize and represent the civil core, i later historical time, such supposedly natural qualities are seen merely constructed," as are the once invisibly primordial qualities that had, up 1 that time, defined the distinctiveness of civil society's core groups. Retlexivity is not about changing the categories that define the civil sphere; about learning how they can be instantiated in new ways.'"' 262 263 CHAPTER II Race and Civil Repair (i): Duality and the Creation of a Black Civil Society Since their first institutionalization in the seventeenth century, the promises made by the civil spheres of democratic nation-states have been mocked by gross exclusions and inequalities. These destructive intrusions have entered into the very construction of civil spheres, distorting their discourse, institutions, and interaction. Yet insofar as the civil sphere has retained any autonomy at all, and it often has, it has held out the continual possibility for civic repair. Those whom civil society has repressed m the name of a restricted and particularistic conception of civil competence, it also can save. More precisely, it can offer resources so that they can save themselves. This is what I want to suggest in these discussions of the great social movements that have developed around gender and race—that they can, indeed that they must, be viewed as movements of civil repair.1 In making this claim, I am advancing a normative argument that is designed also to be realistic. When normative social theorists such as Hannah Arendt or Jürgen Habermas confront the centuries of racial, class, religious, and gender domination, they have despaired that the civil or public sphere has disappeared, that it has been colonized into submission. Realists, whether Marxist or Weberian, disagree; for them, civil society has always been more Duality and the Creation of a Black Civil Society or less a chimera. It never existed in the first place. As I see it, by contrast the question is not whether civil society exists. The question is to whal degree. The civil sphere is only one sphere among many. Its promises car only be institutionalized in a partial way. One must speak, therefore, of the civil sphere and its contradictions— contradictions created not by the total absence of civil society but by th fragmented nature of its institutionalization. As I suggested earlier, these ar different from the economic, essentializing contradictions posited by Mao The contradictions between civil and noncivil spheres cannot be neadv historicized, defined by this particular period or that. Nor do they refer ti the strains that are generated from within one particular system alone. Finalh it is not possible to resolve contradictions as such. Future societies will neve be without them. The contradictions created by the boundary problems o civil and uncivil spheres are structural, and in that sense are permanent. The-are created not only by objective deficiencies but by expectations, by thi Utopian aspirations of the civil sphere and by the very effort to institutionaliz< them. This effort can never be completed. In real civil societies, universalisn will always be contradicted by particularities of space, time, and function.-1 One way of thinking about these contradictions is to look at the "du ality" they create. In social systems that include a relatively autonomous civ: sphere, every actor occupies a dual position. He or she is a subordinate o superordinate actor in a whole series of vertical hierarchies and, at the sam time, a member of the horizontal community' of civil life. Even when majority dominates a small minority, this duality allows the possibility o minority access, though of course it does not guarantee it.3 To speak meta phorically, the dictatorships created by vertical membership in noncivi spheres are surrounded by a horizontal "civil environment." This duality, a once existential, organizational, and cultural, is precisely what is missed b; the classical model of social movements and the variations I discussed n chapter 9. For social movements to develop, it is not the allocative systen that is crucial—the unequal distribution of resources—but the nature of th< integrative, normative environment that surrounds it.'1 If this integrative environment is at least partly defined by the civil sphere, it ensures tha conflicts are more than simple battles whose outcomes depend only or instrumental power.5 If the cultural and institutional definitions of the nation's integrativi community are not civil or not civil enough, then force and violence become decisive, for access is blocked to legitimate procedures, to the means of communication, and to the regulatory institutions that can integrate communities in more expansive and equitable ways. Rather than civil incorporation, this presents a situation of "negative integration," as GuntherRoth aptly described it in his study of the Prussian elite's domination of the German working class in the late nineteenth century." In response to grow-in"- class conflict, the German state outlawed the socialist political representatives of the working classes, violently and implacably opposing their political and cultural enfranchisement. Because the environment surrounding class conflict was not nearly civil enough, reform became impossible in Imperial Germany, and revolution the only resort. Much the same could be said for the massive social movements against South African apartheid and the Polish communist regime. In South Africa, only growing violence by the dominated black masses, and the threat of revolutionary destruction, could force reform in an Afrikaner regime that had virtually severed the black majority's connections to civil society.7 In Poland, despite the resources provided by a free church, private agriculture property, and a doggedly democratic nationalist culture, duality was even less a reality. With institutions of regulation and communication controlled by the nomenklatura of the party state, it was only a matter of time before the Solidarity movement was crushed, notwithstanding the original and far-reaching ideology it developed about self-limiting revolution in the civil sphere.8 To the degree that there is some autonomy for the civil sphere, it can, in effect, "surround" domination, and things can be different. There can be real, not just putative duality. There must still, of course, be an intense struggle for power, but this power can be gained by civil means. Organizations and resources are crucial, but what these resources provide is access to the means of persuasion, which in turn provides leverage for affecting the institutions of regulation that effectively control the allocation of money and force. It is, in fact, the existence of such duality that explains why the fierce struggles of dominated groups so often are pulled between moderation and radical extremes. On the one hand, the obdurate vertical-ity of exclusion produces alienation from society and the sense that exit is the only option, whether through revolution or withdrawal.1' Yet, at the same time, the immanent horizontality suggested by implicit civil membership raises the very real possibility of voice, of reform. Duality means that resources for communication are on offer, and the possibility of con- 266 267 SOCIAL MOVEMENTS IN THE CIVIL SPHERE trolling regulatory institutions is not closed, if the right social circumstances present themselves, civil repair is a real possibility for those who are skillful and strong. Racial Domination and Duality in the Construction of American Civil Society To understand how duality works, we must see it not only as a structure but also as a process. It is initiated by destructive intrusions; yet even as these distortions become instantiated in the civil sphere, possibilities for repaii emerge. In response to the fragmentation of the civil sphere, and the anticiviJ domination it legitimates, a counterpublic develops within the dominated group, a kind of mirror image of the dominant segment of civil society that allows the dominated not only to maintain some degree of comity and community- but to develop resources for resistance that engage the surrounding civil sphere. The existence of this counterpublic means that at some point it is likely, if not inevitable, that powerful social movements of translation will arise. In this chapter, I will illustrate how duality developed vis-á-vis white American domination of blacks, creating the conditions for civil repair. In the chapters following, I will embark on a detailed analysis of the social movement that emerged to repair this racial distortion of the American of civil sphere. I will show how the Civil Rights movement of the T9505 and 1960s succeeded in translating the particularities of African American domination into the idioms and institutions of the civil environment of the surrounding American society. As I have suggested throughout this book, categories of repression are built into the very fundaments of the discourse from which the great and liberating experiments of civil society have drawn. Though historically specific societies have filled up these categories in very different manners— providing different kinds of concrete signifieds for the widely shared signi-fiers—conceptions of racial particularity have been omnipresent.1" In European civil societies, as Charles Mills has forcefully argued, a "racial contract" was built into the civil foundations. During the so-called age of European exploration, whiteness helped to justify the contradictions of political domination and economic exploitation. Orientalism affected even the most emancipated minds of the northern European Renaissance, and racial- Duality and the Creation of a Black Civil Society -religious ideas obsessed the Spanish in their battle for Reconquest 1st the North African Moors.11 "he founding of the American colonies was inextricably tied to racial ination and displacement, actions that helped to create a scale of racial ry whose precise rank ordering was determined by the exigencies of and place. European settlers colonized American territory over the ; and bodies of native peoples. Yet this colonization was carried out so mentally and, at the same time, so ruthlessly that "redness"—the sup-d color of the native peoples skin—did not become thematized as the ary racial distortion of American civil society, despite such assertions as mas Jefferson's, in the Declaration of Independence, that Native Amer-i were "merciless Indian Savages" and John Adams's contention that ians" were among those peoples who "cannot bear democracy."12 It Dlackness that became the primary racial distortion, and it did so because iticivil functional exigencies. By the mid-seventeenth century, Africans ; being imported in mass to labor as slaves on plantations in the American h. The planters had tried to make use of the quasi-free labor of Indians white indentured servants, but, as the sociologist Bert Landry puts it, ike Native Americans, Africans were accustomed to agricultural work, they could not blend into the population as did white indentured ints if they escaped."13 These considerations made Africans "an ideal pensive work force from the planters' point of view." These early func-il exigencies specified the generalized racialism of Western culture in a ner that made beliefs about the civic incompetence of blacks intrinsic \merica's originating civil discourse. As the literary scholar Houston liaker has suggested, the white American representation of the black mi~ y was an inverted projection of its own claim to reason and civility. illack Americans . . . were defined [as] a separate and inverted op-tosite of a historically imagined white rationality in action. Such a ilack upside-down world could only be portrayed historically as an rrational, illiterate, owned, nonbourgeois community of chatel. . . itting bleakly in submissive silence. ... It would be precisely . . . the 'b," or negative, side of a white imaginary of public life in America.1"1 Jecause domination of slaves was an overriding economic need primarily unerica's southern region, this functional exigency soon translated itself 268 269 SOCIAL MOVEMENTS IN THE CIVIL SPHERE into a contradiction of place and even of time, for the southern white planti class supplied a large proportion of the founding fathers of the America democratic state.15 These contradictions became particularly debilitatin with the institutionalization of America's national civil society in the 177c and 1780s. In justifying their democratic rebellion against England, coloni; revolutionaries continually employed the metaphor of slavery to justify the demands for independence. It was to this condition of servitude, thev claimed, that their English oppressors were trying to reduce them. Thi rebellious colonists decried England's increasingly harsh political and eco< nomic regulations as an effort to "enslave" them. When Thomas jeffersoi asserted, in the Declaration of Independence, that "all men are createt equal," he developed a universalizing argument that pointed beyond men national independence to the abolition of every form of legal servitude. Ii fact, in the context of this revolutionary atmosphere, some efforts arose to abolish African enslavement even in the southern state of Virginia.lfl Man of the most prominent leaders of the Revolution were themselves aboli tionists, and among some fervent supporters of the Revolution there was widespread belief that postrevolutionary America would wipe slavery out. These hopes for civic repair were dashed when the American civil spher was first institutionalized on the national level. In the unstable decades tha followed the revolutionary victory, the straggle to define a new, specificall national identity emphasized whiteness as a distinctive solidarity, and in th effort to create a new national constitution the racial contradictions produce by time, place, and function came fatefully to a head. Thus, despite the fac that Benjamin Franklin was president of the Pennsylvania Abolition Societi he declined its invitation to offer an antislavery motion to the Constitutions Convention of 1787. Franklin was afraid to alienate southern delegate whose support would be essential to approving a new constitution.17 Whes tliis geographical bloc pushed through the infamous "three-fifths compro mise," it guaranteed that the racial distortions of culture and the destructiv intrusions of place, time, and function would become legally specified crippling the institutions that regulated American civil life. By so distorting the basic premises of regulatory institutions, the Con stitutional Convention ensured, from that time on, that it would be difficuJ for Americans to eliminate slavery in a civil, democratic way. As the historiai Merton Dillon once put it, "because of the three-fifths compromise, tin eradication of slavery by peaceful, constitutional means was made exceed Duality and the Creation of a Black Civil Society {n function. What could more vividly testify to the fact that the civil solidarit of the nation had completely broken down? Though postwar constitutional amendments abolished slavery and for mally guaranteed African Americans full civil status, the Civil War failed t resolve the destructive intrusion of race. "Reconstruction," the ambition northern effort to reorganize southern politics and society so that black could be included in a substantive way, was shut down after a mere decade/ The rollback responded not only to political and economic forces, but t racist cultural understandings that continued to permeate not only the Sout but the North.— Messages testifying to the civil incompetence ofblacks wer broadcast far and wide by communicative institutions in the North, fror the expressive media of traveling "minstrel" shows that featured white me; in black face to the cognitive media of news accounts and even purported! scientific treatises. At Columbia University, then a bastion of the East Coaf elite, Howard Odum filed a doctoral dissertation in 1910 that became an influential book, Social and Mental Traits of the Negro. Odum justified rack domination by constructing the motives and relations ofblacks in terms c the discourse of repression. The Negro has little home conscience or love of home, no local attachments of the better sort. . . . He has no pride of ancestry, and he is not influenced by the lives of great men. . . . He has little conception of the meaning of virtue, truth, honor, manhood, integrity. . . . He does not know the value of his word or the meaning of words in general. [Negroes] sneer at the idea of work. . . . Their moral natures are miserably perverted.-1 It was within tills cultural context of anricivil public opinion—the par ticularistic, essentializing notions broadcast far and wide by the communicative media of the day—that in the latter part of the nineteenth centur southern regulatory institutions systematically organized and rationalizei forms of domination that culminated in the racial apartheid called "Jin Crow." For our purposes, what is important to understand about this proces is that it was not only materially abetted but formally legitimated by the surrounding regulative institutions of the United States. Racial domination in other words, continued to destructively intrude into the American civil sphere after the Civil War, shaping national culture, institutions, and inter-ictions in specific kinds of anticivil ways. In the half century after Reconstruction, the U.S. Supreme Court systematically eroded the new constitutional provisions designed to protect black civil rights.24 In 1896, in Plessey i'. Ferguson, the white Court declared Jim Crow constitutional by primor-dializing a civil incapacity in blacks. This decision generated the famous dissent by Justice John Marshall Harlan, so revealing because it had such a simple aim—to extricate the founding regulatory document of American democracy from the primordial claims made upon it by the Court's majority. Scolding his colleagues that "the law regards man as man," Harlan reasserted the civil and Utopian nature of the Constitution, declaring "our Constitution is color blind and neither knows nor tolerates classes among citizens."25 That this democratic sentiment was not shared by the core groups of American civil society is demonstrated by the manner in which office, a critical regulative institution of civil society was distorted in an equally racial way. In the decade after Reconstruction, for example, there was a drastic decline in the number of prosecutions brought by the federal government against southern noncompliance with the Civil War amendments.20 Those who held executive office at the national level, moreover, did not hesitate to engage in public rhetoric justifying such anticivil abuse of power. President Taft opposed extending voting to blacks by suggesting they were but "political children, not having the mental status of manhood." President Harding affirmed the "fundamental, eternal, and inescapable differences" between blacks and whites, declaring that he would "stand uncompromisingly against every suggestion of social equality" for "racial amalgamation there cannot be." President Wilson ordered chat a wide range of federal agencies should be segregated in order to avoid what he termed "race mixing.''27 Truly significant changes in the nation's regulative institutions would not occur until the 1960s. Still, when national politics entered a more progressive period, in the 1930s, regulative power at the national level began to be exercised less overtly in a racist manner. Even the U.S. Supreme Court began to issue decisions that were less anticivil in regard to race.2B In the southern civil sphere, by contrast, the destructive intrusion of race remained virtually unchanged. Because of the disproportionate power of its southern members, Congress failed to pass a single civil rights measure between T930 social movements in the civil sphere Duality and the Creation of a Black Civil Society and T954.-" It is not an exaggeration to suggest, indeed, that, even in mid-twentieth century period, African Americans remained almost a pletely separated from the civil sphere in the southern United States. Al Morris describes this distance simply and powerfully when he writes blacks "were not members of the polity."10 It was not only in cultural ways that southern whites separated bli trom the reach of the civil sphere, symbolically representing them as devoid of rationality, honesty, and self-control. Southern whites also domin; blacks interaction ally. Morris describes the insistence on inequality and 1 erence in personal relations, how blacks "had to address whites in a t that conveyed respect and [to] use formal tides," and how black males v "advised to stare downward when passing a white woman so that she would have no excuse to accuse him of rape."-11 This corruption of the civil sph< interactional dimension fed back into the effort to keep blacks from ha\ access to the regulatory institution of office. "In the South," Landry expk "the idea of blacks engaged in clean work in the front offices of establ ments serving a white public was completely repugnant to white se merits." The result was that "no black individual could occupy a clerica sales position in white establishments. "J2 Finally, blacks were also completely separated from southern inscicutioi of communication and regulation. As we will see in our discussion of tl civil rights struggles themselves, when white community newspapers d not simply ignore the existence of black society, they distorted its activitii in contemptuously anticivil ways. It was the same with regulatory institi tions. Blades were never allowed to hold positions that, in Morris's word were "vested with authority" in either the private or the public spheres. This exclusion from office was exacerbated by the exclusion of blacks froi the legal protections of the civil sphere, for "the courts were controlled t white judges and juries, which routinely decided in favor of whites." The electoral arm of civil society was also unavailable to blacks, who wei effectively disenfranchised by such white electoral subterfuges as the po tax, literacy requirements, and the grandfather clause. It is hardly surprisinj given this absence from regulative and communicative institutions, that th southern white community, relatively democratic internally, allowed its pa lice forces to employ "terror and brutality" to mediate its relation to blac community life. Duality and Counterpublics How was it possible, in such a degraded situation of anticivil domination, for an effective movement for civil repair to emerge? As I suggested earlier, such a possibility is linked to duality. The national civil sphere of American society surrounded the southern system of internal colonization not only socially but spatially. In regard to race, the idealistic promises of the American civil sphere were much more effectively institutionalized in the North, which had earlier waged civil war against the destructive intrusion of southern slavery. It would be a profound error, however, to think that this surrounding national sphere would somehow "act"—on its own, as it were—co resolve the racial contradictions of American civil society. This would be a mistake not only, or even primarily, because of the empirical fact that race also distorted the civil sphere in the North. This would be an error in theoretical, not only empirical terms. Duality must be activated by agents. When the civil sphere is severely distorted, this agency takes the form of social movements and their contingent mobilization of skill, power, and interpretive force. Duality suggests that domination and exclusion exist in some degree of tension with the premises and regulatory force of the partially institutionalized civil sphere. However, in recognizing the importance of duality—the continuing possibility of democratic justice—one must avoid teleology. It is tempting to look down from the perspective of the structure, or system, rather than up from the perspective of the social actors themselves. The problem is the assumption, implicit in Hegel, Durkheim, and Parsons, that because civil societies retain the potential for progressive development, they actually will change in a positive way. They may not change at all, or they mav become less democratic. Tills insistence on agency and social movements in response to duality leads us directly to the theory of counterpublics, one of the most sociologically relevant ideas to emerge from recent normative discussion about civil society and public life. Drawing from the Gramscian tradition and particularly its sociological application in the Birmingham school of cultural studies, scholars such as Nancy Fraser and Geoff Eley have pointed to the fact that excluded communities develop the capacity for resistance because they have formed counter or "subaltern" public spheres of their own.-'"' In terms of the framework I am developing here, these shadow communities of dis- 274 275 social movements in the civil sphere 8 Duality and the Creation of a Black Civil Society course, stimulated by voluntary organizations, create opportunities for de veloping positive new identities and solidarities in opposition to the pollute* and demeaning categories that have been applied to them by dominant cor groups. These new discursively created identities become the basis for pa litical resistance and the movement for civil repair.35 The idea that there are counterpublic spheres, or subaltern civil societie: allows us to locate the sociological spaces within which critical social move ments develop. We can develop a satisfactory discussion of the black civil sphere, however, only if we are sensitive to some of the problems of coun terpublic theory as it has been developed thus far. Its origins in neo-Marsi: forms of critical theory has been both its strength and its weakness. Frase and Eley formulate the idea of the counterpublic in relation to Habermas earliest. neo-Marxist work on the structural transformation of the bourgeoi public sphere. As these critics read Habermas, he tied the public values ot rationality; dialogue, truth, and transparency—values homologous with thi civil discourse of liberty as I have defined it here—to the viability of th< public sphere in its exclusively bourgeois form. According to Habermas early formation, when industrialization intensified the inegalitarian eco nomic contradictions of capitalism, the public sphere and its values wen themselves doomed. In opposition to this perspective, counterpublic theorists have pointed out diat vigorous public life existed in nonbourgeois communities, diat these alternative publics provided vital bases for opposition to capitalism and to such other forms of domination as gender and race, and that, though the bourgeois public did decline, other, more viable publi< spheres often arose to take its place. Such arguments provide important insights into the fragmented anc conflictual nature of civil society and into the reactions to exclusion I an trying to illuminate here. At the same time, however, they fail to do justice to the universalizing premises of civil norms and the critical implication; that follow from them. Underestimating the civil sphere's potential for relative autonomy from the interests of any particular social group, they negleci the degree to which critical social movements are oriented not simply towarc gaining resources and power vis-a-vis the civil sphere but to securing s respected place within it. Theorists of counterpublics tend to neglect, in other words, the existence of duality. They ignore the manner in which this structured ambiguity pushes the orientation of social movements not only to conflict, but also to integration.3'' Counterpublic theorists conceive of the so-called hegemonic public sphere as a kind of empty arena, as a fenced-off space that has the capacity to pacify and contain social conflicts whose goals and ambitions remain fundamentally orthogonal to one another and to the culture and institutions of the wider social world. Thus, Eley identifies the civil public sphere simply as "a setting where cultural and ideological contest or negotiation among a variety of publics takes place."37 It is precisely because the substantive and universalizing content of the overarching, or environing, public sphere has been emptied out in this manner that the counterpublic can be conceived in such purely agonistic and contingent terms. Fraser calls it a "parallel discursive" arena in which "subordinate social groups invent and circulate counterdiscourses to formulate oppositional interpretations of their identities, interests, and needs."-™ Such arguments reduce counterpublics to countercultures. As the argument I have been developing in this book suggests, by contrast, counter-publics are built not only upon popular culture per se, but upon refractions of the universalizing representations and practices of the e mi roiling civil sphere.3" When counterpublics succeed, it is not simply because they have engaged in what Fraser calls "agitational activities," utilizing their space of "withdrawal" to launch a "sustained discursive contestation" with the dominant regime.4" This kind of argument takes us back to the strategic logic of conflict theory, the very perspective which civil society theory was designed to overcome. Alternative publics succeed because their intragroup activities have allowed them to learn the art of translating their particular injustices into the more universal language of civil justice. Counterpublic resources give them the power to project these translations into the surrounding civil sphere. In short, excluded groups successfully transform their subordinate position by making more substantial and more deeply institutionalized— more real and less Utopian—the universalistic solidarity promised by the dominant civil sphere.41 The Conditions for Civil Repair: Duality and the Construction of Black Civil Society In light of these considerations, it should not be surprising to learn that the continuing and continuously destructive intrusion of race into American 276 277 Duality and die Creation or"a Black Civil Sociery civil society produced a boomerang effect even in the severely distorted^ southern civil sphere. The very subjugation of the black community gave it a separate space for defending itself against the efforts by whites to construct the African American population in an anticivil way. That this community1; partially succeeded in doing so, that there eventually emerged within many black communities a vigorous civil sphere and public life, testifies, at least in part, to the limitations placed on the exercise of southern racist power by the surrounding civil sphere. The antidemocratic race dictatorship in the South was not totalitarian, and its subordinate position within the national civic sphere made it even less so. Even in the South, the oppressed black community could, within strict limits, organize itself in a manner that critically responded to the negative symbolic constructions ofits white oppressor^ and, eventually, to its organizational domination as well. The ability to take full, advantage of these opportunities, however, had to wait upon certain social structural developments in African American communities. Before World War I, status within southern black communities was based primarily on race, not on the possibility of achievement defined in more universalistic terms. The black elite, for example, was primarily identified by its mulatto status. As Landry puts it, by virtue ofits wf ancestry, skin color, and manners and morals patterned after middle- a upper-class whites," the black elite members were distinguished by th "daily close contact with wealthy whites" in such service positions as barb* servants, railroad porters, and skilled craftsmen. This status created residem patterns antithetical to the formation of a separate, distinctively black ci-sphere, for "whenever possible black elite families sought to live in wl neighborhoods, if only on a single block of a street occupied by whites. All this changed during and after World Wtr I, when the dearth of wh laborers and the end of European immigration drew massive numbers of blacks from farms to cities. It was this rural-to-urban migration, in t context of continuing racial domination and duality, that created the new urban ghettos in the South and the North, which in turn established i possibility for black civil society. This newly separate and increasingly complex black civil sphere did n emerge, however, simply from resistance to white domination, as Moi -seems to suggest when he argues that the "institutional subordination" blacks "naturally prevented [them] from identifying with the institutions of the larger surrounding."4-1 It emerged, rather, in a much more dialectic md dialogical way, via opposition and refraction, drawing upon the resources provided by black identification with white civil society, not only by its separation from it. In simple demographic terms, ghettoization compelled the kinds of dense cross-class interactions that foster solidarity and collective identity. As Morris writes, "irrespective of education and income." blacks "were forced to live in close proximity and frequent the same social institutions." Maids and janitors came into close contact with clergy, schoolteachers, lawyers, and doctors. [Because] segregation itself ensured that the diverse skills and talents of individuals at all income and educational levels were concentrated within the black community[.j cooperation between the various black strata was an important collective resource for survival."'"' But propinquity was hardly sufficient. Interaction does not take place in an institutional or cultural vacuum. It can lead to solidarity that is primordial and particularistic. Though these impulses certainly were not absent in the African American community, it is critical to understand that, within these segregated communities, interaction was also forcefully structured by resources of a specifically civil kind. That the solidarity of this newly emerging black civil community would be defined in cosmopolitan and not only in primordial terms was ensured by the fact this dense interaction was informed by highly universalistic cultural themes, by ideals, both sacred and secular, that extended beyond the particulars of race to embrace the Utopian norms of civil society itself. Almost from, the beginning of their southern servitude, African Americans had embraced and refracted the transcendent symbols of the radical, sectarian Protestantism that had been a vital facilitating input in the formation of the American civil sphere. Until the early years of the twentieth century, the critical social potential of African American Christianity had been hobbled by an other-worldly dimension that regarded the tension between human and divine worlds as more or less unbridgeable, emphasizing compensation in the next world for oppression in this one.1'5 When independent black urban communities began forming, however, so did a theological movement that shifted the African-American religious perspective in a more this-worldly direction. This change was stimulated by the "social gospel" move- social movements in the civil sphebe Duality and the Creation of a Black Civil Society ment that had developed within white Protestant churches reacting to in dustrialization after the Civil War. In white communities, the social gospe argued that good human beings had been corrupted by social structures tha henceforth must be changed. Black social gospel took a more radical per spective. Evil had already overtaken the world, and God had commande humankind, especially black, to wage a social struggle to bring the worli back to God.4f' The critical and ethical strains in this later version of black Christianity were palpable. It understood the religious transcendence tha Jesus promised in social terms, approaching salvation not as the deliveranc from earthly suffering—a condition achieved through prayer, death, am heavenly ascendance—but as the transformation of racial domination in thi world. In this way, religious salvation demanded social justice. As a recen sociological student of black spirituality has put it: "Freedom is an explicitf--collective endeavor signifying both spiritual deliverance into God's kingdon and worldly deliverance from the material realities of racial oppression. . . Church hymns were transformed into songs of freedom [and] sermon-doubled as political addresses."47 It is critical to see that this strand of sacred universalism in Africa] American culture was inextricably intertwined with the secular universalisn of American civic life. Beginning in the early years of the nineteenth centuq the success of abolitionism had released thousands of freed slaves into thi northern white civil society. In his study of black mobilization during Re-construction, Eric Foner emphasizes the impact on black political though of this northern civil culture, suggesting that "black political leaders can bes be understood as those most capable of appropriating the available politica language of American society and using it to express the aspirations of the black community."'1H He describes this emergent black political culture ai-decidedly universalist, as emphasizing the "rights of citizenship" and "grounded in the republican traditions of the eighteenth century, particularh as expressed in the Declaration of Independence and the Constitution."'' By emphasizing that African Americans had been cut off from secular civi thinking during slavery, Foner points imphcidy to the critical issue of duality It was, in fact, only during Emancipation and Reconstruction, during the northern physical, political, and cultural invasion of southern white anc black society, that the duality of civil society powerfully expressed itself ir secular African American thought. One Alabama planter blamed "a shameless class of soldiers"—the invading and occupying forces of the Unior ^rmy—for spreading Republican ideas among his ex-slaves.30 Republican ideas were also spread by northern officials who administered postwar Reconstruction and by northern teachers who taught thousands of black children in newly constructed schools.51 It is precisely this powerful cultural interpenetration promoted by duality that was highlighted in 1865 by South Carolina's black Congressman, Richard H. Cain, when he remarked that "the North has sent forth those leading ideas, which have spread like lightning over the land; and the negro was not so dumb and not so obtuse that he could not catch the light, and embrace its blessings and enjoy them."52 In discussing the ideas of Frederick Douglass, the onetime slave who became the most influential public voice of African American culture in the abolitionist period, David Greenstone insists on a similar interpenetration in reference to the American liberal tradition, the other reform-oriented manifestation of American civil discourse. Rather than thinking outside or against the liberal tradition. Greenstone insists, Douglass's purpose was "to find a place in it for himself and lus people." The fact that Douglass recurred to the genus liberalism of founders like Jefferson and John Adams, therefore, is far from surprising. Douglass's was also a founding project: to make sure that the bonds that citizens share would come to include "that class of Americans called Africans."55 James Oakes makes a similar point. Acknowledging that, "if any group of Americans might have been expected to repudiate liberalism for its complicity in the defense of slavery, racism, and economic inequality—African-Americans are that group," he insists, nonetheless, that "black political thought" has "never been divorced from the liberal tradition." He concludes that, "from the eighteenth century to the late twentieth, blacks have successfully harnessed the themes of liberalism to the struggle against various forms of inequality."5"1 As these secular traditions became involved in the ups and downs of the continuing black freedom struggle, they became crystallized in folk narratives that constituted another strand of the secular African American protest tradition. Such figures as Denmark Vesey, Nat Turner, Sojourner Truth, Frederick Douglass, W.E.B. DuBois, and Marcus Garvey were symbolized as tragic heroes who fought against overwhelming forces for the just cause.33 280 281 Duality liikI the Creation of a Black Civil Society Looking backward from the Civil Rights movement of the 1960s, this folk tradition of protest was vividly articulated by the Reverend Fred Shuttles-worth, an important leader in 1950s Birmingham and later nationally. And of course, we based [the Southern Christian Leadership Conference] on everything that happened in the past—Frederick Douglass, slaves, and Marcus Garvey; everybody who struggled for freedom and who were caught up in the same web. And we were giving it an upward thrust.*' The connection between this cultural tradition of rebellion and African American religious belief is exemplified in the evocative letter that the Reverend Ralph Abernathy composed for Martin Luther King, his slain comrade, which Abernathy announced he was sending to heaven: It wouldn't be a surprise to me. Martin, if God didn't have a special affair just to introduce his special activist black son to so many others like you that have gone on ahead. . . . Martin, find Frederick Douglass, that great and marvelous human personality who lived in even, more difficult times than we live today. Check with Nat Turner, and Marcus Garvey, for they, too, are heroes in our crusade. . . . And don't forget Malcolm X. Look for Malcolm X, Martin____He was concerned about the welfare of his people/7 Interpreters of contemporary African American society have found these secular cultural themes to have remained powerfully intact. Houston Baker speaks about the importance of "civic responsibility" in the counterpublics of black southern society, a cultural complex centered on "codes" of "dissent, consensus, tolerance, justice and ethics." In a poignant autobiographical aside, Baker reveals how deeply these cultural values drew upon the idealizations of the surrounding white civil sphere. The Constitution of the United States and the American national flag were valued sites of patriotism and pride for the black public sphere. Which of us, for example, who attended those awesomely-scrubbed black urban public southern schools of the 1950s that always smelled of disinfectant, can forget the pride and solemnity'with which each school day began in recitation of the "Pledge of Allegiance" to the flag of the United States of America?5" In his closely observed study of African American patrons in a working-class restaurant on the edge of the Chicago ghetto in the 1980s, Mitchell Duneier found adherence to idealized representations of "appropriate or correct behavior" that mirror in critical respects the normative discourse ot civil society. At the core of this cultural system, Duneier discovered an ideal of respectability, according to which the black patrons sought to measure their own and others' conduct against a standard of "moral worth" that affirmed the autonomy of the individual—"the reality of a self that existed, not as a function of role or status, but as a mere consequence of one's humanity.'"5'' In terms of the binary structure of civic discourse, it is revealing that Duneier observes how the "civil attachment" manifest by the black patrons was demonstrated less by their explicit reference to positive ideals than by their vigorous and public opposition to behavior they disdained. The restaurant's patrons located these negative qualities—"pretension, aggressiveness, uncommunicativeness, impatience, flashiness, laziness . . . and perhaps most important a lack of personal responsibility"—less in the culture of the white world than in the social organization and behavior of the new black underclass, which they believed had destroyed the civil solidarity of die "old ghetto" life.00 It is noteworthy that Duneier connects this minority discourse of civility' not only to the historically rooted solidarity' of the black community but to the effect of the surrounding white one. He recounts di.it for these men the " 'white world' functions as vague generality, not unlike someone looking over your shoulder or a 'public' in whose presence it is firmly understood that one should not wash his dirty laundry.""' At the same time, Duneier insists, this kind of commitment to the universalizing ideals of an environing society does not imply that black patrons accept the legitimacy of white institutions. "To the contrary," he observes, "the black regulars tend to be very cynical about the motives of the powerful institutions [and] elites."''- Nothing could more clearly express the critical implications of the concept of duality I have in mind. An increasingly complex network of communicative and regulative institutions mediated between the sacred and secular cultural themes of southern black civil society, on the one hand, and the level of face-to-facc civil interaction, on the other. Newspapers that served these communities broad- 28; 283 SOCIAL MOVEMENTS IN THE CIVIL SPHERE cast interpretations of events that challenged and inverted the polluting characterizations of white society. In her historical study of the black community of Richmond, Virginia, for example, Else Barkley Brown found that the Richmond Plane! countered the white southern image of African American men as "uncivilized, beastiy rapists" by "repeatedly focus[ing] on the sexual perversions of white men with [reports on] cases of rape and incest and spoke of white men in terms designed to suggest their barbarism.""-1 Yet because southern blacks faced such scrutiny and control from white society, they could not sustain anything like the dense newspaper network that crystallized black public opinion in the North/"1 This vacuum was filled, in part, by southern distribution of influential northern black papers, such as the Chicago Defender, which at one point may have distributed as many as 200,000 copies of its weekly edition in southern black communities.''' In general, however, public opinion in these communities was crystallized and renewed in other ways. Messages were more often broadcast by expressive institutions, such as clubs and membership societies, which sustained a rich popular culture of music and spectacle. In fact, it was these voluntary associations rather than institutions of mass media that sustained communicative flows in black civil societies. In addition to the myriad of mutual benefit societies and fraternal orders, women's clubs and labor organizations, there were formal salons, like the Acme Literary Society in Richmond, whose goal was to hold "discussions, lectures, and to consider questions of vital importance to our people, so that the masses of them may be drawn out to be entertained, enhghtened, and instructed thereby.""' It is impossible, of course, for a civil society subject to legal domination by an immensely more powerful government structure to create regulatory institutions in the traditional sense, which distinguish themselves vis-a-vis communicative institutions precisely by exercising government control. This important qualification aside, however, one finds numerous forms oflawlike regulation in black civil societies, from the formal, written constitutions that regulated many voluntary organizations to the informal but strictly observed rules that controlled behavior in recreational, business, and professional life. Eventually, as we will see below, legal organizations actually did emerge, such as the Negro Lawyers Association and the National Association for the Advancement of Colored People (NAACP). Though these black regulatory institutions could neither make nor interpret the law of the state, through their rhetorical pronouncements and courtroom briefs they sought to estab- 284 Duality and the Creation of a Black Civil Society lish alternative standards of normative regulation for the black community, regulations that were less primordial and more umversalistic than those enforced by whites. It is also clear that office institutions in the black community had a marked influence in controlling the organizational exercise of power and money. In economic enterprises, political associations, and in every sort of voluntary organization efforts, persistent efforts were made to prevent the personal and arbitrary exercise of power. The intent was that power should be regulated by civil obligations. The ethical dimension of office was defined less by legally articulated standards than by obligations to wider community solidary. This was nowhere more true, and nowhere nearly as consequential, than in the black church, the central institution in most southern black civil societies. The black church was more than a site for articulating sacred ideals. It was also an organization with money and power that occupied a physically imposing place. The church was the first independent voluntary organization in the southern black civil community; it was also, by far, the strongest one."7 On the one hand, this organization can be examined in terms of its external role. Through the weekly sermons of its preachers and its numerous meetings and pronouncements throughout the community, the church broadcast a steady stream of messages that crystallized general values in relation to the contingent, ongoing events of the black civil sphere. In terms of its internal structure, on the other hand, the church constituted a kind of multilevel civil society in microcosm. Inside its organizational space, it promoted solidarity and fellow feeling. It was, in Morris's words, "an institutional alternative to, and an escape from, the racism and hostility of the larger society," and it provided "a friendly and warm environment where black people could be temporarily at peace with themselves while displaying their talents and aspirations before an empathetic audience."M This solidarity was stimulated by opportunities for democratic kinds of face-to-face organization. Morris describes the "fluid and informal quality" quality of interaction, which allowed "people to express their feelings and often mingle in informal groups long after service ended."fitJ This interactional and cultural experience of solidarity became institutionally articulated by the numerous standing committees and problem-oriented groups that focused attention on practical matters like fund raising and wider community issues and affairs. The participants in these intrachurch groups were held to strict standards of accountability; they were bound by 285 social movements in the civil sphere Duality and che Creation of a Black Civil Society a sense of duty, not only by practical interests and concerns. These office-like standards for normative behavior were regulated and enforced by the political and economic power exercised by ministers of the black church. Yet this minister, in turn, was elected by, and responsible to, the solidary ? community constituted by the church members themselves. One influential ^ black minister described the democratic aspect of the selection process in this way: "He had to be nominated to that post. He had to be voted in. He had to be made the pastor. Nobody sent him down. No bishop said here's who you're going to have whether you like it or not. That minister had to make it out of nothing, what we call the rough side of the mountain.""" Martin Luther King recounted his effort to gain the ministry at Atlanta's Dexter Avenue Baptist Church in this way: "I was very conscious that this time 1 was on trial."7' '■ Duality and Translation: Toward the Civil Rights Movement I There can be no doubt that this black civil community, properly understood I as reflection and refraction of the distorted ideals of the surrounding civil sphere, played an enormous role in the civil repair of racism that crystallized ■ in the Civil Rights movement of the 1950s and 1960s. It supplied economic U% and organizational power and an ideology of solidarity in the struggle against f white oppression. As we will see in the following chapter, however, some * f of the most acute observers of the great events of that time, both academics and movement intellectuals, have conflated this provision of resources with the Civil Rights movement itself, nustaking the mobilization of the idea- .-logical and material resources that made successful civil translation possible 1 with the activity of translation itself. In Ills discussion of the lunch counter ; sit-in movement in i960, for example, Morris emphasizes how "the mass-based black church mobilized the resources necessary for collective action." He describes the "telephone Hues and the community grapevine;" the "numerous midday and late night meetings" where "the Black community assembled in the churches [and] filled the collection plates, and vowed to ' ~ ' mortgage their homes to raise the necessary bail money in case the protesting students were jailed." He speaks of the black lawyers who "pledged their legal services" and the black physicians who "made treatment available to the injured demonstrators."7- In Bayard Rustin's reflections on the Civil 2H6 Rights movement's great success in Birmingham in 1963. this important black intellectual and veteran political activist, who was Martin Luther King's closest advisor during the early years, similarly points to the civil solidarity of the black community, to how it "was welded into a classless revolt."73 King himself, in an article titled "The Great Lessons of Birmingham," highlights the critical role of the "democratic phalanx" that assembled in Birmingham's streets, where "doctors marched with window cleaners," where "lawyers demonstrated with laundresses," and where "Ph.D.'s and no-D's were treated with perfect equality by the registrars of the nonviolence movement."74 The critical question, however, is not what kinds of resources were available but how they were mobilized. This is the transition from counter-public to civil repair. The black counter/public did not just throw its body against the white oppressor; nor did it simply project the open spirit of the black masses against the closed spirit of southern whites. The black coun-terpublic was a necessary but not sufficient condition. It supplied material and cultural resources for a movement whose tactics and strategies were defined largely by its possibility of gaining access to the environing civil sphere. Once again, the critical issue is duality. The Civil Rights movement succeeded, in part, because blacks bravely confronted the southern white power structure. It also succeeded because black leaders convinced influential members of the northern civil sphere to enter the confrontation alongside them. In order to achieve such persuasion, they had to find a way to translate their own, primarily black struggle against southern racial domination into the language and idioms of the northern civil community. In concluding this discussion of the conditions for civil repair, we will briefly examine the black community's uneven but growing understanding of the need for such communicative mobilization. In the decades that marked its gradual emergence, black civil society waffled uncertainly between the options of exit, voice, and loyalty.75 In the face of the failure of Reconstruction and the closure of opportunities in the South, Booker T. Washington, with his injunction to forget about public protest and to concentrate on educational and economic advancement, advocated a loyalty approach to the surrounding civil sphere. Marcus Garvey's immensely popular Back to Africa campaign embodied an exit strategy that expressed the black community's fatalistic sense of distance from the possibilities of American civil society. However, as black civil society became a more powerful 2S7 SOCIAL MOVEMENTS IN THE CIVIL SI'HEHE refraction of the surrounding civil sphere, there emerged movements that *f exercised voice. These efforts sought neither to withdraw from the civil sphere of American society nor to demonstrate loyalty to its contemporary ; instantiations. What they demanded, rather, was the fuller and more complete institutionalization of its idealistic promises. These demands simulta-neously resisted the destructive intrusions of race and reproduced the idealistic principles of the American civil sphere that, at least implicitly, held out the possibility for overcoming them. The most important expression of this demand for voice was the formation, in 1909 and 1910, of the NAACP. Today, the early activities of the NAACP are primarily remembered as legal ones, and they certainly did represent, as I have mentioned above, a nascent movement toward the | democratization of regulative institutions vis-a-vis the white communities f of the North and South. In fact, however, the NAACP's role in creating the conditions for civil repair was primarily communicative. This was true in two very different respects. .; In the first place, alongside its legal arm, the NAACP established a Publicity and Research Department to change white public opinion about • blacks, countering polluting stereotypes through pamphlets, speeches, lob- "* ' bying, and press releases. Its first director was WE.B. DuBois, the Harvard- , . ; educated sociologist and philosopher who became the most influential black s intellectual of the pre—Civil Rights movement era. Believing that racial distortion of the American civil sphere could be overcome through education and persuasion, DuBois created Crisis, a monthly magazine that pub- - ! lished the works of gifted black poets, artists, and writers.76 Crisis demon strated the NAACP's ambition both to refract and reach out to the implicit but unfulfilled promises of the surrounding civil society. The editorial sectii of Crisis dedicated itself to the "rights of men, irrespective of color or race, for the highest ideals of American democracy," and in DuBoiss maiden editorial he declared his own commitment, and the NAACP's, to explore and to publicize "those facts and arguments which show the danger of race prejudice."77 Alongside such activities as these, which were explicidy directed to public opinion, the legal arm of the NAACP, composed of distinguished white and black lawyers, dedicated itself to confronting racial domination by bringing the principles of the American Constitution, the core regulatory institution of the surrounding civil sphere, to bear on destructive civil 1 Duality and the Creation of a Black Civil Society tensions in the South. Although these legal efforts achieved a number of important victories in the two decades after the NAACP's foundation, Morris is right that "it would be misleading to present these courtroom battles in a narrowly legal light."™ The victories, and even the hard-fought losses, served a more symbolic capacity. They provided a kind of demonstration effect for duality, showing black and whites alike that southern white domination was at least potentially vulnerable vis-á-vis the surrounding civil sphere.79 The NAACP's legal activity achieved its latent function, not its manifest one; failing to overthrow the racist white power, it nonetheless contributed to its "delegitimation."5"' That the NAACP's early legal victories in themselves failed to effectively alter the system of southern racial domination testifies to the fact that law is only one critical element in civil society. To be effective, changes in legal order must either be complemented by shifts in the other regulatory institutions or, at the very least, not directly opposed by them. Furthermore, if the fragmented structures of civil society are to be effectively changed, shifts In regulatory institutions must be related to changes in communicative institutions, to new cultural understandings, and to alterations in face-to-face interactions. This is not to suggest that all the levels and institutions which compose the civil sphere must be articulated, in the sense of working together; it does mean, however, that they cannot work completely at cross-purposes. If more universalistic and civil laws are enacted, how can they go into effect if the regulatory institution of office is not changed in a more civil way? If the officials of the court, such as judges and lawyers, do not support the intent of the new law. how can it be implemented? if administrative officials and police officers do not enforce it, how can the sanctioning power of the legal regulatory institution come into play? How can such legal changes and expanded office obligations be consistently maintained, moreover, if the institution of the franchise is distorted in a manner that produces elected officials whose sensibilities, obligations, and perceptions of interest are not expanded in a more civil way? Finally, how and why would any of these regulatory institutions change if public opinion has not provided a climate that restructures understandings of outsiders' motives and the kinds of relationships and institutions they can sustain? These theoretical considerations allow us to understand why the NAACP's various strategies failed to alter the southern system of racial domination and why this failure could eventually be remedied only by the 28y SOCIAL MOVEMENTS IN THE CIVIL SPHERE emergence of a massive social movement for civil rights. It is not lernbiv \- difficult, of course, to understand why the organization's campaign to public opinion came up short. It was not the case that the opinions o northerners remained unchanged, for there was, in fact, a gradual t cernable shift in the racial thinking of the white northern elite ffi T930S on. What the NAACP's educational activities lacked, ratht intensity and scale. The cognitive shift they effected failed to reach the | masses of white Northerners. It also failed to generate, even amor white elites, a heightened emotional interest in altering the racial < and such intensified interest was a fundamental requirement if any ic cation of white and black sensibilities was to occur. This failure to exte its influence beyond the cognitive, beyond the emphasis on educatic also a critical reason for the NAACP's inability to tap the energies and | talents, for both resistance and translation, of the black community iiself.""- - In a country that has historically been obsessed with legalism, as Torque- I ville was the first to note, it is more difficult perhaps to understand v\ hy the ; NAACP's legal strategy was relatively ineffective. This is particular plexing when one realizes that it was the NAACP that successfully argued ; Brown v. Board of Education of Topcka, the Supreme Court decisit declared school desegregation unconstitutional in 1954. Before the southern segregationists had expressed great fear about its possible "We will face a serious problem," South Carolina Governor James F. Byrnes ? warned before the Court's hearings commenced, "should the Suprei Court decide this case against our position."H2 When the ruling was hand down, moreover, it was widely hailed as groundbreaking, a landmark re sion of the distorted civil sphere that would radically and permanently al racial domination in the United States. It did nothing of the kind. Desp ; the fact that communicative institutions, not only factual and fictional media I but public opinion polls, articulated strong public support for the deseg gation ruling, the new regulations simply were not enforced.83 Not only 1 the highest ranking officer of the nation, President Dwight Eisenhow never publicly endorse the Court's decision, but, by calling for local a state rather than national action, and by expressing open skepticism about | legal remedies for racism, the president actually undermined possibilities! L implementation. After the initial publication of their ruling, the Court's o^ justices acted in a similar way. Not only did they wait almost a year to iss . specific instructions for implementing the ailing, but the instructions thei ago f Duality and the Creation of a Black Civil Society selves gave control over the desegregation process to officers of the racist civil society of the South. "Because of their proximity to local conditions and the possible need for further hearings," the justices wrote, "the [southern] courts which originally heard these cases can best perform the judicial appraisal." On these grounds, they claimed it was "appropriate to remand the cases to these courts."H4 When it became apparent that, under such conditions, the legal regulations demanding desegregation could have no effect, Congress passed the Civil Rights Act of 1957, which established new regulatory institutions and new offices specifically concerned with implementing minority rights. These included the U.S. Civil Rights Commission and the Civil Rights Division of the Justice Department. Yet these efforts too were unsuccessful, and for the same reasons. The officials who held power in southern civil society were again able to block the more civil influence of the North. As David Garrow puts it in his study of voting rights, "recalcitrant, obstructionist judges in most southern jurisdictions all but stifled the Justice Department's attacks on voting-related racial discrimination and harassment."*'1 It was in this context of continuing racial domination and increasing frustration with the regulatory institutions of America s civil sphere that leaders in black civil society turned their protests against racial exclusion in a different direction. From aiming primarily at legal regulations and elite reeducation, they focused on communicative institutions and spoke powerfully to broad masses of people. By skillfully mobilizing nonviolent direct action, they were able to translate their complaints and their selves in a manner that leapfrogged the barriers erected by the anticivil power structure in the South. Taking full advantage of duality, the protest against the destructive intrusion of race developed into the most successful social movement in American history. This is the story about the Civil Rights movement that I will now tell. 291 CHAPTER 12 Race and Civil Repair (2): The Civil Rights Movement and Communicative Solidarity he civil rights movement has become the most intensively studied subject in contemporary American history, its tens of thousands of significant events and influential social actors serving as the subject of meticulous reconstructions by every discipline of the social sciences and humanities. These studies increasingly have focused on the richness and complexity of the local experiences of African Americans in southern communities, and they bear witness to the extraordinary energy and mundane devotion that made the success of this movement possible, not only the courage to face the terrorism of white violence but the years of door-to-door organizing and neighborhood meetings in homes and churches, the innumerable leaflets and pamphlets, the frustrating string of days in courts, the endless petitions to gain the right to vote and to be treated as human beings. In all these ways, the local and national African American leaders of the Civil Rights movement and the black masses themselves manifested uncommon courage as they marched on a road to empowerment that most visibly began with the Montgomery bus boycott in 1955 and concluded ten years later with demonstrations in Selma and passage of the Voting Rights Act. The march for full empowerment of black Amer- social movements in the civil sphere The Civil Rights Movement and Communicative Solidarity icans, of course, began long before 1955, just as it has continued up to t] present day, and it will have to extend long into the future. Still, the decai between T955 and 1965 was critical; it was then that power was seized, ai that seizure of power paved the way for redistributing resources in the ye^ that followed. As long as there is some autonomy for the civil sphere of society, hoy ever, power can be seized only indirectly, by influencing, and only in tl sense gaining control over, the discourses and institutions of civil socie itself. Blacks could never have seized power directly in the southern stab When they tried, their efforts were put down with overwhehmng force.' was duality, not instrumental power, that promised the possibility of justic and this duality could be activated only by finding a way of reaching ov the anticivil domination of white southerners to the other, more civil sic This is why the Civil Rights movement cannot be conceived as being abo power in the narrow sense, especially if this term is understood as involvii direct, physical, face-to-face confrontations between masses of Afric: Americans and their immediate oppressors on the local scene. The Cn Rights movement, rather, was about influence and persuasion, about achie ing a more commanding position in the civil sphere of American sociei Only as they were able to gain such influence could civil rights leaders, at the masses they were energized by, achieve power in the more instrument regulatory sense. In the immediate postwar period, as we have seen, it was the inabilitv of regulatory reforms actually to repair the racial distortions of Americ: civil society that triggered the mass mobilization for civil rights. Regulato reforms in legal institutions were enacted, but they were not sufficient articulated with the other levels and institutions of the civil sphere. If lee changes are to take effect, they must be complemented by changes in ofFn obligations, by shifts in communicative institutions, and by deep alteratio of public opinion. It is for this reason that the civil rights movement alwa had dual goals. They organized against local racial domination, but in the course of fighting these struggles they tried determinedly to gain nation; civil attention as well. They wanted to mobilize public opinion in tl northern civil sphere, especially the opinion of members of the northei civil society who were white. By transforming this opinion, they create civil power, influencing the behavior of national officeholders, both : 294 politics and the law, and gaining leverage over social power in turn. With this newfound economic and political power, they could finally control their oppressors, who had been safely insulated in the civil sphere of the white South- How did this happen? As contemporary historians have noted, local leaders had been conducting battles for racial justice—in effect, little civil rights movements—long before the first big campaign emerged in Montgomery, Alabama, in 1955.2 What was different about those who assumed leadership in that first battle of the modern Civil Rights movement was precisely their ability to reach outside this local scene. They strategized not ' - locally but nationally, not only concretely but abstractly, not only in ■:ular but in universal civil terms. In the beginning, this was not so i a strategy as a feeling, a sensibility. There was a lot of fumbling and bling, but, from the beginning, the leaders of the Civil Rights move- ■; understood that it was a dualistic direction they must take. What oitrerentiated this new generation was its ability to make the translation, to frame and reframe complaints so that they could leapfrog southern officials and gain the attention of other kinds of whites. Their success at translation was due in part to their skill at re weaving cultural contents, stitching together the tactics of Gandhian nonviolence, Christian narratives of sacrifice and exodus, and the justice rhetorics of American civil society.-1 These messages, however, were only as good as the communicative institutions that carried them. They were told in the local, particular context; they had to be transmitted to the national, civil one. Such transmission was by no means a foregone conclusion. It depended on the existence and the reach of communicative institutions of an expansively civil kind. That is why we will begin our explanation of the Civil Rights movement with the white journalists who worked for progressive newspapers and magazines. From the beginning, there was a symbiotic interaction between the social dramas staged by civil rights leaders and the "point men" of the communicative institutions who defined their jobs as interpreting such dramas to the civil sphere. That neither could exist without the other was a ignition, at once simple and profound, that became increasingly conscious and consequential as the black movement grew in influence and civil force. 29 5 social movements in the civil sphere The Civil Rights Movement and Communicative Solidarity The Battle over Representation: The Intrusion of Northern Cornrnunicative Institutions That a significant number of journalists and their institutions defined th< communicative obligation as interpreting the civil rights dramas to the wider, national civil sphere is something to be sociologically understood. F the fact that protest movements take place does not, in itself, guarantee th ■ they will be represented publicly in the mass media, much less that they will be represented in a civil manner that elicits audience sympathy for the movement and possibly identification with it. In white southern civil soc-ety, the conununicative media were racist, as distorted in their civil prete; sions as white public opinion and southern regulatory institutions. Sour! ern white newspapers interpreted events in a framework that justified blai -. exclusion from the civil sphere, an interpretive justification that could pn -ceed in two ways. On the one hand, it could make black exclusion invisible, providing its white audience with deceptive representations of an inch ■ sive, participatory civil sphere. On the other hand, the fact of racial * exclusion could be recognized, but the motives and relations of black pe ■ sons could be constructed in a manner that suggested their inability or ui willingness to participate in civil society, and, indeed, the danger of allov ■ ing them to do so. En his retrospective look at the youthful leaders of the Civil Rights *, movement, David Halberstam, a former New York Times reporter who ; covered the South extensively in the 1950s and early [960s, gestures to the first mode of justification when he describes "the old political correctness ^ in those days" as "both very powerful and very pernicious."'11 will later call attention to the emphatically evaluative character of this declaration; at tl -point, however, we are concerned simply with Halberstarn's description of the white southern media's invisibility strategy, which he describes as "the < skillful use of silence at critical times." Throughout the South, when blacks gave any demonstration of grievance, there was a decision by consensus—the ruling white oligarchy of the town in concert with the editor of the paper—to take either no note of what had happened, or to write a tiny inoffensive story and bury it somewhere in the middle of the paper.5 In terms of representations of the Civil Rights movement, Halberstam describes the results of the invisibility strategy in this way; "If black heads had been cracked during a protest demonstration, then it was . . . unlikely to make the paperf, and] the [white] community would be spared any reports 0n what had happened."" As the Civil Rights movement heated up, and confrontations between black protesters and southern officials spread throughout the region, representational invisibility gave way to representational distortion. Southern communicative institutions, not entirely but certainly in their vast majority broadcast representations of the protests that reconstructed the activists' motives and relations in terms of the discourse of repression, employing these constructions to justify segregated institutions in turn. They did so in official editorials, but also by quoting from, and highlighting as factual and perceptive, the observations about ongoing events offered by southern conservatives and racists as they acted to defend white civil society. In late 1961, for example, at the height of the confrontation between civil rights activists and local officials in Albany, Georgia, the chairman of the Georgia Democratic Party, James Gray, appeared on the local television station, in which he owned a controlling interest, to endorse segregation as "a system that has proved over the years to be peaceful and rewarding." In order to defend this positive evaluation of an obviously antidemocratic institution. Gray described segregation's black critics in polluting, anticivil categories. Rather than portray the activists as rational, independent, and critical, he represented them as "a cell of professional agitators," suggesting deceptiveness, thoughtless conformity, and lack of principle. Linking the demonstrators to the enemies of American democracy and contrasting them with, the nation's revolutionary founders, Gray argues that the burgeoning black rebellion "smacks more of Lenin and Stalin than of George Washington, Thomas Jefferson, and Abraham Lincoln." Contrasting altruistic, religiously inspired motives to instrumental and egoistic ones, Gray tells his viewers that Martin Luther King, the leader of the Albany demonstrations, "has learned that martyrdom can be a highly productive practice for the acquisition of a buck." Finally, calling for an end to the disruptions, Gray summed up his advice by offering an overarching binary representation that contrasted white civility with black anticivility. "What we need is tolerance," he asserted, "not tantrum."7 Seven months later, just before King received 296 297 SOCIAL MOVEMENTS IN THE CIVIL SPHERE The Civil Rights Movement and Communicative Solidarity a sentence of forty-five days in jail for his misdemeanor arrest during the Albany demonstrations, Gray justified this repressive response to the civil conflict in a special front-page editorial in the Albany Herald, the local newspaper which he also owned. Again, he highlighted the antidemocratic motivations of the "agitators," their "craft and cunning" and their secret "plot-tings." Gray flatly declared, "The Negroes are lying." After so graphically announcing their civil incompetence, Gray went on to link these qualities with American democracy's most hated, anticivil enemies, equating black complaints about segregation with "the Hitlerian tactic of the 'Big Lie.' " Gray concluded by dramatically describing the Civil Rights movement as the polluted and dangerous enemy of everything good. "This sordid effort will fail," he declared, "because its motivation is essentially evil."H One year later, in the midst of the decisive contest in Birmingham, Alabama, Gov. George Wallace used the occasion of the legislature's opening session to broadcast a fierce restatement of this binary. Announcing that "we shall fight agitators, meddlers and enemies of constitutional government," Wallace constructed the movement for black civil rights as an uncivil danger to the Constitution, the central regulatory institution of American democracy. By establishing this binary, he could declare that the struggle against the black movement was "in reality a fight for liberty and freedom.'"-' If the core of civil society were really at stake, it is not surprising that, in Wallace's view, the polluted character of the movement activists justified repression. In a widely noted characterization and threat reported by the Birmingham Post-Herald, the Alabama governor declared himself to be "tired of lawlessness in Birmingham," and promised that "whatever it takes will be done to break it up."10 These representations and sentiments were fervently iterated on the local scene. Birmingham's mayor, Arthur Hanes, represented the protest's leader, Martin Luther King, as a "rabble rousing Negro" and "terrorist" and his fellow activists as a "bunch of race agitators." The city's most powerful official drew the same repressive conclusion from this discursive destruction, as had the state's governor, suggesting that the black activists "should be put out of circulation."n When members of the city's more moderate white elite finally settled the bloody conflict, Mayor Hanes furiously described them in an equally anticivil way: "They call themselves negotiators. I call them a bunch of quisling, gutless traitors."12 Because such symbolic representations had never been successfully challenged before the mid-1950s, they were allowed to stand as cognitive-cum- normative descriptions of the distorted civil sphere in the South. That more expansive representations did not emerge to compete with these restricted ones has a straightforward explanation. Such interpretations were not broadly distributed because journalists from communicative institutions in the surrounding civil sphere, the more civilly oriented northern one, simply were not on the scene in the southern states. This lack of physical presence represented a fundamental lack of attention and concern. The emergence of civil rights as a national social movement changed this situation, or, more accurately, the movements emergence depended, in some part, on this situation's being changed. From 1956 on, northern journalists were in the South, attracted by the Montgomery movement that caught the national attention and catapulted Martin Luther King into an influential civil position. Once the northern journalists were there, they took sides, framing their representations of segregation and the struggle against it in ways that attributed civil competence and rationality to the black activists rather than to the southern whites. The newly arrived northern reporters were aware that they were engaged in a battle with the southern press, that they were waging a war against "the treatment of racial news in Southern newspapers," as a reporter for the New York Post, Ted Poston, put it in 1966.13 The battle was over symbolic representation, first and foremost, but it was also a struggle to define and maintain what the northern reporters viewed as their independent professional ethics.1'1 For in attacking the southern media's categorical pollution of civil rights activists, northern reporters conflated its anticivil politics with professional irresponsibility. More simply put, they identified racist coverage with the failure to tell the truth, the first and most important commandment of contemporary journalisms ethical code. "The majority of the Southern editors and publishers," Poston declared, "have been cynically defending a myth that they know to be untrue—white superiority, Negro indolence, and a baseless contention that the region's magnolia-scented values would triumph over the moral and legal might of the federal government."15 Professional irresponsibility and anticivil behavior were considered to be one and the same."' Yet although they disdained the putatively antiprofessional, mythmaking qualities of southern media, these northern reporters did not, in fact, view themselves simply as reporting facts alone. Indeed, just as southern journalism was seen as both antiprofessional and antidemocratic, so did northern 299 SOCIAL MOVEMENTS IN THE CIVIL SPHERE The Civil Rights Movement and Communicative Solidarity journalists consider their own commitment to truthful observation and accurate reporting as allowing them to become vehicles for expressing the core values of American civil society. In doing so, they were highly sensitive to the duality of their social position. In 1962, in the midst of Mississippi's civil rights upheavals, John Herbers. then manager of the state's United Press Services wire sen-ices and later a southern correspondent for the New York Times, linked the quality of news reporting by northern journalists to their being outsiders. This external position, Herbers believed, explained their conmiitment to the normative legitimacy of desegregation and the regulatr efforts to enforce it. "Most newspapers from outside the region, " Herbers I wrote, "have played the Southern integration story from the point of vie that it—the court-ordered change—is morally right, the law of the land and inevitable."17 Though Herbers eschews such a morally committed point of view for his own particular type of communicative institution—"the wire * services cannot do this and they should not be asked to"—he nonetheless defines his own journalistic role in a manner that emphasizes its commitm< to tracking deviations from the sacred values and regulatory controls of the civil sphere. "Wire services can and should maintain a vigilant watch for [ any violation of individual or group freedoms guaranteed to all citizens of the United States," Herbers insists, "and report the truth as nearly as it t be ascertained."18 From the point of view of this highly influential journalist, in other words, what is newsworthy, what should be selected and distributed . j as accurate and honest social representations, are threats to the ideals of the civil sphere. Once again, journalism's professional commitment to truth telling is equated with the commitment to, and maintenance of, transparency: the values of honesty, publicness, and openness that are intrinsic to ; the civil sphere itself Nothing more effectively illustrates how duality defined the perspective and behavior of northern communicative institutions during the Civil1 Rights movement. Journalists felt themselves to be vitally connected to the core of the civil sphere that surrounded Southern racial domination. Thus, in 1966, when the managing editor of Life magazine expressed his hope that J. future historians would be able to say that "the press of those critical ye; of the mid-1960s was a great press," his criteria for greatness perfectly artic- ;-ulated the requirements for civil solidarity. "Wise and deeply human," it ' would be a press that "covered the conflict yet allayed it," whose influence 300 "changed angry monologues into reasonable dialogues." whose judgment "chipped away at the edges of hatred" and "kept in view the larger cause of a democratic society and thereby helped keep it from being rent apart."1'' In the same conuiiitted vein, the executive editor of the Chicago Daily News emphasized that reporters could be no more "unbiased" than other American citizens, for "the racial crisis is an issue that no American of this creneration can push off into a corner and say with accuracy that it has no personal connection with him."20 Attacking the "pose of impartiality," the editor insisted that "any decision to disseminate or not to disseminate news is in itself a partisan act."21 This journalistic involvement was not only moral and political but emotional and psychological. A liberal journalist working for an independent southern newspaper, noting that "intense emotion was involved," acknowledged that "it has been difficult for the professional to keep his reporting and his editorializing separated," reminding his listeners that "reporters and editors and even publishers are human."22 Herbers agreed. Declaring that "everyone is emotionally involved," he suggested that it was categorical representation—"the way the news is worded"—that triggered the most passionate sentiments.-1 These emotional and moral commitments created among many northern white journalists a deep sense of psychological identification with the struggles of the southern black community. The managing editor of the St, Louis Post Dispatch testified, for example, that northern journalists became more and more deeply involved in the black struggles, recounting how "some of us began to try a little harder ... to determine the needs, the desires, and the hopes of the Negro community.'"'1 In fact, it was not entirely accurate to suggest, as I did earlier, that northern journalists took sides in the civil rights struggle only once they were there, in the South and on the scene. Most of them had already taken sides before they arrived; it was precisely their emotional and moral commitments that compelled them to get involved. After describing himself as "a white male, born in rural North Carolina [and] raised in Raleigh," Fred Powledge acknowledges that "for reasons that I never have been able to understand but never thought of as remarkable, I grew up with an intense dislike for segregation."25 Despite a secure position as a reporter in New England, this sense of emotional revulsion made Powell "desperate to go south and help cover what clearly was going to be the biggest story of my time." Thirty years later, after a 301 SOCIAL MOVEMENTS IN THE CIVIL SPHERE The Civil Rights Movement and Communicative Solidarity- distinguished career that included reporting on southern civil rights strus for the New York Times, Powell confesses proudly to his continuing sensu of commitment and identification: "I was and am . . . biased in favor c Movement. More than that, I was and remain completely taken by it. [ still believe it is the most important event in American history since Independence."20 In his sentimental memoir of the youthful participants in the Civil Rights movement, David Halberstam similarly recounts how intense moral and emotional commitments fused with professional ambition and a sense of historical destiny to compel him to "set off to begin my journalistic career in Mississippi" immediately after graduating from college in 1955. One vear after Broii'ti v. Board of Education, Halberstam recalls, he had come to believe that "that powerful social forces would now be set into play in the South. and he wanted "to have a chance to cover them."-17 Halberstam set off for his southern journalistic career carrying his earmarked copy of Gunnar Myrdals An American Dilemma, which he describes as "the most important and influential book I had read at the time and probably have read since. Though he claims that there was "very little editorializing in the news columns" that he prepared during his southern stay, and even that the story of the civil rights activists was a story that virtually "told itself," he makes no effort to conceal the intense sense of identification he experienced with the black protagonists of the struggle.-' Writing of the leaders of the sit-in movement in Greensboro, North Carolina, Halberstam notes how he was "virtually their own age and very much at ease," that he "knew and 1- . them, and that he "felt considerable sympathy for their aims and their grievances."-"1 Halberstam does not hesitate to describe the deep feelir admiration he experienced for the youthful sit-in leaders, attributing to them great moral stature. "I was impressed by these young people from the s he recounts, and he cites their "courage and their dignity and their awesome inner strength."31 Halberstam closes his narrative by connecting what he calls "the courage and nobility of [such] ordinary people in times ofs to his own personal commitment to democracy. "No occasion in recent postwar American history," he writes, has provided "so shinir example of democracy at work . . . than what happened in those days i South."32 Translation and Social Drama: Emotional Identification and Symbolic Extension Informed by the classical model of social movements and its contemporary variants, recent historians and social scientists have tended to construe the Civil Rights movement as a conflict between two organized groups, a battle whose resolution depended upon one side marshaling sufficient resources, power, and force to dominate the other.33 Certainly this was not the case. From Montgomery on, the movement's success, both locally and nationally, depended upon its ability to establish a solidaristic relation with the broader, less racially distorted civil sphere, which drew its power from geographical regions outside the South.34 Establishing this solidarity depended not on the availability of resources, though these were critically important, but on the movement's ability to translate its particular concerns, whether those of power, money, race, salvation, earthly dignity, or psychological revenge, into the broader idioms, networks, and institutions of civil society. Solidarity depended on identification, identification depended on publicity, and publicity depended on communication of a certain kind. Insofar as this translation cycle was effective, moreover, its communicative phases were continually punctuated by regulatory responses of a more coercive, though equally civil kind, which took the form of interventions by officeholders who potentially wielded great power. Whether these were officers of the court, such as judges, or officers of the state, such as elected politicians, in the course of the Civil Rights movement these officials of the civil sphere periodically were compelled by great movements of public opinion to intervene against those who wielded racial domination and distorted civil society in the South. Sometimes they did so because, as members of the civil sphere, they were persuaded by the translations the Civil Rights movement produced. Sometimes these officeholders intervened for more instrumental reasons: realizing that members of civil society were changing their minds, they were afraid of being subjected to shifts of civil power and, ultimately, losing their jobs. The northern communicative media functioned as a kind of membrane for the southern Civil Rights movement, creating a semi transparent envelope that mediated messages the movement projected to its far-away civil audience and the responses this audience projected back to it. Andrew Young, centrally involved with King and movement strategy almost from. 302 303 SOCIAL MOVEMENTS IN THE CIVIL 5PHEHE The Civil Riyhts Movement: and Communicative Solidarity the beginning, spoke about how the civil rights demonstrations aimed to present "a particular injustice before the court of world opinion," a phrase that points to the duality I have been suggesting here. For a local movement of dominated persons to take full advantage of duality, they needed to speak effectively to the court of world opinion, an accomplishment that would depend on skilled and effective translation. "We had to craft a concise and dramatic message," Young wrote, one directed to the broad civil audience and, more specifically, to the initial interpreters of that message: the institutions of convmuuication themselves. The first order of business, then, was to ensure that "the demonstrations be understood by the media."35 Glenn T. Eskew. a contemporary historian who emphasizes the significance of local civil rights movements and who employs the classical social movement frame, acknowledges that "the mainstream media increasingly played a central role in the movement by broadcasting nationally what previously had been ignored as a local story.'**1 With this magnifying and crystallizing membrane in place, "no longer did white violence against civil rights activists escape unnoticed."37 But to understand the process of translation and solidarity, to see how symbolic extension and psychological identification were constructed,3* it is necessary to go beyond the media membrane to the movement itself Why did the communicative institutions of the North get involved in the South when they had not generally been involved before? It was because of the movement itself What first attracted journalistic interest, what brought reporters to the South and kept their attention after they arrived, was an extraordinarily compelling social movement, one that was proving itself to be a master of the translating craft. Communicative institutions don't invent the message; they interpret it and make it available to others. As one activist put the matter during planning discussions for the 1965 Selma campaign, "the press could not be expected to stay around and give the movement the national exposure it must have unless there was some action to photograph and write about."3'' This action had to be of a very specific kind. The media were a stand-in for civil society, articulating its requirements and its perspective in the communicative domain. Publicity was not, in itself, a movement goal; what mattered was publicity of a certain type. It was to the discourses and the institutions of the surrounding civil sphere, and to the possibilities of symbolically mediated civil interactions with its members and representatives, that the Civil Rights movement aimed. 304 In establishing a relationship with the surrounding civil sphere, the Civil Rights movement engaged not only in instrumental but in symbolic action, creating a compelling, arresting, existentially and politically encompassing narrative, a social drama with which the audience, the members of northern civil society, could identify- and through which they could vicariously participate."' It is a fascinating and highly revealing fact of the academic literature on the movement that even those most interested in portraying civil rights leaders and masses as strategic, purposive, practical, and hard-headed continually employ the term "dramatic" to identify the movement's major events and activities. For example, in his local, "indigenous" approach, Aldon Morris emphasizes the centrality of power and organizational resources in fueling what he calls an "insurgency" by blacks against whites. Yet Morris writes about the 1961 Freedom Rides as an effort by civil rights activists to "provoke dramatic responses," and he attributes the project's success to its having "gripped the attention of protest organizations, Southern segregationists, and the society in general."" When Morris describes activists' strategic thinking during the later Birmingham campaign, he recounts that "it was determined . . . that massive daily demonstrations were needed to dramatize the racist nature of Birmingham."''- In his detailed discussion of the power struggles that ensued, he recounts how "the drama heightened."'13 Despite Morris's own commitment to the classical model, in other words, he implicitly acknowledges that the demonstrations were not simply designed instru men tally to achieve the coercive effect of "preventing] the city from operating normally."''4 There are empirical reasons why even those who are most theoretically committed to the classical model seem compelled to employ the term "dramatic." Civil rights activists felt themselves to be participating in an utterly serious morality play, and they tried as hard as they could to ensure that the drama would be presented to the surrounding civil audience in a manner that would evoke sympathy, generate identification, and extend solidarity. In the late 1970s, James Bevel, one of the movement's most dedicated nonviolent exemplars, retrospectively explained movement "action" in precisely these terms. "Every nonviolent movement is a dialogue between two forces," Bevel wrote, "and you have to develop a drama to dramatize the dialogue to reveal the contradictions in the guys you're dialoguing with within the social context."45 During the heated days of the social movement itself, participants experienced less a dialogue than a battle. 305 SOCIAL MOVEMENTS IN THE CIVIL SPHERE The Civil Right:; Movement: and Communicative Solidarity one that frightened and stimulated both them and the audience who observed and indirectly experienced it. How could white northern civil society be there, in the South, yet not be there at the same time? When its physical presence was barely tangible, how could its moral presence be strongly felt? How could its representatives be compelled to intervene in a society toward which they had earlier evinced so Iitde interest and on which they had exercised so little control? This could happen only through a process of emotional identification and symbolic extension. When Bevel thought back to the days of heated conflict, he had it right. At the center of the black movement's success was its dramatic quality. Aristotle explained that drama can compel identification and catharsis, the working through of emotions. Tragic drama excites in the audience pity and terror, and sympathy for the protagonist's plight. The progression of protagonist and antagonist can eventually allow catharsis, an emotional working through that affirms not only the existence but the force of higher moral law. The Civil Rights movement was not scripted; it was a social movement, not a text. Nonetheless, the contingent, open-ended nature of its conflicts were symbolically mediated and textually informed. Life imitates art as much as art imitates life. The Civil Rights movement initiated a deeply serious drama at the heart of American civil society, a drama in which the very meaning and legitimacy of the civil sphere seemed to be at stake. It was a contest of "citizens" and "enemies." The innocent and weak were pitted against the evil and strong, and the forces of good, unexpectedly but persistently, emerged triumphant. This outcome made the process more melodramatic than tragic, yet despite its optimism about ultimate victory, melodrama shares with tragedy an emphasis on suffering and the excitation of pity and terror. In fact, the most dramatic moments in the decade-long struggle of the movement for civil repair were not the ultimate victories but the heartbreaking, if temporary, defeats. The movements leaders became heroes only because they first were victims, because they came to triumph and power only after experiencing tragedy and domination. The leaders and their followers could be redeemed, and the possibility of civil progress affirmed, if they maintained their civil dignity in defeat; if they refrained from anticivil violence, aggression, dishonesty, and deception; if they kept faith with civil good in the face of anticivil domination and the temptation of despair. 306 The Montgomery Bus Boycott: Martin Luther King and the Drama of Civil Repair Dramatic stories need heroes, not only enemies. The abstract discourse of civil society needs to become concrete. When Martin Luther King delivered his first, extraordinary speech as the newly elected president of the Montgomery Improvement Association (MIA) in December 1955 at the Holt Street Baptist Church in Alabama, he fulfilled both these demands. He concretized and embodied a new, race-oriented version of the drama of American democracy, becoming a courageous protagonist in a story about progress that would be narrated not only by King himself but also by grassroots leaders and the masses thev inspired. He was taking the first step in a social drama that would break the continuity of political time and thrust the civil sphere into a separated, ten-year-long liminal space. King was committed to practical tilings, despite his upbringing as an elite member of the black civil sphere. He was given to socialist leanings; he condemned economic inequality and poverty, and he fiercely resented white domination and privilege. Yet King was also deeply attuned to the symbolic status of protest in civil societies and to the critical duality of civil oppression.J(' For him, symbolic performance was not only a means to some other end, but an end in itself. In 1964, after the success of the Birmingham campaign, he explained what the movement had learned from its earlier failure in Albany. "We have never since scattered our efforts," King remarked, "but have focused upon specific symbolic objectives."47 The symbolic objectives aimed to connect the particularity of the black movement to the surrounding civil sphere—in King's words, "to appeal to the conscience of the Congress" to "bring the necessary mora! pressvrre to bear" and to "arouse the federal government."4" Because of this sensibility, King was able to translate what could have been viewed simply as a social, political, and racial conflict over the distribution of resources, centering on aggression and struggles over structural position, into a moral confrontation in which the excluded and denigrated minority won legitimate authority and those who excluded them lost out. King did not translate only from black civil society to white. He also translated between black and black, mediating between the Utopian elements within the black civil sphere and the community's more pessimistic, self- 307 SOCIAL MOVEMENTS IN THE CIVIL SPHERE The Civil Rights Movement and Communicative Solidarity denigrating beliefs. A recent editor of King's papers has described his gift "for dramatizing lofty moral ideas in vivid, down-to-earth word pictures" that "made his oratory irresistible ... to all segments of the black community."49 Drawing from the black civil sphere's sacred and secular traditions ofuniversalism, King inspired members of a downtrodden and dominated racial caste to project themselves into the central categories of the surrounding civil society. Those who listened to his rhetoric and followed his actions could envision themselves as actors in the great narratives of historical liberation. They could identify with the Jewish people s exodus from Pharaoh's Egypt—a central biblical parable of black social gospel—or with their newly emancipated racial forebears in the first Reconstruction. As a veteran organizer from the movement's early days recalled, when King "talked about Moses, and leading the people out, and getting the people into the place where the Red Sea would cover them, he would just make you see them. You believed it."s" Another leader made the mythical identification even more explicit: "Let's face it, a lot of our people thought that Martin Luther King walked on water."51 One former high school organizer for the 1960 sit-in movements described King's connection to the members of the black civil society this way: "It was clear that they loved him. It was clear rhae they respected him as a leader and it was clear that they would follow him to the end if he wanted 'em to, you know."" Not by any stretch of the imagination did Martin Luther King create the Civil Rights movement. It existed before him, and after his death as well. I am neither advocating a great man theory of history, nor downplaying the dedication and influence of other black leaders or the critical resistance, over long periods of time, of the members of black civil society themselves." My argument, rather, is thac, in order to understand the unprecedented success of the Civil Rights movement between 1955 and 1965, we must understand its discursive achievements, and it is impossible to do so without closely examining the role of Martin Luther lung. He was the movement's critical mediating figure, translating between the unkept promises of white civil society and the hopes and anxieties of the black civil sphere.54 It was in this dualistic role that, more than anyone else, he helped to create the "new Negro" in the South. During the decade-long struggle for civil rights, King often rhapsodized about changes in the identity of his people, who had "replaced self-pity with self-respect and self-depreciation with dignity." King wrote that "in Montgomery we walk in a new way. We hold our heads in a new way."" What he was pointing to here was the increasing interconnection between the dominant and dominated civil communities and the alternatives to subordination this allowed. As King mediated and translated the one to the other, the symbolic repertoires of northern white civil society became even more accessible to members of the black civil sphere. After recalling that "it was not easy to communicate effectively with the entire black community in Birmingham," Andrew Young testified that "Martin's arrest put the Birmingham movement in the headlines of the national news, and that in turn aided our efforts to organize locally."56 Whenever King appeared on the scene of a local civil rights struggle, according to Morris, "a larger number of people were mobilized to protest and fill up the jails."57 Even as he crystallized the promise of civil ideals to black Americans and intensified their identification with the nation's civil ideals, Martin Luther King came also to symbolize America's civil promises to whites. It was not only for blacks but for tens of millions of northern whites that King became the most authoritative and compelling interpreter of the civil core of the United States.5H In an extraordinary departure from the racist history of this democratic nation, a black leader came to represent, and reinterpret, the civil sphere of white society to white people themselves.5'* How was King able to accomplish this performative action? There is the matter, of course, of his personal gifts. He possessed courage, high intelligence, and sensibilities and strategic abilities that were sharply attuned to the cultural and political currents swirling around him.(,(l There was his unusual ability and desire to lead and inspire other men and women. There is also the matter of his background, his roots in African American social gospel, his secure position in the black civil elite, Wis wide and cosmopolitan learning, and his personal experiences in the northern white civil sphere. Drawing upon all these resources and his own personal gifts, King was able to project, crystallize, and translate the innermost structures of the discourse of American civil society. King understood the community of the United States as in a state of tension, pulled between the binary forces of good and evil, between civil justice and injustice. This almost tactile sense of the two poles of the civil tradition and of the need to situate the Civil Rights movement in terms of the tension between them, characterized his entrance into the wider civil sphere in Montgomery, Alabama, and it animated every one of his later, 308 309 social movements in the civil si'hehe much more famous and widely watched interventions as well. As he confided to Glenn Smiley a civil rights activist for the pacifist Fellowship of Reconciliation in the early days of the Montgomery campaign: As we look at the problem, we see that the real tension is not between the Negro citizens of Montgomery and the white citizens, but it is a conflict between justice and injustice, between the forces of light and the forces of darkness, and if there is a victory—and there will be a victory—the victory will not be merely for the Negro citizens and a defeat for the white citizens, but it will be a victory of justice and a defeat of injustice. It will be a victory for goodness in its long struggle with the forces of evil.1,1 The most vivid earlv public representation of tin's vision can be found in ICing's first speech as MIA president. This entire oratory was cast in dualistic terms. Facing the crowded church and the more than ten thousand black Montgomery residents listening with the help of loudspeakers outside, King started with the general and universal. He tells his audience that they have created this protest movement, not because they are black but because they have the status of American citizens: "We are here in a general sense, because first and foremost—we are American citizens.""2 Their status inside the American civil sphere, King insists, is what allows people to use the promise of civil society as a weapon in their struggle: "We are determined to apply our citizenship—to the fullness of its means." From this lofty universalism. King moves immediately to the particularities of time and place: "But we are here [also] in a specific sense—because of the bus situation in Montgomery." It is from the perspective of this tension between the universal and particular, between the possibilities of the civil sphere and the present state of its instantiation, that King introduces the particular incident that had triggered the Montgomery bus boycott and, indeed, the Civil Rights movement itself: Just the other day—just last Thursday to be exact—one of the finest citizens in Montgomery—not one of the finest Negro citizens—but one of the finest citizens in Montgomery—was taken from a bus— The Civil Rights Movement and Communicative Solidarity and earned to jail and arrest—because she refused to give up—to give her seat to a white person. King emphasizes the injustice of this arrest by insisting that Rosa Park's motives for not giving up her bus seat were civil ones. "And since it had to happen, I'm happy it happened to a person like Mrs. Parks," King said, "for nobody can doubt the boundless outreach of her integrity. Nobody can doubt the height of her character; nobody can doubt the depth of her Christian commitment." King now moves back to the universal from the particular, generalizing from this specific incident to the whole situation of southern black people, to their domination and to their feelings that the promises of civil sphere have been betrayed: "And you know, my friends, there comes a time when people get tired of being trampled over by the iron feet of oppression." Speaking grapliically and metaphorically about the tension between the promises and the instantiation of American civil society, describing it as an almost physical divide, King tells his audience, "There comes a time, my friends, when people get tired of being thrown across the abyss of humiliation, where they experience the bleakness of nagging despair." Blacks are angry that they have been pushed from the category of civil good, which they deserve both by virtue of their civil status and their personal qualities, to the side of darkness and evil. "There conies a time," Kins; declares, "when people get tired of being pushed out of the glittering sunlight of life's July, and [are] left standing amidst the piercing chill of an Alpine November." Yet, despite this anger at the manner in which the black community has been pushed outside the category of the good, King wants to affirm that this Montgomery protest will abide by civil norms. "Now let us say that "wc arc not here advocating violence." he declares. "We have overcome that." As putative participants in the civil sphere, blacks need not resort to violence: they can start a social movement. "The only weapon that we have in our hands this evening," King assures his listeners, "is the weapon of protest." Duality is what allows the protest weapon. The affirmation of being outside of civil society but inside it at the same time is, for King, the key to legitimating the civil rights protest and to affirming its identification with the wider civil sphere. If we were incarcerated behind the iron curtains of a communistic nation—we couldn't do this. If we were trapped in the dungeon of 310 social movements tn the civil sphere The Civil Rights Movement and Communicative Solidarity a totalitarian regime—we couldn't do this. But the great glory of T American democracy is the right to protest for right. Yet. even as the MIA stands firmly with the civil mandates of American democracy, King narrates its opponents in the southern white community -as defiling democracy in an anticivil way. He insists on the contrast between ^ black civility and white southern anticivility. "There will be no crosses burned at any bus stops in Montgomery," King affirms, referring to the | intimidating tactics of the racist Ku KIux IOan. "There will be no white " * persons pulled out of their homes and taken out on some distant road and -murdered," he predicts. He promises that "there will be nobody among ^ who will stand up and defy the Constitution of this nation." King cone] by appealing explicitly to the Utopian nature of civil promises and tc sacred and secular authorities upholding them, authorities admired by I and white Americans alike. If we are wrong—the Supreme Court of this nation is wrong. If " ' we are wrong—god Almighty is wrong! If we are wrong—Jesus of | Nazareth was merely a Utopian dreamer and never came down to earth! If we are wrong—-justice is a lie. And we are determined here in Montgomery—to work and fight until justice runs down lik< water, and righteousness like a mighty stream/'-1 There had been an ongoing protest in Montgomery, but it became \ transformed when Rosa Parks refused to give up her seat on December 1, - j J955. Her arrest triggered the creation of the MIA and the election ofKing ) as its leader. Though the movement began and ended as a bus boycott, it : reached deep into the heart of the distorted civil sphere. Bus segregate presented racial domination in its most highly visible form, that of civil interaction. Nowhere was the distortion of the promise of civil society so public, tactile, direct, and repetitive."4 The battle against this anticivil di ination involved tactics and strategy, and it depended on money, networks. 1 and organization. But more symbolic elements were also involved. King •■[ needed to translate the local battle into a conflict within the broader civil [ sphere. It was crucial to project southern repression into the reflecting mirror j of the surrounding northern civil sphere. Shortly after the initiation of the I Montgomery protest, according to a recent historian of the movement. King began to speak widely in church and conuiiunity rallies in the North, "not only to raise funds but also to solidify a growing community of black and white activists around the country."*'5 He reached into northern and southern black civil society, forging ties with the "established black leadership network of preachers, politicians, educators, and journalists," even as he reached over the racial divide into the most critical sectors of the surrounding white sphere, forging alliances with "white liberals and progressives in pacifist, labor, and religious circles."*"' These initial forays into northern civil society struck many observers as arousing an unexpectedly enthusiastic response. One northern newspaper, describing the atmosphere generated by King's first fund-raiser, in New York City, recorded "the kind off welcome [the city] usually reserves for the Brooklyn Dodgers.""7 This was precisely what King's southern white opponents had blithely ignored—in the words of another student of the Montgomery campaign, "the possibility that their show would not play [as] well to audiences beyond the horizon."6" Not surprisingly, less than two months had passed ot the Montgomery movement before the northern media directly intervened. They sent journalists to cover the protest, and the reporters' emphatically civil interpretations made Montgomery into an event/'" The national media projected ICing's message of redemption and reform back to the northern audience as news. Newsweek highlighted King's eloquent effort to universalize the faraway racial struggle. Quoting his statement that "one of the glories of America" was "the right to protest for right," Newsweek framed Montgomery in civil rather than racial or economic terms. "This bus situation," King told the magazine, "was the precipitating factor, but there is something ..much deeper. There is this deep determination ... to rise up against these oppressive forces."70 Time also placed the black protesters inside the sacred narrative of civic emancipation. Reporting on King's trial in April 1956, the magazine began with a portrait of how racial domination had long denied blacks' civil capacity: "For one hundred years Negroes walked soft and spoke low around Alabama's Montgomery Country courthouse." Now that a real protest had begun, however, things were different, and the debilitating tension between ideals and reality could be criticized. The tramping of their feet "sounded heavy in the dingy downstairs corridors," and their voices "were raised in pain and anger." 312 313 SOCIAL MOVEMENTS IN THE CIVIL SCHEUE The Civil Rights Movement and Communicative Solidarity A Negro crowd roared hope. . . . After a lifetime of taking it quietly, their emotions welled up and overflowed in their testimony. Some began talking before defense lawyers asked for their names: others could hardly be stopped.71 When the bus boycott had triumphed, in December 1956, King congratulated movement activists and followers on their "dignity, sanity, and reasonableness" throughout the campaign.7- The northern media of communication, following King's lead, employed similarly civil discourse to explain the protest movement's success, writing that broadening solidarity, not divisive conflict or aggression, had been its fundamental goal. The media broadcast this interpretation by configuring King as a dramatic hero. Newsweek underscored Kings modesty and gentleness in victory, how he advised !iis followers, "don't go back to the buses and push people around. . . . We're just going to sit where there's a seat."73 Time explicitly constructed this humility as a sign of King's civil capacity, writing that King "was too wise to be triumphant" and quoting his insistence that "all along, we have sought to carry out the protest on high moral standards. "7-1 Writing retrospectively of King's demeanor when his home was bombed months earlier, in the heat of the dispute, Time stressed even more strongly his commitment to the norms and institutions of civil society. The editors described how King had confronted the crowd of furious black supporters who had gathered outside his burned home and who thirsted for revenge. They quoted King's admonition to "please be peaceful" and his insistence on solidarity and its legal regulation: We believe in law and order. We are not advocating violence. Wc want to love our enemies. Be good to them. Love them and let them know you love them. As an indication that King's movement possessed the potential for civil repair, Time concluded by quoting a white policeman who had been on the scene: "I was terrified. [ owe my life to that nigger preacher and so do all the other white people who were there."75 In January 1957, a month after the movement's triumph. Time completed its civil construction of Martin Luther King. Putting his picture on its cover, they took the first step toward making this symbol into an icon.76 At the center of American popular culture, such • 314- nieniorializatiou is reserved only for those figures who elicit the most intense public admiration. In a story titled "Personalities of 1956: Stars in Their Own Orbits," Twit's editors described King as "what many a Negro—and, were it not for his color, many a white—would like to be."7. King's early performance on the civil sphere's public stage already gave some presentiment of how this black leader could embody central themes not only from the New Testament but from the Old. His iconic representation of these themes deepened with the passage of time. A critical episode in tliis process of sanctification occurred in the year following the Montgomery victory. While autographing copies of Stride toward Freedom, his book-length account of that earlier campaign. King was stabbed in the chest by an emotionally unstable African American woman. Dramatically recounting how the blade had only "narrowly miss[ed] the critical aorta near the heart," Time treated the assassination attempt as a premonition of King's mortality and martyrdom. Coming on the heels of the magazine's representation of King as a popular icon, its account of the black leader's mental and physical response to the attack amplified his larger-than-life status. Time called King a "hero." Not only had he "escaped gun and bomb blasts in Alabama," but. while lying gravely injured in a Harlem hospital, King had remained "still conscious and calm." Consciousness and calmness, of course, are central categories that affirm the discourse of the good in American civil society.7" After the great victory in Montgomery, this incident and others equally dramatic and dramatized lay ahead of King. What he had done already, however, was quite enough to create a movement for civil rights. Many practical things became possible after Montgomery. Drawing 011 church organizations and the little civil rights movements that already were ongoing in cities and villages throughout the South, King and his lieutenants formed the Southern Christian Leadership Conference (SCLC), and large sums of money were raised to staff this network in the North as well as in the South. These organizational efforts created a "material" basis for linking veterans of earlier protests, and for exciting and recruiting younger generations. These new adherents formed a cadre that would organize the massively publicized demonstrations in the years ahead and the hundreds of confrontations that were not selected and highlighted by the national press. These organizational networks were critically important, but it is important to remember that they were made possible by King's translation of the discourse of civil society, 315 SOCIAL MOVEMENTS IN THE CIVIL SPHERE by the psychological identification and symbolic extension this mediation allowed for blacks and for whites. King had instantiated a movement of black protest in the symbolic center of the civil sphere for the first time in American history. In doing so, he had made it possible for white Americans to identify with the humiliations and hopes of blacks. Some whites began to feel as if they, too, were participating in the "freedom struggle." Only with such identification would there develop the possibility of white indignation over southern violation of black rights. As we will see in the chapters following, it was the violation and physical degradation of black activists by southern officials and the shock and indignation this produced that constituted the true dramas of the movement. At the cultural level, this degradation would eventually be experienced by northern whites as a profanation of their sacred values, and the outrage they expressed against it ; would trigger an effort to protect their traditions in turn. At the psychology " ical level, attacks on black activists were experienced by many northern whites as a violation of their own sense of self, and they expressed outrage in order to affirm their own identities. At the same time, these expressions • of shock and indignation were socially oriented symbolic actions. Their aim was to force regulative intervention. Eventually, they succeeded. This dia- ' lecric of communication and regulation determined the post-Montgomery movement for civil rights. CHAPTER 13 Race and Civil Repair (3): Civil Trauma and the Tightening Spiral of Communication and Regulation n this chapter, we will explore more deeply the symbolic extension of interracial solidarity at the heart of the Civil Rights movement, investigating how its tensely wrought dramas triggered a sense of moral violation among members of the surrounding civil sphere that led them to initiate forceful symbolic action for civic repair. We will sec how this compensatory symbolic action triggered unprecedented changes in the civil spheres regulatory institutions, creating overlapping waves of institutional and symbolic activity. However, even as we emphasize the neglected role of symbolic action and c omnium cative institutions, placing them at the center of efforts to change the structure of civil society, we cannot forget the structures of a more coercive kind. To assert the significance of civil power is not to deny political and social forces; it is rather to place them into perspective. When social systems contain civil spheres, the sources and effects of power must be conceived in new ways. Power must be redefined. 317 SOCIAL MOVEMENTS IN TIIE CIVIL SPHERE Civil Trauma, Communication, and Regulation Duality and Legal Repair It was the inability to effect regulatory reform that first stimulated a mass social movement for civil rights, and as this movement unfolded, the lenge of cultural translation necessarily assumed central stage. Yet alth the very possibility of regulatory reform depended upon the success o symbolic effort, the repair of regulatory institutions remained an abs necessity if changes in popular and elite consciousness was going to ; racial power in an ongoing, long-term way. "Protest could stir the science, create concern, [and] focus attention," recalled Charles V Hamilton, a lawyer and legal scholar who was deeply engaged in the struggle for civil rights. Hamilton goes on to insist, however, that "persuasion had to be codified into rules for future behavior, defining new relationships, spt out new meanings of rights and obligations, limits and liabilities." Thi«. empirical argument about practical necessity points to the contrast befr subjective persuasion and external sanctions. If the civil sphere is to construct social solidarity in an effective manner, some kind of complementary relation between communicative and regulative institutions must be attained. Hamilton calls the effects of regulative institutions "concrete outputs"; after successful persuasion, "court decisions had to be rendered, executive decrees issued, [and] legislation passed."1 Those who were intimately involved in the conmiunicative struggl the 1950s and 1960s envisioned just such a symbiotic relationship between their symbolic actions and regulative change. Nelson Benton was a ph journalist whose tape of police brutality at Selma, Alabama, in March nX>5 played for more than two minutes on the CBS evening news. Benton later recalled how aides to Alabama's racist governor, George Wallace, had spoken bitterly at the time about there having been just "too much film." They were right. Only a few days after the broadcast, a U.S. District judge cited the film when he issued a critical restraining order against the Selma police. Benton himself drew a direct line between the photographic record and the Voting Rights Act that Congress passed later that SLimmer.2 In their own strategic thinking about the Selma protest, civil right leaders were intent on forging a communicative-regulative connection. "We want to establish in the mind of the nation," Andrew Young told the New York Times, "that a lot of people who want to register are prevented from doing so." For him, this communicative effort to change consciousness was 3iS the key to reforming the franchise, a central regulatory institution mediating between civil power, on the one side, and state and social power, on the other. "We hope this will lead to a revision of the voter registration laws in this state," Young said. In making this connection, he articulated a spiral relationship between conununication and regulation: "We feel that action is needed in the courts and in the streets."3 In Martin Luther Kings own retrospective analysis of the Selma campaign, he suggested that the connection between symbolic drama and regulatory reform had, in fact, been established precisely as Young proposed. Addressing the kind of thinking that informs classical social movement theory, King suggested that institutional power was not important in itself. "It was not necessary to build a widespread organization," he asserted, "in order to win legislative victories." The object of movement organization is to create compelling social drama, and this can be achieved. King believed, by "sound effort in a single city such as Birmingham or Selma." Selma was successful, in King's view, because the campaign had achieved the status of a collective representation, creating "situations that symbolized the evil everywhere and inflamed public opinion against it." Broadcast by national media, such condensed dramas provided vicarious, symbolically mediated experience far beyond the immediate venue. Such symbolic reach allowed local dramas to produce broad regulatory reform. Recalling how Congress had passed the landmark voting rights legislation in the shadow of Selma, King asserted that where the "spotlight illuminated evil, a legislative remedy was soon obtained that applied everywhere."4 As these statements by civil rights activists suggest, voting and lawmaking were the key regulatory institutions over which civil rights activists aimed to exert control.5 For the racist powers that distorted civil society in the South, disenfranchisement had been a central aim. After the Civil War, however, the South had to pay formal obeisance to the rules that demanded a fully enfianchised civil society. According to the amended U.S. Constitution, every member of the southern civil sphere was, in principle, allowed to participate in deciding who would occupy the most powerful civil offices. To maintain racial domination in this new situation, southern whites created a series of ingenious techniques that effectively prevented their black compatriots from casting their ballots. It is hardly surprising, then, that registering the disenfranchised became, time and time again, one of the Civil Rights movement's principal aims, 3T9 SOCIAL MOVEMENTS IN THE CIVIL SPHERE from the "Crusade for Citizenship1' initiated by the SCLC in 195 "Freedom Summer," organized by SNCC in 1964. Neither should ic be surprising, however, that such efforts to leap directly from movement organization to local regulatory reform consistently failed. Enfranchisement of southern blacks was not formally assured until the U.S. Congress passed the Voting Rights Act in 1965, and it was not substantially achieved until years after that. As I suggested in chapter 6, while voting typically is considered the sine qua non of democracy, it is just one civil institution among manv; sometimes, indeed, it is the last regulative institution to become autonomous vis-á-vis powers in the noncivil domains. If voting is the last civil reguk to take effect, it is because its compulsory power operates with an unalterable finality. Corrupt officeholders can sometimes hold onto their offices even when they are sharply challenged by other institutions in the civil sphere, communicative and regulative. Only when their challengers are able to achieve electoral empowerment is it certain that anticivil political leaders, and the various groups they represent, may finally be removed from control over critical state resources. A crippled franchise, however, cannot be repaired until mechanisms of legal regulation have themselves been reformed. In terms of organized, concrete sanctions, it is the law that exercises authority over every aspe civil life, from voting to office to face-to-face relations. Throughout the history of efforts to repair the racial distortion of American civil society, legal reform thus represented the single most important regulatory ambition. For those who have shared this ambition, the legal statutes that underlay the American civil sphere, particularly the constitutional ones, seemed to create an idealized democratic space, a space in principle without racial distortion. Charles Houston, the pioneering NAACP lawyer, believed that in court a black man could "compel a white man to listen."*1 Charles Hamilton, the contemporary legal activist and scholar, expanded on this idea when he asserted that "sound arguments could be presented in a court of law, despite the fact these very same arguments might not be relevant in the halls of Congress."7 From the idealized perspectives of these legal reformers, the rationality and universality inherent in democratic law compels civility and solidarity, even among hostile parties. Such hopes are not completely unfounded. As we saw in chapter 7, legal regulations codify the Utopian aspirations of civil society; their persistent evocation in an institutional arena Civil Trauma, Communication, and Regulation bounded by professional ethics, precedent, and empirical evidence can have a significant effect on civil repair. In the dualistic context of American racial domination, these Utopian le^al aspirations were codified only in federal law, which was, in effect, the law of the northern civil sphere. They were not institutionalized in the legal codes created and enforced by local civil powers in the southern states. It was for this reason that Martin Luther King sharply distinguished, in principle and practice, between state and federal law. King spoke eloquently of "the tragic sabotage of justice in the city and state courts of the South," where "the Negro ... is virtually certain to face a prejudiced jury or a biased judge, and is openly robbed with little hope or redress." By contrast, he insisted, "the Southern Negro goes into the federal court with the feeling that he has an honest chance of justice before the law."H Without a second thought, indeed with fervent moral conviction, King continually broke state injunctions and restraining orders issued by local southern judges. He made it a fundamental tenet of his protest activities, however, never to violate federal law. He would not do so even if he believed that federal injunctions were morally wrong, even if they were issued by overdy racist federaljudges whose rulings reflected the civil distortions of southern life. "1 don't mind violating an unjust state injunction, but I won't violate a federal one," King told William Kunsder, his legal advisor during the 1962 Albany campaign. Kunsder's recollection is illuminating. I constantly stressed the fact that I considered the injunction illegal. While I did not advise King to violate it, I made it quite clear that I did not think he was bound by it. But he was adamant. Since the restraining order bore a federal imprimatur, he was determined not to flout it.'' King had organized the Civil Rights movement in response to duality; he wanted it to engage the Utopian aspirations of the environing civil sphere, not only in its symbolic but in its organizational manifestations. The 1954 decision against school segregation had demonstrated the civil potential of federal legal codes, despite the fact that officials of the national sphere did not see fit to carry the decision out. Though the Montgomery movement had emerged in response to this regulatory failure, the bus boycott's victory 320 321 social movements in the civil sphere was achieved when the Supreme Court declared unconstitutional Alabama's state and local segregation laws. That decision, moreover, simply denied the appeal by Montgomery and state attorneys of an earlier federal judgment against bus segregation.10 As a result of these external decisions, the Montgomery judge who had issued pro-segregation rulings against the black protest was compelled publicly to dissolve his earlier regulations. Even as he bowed to these coercive orders, he sought to delegifimate the national civil sphere from which they derived. Constructing the federal authority in an anticivil way, he called the decision by Supreme Court an "evil construction," claiming it was based on "neither law nor reason."11 Legal constraint was irreplaceable, and federal legal forces made periodic, and critical, interventions into the focal southern scene. Still, it remained very much the case, after Montgomery as before, that civil repair could take legal form only after the social movement for civil rights had succeeded in---^ generating communicative solidarity. As one influential southern editor wrote about the sit-in movement, which emerged in 19,60 partly in reaction to the growing frustration with efforts to effect regulatory change, "no argument in a court of law could have dramatized the immorality and irrationality" of segregation in such a powerful way.12 Laws issue not from deductive logic but from judicial interpretation, and legal interpretation is a subjective action carried out in reference to a cultural frame. Oliver Wendell Holmes might as well have been thinking about the future Civil Rights movement when he wrote, decades earlier, that "the life of the law has not been logic [but] experience," explaining that "the felt necessities of the time, the prevalent moral and political theories," and "even the prejudices which judges share with their fellow-men" have had "a good deal more to do than the syllogism in determining the rules by which men should be governed."1-1 Governing rules are deeply affected by public opinion and by the commu- - V* nicative institutions that crystallize opinion in the civil sphere. Whether or not the fellow feeling of white federal judges was to be extended to the excluded black population in the South depended on how successfully the Civil Rights movement promoted psychological identification and symbolic extension. In the wake of the successful Montgomery campaign, the Republican president and Democratic Congress passed into ■ law the Civil Rights Act of 1957, but federal officials did not even come close to carrying out its limited legal mandates. The Crusade for Citizenship Civil Trauma. Camnumication, and Regulation that occupied the SCLC in the years after Montgomery failed miserably in its effort to extend voting rights to disenfranchised southern blacks, for the simple but quite sufficient reason that federal authorities possessed neither the will nor the resources to overcome the extraordinary opposition to franchise expansion that animated southern whites.14 These and other fundamental repairs of racial domination waited upon compelling performances on the public stage of the surrounding civil sphere. This is precisely what the Civil Rights movement achieved. The Sit-in Movement: Initiating the Drama of Direct Action This later phase of the Civil Rights movement emphasized what movement leaders called nonviolent "direct action," for it was only such a provocative but simultaneously civil strategy that could provoke an aggressive, overtly anticivil Southern response. From the beginning of his leadership role in Montgomery, Martin Luther King had been a public advocate of nonviolence, an ethic that, as I have stressed earlier, was fundamental in creating a civil representation for the movement. In the years following Montgomery, moreover, the newly formed SCLC made the teaching of nonviolent tactics and philosophy a primary aim of its organizational development.15 Yet neither in Montgomery nor in the years immediately following did King and his organization link nonviolence to a determined and provocative strategy of direct confrontation with southern officials. Indeed, it was not King but impatient college students outside the organized movement who, on Feb-mary 1, i960, initiated the first sit-in demonstrations at the lunch counter of a Woolworth's store in Greensboro, North Carolina. There had been sporadic sit-ins at segregated facilities for at least two years preceding Greensboro, just as there had been bus boycotts before Montgomery.1'' What was different about the Greensboro sit-in was that, like the boycott at Montgomery, it succeeded in penetrating the symbolic space of the surrounding civil sphere. It was able to do so because the Civil Rights movement already existed not simply in organizational terms but as a set of collective representations, among them the powerful symbolization of Martin Luther King. In the days after Greensboro, King and other SCLC activists became deeply involved in planning the strategy of the sit-ins and SOCIAL MOVEMENTS IN THE CIVIL SPHERE Civil Trauma, Communication, and Regulation in their public representation. In doing so, they were critical in helping tn spread the new protest model to hundreds of other locations throughout the South. What was new about the sit-in strategy was that it aimed at provoking a repressive response, possibly even a violent one. By doing so, it was auie to more persuasively dramatize the civil legitimacy of the black social movement and the anticivil qualities of its southern white enemies. In the words of the historian William Chafe, the sit-ins provided "a new form through ; which protest could be expressed," a "new language" that more successfully : "circumvented chose forms of fraudulent communication and self-deception through which whites had historically denied black self-assertion."17 This ; new form was far more theatrical than earlier tactics; it was physical and concrete, located in a particular place, at a particular time, involving not; only visible but visibly antagonistic historical actors. This agonistic, theatrical ■;■ form allowed the anger of the black community to be expressed in an i embodied, visceral way.11* This physical dramatization of civil indignation was what the young Robert Moses responded to as he sat in his Harlem S apartment in New York City and watched the first televised reports or V Greensboro. The future civil rights leader, then a high school mathematics ; teacher, recalled that "the students in that picture had a certain look on tJieir ~-i faces, sort of sullen, angry, determined."1'' 5 For this new protest tactic to be dramatically successful, however, its | aggressiveness had to be carefully encased in a nonviolent form. In fact, this £ provocative, in-your-face protest was presented to the public as a new kind f of civil performance, one that articulated the norm of nonviolent civil # interaction. In this artful manner, black anger was translated into the legit- | imating categories of the civil sphere. The written instructions distributed ;! to sit-in demonstrators in Nashville, Tennessee, twelve days after the trig-gering Greensboro incident, neady expressed this demand for civil tr"™- 5 lation. ft Do show yourself [to be] friendly on the counter at all times. Do sii straight and always face the counter. Don't strike back, or curse back ^ if attacked. Don't laugh out [loud]. Don't hold conversations. Don't block entrances.-" % As one youthful participant in the Nashville demonstrations later recalled: || 324 My friends and I were determined to be courteous and well-behaved. Most of them read or studied while they sat at the counters, tor three or four hours. I heard them remind each other not to leave cigarette ashes on the counter, [and] to take off their hats.-1 Yet no matter how civil their self-presentation or how self-con trolled their restraint, the sit-ins demonstrators aimed to provoke repression. The tactic was effective because it graphically exhibited the binary opposition between civil good and anticivil evil. As the movement of public disruption and disobedience spread, it increasingly provoked southern responses, both official and unofficial, that could be re-presented as violating the fundamental principles of civil society. These considerations lead us from the symbolic action of the sit-ins themselves to the representations of these actions by the communicative media of civil society. Between the actual events of the Civil Rights movement and their media representations there was a contingent, open-ended relation. The sit-ins, and the black activists who led them, could be represented by the media of mass conununication in very different kinds of ways. Conservative local media constructed the demonstrations and their leaders in terms of anticivil qualities that seemed to legitimate, indeed virtually to necessitate, their repression. In Montgomery, the Advertiser approvingly quoted the city's police commissioner warning of police reprisals "if the Negroes persist in flaunting their arrogance and defiance."2- Though arrogance is related to the civil qualities of confidence and autonomy, it shades them in a polluting way, suggesting an aggressive disrespect. The irrational and negative implications of defiance similarly separate it from the civil legitimacy that accrues Jio critical, independent action vis-a-vis authority.2-5 When the first mass arrests took place in Nashville, local newspapers quoted the advice given to students by James Lawson, a local black leader. Lawson. a minister and experienced advocate of nonviolence who was also a graduate student at Vanderbilt University, told students they should join the demonstrations even if it meant breaking the law. The Nashville Banner characterized this statement as "incitation to anarchy." Placing Lawson at the center of an antidemocratic conspiracy of "self-supported vagrants" and "paid agents of strife-breeding organizations," the Banner demanded his forceful exclusion from the city, insisting "there is no place in Nashville for [such] flannel-mouthed agitators."2'' As the demonstrations in Nashville con- 32 s SOCIAL MOVEMENTS IN THE CIVIL SPHERE Civil Trauma, Communication, and Regulation titiued, Lawson was expelled from Vanderbilt University. When eleven of the Divinity School's sixteen faculty members resigned in protest, the R maud News Leader commented "good riddance.Affirming local understandings, which interpreted the protesters as constituting an anticivil thn . the Neil's Leader proclaimed that "Vanderbilt University will be better o Local media depicted the sit-ins not as a rational, independent response to . racial domination but as an irrational, unmotivated, and cowardly siege manipulated by alien, unfeeling, and dictatorial culture and institutions the North. After sit-in demonstrators were arrested in Raleigh, North C ; olina, the local News and Observer asserted that "the picket line now extends from the dime store to the United States Supreme Court and beyond that • to national and world opinion."2'1 I To get a sense of how the northern media represented these same act ;j ities, we should recall our earlier discussion of the young David Halbersta full-throated admiration for the sit-in demonstrators, indeed, his deeplv % personal identification with them. Journalists like Halberstam had come « down to the South as much from political interest as professional ambition. They, and the media institutions they represented, hoped that their inter- S pretations would expose southern racist behavior as violating the legitimate^ framework of American civil societv. For the communicative institutions of the surrounding northern civil society, it was the white opponents of the- J sit-ins, not the black participants, who were represented as dangerous enemies of democratic life. "Familiar flotsam," Time called the white youths who harassed blacks during the sit-ins, reporting how they had heckled and ^ often physically threatened them. In distinctly anticivil terms, Time described the whites as "duck-tailed, sideburned swaggerers," identifying the "red- ^ necked hatcmongers" with the Ku Klux Klan.2T In sharp contrast with the local media's applause for Vanderbilt s expulsion of James Lawson, the New ;| York Times interpreted the action as a flagrant violation of civil norms and p| put the story on its front page.2* f? Reporters' interpretations of the sit-ins were motivated not only by their ;;J personal inclinations and institutional norms but bv frameworks offered to ^ them by the civil rights leaders with whom they identified, especially Martin ;ff Luther King. Alone among established leaders of either race, King had "5 responded immediately and enthusiastically to the sit-ins.2" broadcasting his positive understanding through speeches that were reported throughout the |y nation, through interviews with various northern media, and through guest i| 326 appearances on such influential editorial forums as the weekly television show Meet the Press.™ In these broadcasts. King translated the new forms of local protest for the northern audience, deftly weaving them into the moral texture of the surrounding civil society." King depicted the demonstrators and their opponents in the highly charged language of civil society and its enemies. In his first public commentary on the sit-ins, he told an evening rally in Durham. North Carolina, that "men are tired of being trampled over by the iron feet of oppression."12 Evoking the rhetoric from his MIA inaugural speech five years before, King symbolically associated the sit-in demonstrators with the righteous motives of a protest movement that had become memorialized as an emblem of justice in the national memory. As for the sit-in movement s local opponents, Kins, drew upon broad and sweeping themes 10 identify them with civil evil and to insist on their necessary separation from civil good. "The underlying philosophies of segregation are diametrically opposed to democracy and Christianity," he told the audience, "and all the dialectics of all the logicians in the world cannot make them lie down together."" King then returned co the student protagonists, describing them, in direct opposition to the claims of their opponents, as mature, rational, and well-intentioned: "What is fresh, what is new in vour fight is the fact that it was initiated, led, and sustained by students. What is new is that American students have come of age."34 From this coded characterization of the participants, King developed a narrative for understanding the struggle as a whole. He predicted that the sit-in movement was "destined to be one of the glowing epics of our time," that it would occupy one of the "honored places in the world-wide struggle for freedom."17' Finally, addressing the provocative quality of this new form of protest, he concluded with a ringing assertion that accused southern officials of inverting the relationship between punishment and civil justice. Let us not fear going to jail. If the officials threaten to arrest us for standing up for our rights, we must answer by saying that we are willing and prepared to fill up the jails of the South. . . . And so I would urge you to continue your struggle.""' This metaphorical admonition to fill up the jails was destined to become a widely broadcast rallying cry for direct action against southern racial dom- 327 SOCIAL MOVEMENTS IN THE CIVIL SPHERE Civil Trauma, Communication, and Regulation ination.37 Meanwhile, King continued to generate and broadcast legitimating interpretations of the protest movement to the central institutions of the surrounding civil sphere. Three weeks after his Durham speech, as sit-ins erupted throughout the South and tens of thousands of young black students became involved, King cabled the highest official of American civil society, President Dwight Eisenhower. Indignantly demanding regulatory intervention, King called for the president to make good on the unfulfilled promises of the American civil sphere. Evoking the binary discourse of civil society, King dramatically contrasted the "peaceful and non-violent techniques" of the students with the "gestapo-like methods" and "reign of terror" unleashed by police and city authorities. He compared the "incredible as-saultjs]" of the police officials and their intimidating displays of physical force with the students' "orderly protest."38 Ten days later, in its first editorial on the sit-ins, the New York Times followed the interpretive framework proffered by King and by agents of the media themselves. Observing thar the sit-in movement was "something new in the South," the Times insisted that it should be viewed as "something understandable."3'' Though the sit-in movement continued for many months, eventually involving some 50,000 protesters across a wide swath of southern states, b' the summer of i960 it already had succeeded in desegregating the lunch >: counters in key cities. It had done so by creating economic hardships fo white store owners, whose black customers honored the protests by boycotting targeted stores. Yet much more than instrumental power and a Ioca \> "battle of position" were involved.J" For this local battle had been wager, with massive support from the communicative institutions of the northen civil sphere. These institutions broadcast positive and informative "news ^ about the sit-ins, not only to the national audience but to potential participants on the local scene. These interpretations helped to recruit participant : in the local movement and contributed to local organizing by generatinj ;| infusions of financial and other kinds of material support. Finally, the medi; '' representations provided a subde but very real morale boost to the studen f protesters themselves, giving them a sense of connection to the civil power of American society outside the South. In a retrospective interview, Jame . Robinson, CORE's executive director during the sit-in demonstrations, salt . that he and other leaders had been empowered by the events. Denying a-,-J narrowly instrumental understanding of power, Robinson gestured to a sense -of participation and inclusion. Well, it isn't money. It is a sense of power and certainly we got a hold of something. It gave us a great sense of power, because what we did was making a difference to society.Jl Robinson expressed his astonishment that the demonstrations could have made "that amount of difference in that amount of time," for "when you added it all together, it wasn't enough to make a corporation change its policy." He acknowledged power, indeed, only in the communicative, civil sense. "There certainly was a sense of power," he recalled, when "we got our names in the paper."JJ But even more important than support for local organizations and activists was the fact that the nationally broadcast representations extended the movement's symbolic reach and deepened the psychological identification it generated in the surrounding civil sphere. Pointing to how the sit-ins pulled "many people, often entire conmiunities, directly into the movement," Aldon Morris wrote in 1984 that the demonstrations had succeeded in making "civil rights a towering issue throughout the nation."43 A contemporary participant, the historian Howard Zinn. attested in 19G4 that the sit-ins "marked a turning point for the Negro American," pointing to the movement's "skill in organization, sophistication in tactics[,] an unassailable moral position[, and] a ferocious refusal to retreat."44 These analysts are certainly correct in their testimony about the wide ramifications of the sit-ins; they are on shakier grounds, however, in attributing this success to the movement's local effects. Certainly these local effects were great; nonetheless, the southern success of the sit-ins and, even more so, their success on the national scene depended upon the movement's ability to translate local particulars into the generalized language of civil society. It was, in fact, the power of this symbolic intervention into the environing civil sphere that brought to the Civil Rights movement anticipations of the regulatory intervention that marked its long-term goal. The context was the franchise. Though southern blacks were systematically excluded from exercising their voting power, blacks in the North were not, and by the later 1950s their votes were increasingly tied to the drama of the ongoing movement for civil rights. The most intense period of the sit-in movement, and the communicative mobilization it generated, coincided with the critical winter and spring months in i960, when Democratic candidates were engaged in a fierce struggle to become their party's presidential nominee. SOCIAL MOVEMENTS IN THE CIVIL SPHERE Civil Trauma, Communication, and Regulation Despite the risk of losing white votes in what until that time had rem the solidly Democratic South, the white contenders for the Democratic nomination vied with one another to associate themselves publicly black leaders. Hubert Humphrey, an outspoken liberal, attracted the support of famous sports figure Jackie Robinson, a champion of integration was in the process of becoming a crossover Republican. Lyndon Johns progressive politician from Texas, posed tor an exclusive photograph with a black leader for Jet, a leading weekly for the African-American community. Most interesting in retrospect is the orientation to the civil rights movement { of John Kennedy. The least experienced in racial politics of the three candidates, Kennedy became deeply concerned when his brother Robert, the manager of his presidential campaign, announced in early 1960, "we're in trouble with the : Negroes."45 As an aspirant to the highest office in a democratic society, ]<-:s The palpable nature of Kennedy's political interest in King is revealed r| by the Democratic candidate's upbeat report on the meeting to his stafr. ;| which suggested that he had "made some progress" in gaining the pre §| leader's support."' To help solidify this support, the aspirant to high regula-power felt compelled to go one step further, to identify himself, not iiisv privately, but publicly with King. In fact, it was shortly after their initial meeting that Kennedy made his most direct and public evaluation of the v.t-in movement. To a meeting of African diplomats at the United Nations, Kennedy legitimated the most recent, and most aggressive, civil rights pro-by placing them within the broad narrative of American democracy. "It Is in the American tradition to stand up for one's rights," he declared, ■'-vi'ii if the new way to stand up for one's rights is to sit down."47 The future president did not suggest any concrete course of regulatory interven-Minj md did not make promises of any future actions. Still, his statement illustrates how the communicative mobilization around civil rights had be-so powerful that the highest officials of American civil society felt compelled to demonstrate their identification with the movement. ,;i the almost five months that transpired between this first public statement of identification and the presidential vote, officials in the Kennedy campaign were whipsawed between their private moral support for civil rights and their professional judgment that any further expression of solidarity imgnt forfeit the election by jeopardizing the Democrats' southern white support. Scarcely two weeks before the November vote, King was jailed during a sit-in protest against segregated facilities at an Atlanta, Georgia, department store. Though the county judge released most of the protesters, he denied King bail, sentenced him to four months on a chain gang, and transferred him in shackles to the state's maximum-security prison. Concerned about her husband's life, Coretta King called Harris Wofford, the Kennedy campaign aide, and asked for the presidential candidate's help. In response, Senator Kennedy called Coretta King and offered his sympathy and solidarity. "I know this must be hard for you," Kennedy told her. adding "I understand you are expecting a baby, and I just wanted you to know that I was thinking about you and Dr. King." After making this unprecedented gesture of solidarity, later broadcast via the communicative media to every corner of American society, he concluded by offering the services of his office. "If there is anything 1 can do to help," he said, "please feel free to call me."4" That evening, a reporter asked Kennedy if it were true that he had called Mrs. King earlier that day. The candidate reaffirmed his sympathetic identification, replying. "She is a friend of mine, and I was concerned about the situation." Next morning, news of the phone call was reported 330 33T SOCIAL MOVEMENTS IN THE CIVIL SCHERE Civil Trauma, Communication, and Regulation by the New York Times, along with the information, generated by another inquiring reporter, that Kennedys opponent, Richard Nixon, had offered "no comment" on the King case.4'' The candidates brother and campaign manager, Robert Kennedy, shocked and angered by the overtly repressive punishment that southern officials were meting out to King, telephoned not only the local judge but the state's governor, requesting King's immediate release. When word of this quasi-official intervention leaked out, the New York Times enthusiastically featured the link between communicative and regulatory power on its front page, citing Martin Luther Kings reciprocating statement that he was "deeply indebted to Senator Kennedy, who served as a great force in making my release possible."5,1' At the civil rights leaders welcome home celebration- -in Atlanta. King's father, the influential minister of Ebeuezer Baptist Church, expanded on the newly articulated solidarity between the protest movement -and the presidential candidate, telling his audience and by implication black ~ civil society more generally, that Senator Kennedy's civic virtue had earned him the black vote. "I had expected to vote against Senator Kennedy," the ' senior King declared, "but now he can be my President [because] he has -the moral courage to stand up for what lie knows is right." Martin Luther . | King senior urged his audience of black citizens to make good use of their £ regulatory power. "I've got all my votes and I've got a suitcase," King^; proclaimed, "and I'm going to take them up there and dump them in his y [Kennedy's] lap."51 As rumors of the Kennedy phone calls began spreading ~y through black civil society, the presidential candidates campaign aides fueled—/; the communicative process by preparing a pamphlet of supportive statements / by the King family and black preachers. The Sunday before the election, ¥, black ministers and Kennedy supporters distributed two million copies of i the pamphlet throughout African American churches in the North. ^ When Kennedy beat Nixon by less than two hundred thousand votes > out of more than sixty-eight million votes cast, it became apparent to ;A'.' journalists and political professionals that African American voters had pro- i| vided the edge. In 1956, blacks had given Republicans 60 percent of their votes; in i960, by contrast, blacks voted Democratic by roughly 70 percent to 30. Taylor Branch, the most important historical narrator of this period, .2 frames the significance of this change by suggesting that "this 30 percent ^ shift accounted for more votes than Kennedy's victory margins in a number *i of key states, including Michigan, New Jersey, Pennsylvania, Illinois, and;£| the Carolinas."5- The day after the presidential election, the Republican national chairman criticized his party for having taken the black vote for granted.5-' In the days following, the northern media of communication represented Kennedy's victory as depending on the phone calls that had declared friendship and established solidarity between the white leader and Reverend lung. Theodore White, whose Making of the President, tg6o established him as the chronicler and mythmaker of American presidential contests, described the calls as the "master stroke" of the Kennedy-Nixon electoral contest.'1 The New Regulatory Context The sit-ins introduced into the Civil Rights movement a new form of direct action, a new and more effective social performance that, by widening symbolic extension and deepening psychological identification, further prepared the ground for regulatory intervention. Yet these civil dramas were still not civil traumas;55 they would have to become traumatic before the northern civil community felt compelled to demand radical, wrenching institutional change. Though the dramatic confrontations had evoked aggressive responses from the southern officials enforcing racial domination, they had provoked relatively little violence. En this sense, the movement dramas remained more triumphs than tragedies, inspiring in the northern civil audience more a sense of hope and progress than the terror and pity associated with tragedy.5'' This is not to say that during the sit-in campaign there were not demonstrations of anticivil violence by southern authorities, but that such incidents were either ignored by the local press or judged to be insignificant by those who communicated southern reality to the national civil sphere.57 Thus, although media representations of the sit-in protests significantly extended symbolic and psychological identification among white members of the northern civil sphere, such representations did not trigger feelings of outrage. Because the movement was unable to spark outrage, ic could not be effective in provoking a sustained, intense public attack on southern racial domination. Only in the year following the sit-in movement, with the Freedom Rides of 1961, was civil indignation more fully expressed. The violently SOCIAL MOVEMENTS IN THE CIVIL SJ'HKRE Civil Trauma, Communication, and Regulation repressive responses to the Freedom Rides initiated a new and much more intensive phase of communicative mobilization. The northern civil audience reacted with anger to southern violence against the movement, with which they had come increasingly to identify. Compelled by this sense of outrage, they engaged in compensatory symbolic action, with the result that there was an extraordinary deepening of regulatory intervention into the southern civil sphere. This was not yet regulatory reform, and only such structural reform would fully repair the racial distortion of American civil society. It was, nonetheless, one major step along the way. When John F. Kennedy assumed control of the American state in January 196T, he assumed, at the same time, office responsibilities on behalf of the national civil sphere. In both roles, Kennedy was keenly aware that there existed a new situation in regard to black civil rights. Sensing shifts in public opinion, Kennedy as a presidential candidate had demonstrated his responsiveness, and many believed he had been elected president as a result. When he assumed office, expectations for continued sensitivity were intense. Shordy after Kennedy's inauguration, the New York Times reviewed the ; preceding vear of protests, noting that the sit-in movement had triggered "stand-ins at theatres, kneel-ins at churches and wade-ins at public beaches." .. The newspaper declared that the once scattered protests now threatened to "assume the proportions of a national movement."58 Support for the move- ;c ment was beginning to crystallize in the northern civil sphere, and it was at once represented and shaped bv such newspapers as the Times. This com-./ municative mobilization was further articulated and reinforced by public : opinion polls. Polling as a communicative institution of the civil sphere had. just begun to come into its own. In six of eleven national polling efforts between tg6i and 1965. the American "public" singled out civil rights as "'} the issue that concerned them most, and in three others ranked it second.59 g This did not mean that a majority of Americans sided with the black demonstrators at every moment in every particular demonstration and campaign.. ;i To the contrary, the movement significantly polarized public opinion.00 " These poll results did indicate, however, that the movement's civil encoun- ^ ters were closely observed and that arguments over the interpretation of these actions echoed throughout the public and private arenas of civil life, Indeed, by 1961 the social movement for civil rights had penetrated {;? deeply into the collective consciousness of the civil sphere; it had become;..-: one of the primary ingredients animating the amorphous brew of public 334 opinion. Still, though there was broadening support for its goals and increasing identification with its leaders, the northern audience interpreted each campaign and protest as an open-ended drama, and they scrutinized the manner in which protagonists and antagonists contingendy displayed their relationship to the overarching framework of civil society and to the project of civil repair. This contingent quality of the movements relationship to public opinion would never change. Even when it had succeeded in so deepening identification that it was able to secure regulatory intervention and fundamental repair, the movement's relation to public opinion was continuously contested, continuously subject to change. The public representation of civil opinion via poll data affected the relation between the civil and political spheres in another, quite different way. Crystallizing the moral force of civil opinion, it also provided an opportunity for instrumentalizing it. The possibility for quantifying moral feelings allowed political actors to make more precise, means-ends calculations about the civil effect of their actions. Without doubt, calculations such as these allowed the new Democratic administration to understand with more precision the nature of its quandary.'1' The desire to be responsive to new developments in northern public opinion, as well as their own private moral beliefs, inclined President Kennedy and his staff toward an activist role against racial domination in the South. The cold calculations of power politics, however, told them ic would be dangerous to do so. Public activism would risk southern support for the Democratic Party, which could prove disastrous for regulatory repair in the long run. Not onlv would the Democrats be unable to pass their reformist legislative proposals into law, but the nation's electoral map might shift in a manner that would exclude progressive politicians from executive office for decades to come.02 The new administration struggled for a way to offer regulatory intervention in private without making controversial public representations of its support. The head of its Civil Rights Division, Burke Marshall, translated this political inhibition into the seemingly objective language of legal constraint. Emphasizing the limits imposed by federalism, Marshall insisted publicly that federalism imposed severe constraints on government activism in the area of civil rights/'-1 If not consciously duplicitous, this argument was thoroughly misleading, for it denied the duality that lay at the core of the civil rights movement's already considerable success. Nonetheless, for instrumental political reasons, public insistence on the limits of federalism 335 SOCIAL MOVEMENTS IN THE CIVIL SPHERE Civil Trauma, Communication, and Regulation remained the Kennedy administration's formal position until its last months in office, an insistence that it consistently violated in the breech. As wieJders of political power, the president's staff had good reason to wish that their supportive administrative actions could be hidden from public view. As officers of civil society, however, the same staff were communicativel) pelled to become directly and publicly involved. Even as they consistency tried to push the Civil Rights movement in directions that would not compel them to make this involvement explicit, administrative officers felt bound to broadcast their support for the movement and their commitment to regulatory reform in an unequivocal, if broad and general way. Four months after assuming power, Robert Kennedy, the new attorney general, traveled to the heart of the Deep South to irive n major speech on civil rights. "You may ask," Kennedy told his Georgia " audience, "will we enforce the civil rights statutes?" To this rhetorical rion, he responded, "The answer is; Yes, we will." Contrasting the new administration's interest in civil repair with the passive collaboration in racial . domination that had characterized the Eisenhower administration, the new . chief legal officer of the United States promised, "We will not stand by and be aloof; to the contrary, he proclaimed, "We will move."64 In striking contrast to the alarm these words raised in the South, the New York Times praised Kennedy's "resolute speech" on its front page.65 The communicative institutions of northern civil society had already been aroused; for the first time, they began to anticipate that they would be joined by the nations regulatory institutions. The new administration tried to find a way out of its conundrum by . organizing a series of semiprivate meetings wdth civil rights leaders, during :-which officials announced their intention to intervene actively in the area „; of black voting rights.66 During these meetings, administrative officers prom-ised to intensify, without publicity or fanfare, regulatory efforts to compel southern officials to allow blacks voter registration. Though it represented ;; a compromise position, this federal voting rights effort was, nonetheless, a valiant one, headed by an Assistant Attorney General John Doar, who had a long record of defending black civil rights. In a series of visits that resolutely ::j avoided encounters with southern whites, Doar developed material for the ..{ government's lawsuits through clandestine personal meetings with disen- ••; franchised blacks. Yet no matter how idealistic, these unpublicized efforts at 336 voter registration wrere bound to fail, as the Civil Rights movement itself learned through bitter experience in the years following the Montgomery campaign. Simply in terms of administrative and legal power, the federal government had the capacity to force southern officials to register potential black srs. What it lacked was the empowering context of cultural legitimacy. Northern civil society would have to be mobilized to a much greater degree before the political calculations of northern leaders were to be altered, and more cautious considerations cast aside. Voter registration eventually would be achieved, and it would demand extraordinary federal intervention. This inti'rvention depended upon massive new enforcement organizations at the national level, not on the daring and courage of individual officers, and it would succeed onlv insofar as these new enforcement officials were willing isk potentially damaging public controversy. Regulatory intervention on this scale could not be mobilized until the legislative representatives of civil society passed new and stringent laws and established new, highly ambitious interracial goals. They would not do so until communicative mobilization became much more intense, until psychological identification and symbolic extension were deepened in a significant way. The civil rights leaders knew all this. Though they were aware of the double political bind faced by the new administration, they knew that the quandary could not be resolved by a strategy that focused exclusively on voting rights. Despite this awareness, they told Kennedy officials that they would give the administration's own reform plan their whole-hearted support. At the same time, however, they told these national political leaders that they would insist on maintaining, and intensifying, their own, highly public and highlv controversial struggles to mobilize civil support. Thus, even while Martin Luther King promised to work side by side with the Justice Department in registering voters, he warned the attorney general that earlier SCLC registration efforts had faced threats and harassment, and dial assistance from federal police agencies, primarily the FBI, had been hard to rind. Robert Kennedy's response made explicit and direct the new con-don that was being established between the social movement for civil rights and the surrounding civil sphere. Handing King the telephone num-, not only of Burke Marshall, but of his own personal assistant, Kennedy told King, "any hour of the day or night, you call."''7 337 social movements in the civil scherl Civil Trauma, Communication, and Regulation The Freedom Rides: Communicative Outrage and Regulatory Intervention It was not only the civil environment that was changing, but the tactics, _ not the strategy, of the Civil Rights movement itself. The communicative success of the direct action initiated by the sit-in movement had created new situation. Civil dramas could be heightened and intensified, it was now understood, if they provoked highly publicized arrests and anticivil repre sion. Initiated by young and inexperienced activists, this more provocativ form of civil protest created a youth-oriented civil rights organization, SNCC; it also pointed to new forms of activism for the established leaders of the Civil Rights movement, most notably for Martin Luther King. There emerged a distinctive shift in the movements self-understandin From the beginning, nonviolent tactics had been fundamental to the sul- '" cessful translation of the black campaign for civil rights. In its earlier, mo purely Gandhian form, nonviolence had promised, not only to "civilize" ; the activists by systematically controlling their physical and verbal aggressio but to educate and pacify the opponents against whom protests were aimed. By treating Southern whites humanely, activists believed, solidarity could; be established, and this gesture of solidarity would eventually elicit in move- > ment opponents a sense of moral shame. In December 1956, when the ; triumph in Montgomery seemed imminent, Martin Luther King had de- V dared at a mass meeting that the movement's goal was not simply to gain i victory but "to awaken a sense of shame within the oppressor and challenge his false sense of superiority," and he insisted that "there are great resources y of goodwill in the southern white man that we must somehow tap."(,a By ;? iooT, it had become abundantly clear diat this second element of the not ~ violent strategy rarely worked. Rather than nonviolent demonstrations en h ating a sense of shame among southern whites, with expressions of goodwill ^ the result, they had triggered resentment, anger, and a desire for revenge. Instead of the "concrete" other, the immediate partner in interaction, it .. turned out to be the "generalized" other—the indirect, mediated collectiv- ;* icy—for whom shame became the appropriate response. If there were 5 white collective consciousness that could experience guilt over racial don :>> ination, it animated not the members of the racially disturbed civil sphere in the South, but participants in the northern civil sphere, including the representatives of its conununicative and regulative institutions."" For reason 33 S of both religious belief and civil self-defense, black civil rights leaders continued to uphold such idealistic sentiments as "Love is the force by which God binds man to Himself and man to man." They came to deploy these nonviolent sentiments, however, more as tactic than as strategy, using them to dramatize not the essential humanity of their southern opponents but their opponents' engagement in anticivil repression in defense of racial domination.7" Nonviolence remained a commitment to civil and religious humanism, but it also became an inflammatory and highly effective tactic for arousing sympathy and identification from the surrounding public sphere. By provoking repression and possibly even violence from the movement's southern opponents, nonviolent tactics could make visible and dramatically powerful the anticivil domination that characterized southern society, "instead of submitting to surreptitious cruelty in thousands of dark jail cells and on countless shadowed street corners," Martin Luther King wrote, the movement's nonviolent tactics would force the southern "oppressor to commit his brutality openly—in the light of day—with the rest of the world looking on." He was right.71 It was this new understanding that motivated the Freedom Rides, the highly provocative bus tour through southern states initiated by CORE in May 19ÓT.72 Formally, the protest actions aimed at testing laws that banned segregation in interstate transportation, laws that had been significantly strengthened by a U.S. Supreme Court decision, Boynton c. Virginia, in December i960. Yet although CORE activists were thorouglily nonviolent in their tactics, they were perfectly aware that their efforts were likely to trigger physical repression. Through the first seven hundred miles and ten days, however, the bus filled with CORE activists rode through northern ......Dixie with little incident. This peaceful ride received scant attention from the communicative institutions of the northern civil sphere, let alone from its regulatory institutions. Of the three reporters who accompanied the bus riders at this early point in the protest, all were employed by black newspapers and magazines. It was white violence against black bodies that altered this situation; only such an explicit dramatization had the power to bring the pain of racial domination and the protest against it back to the front pages and public attention. With the active cooperation of local political and police officials, a group of self-styled white vigilantes launched a ferocious assault on the protesters when their bus pulled up at the station in Anniston, Alabama. 339 SOCIAL MOVEMENTS IN THE CIVIL SPHERE They smashed the bus windows with bricks and axes, ripped open h beat the activists, and set the interior of the bus on fire. A photograph showing flames leaping out che bus's front window and smoke billowing from every side went out over the wire services, eventually appearhm, among other places, on the frontpage of the Washington Post. Because of growing identification with civil rights activists, member1; of northern civil society reacted with outrage and anger to these depict^""; anticivil attacks. By the time the Freedom Ride bus was ready to de] its next stop, in Birmingham, the threat of continuing repression had attracted a considerable number of northern reporters, who waited in that city's downtown terminal for the bus to arrive. When it finally entered the station, the journalists observed a confrontation even more one-sid violent than before. With the Ku Klux Klan in the lead and city officials actively collaborating once again, whites brutally bloodied the COKC ac- _ dvists, demonstrating intent to maim if not kill. Their wrath extended to white observers of the scene, including reporters and photographers. As representatives of northern civil society's normative ideals, and as journalists who often identified personally with the activists themselves, reporters reacted to these attacks with intense indignation. Howard K. Smith, a CBS television reporter who described himself as "horrified" by the carnage. .' offered his "eyewitness account" that very evening on the CBS nightly news. The next morning, narratives describing the violent oppression were broadcast, with barely controlled anger, on the front pages of northern ;: newspapers, including the New York Times, which also circulated Smith's television report of the evening before. -J This new spasm of civil outrage catised reluctant Kennedy administrators;:; to make their first public regulatory intervention into the civil sphere. In the wake of the Birmingham confrontation, with Freedom Riders hidi 4 out in his church and his home, Fred Shutdesworth. the local leader of tfl" Civil Rights movement, placed a call direcdy to Robert Kennedy, making use of the telephone numbers the attorney general had distributed to activ - / during the private meeting earlier that year. Shutdesworth told Kennedy that the activists were "trapped" in Birmingham by white locals and south- ;. era officials, and that they needed federal protection to continue their prot -rides. Kennedy promised to help, and he made the moral connection t | tween African American protest and regulatory institutions physically con- ; crete by establishing a direct telephone link between Shuttleworth's hoi Civil Trauma, Communication, and Regulation nd various offices in the Justice Department, including his own. In the ontext of the tense racial crisis and the growing identification of northern itizens with civil rights activists, it should not be surprising that news of this telephone linkage was broadcast on page i of the New York Times.7* Robert Kennedy called Alabama's Democratic governor, John Patterson, longtime political supporter of the president, demanding that he order tate protection for the protesters. Patterson replied that he would not guarantee their physical safety, declaring that the "rabble-rousers" were not "bona ide" interstate travelers and that they had put themselves outside legal protection by breaking Alabama's segregation laws. The governor claimed that, faced with such anticivil demonstrations, "the citizens of the state are . . enraged.'"7'1 As the officer charged with enforcing standards of the national civil sphere, Robert Kennedy faced a very different kind of outrage torn the North. Responding to the Alabama governor's refusal to protect black citizens, he sent his personal assistant down to Birmingham that very night- The stand-off continued, threats of violence mounted, and local ifficials still refused to intervene. With the New York Times headlining President Can't Reach Governor" on its front page, Robert Kennedy after onsulting with the president, initiated plans for federal marshals to intervene vith physical force.75 Burke Marshall, head of the Civil Rights Division, provided continuous mediation via the direct telephone line. Abandoning lis voting rights activities elsewhere in the South, Assistant Attorney General John Doar traveled to the scene. Faced with these threats of physical intervention, local officials allowed Freedom Ride buses to proceed to their next stop. Montgomery, where a bus boycott six years earlier had triggered the national movement for civil rights. The current protests symbolic status as a civil drama was demonstrated iy the reception the Freedom Riders received when they arrived at the Montgomery bus station. The reception areas inside the station were entirely leserted, as were the parking lot and streets outside. When SNCC leader John Lewis stepped off the bus, he was greeted not by southern citizens, but by a crowd of journalists from the North. As Lewis began an impromptu press statement, however, he was interrupted by armed whites who, having oordinated their plans with local police officials, had until then kept them- slves hidden from view. Wielding baseball bats, bottles, and lead pipes, the ngry whites proceeded to reap bloody mayhem. They assaulted not only protesters but reporters and photographers for the nation's leading newspa- 340 34* SOCIAL MOVEMENTS IN THE CIVIL SPHERE Civil Trauma. Communication, and Regulation pers, television programs, and magazines. Robert Kennedys persona! assistant was beaten into unconsciousness. John Doar described the unfolding scene to Burke Marshall over the direct line. The transcribed words orchis civil officer underscore his sense of personal identification with the victims: and his outrage over the attacks against them. Oh, there are fists, punching! A bunch of men led by a guy with a bleeding face are beating them. There are no cops. It's terrible! ,h":" * terrible! There's not a cop in sight. People are yelling, "there those niggers are! Get 'em, get em!" It's awful.7,1 As front page coverage and television time riveted national attention, and Governor Patterson blamed the federal government for the violence, ; Martin Luther King flew to Montgomery for an evening support meeting -} at the local church, headed by his SCLC colleague Ralph Abernathy. With " the Freedom Riders hiding in the church basement, thousands of unruly ? white antagonists gathered outside. Outnumbered federal marshals spread % themselves in a thin line along the perimeter of the church as the ^ white crowd launched bottles and homemade firebombs. Faced with an f imminent invasion and the possible loss of life, King placed a direct call to :< Robert Kennedy, who told King that additional marshals were on their way. | King responded, "If they don't get here immediately, we're going to have a | bloody confrontation because thev're at the door now." When the supple-ment of federal officials finally did arrive, they used massive volleys of tear || gas and the threat of lethal force to push the furious white mob away train | the church. % In King's thanksgiving address later that evening to the fifteen hundred :§ demonstrators inside the church, he linked the "hideous action" of the white || lawbreakers to the anticivil motives and actions of the Alabama governor. ^ "His consistent preaching of defiance of the law, his vitriolic public pro- s| nouncements. and his irresponsible actions." King declared, "created the | atmosphere in which violence could thrive."77 In his entirely different iiam- |I ing of the conflict, Governor Patterson publicly linked anticivil behavior not to violent whites and racist local officials but to "outside agitators coming || into Alabama to violate our laws and customs [and] to foment disorders and ;|| breaches of the peace."™ The governor also condemned the federal govern- If! ment. Claiming "its actions encouraged these agitators,"7'1 Patterson estab- 3-P lislied a polluting relationship between federal regulatory institutions and die black social movement he condemned. He was right, of course, that a relationship existed, if not in the valuation he placed upon it. Verbal and physical intervention from the highest regulatory institutions of American civil society had given the demonstrators courage and the opportunity to itinue the drama of civil protest without risking their lives. In the same manner, symbolic intervention from northern communicative institutions [ ensured that if the demonstrators did succeed in carrying the protest drama forward, there would be an audience for it. This external support from the surrounding civil sphere, both regulatory and symbolic, was fully displayed two days later, when the Freedom Ride set out from Montgomery to Jackson. Mississippi. Twelve Freedom Riders were on board, accompanied by sixteen reporters and a dozen National Guard soldiers in full battle dress. Forty-two vehicles followed the u"r, including Highway Patrol cars with sirens wailing, FBI spotter cars, and dozens ofjournalists. In the skies were two helicopters and three U.S. Border P.Urol airplanes that supplied periodic reports about the safety of the pro-ers to the Attorney General's Office in Washington/'1 When the Freedom Riders had begun their protest against racial domination, they had been alone and ignored. Three weeks later, their protest was known throughout the United States, and in the North they were interpreted as heroic representatives of the nation's most cherished civic ideals. This identification had compelled national regulatory institutions to employ physical force to pro-: the protesters. As the carriers of sacred ideals, nothing could be allowed to harm them in any way. In the wake of the Freedom Rides, no reforms were made in the legal regulation of the southern civil sphere, despite the extraordinary communicative mobilization the campaign had triggered and the direct intervention it had provoked. The New York Times Magazine opened its influential pages in article by King titled "Time for Freedom," and, in a conspicuous display of public homage, the black leader was feted by Nelson Rockefeller, the powerful New York governor and Republican presidential hopeful.Hi However, while the Interstate Commerce Commission (ICC) strengthened its public commitment to desegregated transportation,"- the Kennedy ad-listration remained inhibited. Their fears about losing the South had been Heightened by publicly exposing their support for the Freedom Rides, publicity that had generated local conservative anger. Trying to prevent further 343 SOCIAL MOVEMENTS IN THE CIVIL SPHERE Civil Trauma, Communication, and Regulation public identification, the attorney general and his staff urged movement activists to avoid demonstrations and to concentrate exclusively on voter registration, going so far as to promise them tax exemptions and draft exemptions if they agreed."-1 In his retrospective analysis of this period, Arthur Schlesinger Jr., one of several prestigious academics who had joined the Kennedy staff, explained that the Democratic administration was still committed to "carrying the mind of the South,Civil rights activists had learned this was not possible, that the key to regulatory reform lay in persuading northern, not southern whites. Southerners would have to be dealt with later, in a more coercive way. Failed Performance at Albany: Losing Control over the Symbolic Code The next logical next step in the movement's campaign of mass persuasion was set to unfold in Albany, Georgia, in November io6j.!,;; Sit-ins at the lunch counter in Albany's bus station and at other places had begun as a spontaneous outgrowth of the Freedom Rides and continued into the summer of T962. As the Albany campaign developed, however, it turned into a serious misstep, one that threatened to stall and possibly even to derail the national social movement. What happened in Albany reminds us that even an expansive and skillfully led social movement, in a period when fortune seems to smile broadly upon it, remains an utterly contingent force. Translation is a delicate process that depends not only on resources, speeches, and sympathy, but on getting the staging right. In Albany, they were not made right; the movement's mise-en-scene was clumsy; its messages were not-effectively translated. The scenes of protest performance were not transformed by media storytellers into affecting drama. The accomplishments of movement activists were not constructed in a sympathetic and compelling manner. The repressive actions of southern officials were not forcefully constructed as emblems of civil evil. The Albany campaign neither aroused the outrage nor engaged the sympathy of members and officials in the surrounding civil sphere. In symbolic terms, the civil drama could not be produced because the story's antagonists—white southern officials—failed to follow the script that had worked so well for the movement so many times before. At the begin- 344 ning ofcne demonstrations, the earlier dramatic sequence had still seemed firmly in place. Local SNCC activists were arrested at early confrontations, arid hundreds of students followed them to jail. The SCLC joined the movement within the month. "When Martin Luther King came to town," the leader of the local movement later recalled, "there was worldwide press immediately present in Albany."Kf' Because of King's presence, money poured in from major cities outside the South, and he "bolstered the morale of those people who might have sensed that the movement was really shaky." Describing King's relationship to Albany's African American community, another local black leader recounted, "It was clear that they loved him and that they would follow him to the end if he wanted them to.',fi7 After his arrival in Albany, with the national media and members of the bhek civil sphere watching and hstening, King gave an electrifying speech, offering a framework for the civil drama that seemed about to unfold. "Don't get weary," he said. "We will wear them down with our capacity to suffer."MH Shordy after, King was arrested and jailed along with hundreds of protesters. From this point on, however, the civil confrontation, rather than unfolding, rolled back on itself. The Albany police chief, Laurie Pritchett, tried resolutely and largely successfully to prevent his officers from resorting to violence or any other kind of overtly anticivil behavior. By contrast, some significant acts of violence were committed by members of Albany's black community, and Pritchett immediately brought these departures from the protest movement's civil image to the attention of reporters. One evening, news spread throughout Albany's black civil society that white authorities had beaten a popular woman activist. When veteran movement leaders departed early from the protest meeting that followed, less experienced organizers decided to lead a march to city hall that attracted large numbers of onlookers and quickly turned into a near riot, complete with bricks, bottles, rocks, and threats of incendiary attacks. Andrew Young and other SCLC leaders rushed back to the scene. As they tried desperately, and unsuccessfully, to stop the rioting. Chief Pritchett called out to reporters, "Did you see them [sic] nonviolent rocks?""'' Later, Pritchett bragged to a hastily assembled news conference that "there was no violence on our part— the officers never took their nightsticks from their belts." This effort to rewrite the relationship between southern officials and the discourse of civil society was carried further by Georgia's governor, who announced, "I want all trouble-makers to know that 1 will do whatever is 345 SOCIAL MOVEMENTS IN THE CIVIL SPHERE necessary to prevent violence at Albany. Georgia.""" In an effort to regain control of the translation process, King called a halt to the protests, declaring a public day of penance devoted to self-scrutiny and renewal. Meanwhile, the New York Times published a profile lauding Chief Pritchett for his civic mindedness and restraint."' Albany's political officials continued the civil offensive by publicly agreeing to negotiate with the protesters and even indicating that they would be willing to desegregate city facilities. It turned out that they were not. "What city officials really wanted was to find a way of stopping the demonstrations without exercising anticivil repression. They wanted to get King and his fellow demonstrators out of jail and out of town as quickly as possible, and along with them the northern news media. Albany officials decided to suspend the protesters' sentences and lower their bail. Neither King nor his local associates were prepared for the subtlety of this response, which revealed a new capacity to manage selt-presentation under conditions of highly charged duality. In the face of King's continuing -personal reluctance to leave jail, for example, local officials promised him .. that, if he would allow himself to be freed, they would also release the hundreds of local activists also being held. With this possibility, and with the SCLC staff urging him to turn his attention to what seemed more pressing movement issues elsewhere, King agreed to leave jail and to depart from. ;~ Albany immediately thereafter. Whatever the complicating context, it seems \. clear, in retrospect, that in making tins decision lung lost sight of his ex- 4 emplary role.''2 Federal officials did everything possible to make certain that King would | not regain it."-1 When Albany officials reneged on their promises to desegregate public facilities, King reconsidered his earlier decision. Returning to :;| Albany his protest compelled officials to arrest him and put him back into « jail. This time, it was Kennedy officials themselves, acting surreptitiously % and in cooperation with local leaders, who arranged King's release, without -his knowledge and against his will. The goal was to undermine King's ;.§ representational power, which derived in good part from his ability to symbolize suffering. This strategy of cultural deflation was intensified by the :S manner in which local officials explained to northern reporters how exacdy K-King's expulsion from jail had come about. Local police told reporters that, | late in the evening, a well-dressed black man had shown up at the jail and posted King's bail, disappearing immediately thereafter. This story was true J Civil Trauma, Communication, and Regulation only on its face. Contrary to its association of King with stealth and corrupting wealth, the messenger had, in fact, no connection to King or the movement; he was an agent of local southern officials working secretly with the Kennedy team. Robert Kennedy congratulated Albany officials for their willingness to negotiate with protesters, despite the increasingly apparent fact that they had not done so in good faith. Time magazine reversed its normal framing of the relation between local protest and the national civil sphere, praising the civil qualities of Albany's police for dealing with the protests "unemotionally and with dignity" and for managing to avoid a "bloody battleground."1'4 When King finally left town in late sunmier. the local demonstrations petered out, and the Albany campaign was represented as a major defeat for the movement against racial injustice. White and black northern reporters wondered aloud about King's civil motives and relationships, suggesting that his earlier successes may have undermined his moral strength. Perhaps he was now too weak, or even too self-centered, to lead the civil rights struggle down the hard path to further communicative mobilization and ultimately to regulatory reform."3 Birmirigharn: Solidarity and the Triumph of Tragedy Writing thirty-five years after the communicative breakdown at Albany. New York Times columnist Russell Baker, an astute observer of the American political scene, still recalled the frustration and bitterness of that time. "By late 1062," Baker wrote. "King seemed to have failed in the attempt to arouse enough public passion to force the Kennedys to intervene."'"' Baker got the problem almost exactlv right, except tor his casual invocation of the term "force." The challenge was. indeed, to arouse the passion of the northern civil audience, for only if high civil officials were faced with such symbolic mobilization might they be persuaded to intervene. The cultural challenge of arousing passionate indignation had been negotiated time and again in earlier demonstrations, but it still had not yet been fully achieved. Yet, while Albany had been a devastating setback, the possibility for intensifying communicative mobilization certainly remained. Neither the institutional framework of the surrounding civil sphere nor its deep structures of public opinion had been changed. King was criticized personally 346 347 SOCIAL MOVEMENTS IN THE CIVIL SPHERE Civil Trauma, Communication, and Regulation during and after Albany; but the communicative media and their civil audience did not, for that, begin to empathize with southern white domination. The collective representation of racial domination had not been altered even if contingent events were continuously changing in relation to it. At the end of 1962, on the occasion of a study ot the Albany campaign marking its one-year anniversary, the New York Times headlined the failure oi" regulatory institutions to act in a responsive, civil manner: "President Chided ^ over Albany, Ga.: Fails to Guard Negro Rights." Though the studv had • ample criticism for all the parties involved, Times reporter Claude Sinuu. in ; his front-page story, chose to quote the reports assertion that the federal. government "has hovered about Albany from the beginning [but] incredibly. ; in this whole time, it has not acted." Emphasizing the study's criticism of; federal rigidity, Sutton prophetically remarked that it seemed "the Govern- * ment will not move in racial controversies unless there is uncontrolled » violence. ",J7 -i Though Sutton and other representatives of the northern civil sphere s regretted that violence seemed necessary to trigger regulatory intervention, > protest leaders not only were thoroughly reconciled to the fact but bound and determined to provoke it. They knew that in order to frame white | violence effectively, they would have to exert significantly more control | over their own performance than they had in Albany. King and his orga- | nization, the SCLC, had always entered civil rights contests haphazardly, 1 leveraging King's prestige and the deference he commanded to exercise— •$ sometimes at the last minute—dramatic power over the flow of events. | After Albany, planning for the future in a gloomy atmosphere of | defeat, the civil rights leaders were determined to leave less to chance.9 I As the more democratic civil sphere of the North increasingly penetrated the racially distorted civil sphere of the South, symbolically and even organ- f izationally, the significance of duality became widely recognized, and the tensions it produced were more highly charged. More reflexive and self- | conscious about civil symbolism, the SCLC for the first time planned, or || scripted, a campaign from the start to the putative finish. It drew up a carefully formulated plan called "Project C" for "confrontation" and stip- :| ulated three incremental sequences of mobilization that would follow "B || Day," when the demonstrations in Birmingham were scheduled to beg The very choice of Birmingham as the target for this exercise in systerr. provocation reveals the movement's heightened self-consciousness as com- 348 pared with earlier campaigns. Birmingham was picked not because of its potential for civil repair, but for the very opposite reason: it was viewed as a deeply reactionary city whose chieflaw enforcement officer, "Bull" Connor, had a serious problem containing his temper and maintaining self-control. The protest movement had chosen the drama's prospective antagonist with care. Only if there were a clear and decisive space between civil good and anticivil evil could the conflict in the street be translated into a symbolic contest, and only if it became such a contest could the protest drama gain its intended effect.1"" In the days leading up to rhe campaign, Ralph Abernathy, King's principal assistant, promised, "We're going to rock this town like it has never been rocked before." Bull Connor retorted that "blood would run in the streets" of Birmingham before he would allow such protests to proceed. King drew upon the book of Exodus, the iconic parable of the Jews' divinely inspired protest against oppression, to provide an overarching narrative for this imminent clash, promising to lead demonstrations until "Pharaoh lets God's people go."1"1 Despite this elaborate initial preparation, at the commencement of the protests the social drama would not ignite; the political play did not develop as planned. The demonstrations began on cue, and King went to jail. Yet Birmingham's black civil society did not rise up in solidarity and opposition, and the surrounding white civil sphere became neither indignant nor immediately involved."12 Rather than dramatizing the split between local officials and black demonstrators, and the tragic possibilities that might result, the New York Times narrated the situation in a more deflated, ameliorating way. Reporting after two weeks of demonstrations, the Times argued that Birmingham residents of both races were looking to a newly elected reform mayor, Albert Boutwell, for "a diminution, if not an end, to racial tensions that have grown alarmingly the last few days." On its editorial page, the newspaper suggested that the city's residents should not expect enlightenment to come to Birmingham "overnight," and warned that Martin Luther King "ought not to expect it either."1"-"1 This dilution of duality did not go unnoticed by the communicative institutions of white Birmingham, whose papers ran such headlines as "Washington Liberals Ponder Wisdom of Demonstrations" and "Birmingham Image Gets Better Press."104 The ambiguous situation was also seized upon by local clergy, who composed an open letter attacking the protest movement, published in the Birmingham News under the headline, "White 349 SOCIAL MOVEMENTS IN THE CIVIL SPHERE Civil Trauma, Communication, and Regulation Clergymen Urge Local Negroes to Withdraw from Demonstrations." The letter defended the racial status quo by inverting the contestants' rela civil discourse. Blaming the demonstrators themselves for inciting "hatred and violence, no matter how technically peaceful those actions mav he," i the clergy praised local police for "the calm manner in which these dem-i onstrations have been handled." The clergy concluded that the protests were: not only "untimely," a reference to the unskilled quality of Kings translation I effort, but "unwise," a phrase that suggested civil incompetence more gen-? eraHy.,,ls As it began to appear that the framework for communicative failure h-iH 1 been established once again, the movement dug in its heels and made at determined, last-ditch response. Martin Luther King made an angry rejoin-der to the white clergy's accusations. Weeks later, after the protest movement i had regained control of the translation process, Kings eloquent twent | missive would be hailed as the "Letter from the Birmingham Jail." Agam^ | the local clergy's presumption of symbolic legitimacy. King sought to nhr^ I the protest movement itself at the center of civil cultural power. The tensions I in Birmingham, King asserted, occurred not because of black protests but| because of the injustice created by white domination, which removed di? onus of anb'civil pollution from the demonstrators and placed it on southern j whites. In such a situation. King insisted, peaceful demonstrations could never be untimely, let alone unwise. Then, in a rhetorically complex sein..i % of counterpoints that played skillfully upon the binary chords of civil society, || King explained why "we find it difficult to wait." "You will understand" || our impatience, he wrote: || when you have seen vicious mobs lynch your mothers and fathers . . . ; when you have seen hate-filled policemen curse, kick, brutalize ^ and even kill your black brothers and sisters with impunity. ..; when you suddenly find your tongue twisted and vour speech stani- || mering as you seek to explain to your six year-old daughter why she can't go to the amusement park that has just been advertised on television . . . and see her begin to distort her little personality by unconsciously developing a bitterness toward white people . . .; when no motel will accept you; when you are humiliated day in and # day out by nagging signs reading "white" and "colored"; when your 350 first name becomes "nigger" and your middle name becomes "boy" (however old you are) and your last name becomes ''John."""' These phrases ostensibly were directed at the local white clergy; iniplic-idy, and much more powerfully, they were addressed to the white audience in the northern civil sphere. When King spoke to his northern audience, he was speaking in the subjunctive mood. Assuming civil solidarity, he asked his listeners to could put themselves in the place of the dominated black other. The Birmingham protests deserved support, he wrote, because "the Hegto is your brother." The brotherhood of black and white would be recognized, King predicted, because American democracy, no matter how deeply flawed, remained committed to a transcendent civil ideal: "We will -reach the goal of freedom in Birmingham and all over the nation because the goal of America is freedom." In America, King suggested, this institutional goal was rooted in a sacralizing vision that intertwined secular and religious ideals: "We will win our freedom because the sacred heritage of our nation and the eternal will of God are embodied in our echoing demands." Having anchored the framework of racial solidarity in the sacred discourse of civil society. King could conclude by purifying the black protesters whom the white clergy had impugned. He praised them for "their sublime courage" and linked them to the mythical founders of American civil society. One day the South will recognize its real heroes. . . . One day the South will know that when these disinherited children of God sat down at lunch counters, they were in reality standing up for the best in the American dream and the most sacred values in our fudeo-Christian heritage, and thusly, carrying our whole nation back to those great wells of democracy which were dug deep by the founding fathers."17 This letter, written on scraps of paper and smuggled out of jail over many days, surely constituted one of the most trenchant and persuasive translation efforts in the history of the black struggle for liberation. It would eventually become a classic in the literature of American protest, selling more than forty thousand copies, serialized in popular newspapers and mag- 3 si social movements in the civil sphere Civil Trauma, Communication, and Regulation azines and reproduced in countless academic anthologies. During that low ebb of the movement's fortunes in Birmingham, however, representatives of the civil society's conmiunicative institutions evinced little interest in die document. The dialogue between King and the white clergy could not vet enter the public's central symbolic space. For the moment, then, this brilliant effort at translating particular grievances into universal discourse remained just that, an effort, an action without a script, a script without a play, a frame without an event. The movement had not yet succeeded in ratcheting up the tension. Without dramatic conflict, there was no struggle for interpretation. Without controlling media interpretation—compelling it might be a better term—there could be no projection of anguished injustice. Without this sense of deep injustice, there could be no civil outrage or civil repair. Still, the leaders of the Birmingham movement were not about to throw in the towel. They hewed persistently to plan. The routine of daily marches, arrests, and nightly mass meetings continued. In hindsight, after victory, not only King but also academic students of the Birmingham campaign would claim much more for these early days of the campaign than they actually produced. King asserted that the nightly round of mass meetings allowed the movement "to generate the power and depth which finally galvanized the entire Negro community. In fact, however, the meetings and demonstrations continued into early May without dramatic effect. Not only did reporters, the eyes and ears of the surrounding civil community, begin to drift away from Birmingham for lack of "news," but it was proving increasingly difficult to mobilize support beyond the core group of dedicated activists, most of whom had already been subject to arrest, often more than once.1!iy The problem was that the sequence of demonstration, arrest, and mass meeting was, indeed, becoming routine; it had to be disrupted by an "event," something powerful enough to breach the ongoing social orde: Finally, after intensive discussion and self-doubt, movement leaders made the decision to allow schoolchildren to enter the fray, not only high school students but youngsters in elementary and middle schools. Community leaders had reported that the city's black youth were more stirred up about the ongoing confrontation, and more willing to take risks, than their elders. Allowing these young people to demonstrate would make up for the falling numbers of adult participants—a point that has been emphasized in the scholarly literature by those who follow the classical social movement model of instrumental force."0 Equally significant, however, it would potentially 35^ ■r the moral balance of the confrontation. Children would appear more well-meaning, sincere and innocent than the movement's nonviolent but nciwerfiil and determined adults, and this vulnerability would throw into rper relief the irrational, violent repression of southern officials. This strategic decision, informed both by quantitative and interpretive exigencies, marked the turning point of the Birmingham campaign. When die "children's crusade" began, and hundreds of young people were herded ' to jail, the drama sharply intensified and returned the Birmingham npaign to the front pages. Attendance skyrocketed at the mass meetings d nightly inside black civil society, and a sense of crisis was in the air. Local confrontation had once again succeeded in projecting itself into the symbolic space of the wider civil sphere. As Fred Shuttlesworth, the longtime leader of Birmingham's freedom movement, told an overflow crowd at his church on the first night after the children were jailed, "The whole world is watching Birmingham tonight."1" It was the pressure created by this intensifying external scrutiny, not íply the objective constraint of the city's jails being filled to overflowing,112 that finally incited Sheriff Bull Connor to unleash the repressive violence it underlay local white domination. As the children's crusade appeared increasingly persuasive, this sneering official of the white civil sphere simply would not allow them to proceed. Stepping outside the constraints of civil ;iety, he resorted to physical force, ttirning fire hoses on the protesters, ting police dogs loose on them, and allowing his officers to use electric tie prods if the demonstrators continued to step out of Hne. Because of his local power, the sheriff thought he could act with impunity. Yet although he succeeded in gaming local control, he could not control the effect this exercise of unbridled power would have on the audience at one remove. Me would ignore duality at his peril. Bull Connor's forces won the battle but lost the war. Graphic reports of lopsided physical confrontations between civil good and anticivil evil were broadcast over television screens and splashed across front pages throughout ■t northern civil sphere. When the fiercely rushing water from high-pressure fire hoses swept girls and boys dressed in their Sunday best hundreds feet across Birmingham's downtown square, pinning them against a brick ill, the civil interpreters from the North transmitted the children's screams terror and their pathetic efforts to shield themselves from the violent force.1L1 When the growling dogs and their police handlers in dark sunglasses 353 SOCIAL MOVEMENTS IN THE CIVIL SPHERE Civil Trauma, Communication, and Regulation lunged forward into the youthful crowd, reporters and photographers re corded the viciousness of the animals and the arrogant indolence of th men, and they captured the fright, helplessness, and righteous rage of thei nonviolent victims. An Associated Press photographer caught the moniet when a German shepherd sank its teeth into the abdomen of Walter Gads den, a thin, tall, weli-dressed young black man who appeared not anl completely submissive in the face of the frightening attack but also dcadlv calm.,u Next day, photos of the attacks with fire hoses and dogs wer displayed across three columns on the first page of the New York Times. Th descriptions accompanying the pictures portrayed a stark and moving con ffontation between civil protest and repression. The headline read, " Violeno Explodes at Racial Protests in Alabama." The captions below the photo-just as clearly attributed civil shame. One read, "Police dog lunges at demonstrator during the protest against segregation in Birmingham," the othe "Fireman turns high pressure hose on demonstrators who sought to escapi at doorway."115 The emotional resonance these photos generated in the northern civil sphere was palpable and became even more profound with the passage of time. From being symbols that directed the viewer to at actual event, they became icons, evocative embodiments, in and of themselves, of the fearful consequences of anticivil force. In the opinion of one leading historian of the Civil Rights movement, the photo of Walter Gadsden became "perhaps the most remembered and most commented upor visual image of the movements efforts in the first half of the 1960s."!ifi • It is important not to forget that these media messages were representations, not literal transcriptions, of what transpired in Birmingham. Evenii the events seemed to imprint themselves on the minds of observers, they had first to be interpreted. The struggle for interpretive control was waged just as fiercely as the struggle in the streets, and its outcome divided just as cleanly along local versus national lines. Northern reporters quoted Bull Connor as shouting, "I want to see the dogs work" and "Look at those niggers run!" The New York Times editorialized that the southern use of dogs and fire hoses constituted "a national disgrace."H7 Birmingham's local news media completely inverted this interpretive frame. Reporting on the fire hosing of demonstrators in Kelly Ingram Park, the Birmingham News presented a photograph of an elderly black woman strolling alongside a park path, holding an umbrella to protect herself from the mist produced by the gushing fire hoses nearby, "just another 354 showery day for Negro stroller," read the caption below the photo, offering the further observation that the woman "appears undisturbed by disturbances in Ingram Park."1"4 Dutifully reporting statements by city officials, local reporters broadcast the mayor's condemnation of the "irresponsible and unthinking agitators" who had made "tools" of children and turned Birmingham's whites into "innocent victims.""" But the linkage of violence to white power had already been reported, photographed, and distributed by representatives of the other side. Portraying helpless black victims at the mercy of vicious and inhuman white force, the reports evoked feelings of pity and terror. Claude Sitton wrote the following in the New York Times: Patrol officers brought up three-foot-long prod poles, usually used for forcing cattle in chutes, and jabbed the demonstrators, giving ...... them repeated electrical shocks. As one of the Negroes flinched and twisted in the grip of the four troopers, an elderly toothless white man shouted from a roadside pasture: "Stick him again! Stick him again!"1"11 For the audience in the surrounding civil sphere, the narrative of tragedy was firmly in place. Their identification with the victims triggered feelings of outrage and moved many to symbolic protest. Angry phone calls were made to congressional representatives, indignant letters fired off to the editorial pages of newspapers and magazines. In the Washington Post of May 16, 1963, p. A2i, an angry citizen from Forest Heights, Maryland, Ruth Hemphill, poured out her feelings of indignation and shame. Her simple and heartfelt letter eloquently expresses the outrage she evidently shared with many other white Americans. She traces her anger to an identification with black protesters, an empathy that extended her own ethical principles to them as well. Now I've seen everything. The news photographer who took the picture of a police dog lunging at a human being has shown us in unmistakable terms how low we have sunk and will surely have awakened a feeling of shame in all who have seen that picture, who have any notion of human dignity. Tliis man being lunged at was not a criminal being tracked down to prevent his murdering other men; he was, and is, a man. If he can 355 SOCIAL MOVEMENTS IN THE CIVIL SPHERE have a beast deliberately urged to lunge at him, then so can any man, woman or child in the United States. I don't wish to have a beast deliberately urged to lunge at me or my children and therefore 1 don't wish to have beasts lunging at the citizens of Birmingham or any other place. If the United States doesn't stand for some average decent level of human dignity, what does it stand for? As fellow members of the civil community, officials of the federal government seemed just as deeply affected as the people over whom they ruled. President Kennedy "voiced dismay" and told an audience at the White House that the pictures made him "sick."'21 Attorney General Robert Kennedy was reported to be "profoundly" disturbed.Emmanuel Cellers, an-influential congressman from New York, labeled the actions of Southern-officials "barbaric."1-1 Whether these high officials actually experienced these: emotions, or were making artful presentations in the public sphere, is not. the point. What does matter is that in their capacities as officials of the civil., sphere, they now felt compelled to make such representations at all. The widely shared experience oi moral outrage set the stage for regulatory intervention. Declaring that "the hour has come for the Federal;; Government to take a forthright stand on segregation in the United States," '; Martin Luther King declared to a mass meeting, "1 am not criticizing theí President, but we are going to have to help him."124 President Kennedy seemed to be responding to King when he assured the public that he was.; "closely monitoring events" and sent Burke Marshall to Birmingham. Mar-r: shall attended an emergency meeting of the Senior Citizens, a political forum ; for the city's economic elite. During a heated discussion, an influential;! former governor of Alabama recommended to Iris colleagues that they ask , Governor George Wallace to declare martial law and "suppress the wholes business."125 This call for repression met with wide approval; only Marshall's presence prevented it from carrying the day. This high official of the north-.,; ern civil sphere warned these local business leaders that such repression.:? would onlv make things worse. Despite efforts at suppression, he argued,..; the black demonstrators would keep protesting, either then or later. If the |. demonstrations were to be stopped, there must be civil repair, not antidvil ... suppression. The "central problem" at the "root of the demonstrations," | Marshall insisted, was a denial of basic constitutional rights.121' :: As the local negotiations continued, representatives from the surrounding.;^ 3 só Civil Trauma, Communication, and Regulation civil sphere—the president and his cabinet secretaries—made calls to strategically placed local businessmen and to corporate executives outside the South who could exercise leverage on the local elite.127 Eventually, the face-to-face negotiations with Birmingham's whites were extended to include black protest leaders. As this participation proceeded, Fred Shuttlesworth proclaimed the possibilities of civil repair. Purifying the motives and relations of the white negotiators, he attested to reporters, "We do believe that honest efforts to negotiate in good faith are under way."i:s At a press conference in Washington, the president also connected the local negotiations to the expansion of civil solidarity, declaring, "I'm gratified to note the progress in the efforts by white and Negro citizens to end an ugly situation in Birmingham.'"12" The upshot of these civil interactions, which took place in the eye of die hurricane of communicative mobilization, was a pact signed by black and white representatives that detailed goals and timetables for ending Birmingham's economic segregation.13'1 Both sides hailed the agreement as a model of civil repair. Fred Shuttlesworth, the local leader, declared: "The City of Birmingham has reached an accord with its conscience. The acceptance of responsibility by local white and Negro leadership offers an example of a free people uniting to meet and solve their problems. President Kennedy also affirmed the pact's civil qualities, highlighting consensus, cooperation, and equity. In a widely publicized news conference, he told journalists that, in his view, the "agreement" was "a fair and just accord."132 Writing from the classical perspective on social movements, influential social science students of the Birmingham protest have attributed victory to the local movement's successful accumulation of power and resources. Aldon Morris, for example, cites "the collective power of masses generated by the movement," contending that this power allowed the movement to launch an economic boycott that split the city's economic from its political elite, compelling the former to "capitulate" despite the latter's more ideological recalcitrance.133 Eskew attributes the local movement's victory to its ability to create a split within the local economic elite itself, pitting those with an interest in the service sector, who were more willing to live with racial integration in the interests of a new "consumer society," against the old-fashioned industrial faction, who were rigidly committed to extractingprofit from outright domination.134 The Birmingham movement did, of course, exercise effective power on the local scene, and its success in doing so 357 SOCIAL MOVEMENTS IN THE CIVIL SPHERE compelled one part of the white power structure to take sides agair other. What we have seen in this chapter, however, is that in flunking about the sources of the movements power, one must consider not only the vertical relationships of local domination and resistance but the horizontal relationships of solidarity, relationships that potentially included those who wielded great power farther away. It was civil power, not social or political power, that determined the Birmingham movements success. The protesters' power depended, above all, on influence, not on resources in the narrow sense. They gained control over local regulatory officials because they succeeded in exercising authority over national ones.135 By achieving identification and extending symbolic identification, "Birmingham" so deeply penetrated the northern civil sphere that it set the stage for fundamental regulatory reform. We take up this topic in the final chapter of our cc eration of race and civil repair. CHAPTER 14 Race and Civil Repair (4): Regulatory Reform and Ritualization The local reforms generated by the denouement of the Birmingham campaign, despite the praise they generated as emblems of civil renewal and repair, do not tell the full story of that civd rights impaign. It was to the community beyond the city, indeed beyond the region, that the demonstrations were aimed, and it was their success in [obilizing this more democratic and potentially much more powerful civil sphere that made Birmingham into "Birmingham"—a watershed in the history of social movements for civil justice in the United States.1 "Birmingham" would enter into the collective conscience of American iciety more powerfully and more indelibly than any other single event in le history of the movement for civil rights. "Images of Birmingham became frozen in time with the fire hoses and police dogs," writes Glenn Eskew, a scent historian of the movement, taking their place right alongside the lythical images of the soon to be martyred president himself.2 This centrality in the collective consciousness was already apparent to contemporaries at le time. In the days immediately following the Birmingham settlement, a weary President Kennedy summed up this new world of public opinion in a remark that combined realism and resignation, confiding to his majority :ader in the Senate: "I mean, it's just in everything. I mean, this has become rerything."-1 The president was referring to the new national furor over 359 SOCIAL MOVEMENTS JN THE CIVIL SPHERE "ft Regulatory Reform and Ritualization civil rights. Three months later, a White House official remarked to the Associated Press, "This hasn't been the same kind of world since May."4 In 1966, after Robert Kennedy had become a U.S. senator deeply involved in. the struggle for minority rights, he told an interviewer, "what aroused people : generally in the country and aroused the press was the Birmingham riots in®! May of 1963."5 \ By using the term "aroused" and pointing not only to the people but• also to the press, Robert Kennedy gestured to Birmingham's communicative^ success, its ability to reach over local boundaries and to mobilize a symbolic^ extension and psychological identification among whites in the North'?* Nothing could more powerfully demonstrate such arousal than the trium- I phal speaking tour that Martin Luther King made through northern cities? in the days and weeks after the Birmingham success. King was feted by I white crowds, with tens and sometimes hundreds of thousands attending** rallies in baseball and football stadiums, importuning him for pictures and autographs, showering him with confetti during celebratory ticker-tape pa- | rades. Taylor Branch captures the sense of that time remarkably well.6 I:; '1 Cleveland, after he was "mobbed at the airport," King "motorcaded like an astronaut" through the city's streets, Branch writes, and "in a whirlwind k twelve hours, he gave six speeches and a television interview." In Los | Angeles, King spoke to a rally that drew nearly fifty thousand people. "The | audience, clutching programs that bore pictures of snarling Birmingham f police dogs, filled the seats and aisles of the old Wrigley Field and then spilled across the field and out into the parking lot," Branch writes. In | Chicago, King rode "in an open car amid a fleet of limousines, rushing through the streets . . . bellind the roar of police motorcycles and the wail | of sirens to city hall for an official welcome by Mayor Daley." In Louisville, "the mayor led an escort to the Civic Auditorium." King went on to St. If Louis for "yet another giant rally." Later King went to Detroit, where he j| was invited to attend an interracial march. Branch's account of this last ever. §| is worth quoting at length, for it colorfully communicates the aroused and expansive civil solidarity of the time. The advance crowd, packed so densely that the city's mounted police could not reach their parade escort stations, spilled out of a twenty-onc-block staging area and headed downtown without King and the other leaders. An endless stream of marchers filled almost the full 3<5o breadth of Woodward Avenue, the city's main thoroughfare. In a holiday spirit, they raised spontaneous choruses of "We Shall Overcome" and "Battle Hymn of the Republic." One woman wore a craudy hat in the shape of a birdb2th, with a sign saying "Birds of any color can bathe here." To bystanders, strutting marchers shouted, "Come on, get out here. You ain't in Mississippi. Let's walk!" There were countiess placards honoring [the slain black NAACP leader] Medgar Evers, and one group of whites carried a banner reading "I'm Ashamed 1 Live in Dearborn," a wealthy, all-white suburb. When ICing's motorcade finally intercepted the head of the line at Cadillac Plaza, his name was cned out and the people swarmed forward, knocking aside the police cordon around him. In a deafening chaos, with angry warnings and claustrophobic squeals of terror amid the joyful roar, King linked arms in a line with [local black minister] C.L. Franklin, jwhitc labor leader] Walter Reuther, and [white] Mayor Jerome Cavanagh to keep from being swallowed up and crushed by his own admirers. The tide of people pushed around them with such force that the leaders' legs churned and their bodies moved rapidly down the street without their feet touching the ground. Mayor Cavanagh recalled that the only words he exchanged with King were "Hang on. Hang on." Crowd estimates ranged upward from 125,000. Parents recovered twenty-six cliildren from the lost-and-found. Reporters wrote Vj-day-stories that saturated Detroit's Negro and white newspapers almost equally.7 The effect of this dramatic deepening of identification of northern whites with protesting southern blacks, and the profound arousal of civil consciousness that both triggered and reflected it, was to push the elected representatives of the civil sphere decisively in the direction of regulatory reform. When there is an independent civil sphere, powerful state officials face two masters. Authorities in the structure of state power, they are, at the same time, officials of the civil sphere. On one side, they face power-political considerations generated by the need to maintain governmentality, state power, and party position; on the other side, they face demands for moral solidarity and symbolic responsiveness from the civd community. Until Birmingham, the reformist thrust of the Kennedy administration had been paralyzed by the countervailing pressure to maintain the allegiance of the 361 social movements in the civil sphere Regulatory Reform and Ritualizarion Democratic Party in the South. After Birmingham, they were muc willing to accept these power-political "necessities," and they became more responsive to riveting moral demands from the civil sphere. As an Associated Press reporter observed in the summer of 19C3, translating these theoretical issues into the straightforward language of everyday life, "Birmingham triggered [the] administration's drive for new civil rights legislation."8 The First Regulatory Repair: From Birrningham to the Civil Rights Act of 1964 The Kennedy administration drew up detailed legislation that would mandate equal access to all public facilities, desegregation of all public schools, and "fair and full employment" without racial distortion; establish "b human relations committees in every city"; and make it illegal for the federal government "to furnish any land of financial assistance—by way of grant, loan, contract, guarantee, insurance, or otherwise—to any program or activity in which racial discrimination occurs.'"' Even as the administration prepared to submit this legislation to Congress, as the Civil Rights Act of 1963, the New York Times broadcast from its front page some strong advice to the most powerful officer of American civil society. It came from Martin Luther King, the leader of the most powerful dissenting movement for its civil repair. Passage of the civil rights bill, King warned, would require something that Kennedy had never been willing to offer before—the "total weight of the President and his prestige."10 King was demanding that the spiral between conmiunication and regulation be wound more tightly, that, this time, regulatory officials themselves assume some independent responsibility for turning the screws. Regulatory Reform Enters the Communicative Domain: The President's Declaration of Identification In his national television address the following evening, President Kennedy did exactly that, putting his proposals for regulatory reform into a broad context of moral obligation and aligning them with the protest move for civil repair. In doing so, the president acknowledged the central!ty of the black civil rights movement inside northern civil society. Rather than intervening defensively, as he had always done before, the president was now prepared to represent civil power in another, more positive way. In his nationally televised civil rights address, President Kennedy announced his government's intention to reconstruct the racially distorted civil sphere, defending this decision to engage in regulatory repair by making full use of the institutions of civil persuasion. In doing so, he not only announced his identification with the spirit and the goals of the black dissenting movement, but became the spokesman for the movement inside the state. Though Kennedy himself would not be able finally to effect regulatory reform—he would not live long enough—his official and public commitment to civil repair set off a chain reaction that would have been impossible without this decisive and unprecedented act. With the submission of the Kennedy civil rights bill, the symbolic space of communicative mobilization had become transformed into the concrete details of law and organization that underlay regulatory reform. When President Kennedy employed powerful rhetoric on national television to defend this legal proposal, the project of institutional repair entered forcefully into symbolic space. The spiral of communication and regulation was, indeed, becoming ever more tightly wound. In the formal legislation that Kennedy sent to Congress one week later, the president would observe that "feelings have risen in recent days" about racial injustice because "street demonstrations, mass picketing and parades have brought these matters to the Nation's attention in dramatic fashion."" In his speech to the nation, Kennedy similarly linked Birmingham's dramaturgical effect to his administration's decision to pursue ambitious regulatory reform.1- "The events in Birmingham and elsewhere," Kennedy told his civil audience, have "increased the cries for equality," with the result that "the fires of frustration and discord are burning in every city." Acknowledging that different kinds of responses to this discord were possible, the president insisted, against Southern white officials, that protest "cannot be met by repressive police action." Against the equivocation of many northern political officials, he argued that "those who do nothing are inviting shame." Shame could be avoided, he declared, only if public officials were motivated by the classical civil virtues that combined rationality with calmness and self-control. For "no city or state or legislative body," Kennedy insisted, "can prudently choose to ignore" die heightened civil tension and the social strains that underlay it. If, indeed, a political leader is motivated by such 362 363 SOCIAL MOVEMENTS IN THE CIVIL SPHERE Regulatory Reform and Rituaiizarion properly civic concerns, the president argued, that leader will choose not to oppose but to identity' with the protest movement against racial injustice. Rather than repressing or ignoring it, the truly democratic leader will respond to the movement's demands by creating regulatory reforms that can repair the causes of discord and frustration and. in the very process, ensure that the protest movement's demands continue to proceed along civil lines. Observing that "a great change is at hand," Kennedy declared "our task, our obligation, is to make that revolution, that change, peaceful and constructive for all." The president had set out what he regarded as the prudential reasons for responding to communicative mobilization with regulatorv change. The question remained; Would white Americans, historical carriers of a racially distorted political tradition, be persuaded to respond in such a civil way? To convince them that they should, President Kennedy insisted to his television audience that universalizing, civil principles lay at the foundation of the American nation. In effect, he set himself against the temporal and spatial contradictions that had confounded American civil society from the start The president questioned primordial restrictions on civil capacity, the limits that had been placed on American democracy two centuries before, when it had been founded by a particular group in a particular time and place.13 Implicitly countering the restrictive primordial interests of the nation's founding fathers, the president argued that "this nation was founded by men of many nations and backgrounds." If this revisionist emphasis on plurality was accepted, it would have the effect of vitiating the contradictions of time and place. By emphasizing plurality, then, the president pointed beyond the human particularities of the nation's founders to the universal principles they had evoked, to the fact that the nation "was founded on the principle that all men are created equal." Precisely because universal principles rather than primordial particulari- ~ ties inform American identity, Kennedy insisted, the national community is committed to civil solidarity. If solidarity is at the national core, then "the . rights of every man are diminished when the rights of one man are threatened." It is because of this commitment to solidarity, Kennedy declared, that racial domination must be seen as a distorting intrusion in the civil sphere. In a community defined by civil solidarity, "it ought to be possible for every American to enjoy the privileges of being American without regard to his race or his color." Because "this is not the case," it had triggered a radical movement for civil repair. Kennedy argued that this repair must in part be regulatory: after all, he was speaking in order to introduce new legislation. Declaring that "it is better to settle these matters in the courts than on the streets," the president expressed his belief that "new laws are needed at every level." Yet, the very willingness to engage in regulatory reform, Kennedy continued, depends on a sense of identification and subjective obligation, for the "law alone cannot make men see right." The regulatory and the communicative are intertwined; both ultimately draw upon the civil commitments which Kennedy had insisted on locating at the national core. Transcendental in both the sacred and secular sense, these commitments demand the exercise ot ethical self-control and social solidarity. We are confronted primarily with a moral issue. It is as old as the Scriptures and is as clear as the American Constitution. The heart of the question is whether all Americans are to be afforded equal rights and equal opportunities; whether we are going to treat our fellow Americans as we want to be treated. Racial domination is a threat to the civil aspirations of the American nation precisely because it makes this mutual identification impossible. It does so, in effect, by undermining the motivation for solidarity. If an American, because his skin is dark, cannot eat for lunch in a restaurant open to the public; if he cannot send his children to the best public school available; if he cannot vote for the public officials who represent him; if, in short, he cannot enjoy the full and free life which all of us want, then who among us would be content to have the color of his skin changed and stand in his place?14 for leaders of the black protest movement, whose goal had always been to engage regulatory authorities in the project of civil repair, President Kennedy's speech demonstrated that they were now within striking distance of reaching their goal. For years, they had dedicated themselves to translating the particular tzrievanccs of the African American community into the dis- 3^4 365 SOCIAL MOVEMENTS IN THE civil SPHERE course of civil society, into the codes and narratives that they shared with the white audience in the northern sphere. Now they found that the president, the most powerful officer in the civil sphere and the state, was amplifying their message, not only giving them help in the translation process but actually sending the same kind of symbolic interpretations back to them. It is no wonder that, after watching the president's performance in Atlanta, Martin Luther King drafted an immediate response. "I have just listened to " your speech to the nation." he wrote to Kennedy. "It was one of the most eloquent, profound, and unequivocal pleas for Justice and the Freedom of all men ever made by any President."15 The representatives of the communicative institutions of northern civil society responded in the same vein. Northern reporters had been among the first audiences for the black movement's translating efforts, and the movement had succeeded only because, over many years, journalists committed to repairing civil society had con___ tinually translated the movement's normative pleading into the language of realistic description. Now the president himself was sharing this factual assessment. It is hardly surprising that Anthony Lewis, a New York Times columnist, called Kennedy's televised address "one of the great speeches in the history of the American Presidency."""' Filling in the Symbolic and Institutional Space: Ritual Mobilization and Legislative Action It is a matter of historical debate whether civil rights legislation could have* • been passed without Kennedys martyrdom in November 1963 and the accession to the presidency of Lyndon Johnson, a former Senate majority leader and master of the legislative craft. Kennedy himself expressed skep- -ticism about his administrations ability to push the legislation through, looking rather to his second term, and a more powerful electoral mandate, to gain its difficult passage and to put its ambitious organizational mandates into effect.17 As it happened, the legislation for which the president had offered his historic endorsement, which was approved by the House Judiciary Committee in October 1963, did not become law until July of the following year, when President Johnson employed every ounce of his legislative skill to force an extraordinary "cloture" vote defeating a lengthy filibuster by the Senate's mostly southern conservatives.'" Regulatory Reform and Ritualization The question of what might have been the fate of the Civil Rights Act of 1963 can never De known. That its very introduction represented a fundamental fork in the road, however, is beyond dispute. In fact, despite the momentous events in the two years that followed Kennedy's historic speech—the campaigns mounted, the lives tragically lost, the laws that were eventually made—these later events can be properly understood only if they are seen as amplifying the symbolic and institutional framework that had become crystallized by the early summer of 1963. Virtually everything that followed over the next two years iterated what had come before. Success was not, of course, guaranteed. The narrative of these conflicts was unscripted, their outcome open-ended. On the one hand, the activities had a formulaic quality. On the other, their meaning was assured only if the actors had the strength and skill to succeed. In retrospect, the very success of post-Birmingham activities made them seem teleological and foreordained. Reenacting understandings and relationships that had already been established and were still redolent in institutional memory and symbolic space, the events achieved a ritual-like quality.11' The evening after President Kennedy's national civil rights address, Med-gar Evers, a veteran NAACP organizer, was murdered in Mississippi. The president ordered that his body be laid to rest with full honors and regalia in Arlington National Cemetery, the iconic heart of the American nation.2" Such civic memorialization of a black protest leader broke new ground. Yet it followed directly, even predictably, from the symbolic centraliry that Martin Luther King had already established in the northern collective consciousness and from the president's public identification with King's movement against racial domination in the South.21 Nor was it surprising, although it too was without precedent, that scarcely two months later, when Martin Luther King walked to the platform to address a mixed audience of several hundred thousand persons during the "March on Washington" in late August 1963, NBC and ABC would cut away from the afternoon soap operas to join CBS in live coverage.22 King had already become a national hero, an iconic representation of the unfulfilled Utopian aspirations of whites and blacks alike in the northern civil sphere. The famous "dream" he enunciated in that immortal speech articulated the promise of the civil Utopia that King had so powerfully enunciated for the Northern audience so many times before. This time, Kings translation across the racial divide was projected live. 366 367 SOCIAL MOVEMENT'S IN THE CIVIL SPHERE Regulatory Reform and Rirealization What King offered to his tens of millions of viewers on that summer day was a series of rhetorically striking variations on the theme of civil solidarity, which King described as a moral "promissory note" that the framers of the Constitution had issued but on which Americans had "defaulted."23 Insisting that "the bank ofjustice is not bankrupt," King declared ; that, despite its incomplete realization, the ideal of civil solidarity had a transcendental status that could not be destroyed. Emphatically reassertine: its normative validity, he embarked on that somber reverie now engraved on the nation's monuments and replayed in its civil places. I have a dream that one day on the red hills of Georgia the sons of former slaves and the sons of former slave owners will be able to < down together at the table of brotherhood. ... I have a dream th..t one day the state of Alabama, whose governors Hps are presently ~ dripping with the words of interposition and nullification, will b-transformed into a situation where the Httle black boys and black girls will be able to join hands with Httle white boys and white giio and walk together as sisters and brothers. ... I have a dream that one ;:. day . . . aH of God's children, black men and white men, jews and Gentiles, Protestants and Catholics, will be able to join hands and f sing in the words of the old Negro spiritual, "Free at last! Free last! Thank God Almighty, we are free at last!" King delivered this message from the steps of the Lincoln Memorial. He j had the authority to do so because of Birmingham and the critical campaigns ^ that had led up to it. The next day, on its front page, the New York Times .< reported that King had "ignited the crowd with words that might have been J written by the sad, brooding man enshrined within the memorial.1,34 With 3 this analogy, the Times reporter crystalHzed the growing perception of King 1; as a new founding father. After King's death, this founding status would u become institutionaHzed in a national holiday marking his birth.25 ^ The assassination of President Kennedy was an utterly contingent event, ;> without which it might not have been possible to institutionalize civil repair. :i What must be remembered, however, is that the young president's martvr- ^ dom rested not only upon his premature death and Iris Camelot flare, but 4 upon the representation of his death as a sacrifice, the sense that he had died j-for a higher cause. In the dark days of mourning that followed his murder, ;j 368 Kennedy's successor. Lyndon Johnson, pushed this representation into the framework of the movement for civil rights. In his first address to Congress, he told the American people, "No memorial oration or eulogy could more eloquently honor President Kennedy's memory than the earliest possible passage of the civil rights biU for which he fought for so long."-0 That Kennedy had, in fact, come only late to his identification with the Civil Rights movement, and that he had not, in fact, fought for legislative repair for "so long," were not relevant in the emotional, symbolically charged atmosphere of that time.27 Before he had died. President Kennedy had, indeed, publicly cast his legislative and symbolic fate alongside the black movement for civil rights, and President Johnson drew upon this tightening spiral of communication and regulation in framing the larger civil meaning of Kennedy's death. The new president was not alone in drawing this conclusion. Northern reporters and politicians alike interpreted the Kennedy murder as connected to the polarization created by the Civil Rights movement.2" By restructuring the fractured solidarity that was somehow held to have caused Kennedy's death, civil repair of racial domination would pay homage to the slain leader by restoring peace and tranquility to the world he had left behind. Taking office with this mythopoeic agenda, Lyndon Johnson pushed regulatory institutions more rapidly down the path that Kennedy already had laid out. Even as he made civil rights legislation his administration's highest priority, Johnson consulted protest leaders regularly and publicly, making them full partners in the project of regulatory repair. As state officials and movement activists worked closely together, the movement began to direcdy engage opponents of civil repair not only locally, in the south, but in the nation's legislative branch. Within Congress, whose proceedings were immediately broadcast throughout the civil sphere, the opponents of repair could resort to neither physical repression nor outright racist disparagement. Instead, they framed their opposition legally and constitutionally. What they objected to, they proclaimed, was oppressive intervention by the centralized state; what they were defending, they suggested, was grassroots, decentralized democracy. Barry Goldwater, who was about to become the Republican presidential candidate, denounced the civil rights bill as a "threat to the very essence of our basic system," a "usurpation of such power. . . which 50 sovereign states have reserved for themselves."2'' Of course, what Goldwater and other conservatives feared was not state action per se but 369 SOCIAL MOVEMENTS IN THE CIVIL SPHERE civil repair of racial domination in the South. This was the very goal for which the Civil Rights movement had fought for so long, and the cause ~' ' had now been joined by the highest powers of the American state. The partnership between Johnson and King sustained a long and historic phase of regulatory repair, a period that would be brought to an end by the president's headlong pursuit of the Vietnam War in his second term.-10 In July, after Johnson signed the Civil Rights Act of 1964 into law, he asked civil rights leaders to restrain their public confrontations until after the presidential election in November, and they agreed.31 King and other movement campaigned vigorously for the presidents reelection. Though there were certainly other themes in the Johnson-Goldwater contest, among them the dangers of nuclear war, there seems little doubt that when LBJ received the largest popular mandate of the twentieth century he was regarded, above all, as a champion of black civil rights. Not only in the presidential but also ~ in the congressional elections, support for African American inclusion was by far the most powerful predictor of electoral victory. In the House of • Representatives, not one of those who had cast a vote for the civil rights bill was defeated. By contrast, one half of the northern legislators who had voted against the bill lost their seats.32 In December of 1964, it was not the victorious white president but the'-triumphant black civil rights leader whom Time selected as its "Man of th< Year." In doing so, the magazine cited King's 1963 Birmingham triumph, •;■ which had created the context for historic legislative reforms the following year. Time characterized King in a manner that pointed directly to psychological identification and symbolic extension, calling him "the unchallenged voice of the Negro people—and the disquieting conscience of the whites."33 The Second Regulatory Repair: Rewinding the Spiral of Communication and Regulation The Civil Rights Act of 1964 and the communicative-regulative spiral that stimulated it established the paradigm for the regulatory repair of southern: racial domination. It did not, however, fully achieve it. The law created the political and organizational framework for reconstructing social and economic domination, but it did not explicitly address voting rights. Only if this key regulatory institution were also repaired could local political power• Regulatory Reform and Rimalization in the South finally shift to different hands. To achieve this final step in the repair process, the Civil Rights movement was compelled to return to oggressive direct action. Its leaders maintained their partnership with the highest officers of American civil society, engaging in public consultations that produced such headlines as "President Promises Dr. King Vote Move" and "President Given King's Views on Vote Situation.""1*' Even as they did so, however, they planted their feet once again firmly in the symbolic imagination of the northern civil sphere. Following the model that was by now deeply lodged in the collective consciousness of movement activists and northern whites alike, the prorests achieved regulatory reform by generating a dramatic period of communicative mobilization, beginning with Freedom Summer in 1964 and culminating with the cathartic crisis of Selma in the first half of 1905. This intense period of social drama triggered the land of outrage and symbolic action that was needed for passage of the Voting Rights Act in August 1965. Freedom Summer: Identification Becomes Concrete Freedom Summer provided an opportunity for northern whites to participate directly in the symbolic performances they had until then experienced only symbolically. It allowed northern white identification with southern blacks to be experienced interpersonally. and it energetically broadcast representations of this concrete identification back into the northern civil sphere. The project was organized primarily by SNCC, the movement's radical youth arm that had emerged from the i960 sit-ins. From elite colleges in the North, SNCC recruited more than a thousand volunteers, the vast majority of whom were white, and brought them down to Mississippi to work for three months in segregated black communities throughout the state.35 Ostensibly, Freedom Summer was an effort to register new black voters, and SNCC presented it to the media as such. Yet for three long years SNCC activists had been trying to register black voters in Mississippi in the face of great physical danger and with a notable lack of tangible success.3" They had few illusions that volunteer, part-time white youth would do a better job, and, indeed, they did not. Though volunteers succeeded, over the course of the summer project, in bringing some seventeen thousand black Mississip- .170 371 SOCIAL MOVEMENTS IN THE CIVIL SPHERE pians to courthouses to fill out voting applications, official registrars accepted only sixteen hundred of the completed applications as valid.37 It should not be surprising, then, that the extended debate preceding SNCC's decision to organize die summer project reveals that SNCC organizers aimed less at registering local voters than creating national dramaturgy. As one participant in those discussions recalled, "it was agreed by all" that "publicity was essential for awakening the national conscience and preparing a climate for federal involvement in Mississippi."3" White volunteers from the North were viewed less in instrumental than expressive terms, less as potential task organizers than as potentially influential collective symbols. Such revivified symbols would be necessary if the spiral of communication and regulation were to be tightened once again. As one participant in these preliminary discussions later explained: It was argued that by flooding Mississippi with Northern whites, the entire country would be made dramatically aware of the denial of freedom which existed in the state and that the federal government would be inevitably faced with a crisis of sufficient magnitude that it would have to act.3'' Bob Moses, SNCC's charismatic leader, put the matter of identification more blundy to the volunteers themselves during one of their early training sessions. The goal, he said, was "getting the country involved through yourselves."40 The activists of SNCC designed and staged this dangerous civil drama with enormous skill. The northern volunteers played their parts with enthusiasm, courage, and sincerity. Local officials reacted with ferocity and often violent repression. Communicative institutions broadcast images and interpretations of this dramatic interaction between black organizers, idealistic white volunteers, and repressive Southern officials back to the northern civil sphere. What they relayed in these reports were deeply affecting interpretations of an heroic and often tragic struggle against racial injustice. In keeping with the project of identification, the media interpreted the college students who traveled down to Mississippi not as radical or deviant but as representative figures, in fact as young people who typified the most ideal characteristics of northern civil society. The Saturday Evening Post broadcast the evaluation by an MIT psychiatrist reporting that the volunteers Regulator)- Reform and Rkualization were "an extraordinarily healthy bunch of kids, mentally and physically." Newsweek described the volunteers as "bright," but they also humanized them by adding that "they are scared and brave all at once." Look magazine brought identification even closer to home, telling its readers that the volunteers "looked disturbingly like the kids next door."41 The departures of these young northerners for Mississippi were reported by hometown newspapers with obvious pride, as in the following article, which mixes provincialism, social snobbery, and straightforward identification with the democratic civil sphere. Stuart Rawlings III in Civil Rights Fight by JOAN WOODS, SOCIETY EDITOR Friends of Stuart Rawlings III, son of the junior Mr. and Mrs. Rawlings, will be interested to learn he will leave today to take part in a summer long civil rights movement in Mississippi. . . . During the last week Stuart has been undergoing a training program in Ohio with 2000 other students from Stanford, Yale, Harvard. Princeton, Sarah Lawrence and Vas-sar. They will be part of a group of 1,000 who will tutor Negroes to enable them to pass voting tests for the November elections. . . . "We're very proud of him," Kay Rawlings, a former president of the Junior League, told us yesterday, "but of course we're scared to death. They're prepared to face anything."42 The young activists experienced their Freedom Summer activities in a complementary way. They framed their participation as an opportunity to embody their commitment to the ideal of civil solidarity and to act out their antagonism to racial domination. As one prospective volunteer wrote on his application for the summer project: I have always known that discrimination was wrong and that now is the time to overcome these obstacles. . . . Until we do, all that we stand for in democracy and Christianity is negated, mocked while 372 373 SOCIAL MOVEMENTS IN THE CIVIL SPHERE Regulatory Reform and Realization such oppression exists. . . . There is so much to do, so many barriers between men to be broken, so much hate to be overcome.'-1 As idealistic northerners who had strongly identified with the southern movement, volunteers had already experienced the tension that duality produced. The summer project offered them the chance to face that strain more directly and the possibility of doing something about it. As one volunteer put it, "I can no longer escape the tension, the spirit, the anxiety that fills my heart and mind concerning the movement in the South." Another volunteer used a surfing metaphor to link his desire to experience solidarity with his feelings of moral obligation: "I want to do my part. There is a moral wave building among today's youth and I intend to catch it."41 In the context of direct and intense interaction, it is not surprising that the identification of white volunteers with black organizers often went beyond moral ideals. As a female volunteer explained to her parents, "You can always tell a CORE or SNCC worker—they're beautiful."45 As this enthusiastic observation suggests, sometimes the admiration whites experienced for the black leaders became emotional and physical: close friendships developed, and sexual liaisons were not uncommon.'"' As they scattered among small black towns to teach literacy in the Freedom Schools and to-;, bring unregistered black voters to county halls, the white volunteers cxpe-... rienced a powerful sense of identification with, and acceptance by, those? whom they were trying to help. The women from the church everyday would bring food for all of [usj teachers fat the Freedom School]. ... It was so touching to be cared for. ... 1 felt like I belonged; E felt like they liked me and they ~ wanted me to be there and I, it was so healing, you know, knowing what the divisions were.....And yet somehow you can heal. ... I think there was a kind of love . . . and a kind of compassion for us that they showed. It was a daily demonstration of love and acceptance. . . . They were feeding us; they were giving us nourishment.47 Northern journalists closely monitored the journey of these represent tative figures, at once idealistic and idealized. The blanket coverage began ; with the Summer Projects orientation sessions in Ohio. 374 [Reporters] followed us into the classrooms and dormitories, around the lounges, out along the paths. They asked people to sing that song again for the American public. There was footage, yardage, mileage of every face in the place.1* The intervention into the South of the communicative institutions of northern civil society became even more intense, mediating more deeply felt and darker emotions, after three Summer Project volunteers—James Chancy, Andrew Goodman, and Michael Schwerner—were beaten and murdered by southern vigilantes only a few weeks after the organizing began. The response from regulatory institutions in the northern civil sphere was immediate and intense. Expressing the grave public concern, President Johnson ordered the FBI into Mississippi. Federal agents spread throughout the state, and the resources of the Department of Defense were mobilized to search for the missing bodies and material evidence. The investigation continued into August, with daily media reports on progress, or the lack of it. from the "battlefront."4" Yet, even while northern reporters deployed metaphors of civil confrontation to describe these events, what finally emerged from the summer's media coverage more closely resembled a narrative of sacred pilgrimage.50 The story invoked powerful tropes of courage and sacrifice, symbolically extending earlier narratives about northern intervention into the racist South. One Saturday Evening Post headline, in late July, declared: "At the Risk of Their Lives, Hundreds of Northern Students Are Challenging the Heart of the Deep South." A headline in the Sau Jose Mercury put this narrative of pilgrimage in a more condensed way: "They Walk in Fear, But Won't Give Up."51 In the midst of the trauma at the heart of Freedom Summer, President Johnson signed the Civil Rights Act of 1964, but communicative mobilization had already begun to shift civil attention away from the first phase of regulatory reform. What had happened, as the sociologist Doug McAdam put it, was that "in a very real sense, the entire country had visited Mississippi" that summer, "courtesy of the national news media."5-' What Americans had found there provided stark evidence that southern civil society remained in need of further repair. Their symbolic participation in the later confrontations in Selma, Alabama, dramatically underscored this conviction, and the historic legislation to guarantee black voting rights became very quickly the result. 375 SOCIAL MOVEMENTS IN THE CIVIL SI'HEIiG Selma and Voting Rights: Ritualizing the Commwiications-Regulation Spiral It would be veteran black demonstrators in Alabama, not white volui in Mississippi, who would provide this dramatic final thrust. Though Selma was a tense and heart-stopping movement that depended on continue of courage in the face of repression and violence, it constituted, at the same rime, a ritual-like process whose performative structure had been perfected in Birmingham and practiced collectively in rhe many campaigns that had come before. The audience of the northern civil sphere was already primed; it knew what to anticipate; its heart and mind were already involved. The translation techniques were well tested, the crossover language refined, i jie chief interlocutor, Martin Luther King, had not only proven himself a uniquely powerful director of civic dramas, but had already demonstrated his persuasive powers vis-a-vis the most powerful federal officials. I.. .... months before the Selma campaign, King had been canonized by Time : magazine, and he had received the Nobel Prize for Peace. His symbolic authority had never been so great. Just as the SCLC had so carefully strategized the Birmingham campaign, : it now engaged in elaborate pre-planning for Selma, plotting a sequence "f events that would connect the discourse of civil society to the movement i and its enemies in a dramatic and legitimating way. Organizers had chosen .: ethnic and racially dominated groups for the full achievement of their civ • rights. The repercussions became only more visible with the passage of time, i evident in the social movements of prisoners, homosexuals, and handicapped ; people, in the new tactics of environmental protest, and even in the assei- . lively nonviolent struggles for the restoration of civil society that markei i; the massive social movements against communist domination in central an< -eastern Europe in the ipSos."5 This is not to mention the movement's effect,, on the emergence of "multiculturalism," despite the fact that this new mode of incorporation, to the discussion of which we will soon turn, represented an identity-related turning away from the movements focus on regulator -v. reform and political life."'1 But these considerations only address the demonstration effects of the Civil Rights movement, how its prestige and success helped generate prates) against other destructive intrusions into civil societies."7 What about th effect of the movement itself, in terms of its own goals? What allowed the American Civil Rights movement to become an exemplary model? First and foremost, there was its success in overthrowing a massively powerful regime of racial domination. The passage of half century should not dull us to the immensity of this achievement. Ou distance from that earlier tune, and our awareness of the deep problems of racial exclusion that remain, often make us see the Civil Rights movement ..... Regulatory Reform and Ritualizauon as less than it was. In fact, its impact was extraordinary. The civil rights laws of 1964 an^ IQ65' and the organizational interventions that accompanied them- forced significant change in virtually every nonet vi! sphere of American life, from corporations to universities, from higher education to popular culture, from the choice of residence to participation in political parties, and to the very structure of the state.™ The white backlash against the black movement crystallized in the late 1960s, with George Wallace receiving large protest votes in northern presidential primaries and Richard Nixon employing his "southern strategy" to gain the presidency in 196S. Yet diroughout this decade, the 1964 Civil Rights Act was effecting radical change, most surprisingly, perhaps, in the racial structure of the labor market, through policies that came to be known as "affirmative action." The symbolic power of the Civil Rights movement was such that these policies of racial preference were enforced, despite ideological qualms, by Republican and Democratic administrations alike, and eventually, when political interest waned, by universities, major economic corporations, and the American military on a voluntary basis. The legality of such racial preference systems was, by and large, consistently affirmed by the U.S. Supreme Court. The economic effects of this intrusion of civil regulation into the economic sphere were profound. As Bart Landry demonstrated in his wide-ranging quantitative study of the effects of civil rights legislation on changing economic stratification in the 1960s and 1970s, affirmative action fundamentally altered the shape of black economic life. Fortunately, these laws did more than put an end to segregation at lunch counters, restaurants, and hotels; they also made discrimination in employment based on race a crime. And it was new laws man-daring equal employment opportunities that had the most far-reaching consequences for black people as a whole and that directly contributed to the growth of the new black middle class. This new legislation and the Equal Employment Opportunity Commission created to implement the law eventually brought access to a greater range of white collar jobs than ever available in the past."'-1 Regulatory reform had been closely intertwined with communicative mobilization throughout the social movement for civil rights. These post-movement shifts in institutional structure, administratively enforced by reg- 384 385 SOCIAL MOVEMENTS IN THE CIVIL SPHERE ulative bodies, were also accompanied by powerful currents of public opjn ion, which elaborated and extended the new patterns of in identification that had aided the movements earlier success. White racij] ' '■ prejudice hardly disappeared, but among the working and middle cla«i^ „<■ American society, racial distortions of civil solidarity became decidedly Iy- ■ I pronounced. In cultural terms, the civil rights movement had inverted the relation between white racism and the binary discourse of civil society. For J the first time in American history, it was racialist thinking that occupied the I polluted, antidemocratic side. This inversion has become only more nmv. erful in the years since. Landry calls it a "revolution in values." I By 1970, a new normative climate in the area of race relations had emerged in the United States—in the South as well as the N< ■ ; Black children born from this time on would know the brutalitv nnd I fear of Jim Crow years only through history books and the sti told by parents and grandparents. . . . Whites, South as well as Nc who discriminated became "racist" rather than regular guys, and those who attempted to block the access of blacks could no lo. | count on success, instead running the risk of losing face rather being heroes.''0 J As white racism became polluted, white Americans increasingly a p face-to-face interaction with blacks in the noncivil spheres of education ana || work, and to some noticeably greater extent in recreation and privarf lifí*,;: M This transformation allowed blacks to move from back stage to front itage % in American institutions. Without such a shift, the economic pos || African Americans in the service-oriented economy of the Unite : v f| could not have been changed.1'2 But the decline of the black Civil Rights movement cannot be at fŘ simply to the institutionalization of so many of its concrete goals. It-j dimi- || nution was too rapid for such changes to have an effect. The caus . ||í more proximate. The movement lost its central!ty to the normative || American civil society. In part, this was because the national civil sphere 'M became less responsive to critical idealism. As the early turned into ■ If 'oris, the fragile equilibrium of the American civil sphere was rent'. ■ |I| servative backlash and radical "front-lash" movements. With this p " fM tion. civil solidarity became a much scarcer resource.'ri Another reason had g||; Regulatory Refonn and Ritualization <0 the unintended effect of the movement's success. After disman-ding de jure segregation in the South, movement organizers, Martin Luther Ting most conspicuously among them, began confronting the de facto relation that distorted the civil sphere in the North. De jure racial Qujiiination was easier to represent as evil than de facto, which was more - irect and less visible. The representation of de jure segregation as anticivil had, moreover, been greatly promoted by its physical location in the South' a region that had long represented, for northerners, a threat to the . -i'on's democratic traditions. When northern whites themselves began to * -argeted as anticivil enemies, the possibilities of enthusiastic identification t, .,h the movement substantially declined. Yet another reason for the growing difficulty in sustaining a wide audience for civil repair was change within the black movement itself. Though ■oinated at the national level by King's SCLC, the movement had always been a delicately balanced coalition. This balance became imperiled when M,n.cess flooded the organizations, particularly the younger and more radical ones like SNCC, with new supporters and recruits. More important, at the very point when white identification with the black movement reached its l-water mark, some of the most dedicated and effective black activists were becoming not only wary and suspicious of whites but increasingly pessimistic about possibilities for racial justice. The year after Selma and the Voting Rights Act, SNCC expelled its white members and elected as its chairman Stokely Carnuchael, the dedicated but increasingly embittered cement intellectual who created the slogan "Black Power." The cultural implications of the Black Power movement were ultimately reaching, for it marked the beginning of a new, multicultural mode of —irporation.''"1 These long-term effects, however, were overshadowed by immediate political controversies it created at the time. The Black Power ne, and the political movement it inspired, indicated a turning away \ the themes of democracy and interracial solidarity to nationalism and ratism. This shift, which registered among white and black audiences made it more difficult for protesters against racial domination to trans-their demands into the language of civil society: The historian Charles Pavne describes Black Power leader Stokely Carmichaefs election as "a repudiation of the tradition of Christian nonviolence symbolized by John lewis," the black leader who had chaired SNCC before.1,5 Though Payne ts criticizing the shift to Black Power and maintains that even after his 387 SOCIAL MOVEMENTS IN THE CIVIL SPHERE election Carmichael continued working relationships with whites, he observes that Carmichaels emergence as a national SNCC spokesman "symbolized a shift in the organizations self-presentation [to being] more militant on racial issues [and toward] nationalism."y(' The destructive implications of this more narrow, less civil ideology of black protest were dramatically evident in the pas de deux that unfolded between SNCC and the SCLC in June ig66.')7 Speaking at an evening rally"' after being arrested earlier that day. Stokely Carmichael declared that blackr people ought to take charge in the South, that its sheriffs should be blackfl and that "every courthouse in Mississippi should be burnt down tomorrows so that we can get rid of the dirt.""M The SNCC chairman shouted, "We/ want black power," and the crowd took up the chant, yelling "We want's black power, we want black power.""" At a rally the next evening, when another SNCC leader began leading the crowd in this new chant, a leaders from the SCLC engaged members of the same crowd in spirited cries of-, "freedom now, freedom now." If die participants in this rhetorical contest^ did not fully surmise its implications, their leaders certainly did. King avoided public comment that evening, but he later recalled. "Immediately I had;' reservations."111" He considered pulling SCLC out of the march, and north-ern newsmen wrote about "mounting tension" inside the movement. Fi-.-. nally, King released a public statement pointedly asserting "the term 'Black-# Power' is unfortunate" because "it tends to give the impression of Blacky nationalism."1"1 ! The next evening, in an impassioned and widely publicized speech, Kings explained his opposition. He told his audience that this new emphasis on%: power would suggest an instrumental interest in domination, an implication that could obscure the ethical and civil orientation of the movement. As—^ scrring "I am not interested in power for powers sake, but I'm interested-.^; in power that is moral, that is right and that is good," King felt compelled: to remind his listeners "this is what we are trying to do in America.""12 He , also suggested that emphasizing brute power seemed clearly to imply the:|| acceptance of violence, an anticivil connotation that, far from empowering||f the movement, would end up helping its opponents. Finally the demand for Black Power, King insisted, implied that black protesters wanted to wage the struggle for freedom by themselves. But it would be foolish to believe that black people could "get our freedom by ourselves," King declared. In ^ the context of white domination over the black minority, it was only du- Regulatory Reform and Ritualization jjjty-—the existence of a surrounding democratic civil sphere—that made it possible for blacks to win their freedom. Reiterating the recipe for protest that had been so successful up until that time, King insisted that the black movement must aim at extending solidarity and that the ability to achieve this extension depended on deepening white identification: "There's going to have to be a coalition of conscience, and we aren't going to be free here in Mississippi and anywhere in the United Sures until there is a committed empathy on the part of the white man."1"3 King was right to sense that this orientation toward duality was being abandoned. In the late '60s, as the Right became increasingly militant and the Left became splintered between those who wanted to deepen civil society and those who wanted to make revolution, radical groups such as the Bbck Panther Party followed the trajectory of "Bbck Power." rejecting .....interracial solidarity as a goal and conspicuously embracing violence at least as a symbolic means. Even as the project of deepening civil society was being rejected by influential groups inside the white and black Left, large segments of northern white communities were antagonized by the bloody riots breaking out inside urban black ghettos. "The image of the Negro," noted one slightly hyperbolic observer at the time, "was no longer that of the praying, long-suffering nonviolent victim ot Southern sheriffs; it was of a defiant young hoodlum shouting 'Black power" and hurling 'Molotov cocktails' in an urban slum."1"'1 En more measured language, the sociological chronicler of Freedom Summer. Doug McAdam, observes that "interra-cialism died amid the calls for black power and black separatism," drawing attention to the irony that, less than a year after the idealism of the Mississippi project, "nonviolence was widely repudiated, at least rhetorically, in the wake of Watts.""15 It was in this context that the progressive center-Left coalition that had undcrgirded northern identification with the black protest movement broke down. Such liberal media as the New York Times, which had been so central to the movement translation, fairly brisded with antagonism to the nationalist and revolutionary turn. For the northern communicative media, the black movement's turn toward violence undermined its claim to embody the pnnciples and structures of the civil sphere. This suspicion was already clearly broadcast in early iy6>. when the Times reported on the assassination of the Black Muslim militant Malcolm X. Even as some increasingly militant black newspapers extolled the "manhood" ofMalcolm against the "hypocrisy" of SOCIAL MOVEMENTS IN THE CIVIL SCHERE EU'uulatory Reform and Ritualizatian King, the Times dismissed the nationalist leaders life as "pitifully wasted," citing his "ruthless and fanatical belief in violence." Calling Malcolm a "twisted man," the paper expressed regret that the black leader had turned his "many true gifts" to such "evil purpose."1™ As the polarization of the '60s deepened, such anticivil retrainings ofblack movements and theirleaders became more frequent. Long after the heat of that period had subsided, these polluting images of African American militancy lingered, making it more difficult to reignite movements for racial civil repair. Despite the success of the black protest movement, the racial distortion of Americas civil sphere remained: yet because of its great victories, these distorting intrusions took quite different forms. As black economic and political participation became normalized, and symbolic racism declined, the working and middle strata of African American society abandoned inner-city ghettos, leaving an enormous black "underclass" behind.107 To this day, the social conditions sustaining this continuing racial subjugation—high rates of unemployment, drug addiction, violent crime, crumbling schools, and teenage pregnancy—have not been systematically addressed by the regulative institutions of the surrounding civil sphere. The fictional and factual media of communication, for their part, have tended to pollute this racial underclass. im Broadcasting apocalyptic images ofblack violence and criminality, these symbols have been intermingled with the anticivil representations of black militancy from an earlier time. Despite the periodic calls for regulatory intervention made by liberal intellectuals and policy elites, the conditions that sustain the racial underclass will not be repaired until a new social movement can arise. Only a powerfully affecting social movement could mobilize the increasingly fragmented black community. Only skillful movement intellectuals could translate the particular experiences and conditions of the racial underclass into compelling codes and narratives that can gain psychological identification from the civil sphere outside. Social scientists and critics speak about repairing this new racial divide primarily in organizational terms, calling for massive state intervention and economic restructuring. But such new forms of regulation depend on the creation of new forms of civil power. The economic, political, educational and demographic subordination of the racial underclass does not, in itself, generate a sense of injustice from those on the outside. These strains must be translated into the language of civil society. Demands for direct organi- se zational intervention, no matter how rational and well-reasoned, are not enough. Social justice requires the regulatory resources of the state, but it is onlv communicative mobilization in the civil sphere that can bring such intervention about. What has happened up until this time is quite the opposite. The discourse of civil society' is being mobilized not on behalf of the racial underclass but against it. In regard to this degraded segmented of the African American community, it seems that the very idea of civil repair has fallen into increasing disgrace.10'1 It is deeply paradoxical that, even as the distance has widened between American civil society and the racial underclass, powerful processes of civil incorporation have not only remained in place, but in many respects have flourished. As they have gained traction, they have challenged otherness in new ways. The Civil Rights movement translated the discourse of civil society into the familiar projects of assimilation and hyphenated Americanism. Black Power militancy, even as it threw up barricades against the social movement for civil repair, initiated a radical cultural restructuring of these familiar iucorparative schemes. I discuss these changing modes of incorporation in the fourth and final section of this book. J9i MODES OF INCORPORATION INTO THE CIVIL SPHERE CHAPTER 15 Integration between Difference and Solidarity I„ 1974, after twenty years of struggle to make more real the promises of American citizenship, during which efforts that began with black Americans had expanded to include other racial or ethnic minorities and was beginning to open new possibilities for women, a scholar named Peter Adler concluded a widely used anthology called Intercultural Communication by offering a definition of "multicultural" Emphasizing the "psy-choculturally adaptive," Adler portrayed a protean, ever-changing, integrative actor who had the desire and ability to put himself in the shoes of the other person in a relativizing, crossover, nonjudgmental way. "Multicultural man," he wrote, "maintains no clear boundaries between himself and the varieties of personal and cultural contexts he may find himself in." He is "capable of major shifts in his frame of reference and embodies the ability to disavow a permanent character. ... He is a person who is always in the process of becoming a part of and apart from a given cultural context. He is very much a formative being, resilient, changing, and evolutionary."1 Fifteen years later, delivering her presidential address before colleagues at the Modern Language Association, the feminist literary scholar Catherine Sampson defined nuilticulturalism in a decidedly different manner. It means, she said, "treating society as the sum of several equally valuable but distinct racial and ethnic groups."2 At that same meeting, the editor of the explicitly multicultural Heath Anthology of American Literature defended his textbook's 395 MÜDES OF INCOltl'ORATHJN INTO THE CIVIL SPHERE nice and gender organization of literary materials by insisting, "1 know of no standard ofjudgment. . . which transcends the particularities of time and place ... of politics in short."-1 In yet another presentation at the MLA meeting, a Shakespearean scholar justified the need for a multicultural approach to literature by highlighting the boundedness of his particular identity. Reading the work of a black woman author, he explained, "I do not enter into a transcendent human interaction but instead become more aware of'-, my whiteness and maleness. social categories that shape my being.""1 These juxtaposed quotations suggest more than a shift in disciplinary reference from Eriksonian ego psychology to Foucauldian power-knowledge. They indicate a sea change in social understanding. In the early . 1970s, multiculturalism was not yet part of the social imagination, but it connoted compromise, interdependence, a reJativizing universalism, and an expanding iutercultural community. In our own time, the same term, now absolutely central to the collective consciousness, appears inelucrably con- . nected not with permeability and commonality but with "difference," with the deconstruction and deflation of claims to universalism, with the reconstruction, rehabilitation, and protection of separate cultural discourses and sometimes very separated interactional communities. Some radical advocates of multiculturalism propose that their particularistic identities determine their actions and being. Promoting a fundamental reorientation of textbooks and pedagogy vis-ä-vis the categories of "American" and "race," Molefi Kete Asante. then chair of the Department of African-American Studies at Temple University, justified Afrocentrism on the grounds that, for black Americans, "our African ity is our ultimate reality."5 "The idea of'mainstream American,' " he writes, "is nothing more , than an additional myth meant to maintain Eurocentric hegemony.... ~" 'Mainstream' is a code word for 'white.' . . . One merely has to substitute die words 'white-controlled' to get at the real meaning behind the code."'' When Cornell West, the influential black theologian and philosopher, re- 7 views the effects that recent movements for equality have had on contemporary American academic Life, he confirms this shift in mentality but demonstrates more sensitivity than Asante to its paradoxical effects. "The inclusion of African Americans, Latino/a Americans, Asian Americans, Native Americans and American women into the cultural of critical discourse," he observes, has "yielded intense intellectual polenucs and inescapable ide- 396 Integration between Difference and Solidarity olosical polarization that focused principally on the exclusions, silences and blindnesses of male WASP cultural homogeneity."7 Convergence between Radicals and Conservatives This discursive shift from an emphasis on universalism and inclusion to difference and separation seems a strange response to the continuing progress that previously excluded and subordinated groups have made vis-a-vis the core institutions of American society, a progress that, though agonizingly uneven and tragically incomplete, is nonetheless amply documented in statistics about mobility intermarriage, occupation, and education. What is less paradoxical is that in the course of this transformation, a highly visible conservative intellectual reaction has crystallized, one that is tar more suspicious about the motives of multicultural activists than is evidenced by skeptical sympathizers of the movement like Cornel West. Arthur Schles-inger, Kennedy liberal and cosmopolitan thinker of an earlier day, blames multicultural activists for reviving "ancient prejudices."" Rather than seeing these thinkers as responding to continuing inequality and exclusion, Schles-inger claims that they have actually introduced divisions where none existed before. By "exaggerating differences," he writes, "the cult of ethnicity . . . intensities resentments and antagonisms,"" thus "producing a nation of minorities [andj inculcat[ingj the illusion that membership in one or another ethnic group is the basic American experience."'1" Samuel Huntington blames the "popularity of multiculturalism and diversity," which he dubs the "deconstructionist movement," for an "erosion of national identity" that is "quite possibly, without precedent in human history."" More strident neoconservatives denounce multiculturalism as a new form of racialism, one directed against the white majority. Dinesh D'Souza denounces "the new separatism" and likens it to defending the South African Apartheid regime.12 For Roger Kimball, multiculturalism. "far from being a means of securing ethnic and racial equality," is "an instrument for promoting ideological separatism based on . . . differences."1,1 Hilton Kramer attacks "the new barbarians" who have "already established as a standard practice: the imposition of politics—above all, the politics of race, gender, and multiculturalism—as the only acceptable criterion of value in every realm of culture and life."''1 397 MODES OF INCORPORATION INTO THE CIVIL SPHERE Integration between Difference and Solidarity In attacking multiculturalism as a new form of racial particularism that denies universaHsm, the conservative critics of multiculturalism—who are also the most conspicuous intellectual opponents of race- and gender-specific affirmative action programs—go on to make an even more fundamental claim. They argue that this movement has fundamentally undermined the solidarity that has been the basis for American democracy. As Schlesinger sees it, a once united nation has now been torn apart. "The cult of ethnicity," he decries, "has reversed the movement of American history,"15 and he condemns it for "breaking the bonds of cohesion—common ideals, common political institutions, common language, common culture, common fate—that hold the republic together.""' Kimball asserts that "what we are facing is nothing less than the destruction of the fundamental premises that underlie ... a liberal democratic polity."17 The claim that multiculturalism undermines the cohesiveness of American society, indeed, the very existence of an American "society" as such, is potentially an extremely damaging ideological charge; after all, the construction of a fuller, more inclusive society is precisely what most of the emancipatory social movements of the last century have been about. What makes this claim so perplexing is that some of the most important intellectual advocates of multiculturalism seem to agree with these conservative critics, They allow that the movements they defend are indeed at odds with the concept of an American community. They promote, instead, an alternative ideal, a social system of insulated but equally empowered groups who, rather than experiencing some shared humanity and solidarity, would simply grant one another the right to pursue distinctive lifestyles and goals. In this chapter, I will examine this claim on empirical, theoretical, and normative grounds. I will criticize it for ignoring not only the theoretical possibility of a civil sphere, but its real, if fragmented, existence in contemporary American life. We will see that the civil society theory I am devel- . oping in this book allows us to cast the debate between radical multicultur-alists and fearful conservatives in a very different light. Recognition without Solidarity? The most important theoretical articulation of the radical multiculturalist position is Iris Youngs philosophical treatise Justice and the Politics of Difference. 39« Speaking as a feminist personally involved in the new social movements of the 1970s an^ *8os. Young sees modern democracies as neither cohesive societies nor real democracies. Rather, as Young explains it, modern democracies are composed simply of distinct and separate social groups. These .roups are defined by particularistic primary identities—she mentions age, sex race, ethnicity, gender, and religion—and they are always and inevitably organized in a hierarchical way, composed of "social relations . . . tightly defined by domination and oppression."1" Engaged in mortal conflict with one another, these groups aim at enlarging the field for the expression of their identity interests. On the basis of this empirical description of contemporary social organization, Young attacks the very idea of "civic impartiality." The notion of an impartial "public" sphere, she asserts, "masks the ways in which the particular perspectives of dominant groups claim universality," and, indeed, actually "helps justify hierarchical decision making structures." The most powerful among such structures is the modern state,1" whose discourse of universal reason—free and equal citizenship for all—provides a formally abstract but morally empty2" legitimation for its strategy of excluding politically and humiliating emotionally the members of groups that are not Christian, male, or white. The universal citizen is. . . white and bourgeois. Women have not been the only persons excluded from participation in the modern civic public. In Europe until recently and in many nations both Jews and working-class people were excluded from citizenship. In the United States the designers of the Constitution specifically restricted the access of the laboring class to the rational public, and of course excluded slaves and Indians from participation in the civic public as well.21 The so-called "neutral" state is not only empirically deceptive,22 Young claims, but ideologically pernicious, making it much more difficult to expose the primordial particularity that underlies domination and to provide tor the oppressed an independent voice.-1 Having ruled conceptually out of bounds any hope for neutral territory and common understanding. Young links justice instead to the full expression of particularity and difference. "The good society," she writes, "does not 399 MODES OP INCORPORATION INTO THE CIVIL SPHERE eliminate or transcend group difference."ľJ To the contrary, "group dirrer-entiation is both an inevitable and a desirable aspect of modern social processes." For this reason, justice "requires not the melting away ol differer but institutions that promote reproduction of and respect for group differences without oppression."25 Young argues that recent social movements should be seen in just this way. She reads them simply as emphasizing difference and particularity—as identity movements in the contemporary social science sense—suggesting that the discourse of a radical, separatist, multicuituralism is not only rational and morally legitimate but politicallv effective as well. My problem with Young's argument is not with its logical coherence but with its empirical validity, which is inextricably interrelated with its . moral claims.-" Does Young have a realistic theory of the cultural and institutional- life of-contemporary societies? Of how social movements for" justice actually work? I think not. Let us examine a claim that is the fundamental meeting point between : the empirical and moral dimensions of her position. Recall that Young asserts that demands for the recognition of particularity, of difference, will re1""'-not simply in the "reproduction" of difference but in greater "respect'1 them. She cannot, however, defend this proposition empirically or theorct-ically. Instead, she simply conflates political and moral assertions of the 4 validity of difference with the empirical achievement of social respect, j lowing are some examples of short-circuiting: By asserting a positive meaning for their own identity, oppressed groups seek to seize the power of naming difference itself. . . . Dif- -/ ference now comes to mean not otherness, exclusive opposition, but ^ specificity, variation, heterogeneity.-7 Asserting the value and specificity of the culture and attributes oi oppressed groups . . . vaults in a relativizing of the dominant culture.2!i -i When feminists assert the validity of feminine sensitivity . . . when gays describe the prejudice of heterosexuals as homophobic and theit ; own sexuality as positive . . . when Blacks affirm a distinct Afro-American tradition, then the dominant culture is forced to discover itself for the first time as specific [and] it becomes increasingly difficult for dominant groups to parade their norms as neutral. . . and to con- Integration between Difference and Solidarity struct values and behavior of the oppressed as deviant, perverted, or inferior.-' These arguments seem more than a bit sociologically naive. At times. Young defends such propositions on normative grounds, as offering a dialogic "deliberative" approach to the achievement ot justice: "A selfish ierson who refused to listen to the expression of the needs ot others will iot himself be listened to."3" But isn't "selfishness"—the self-orientation iroduced by xenophobic, group-limited perception—exactly what Young lerself has identified as the defining characteristic of contemporary social .fe? When socially marginalized and culturally polluted groups make claims br recognition and respect, can the simple assertion of these claims, in and if itself, change the minds of the very dominant—th at is, "selfish"—groups .hat have made them marginal and polluted? It seems highly unlikely that nere assertion could be so sufficient unto itself. This is hardlv surprising if we acknowledge the existence of a civil sphere nd the changing context it provides for political claims. It is not the mere ict of energetic self-identification, much less the simple demand for delib-ration, but the construction of the social context within which claims for recognition arc made that determines whether the negative understanding cial stereotyping can be ameliorated or reversed. Statements about Ives and others are interpreted against a background of tacit assump-LKinx Speakers need to know what language game they are playing before can properly interpret actions and statements made by the plavers. If ave different conceptions of the game, we will interpret the same Tent differendy; for all intents and purposes, we may as well be playing erent game. Insofar as the game is democratic life, the rules for this are established by the possibility of the very civic impartiality that Young denies tout court, that is. by the culture and institutions of civil society. We should seek public fairness," Young asserts, "in a context of heterogeneity and partial discourse."31 Indeed we should. But the factual exis-of heterogeneity and assertions of claims for its respect will never, in ...f themselves, produce the kind of mutual recognition that Young seeks, snly the implicit understandings of public culture, articulated in the lex and interlarded relations of civil life, that can valorize representations of heterogeneity in positive and negative ways. Young implicitly acknowledges this all-important fact when she contrasts mere interest group 4.00 401 MODES UP INCORPORATION INTO THE CIVIL SPHERE pluralism, which in her view does "not require justifying one's interests as right, or [as] compatible with social justice,"33 with what she lauds as the preferred politics of difference; "A heterogeneous public, however, is a public, where participants discuss together the issues before them and come to a decision according to principles at justice."-13 We are back to the civic impartiality from which Young tried so determinedly to escape and to the problem of the nature and scope of common values, the existence of which Young denies and the importance of which conservative critics of multiculturalism have tried so adamantly to assert.34. As Alasdair Maclntyre once asked,3" Whose justice and which rationality? What is it about the civil sphere that makes its very existence so important? Does the existence of a public or civic sphere in and of itself suppress or deny heterogeneity, as Young suggests? Must an impartial civil sphere necessarily rest upon the kind of undifferentiated, homogeneous, melted social values that conservatives recommend? Rethinking the Public Sphere: Fragmentation and Continuity The conservative crirics of multiculturalism are right about one thing. There is already a civil sphere in the United States and in other democratic and democratizing nations as well. Yet die radical champions of multiculturalism are also right, for the civil societies that exist in the present day, and even more sa those of earlier eras, remain fragmented and fractured communities, solidary spheres that exclude all sorts of groups from their central cores even while proclaiming liberty and justice for all. What both sides in this argument, seem to ignore, in other words, is that the existence of the civil sphere is not a zero-sum, all-or-nothing game. Failure to achieve a full or complete civil sphere should not be seen as an admission of utter failure. To the contrary, it is the contradictions generated by the tension between the ideal and the real that produce the potentially liberating dynamics of contemporary life. In this civil sphere, actors are constructed, or symbolically represented, as independent and self-motivating individuals responsible for their own actions who feel themselves, at the same time, bound by collective solidarity to every other member of this sphere. The existence of such a civil sphere suggests great respect for individual capacities and, at the same time, trust in 402 Integration between Difference and Solidarity the goodwill of others. For how could we grant such a wide scope for freedom of action and expression to unknown others if we did not, in principle, trust in their rationality and goodwill? Trusting in the goodwill of autonomous others is implied in the paradoxical proposition that the "free" members of civil society are at the same time solidaristic with one another. Insofar as such solidarity exists, we see ourselves in every other member of society. Imaginatively taking the place of the other, our actions become simultaneously self-oriented yet controlled in some manner by extraindivi-dual solidarity. In this way, we act simultaneously as members of a community and as rational, self-willed, autonomous individuals. The emergence of this kind of civil realm supersedes but—and this "but" is critically important—does not necessarily suppress more particular commitments we feel as members of primary groups. After all, if we were bound completely bv kinship, neighborhood, gender, racial, linguistic, or religious boundaries, we would be something less than autonomous individuals, and we certainly would not exhibit solidarity to the myriad of others occupying the extended territories in which we live.3'' As I have suggested throughout this book, such an idealistic vision of a civil social order has been a Utopian aspiration of communities in different times and places, even while it has generated sharp tensions with other, more restrictive understandings that members of these communities have simultaneously held. As a normative ideal, this Utopian vision has been promoted in one form or another by each of the great monotheistic religions, despite the cautionary restriction that members of such a universal religious community must worship one particular deity. We can think of the Athenian Republic as the first great effort to institutionalize elements of such a Utopian ideal, despite the fact that access to the Greek public was, in empirical terms, severely restricted. We can see elements of this Utopian civic public in mvriad other places since. We can find them in the parliaments of medieval kingships in the West; in such aristocratic political demands as the Magna Carta; in what Blias called the "civilizing processes" that radically refined the manners and coarse brutality of medieval knights and courtiers; in the bureaucratic, formal, and homogenizing legal apparatuses created by early modern absolutist regimes; in the Renaissance city-states, such as Florence and Venice, which had vigorous, confrontational, civic-oriented factions and discourses, and even elections, albeit of a highly unequal sort.37 None of these were "real civil societies" in the modern sense.-1" When 403 MODES UP INCORPORATION INTO THE CIVIL SPHERE civil societies were first institutionalized on a national scale in such countries as England, the United States, and France, ambitious cultural revolutions created highly universalistic and egalitarian narratives and symbolic codes. Legal institutions formalized individual autonomy and responsibility, protecting free action and demanding reciprocity. In these nations, the civil sphere became so vigorous and expansive that accession to state power could not be legitimated without its blessing, which, as I suggested in chapter 6, is one way to understand the significance of mass electoral systems and the enfranchisement of significant parts of the national populations. The glorious democratic revolutions did not achieve the full democracy that conservatives applaud, yet neither were they as illusory as radical muU ticulturalists claim. They marked, rather, one early step in the unending process of institutionalizing civil society. To understand the inherent limits on completing this institutionalization process, we need to recall the model of systematic contradictions presented in chapter &. Even after the great democratic revolutions, civil society remained only one sphere among others within a broader social system. English, French, and U.S. societies were, and are, also composed of powerful and decidedly noncivil spheres. The family, religious groups, scientific associations, economic institutions, and geographically bounded regional communities still produced different kinds of goods and organized their social relations according to different ideals and constraints. Families, for example, were bound by love and emotional loyalty, not civil respect and critical rationality; they were organized, moreover, in highly authoritarian relations, not only between parents and children, but between husband and wife. The market relations that defined early capitalism emphasized efficiency rather than fairness, competition rather than solidarity, and, once again, hierarchical rather than egalitarian forms of respect. Religious organizations were similarly vertical in their organization, despite the significant horizontal relationships engendered in Protestant sects; they were committed to the highly elitist and exclusionary principle that only those born within a faith, or those converted to it, were to be fully respected and obeyed. Scientific communities also manifested such exclusionary elitism—around truth rather than salvation—although they were even more associational and collegial internally. These noncivil spheres did not simply sit outside the boundaries of civil society and conduct with it a courteous and respectful exchange, as the social theory of early liberalism imagined and as contemporary conservatives 404 Integration between Difference and Solidarity would so much like to believe today. To the contrary, they invaded civil society from its very inception, penetrating it in systematic and fateful ways. The qualities, relationships, and goods highly valued in these other spheres became translated into restrictive and exclusionary requisites for participation in civil society itself. Familial patriarchy expressed itself in the widely held civil belief that women were not autonomous, rational, or honest enough to participate in democratic politics.y> The force of market institutions encouraged the belief that economic failure revealed a parallel incompetence in democratic life, hence the long-standing exclusion of the propertyless from full electoral participation and the polluting stereotypes about the irrationality and even animality of the working classes.'10 It is easy to see the conversion of religious into civil competence in much the same way: only members in good standing of certified and dominant confessions could possess the conscience, trust, and common sense required for civil society itself. But the Utopian promises of civil society were also fractured for historical reasons, not just systemic ones. The founders of societies manifest distinctive racial, linguistic, religious, and geographical origins.'" In the historical construction of civil societies, one finds these primordial qualities established as the highest criteria of humanity, as representing a higher competence for civil life. Only people of a certain race, who speak a certain language, who practice a certain religion, who make love in a certain manner, and who have immigrated from a certain spot on the globe—only these very special persons actually possess what it takes to be members of our ideal civil sphere. Only they can be trusted to exhibit the sacred qualities for participation. The difficulty for liberal social theory, and for the participants in these actually existing civil societies, is that these contradictory dimensions of formally democratic social systems do not express theinselves in a transparent way. To the contrary, these contradictions are hidden by constitutional principles and Enlightenment culture alike. The early democratic social systems were divided into public and private spheres. In the former, civil and democratic principles prevailed for many groups. In the latter, the private spheres, people were relatively free to do what they liked, to whom they liked, and in all sorts of decidedly undemocratic ways.'1- In a famous essay that Kant wrote in 1784, "What Is Enlightenment," he made this distinction the very basis of his defense of autonomous reason. In the public sphere, Kant insisted, all men are enabled, indeed mandated, to challenge authority in the name 40 j MODES OP INCORPORATION INTO THE CIVIL SPHERE Integration between Difference and Solidnnty of autonomy and to act according to the principles of universalism. Ye when these same men are in their private spheres—in the church, the arm) or the state—they may not be allowed to exercise these civil rights and the1 do not have to allow others to exercise them in turn. To the contrary, the1 must obey noncivil authorities in a highly subservient way, and thcv hay. the right to demand obedience to their own commands.43 Though this private-public distinction served to protect the civil sphere from obvious and delegitimating fragmentation, it testified, at the same rime to that spheres profound limitations. When push came to shove, the pubH world was not nearly so shielded from the vagaries of the private worlds a Enlightenment and constitutional thinking proclaimed. To the contrary, thi functional and historical particularities expressed in private life invaded am distorted the understanding of civil life. Jews may have been allowed ti practice their religion in the privacy of their homes—although sometime they were not—but "Jewishness'' carried such a stigma that they wen excluded from most of the central institutions of public life. The sarm contradiction of the public promises of civil universalism constrained sucl other, supposedly private categories as race, gender, sexuality, ethnicity, clas position, physical location, and other religious orientations. form- such demands can fundamentally misunderstand what the basis ofsuch recognition might be. For the multicultural critique brings to public attention the debilitating departures from universalism that have corroded civil society from the very beginning of its modern form. If this proposition is true, much of our thinking about contemporary racial and ethnic conflict in the United States and elsewhere must be recast. MulticLilturalism may actually be a new form of social integration that, rather than denying universalism, has the potential to realize it in historically unprecedented ways. Critics on the Left and Right have taken the recent emergence of multicultural discourse, institutions, and practices as marking the end of broad projections of social solidarity. It may actually be the case, however, that it marks the beginning of a radically different, more adequate model, a mode of civil integration whose tenets, still barely visible, will -provide the framework for conflicts about the possibilities of justice for decades, if not centuries, to come. Implications for Contemporary Debates The idea of a contradictory and fragmented civil sphere has clear implication for the present discussion. It suggests, contrary to radical multicultural is t such as Young, that an impartial civil domain docs have some traction ir Western societies, indeed, that it has enjoyed a real existence for hundred of years. It also demonstrates, however, and this goes direcdy against conservative polemics, that the civil sphere's promises of autonomy, solidarity equality, and justice have never been fully realized. Civil society is not anc has never been integrated, cohesive, and fully solidary. Conservatives an deeply mistaken in their suggestion that today's demands for multiculturalisn threaten to sidetrack a great success story and that such demands introduce divisive particularities, polarizing a society that has exhibited high levels o solidarity and integration heretofore. The theory of the contradictory civi sphere suggests that multicultural demands for recognition of particularity are justifiable both normatively and empirically, even if, in their radica 406 407 CHAPTER 16 Encounters with the Other n the three hundred years since the first democratic institutionalizations of civil society emerged, the crippling of its Utopian promises has generated continuous struggle. These have not only been political struggles for power, but legal, cultural, and emotional arguments about definitions of competence and identity, about symbolic representations of the primordial qualities of dominant and excluded groups. The public has never been a dry and arid place composed of abstract arguments about reason. It has always been filled up by expressive images, by narratives, traditions, and symbolic codes. Organizations and social movements have sustained and resisted these cultural structures, engaging in discursive struggles over the legitimating resources they need to expand or restrict civil life. The Plasticity of Common Identity Definitions of civic competence are expressed in terms of universal criteria, but these criteria are represented in terms of the concrete historical qualities of particular orientations and groups. "Common identify" is, in historical terms, extremely plastic. Members of subordinate religious sects, social classes, genders, races, sexualities, generations, regions, and ethnicities may look different and act differently from the nation's founders and depart from the 409 MODES OF INCORPORATION INTO THE CIVIL SPHERE criteria promoted by noncivil elites. Nevertheless, as a result of social movements and less organized and more incremental processes, members of core groups can be—and often have been—convinced that beneath these differences, and even because of them, there exists a common humanity worthy of civil respect. Whether or not members of the core groups become communicatively convinced that subordinate group members actually share with them a common humanity, and thus are worthy of respect, is critical to the process that can be called incorporation. Later I will parse this term into more historically specific and morally evocative subcategories. Here I will use "incorporation" in a general and abstract, if still obviously evaluative, manner, one that implies neither evolutionary assumptions about its empirical likelihood nor preconceptions about the empirical mode through which it may be achieved, whether conflict, coercion, patronage, or processes of a more democratic lend. When considered in this manner, it is clear that incorporation is an issue that no "modern" social system can avoid. It is thrust upon every society that includes a civil dimension, no matter how crippled or fragmented. Incorporation points to the possibility of closing the gap between stigmatized categories of persons—people whose particular identities have been relegated to the invisibility of private life—and the Utopian promises that in principle regulate civil life, which imply equality, solidarity, and respect among members of society. Whether social movements try to close this gap or exacerbate it, they make their insistent demands vis-a-vis the imminent possibilities of this incorporative process. But incorporation does not only occur in the public arena of social -movements. It is a process that proceeds along extraordinarily complex paths, extending from micro interactions such as intermarriage to such macro arenas as labor markets. Insofar as social systems contain a civil dimension, members of their core groups always face this question: In regard to a particular category of excluded persons—whether defined by class, region, gender, race, religion, or national origin—should the gap between Utopian promise and stigmatized actuality be closed? Should the incorporation of this particular group into civil society proceed? Encounters with the Other Exclusionary Solidarity In later chapters, I will describe different modes of incorporation into civil society, suggesting that there are different ideal-typical paths—at once historical, empirical, and moral—along which the gap between public recognition and private exclusion can be, and has been, closed. To pose the problem in this way is to challenge the manner in which social science typically has conceptualized the problem of out-groups. What differs about the approach I am taking is the notion that out-groups are produced, first and most important, by processes internal to the social system itself. This seems paradoxical. Exclusion results from the very process of constructing, in real time and real space, empirical civil societies, from their instantiation in larger, complex, differentiated, and segmented social systems. It is the contradictions generated by institutionalization that produce exclusion. What particular groups are excluded is historically contingent. That, at any particular historical moment, some groups are relatively more distant from the core is systemic, the result of the very process of instantiating the civil sphere in time, space, and plural institutional domains. This suggests an almost Marxian logic, one that social scientists have adopted in studies of internal class hierarchies but have rarely applied to understanding outsiders, or "strangers."1 From Weber and Simmel, through die ecological studies of the Chicago school, to current discussions of ethnicity, immigration, and race, American and European social scientists have tended to conceptualize exclusion differently from the way I am proposing, as resulting from encounters between a relatively well-integrated social system on the one side and an unfamiliar, physically and geographically separated group on the other. Rather than approaching exclusion in terms of endemic social system processes, processes that intertwine with historical and geographic contingencies, exclusion and otherness have typically been understood as a result of external encounters. Forms of Out-Group Contact By focusing mainly on encounters between imperial or national societies and "the other," such an approach avoids the fundamental question of how 410 MÜDES OE INCORPORATION INTO THE CIVIL SPHERE Encounters with the Other the internal constitution of these collectivities affects the outcome of thes encounters.2 It is precisely such consideration, however, that leads oin' •■■ recognize the signal importance of the civil sphere. The structure and bility of the civil sphere profoundly affects the motivational, institutinni : and discursive frameworks within which strangers are encountered. Sue = civil mediation will be my principal focus in the considerations that follov ; Still, there is no reason to deny the importance of contingent encounter. ; such. Whether as a result of their own actions or because of developnirm ; in their environments, such large collectivities as empires and nation-: ! continuaUy encounter unfamiliar groups. In the course of these encounter ' existing membership in the "home" society—even for subordinated I stigmatized classes, genders, and ethnicities—can provide an insider, j:... 5 leged status. ~ One can think systematically about the various ways in which the mem-; bers of such societies physically encounter such outside groups: (i) thn :i economic or political enslavement of other groups and societies; (2) thn | military conquest of stable regimes, with the aim of imperial expansic | revolution; {3) through imperial dissolution, reconquest, or upheaval in;: imperial peripheries; and (4) through economic, religions, or political im-;; migration. Though the first kind of out-group contact is today relat ;l rare, the other social processes remain very much in evidence. In recent^ years, out-group contact through immigration has been a particular foe !~; attention. Revolutions in transportation technology, die emergence oft national economic institutions, and the decreasing influence of nat sovereignty have made it much more likely that mounting Third V ;i poverty, which is itself connected to earlier processes of out-group co i such as imperial conquest and dissolution, will lead to immigration. These;:, push factors are intensified by the pull factor of cultural globalization. Wneii : structural opportunities for flight are combined with the effects of an i: national communicative space saturated by symbolic rep res en ratio t..... wealth and poverty—North and South, West and East—the result is precedented migration from the world's impoverished southern and eastern regions to northern and western ones.3 When social scientists consider nonclass incorporation, they tend to conceptualize the kinds of processes I have just described—globaliza regime breakdown, military conquest, and immigration—as discrete contingent forms of out-group contact, treating each as the cause of ce behavioral effects. As I have suggested, such an approach ignores the variable internal structure ot the social system responding to such outside forces. Certainly, different kinds of out-group contact have distinctive ramifications even if they are not determinate. If we wish to analyze incorporation into American society, it would be folly to ignore the demographic reality that, in historical terms, the American population was formed from revolution (against the British), military conquest (over native Americans and Mexicans), enslavement (of African Americans), and immigration (firstEuropeans, later Asians and Hispanics). Similarly, if we wish to understand incorporation in France, it is important to know that although France has experienced igh immigration flows, for example of Italians and Belgians in the later ighteenth and early nineteenth centuries, its patterns of out-group contact ave differed dramatically from those in the United States. The long history fnari on-building via imperial expansion within territorial France, the prob-:ms created by postwar imperial dissolution of "Greater France" on the African continent, and the much more unstable character of the French evolutionary founding have all been important influences on the manner 1 which democratic and civil France has responded to contemporary courts with outside groups. Incorporarive patterns in Great Britain and Ger--iany have also been deeply affected by the liistorical patterns of their sntingent encounters with outsiders. Britain has had a long and. compared with France, much less polarized process of democratization, and Germany is historically had a relatively low incidence of immigration. These factors. )mbined with Britain's "post-colonial melancholia" and the non- and imetimes even counterrevolutionary character of Germany's nation-aildiug, have created populations that, until very recently, were more ethnically and racially homogenous than those in the United States, a de~ ographic fact that has significant comparative implications for the paths esc nations have taken to civil incorporation.1 Nondemocratic Incorporation ut to recognize such variations in intergroup contact—in the behavioral recesses that initially place core groups and out-groups into asymmetrical lationship—is surely not enough to understand the effects that such out-:oup encounters have on the process of incorporation.5 We need to know 412 413 MODES OF INCORPORATION INTO THE CIVIL SPHERE something more, something about the internal structures of the society in relation to which outsiders are placed. It is one thing when outsiders seek' to enter rigid "state" societies, and quite another when they encounter social systems that have more independent civil realms/' It is not impossible for extensive incorporation to occur in state societies, but it is much less likely, : and it will involve much more coercive means.7 In response to the dangerous national conflicts that have accompanied the dissolution of the former Soviet and Yugoslavian empires, some contemporary analysts have looked back longingly at imperial forms of organization, -whether in the Christian or the Islamic worlds, that were conspicuously multinational and relatively stable." The best that the core groups of empires can offer outsiders, however, is some version of protected guest status. That status can qualify outsider groups for toleration in a restricted legal sense, but it does not engender incorporation in the sense of fuller participation im_ the communicative processes, interactions, and institutional structures of civil life. Even in this best-case scenario for state societies, in which rights to coexistence are extended to outsiders, the right to integration in a more substantive sense is denied, and hierarchy remains. In the worst-case scenario, empirically far more likely, bureaucratic authoritarian societies such as the former Soviet Union and the contemporary Peoples Republic of China regulate excluded categories of persons in significantly harsher ways. Political, economic, and cultural subjugation is not untypical; physical dispersion, forced relocation bordering on genocide are not unprecedented.'1 Yet although such patterns of national "cleansing" are indeed widespread -= in antidemocratic societies, the rejection of out-group integration is not necessarily tantamount to physical repression or outright annihilation. Even in China and the former Soviet Union, bargains were made between core groups and out-groups which allowed physical copresence and behavioral cooperation to be maintained. Such accommodation may be made for reasons of efficiency It may develop, as well, because core groups of imperial societies are frequently constrained by the cultural and institutional remnants, or fragments, of a civil sphere, even if badly deformed. Thus, bureaucratic-authoritarian societies often develop what Bryan Turner and Robert Holton call "state administered status-bloc politics."1'1 Even while denying authentic forms of recognition, authoritarian regimes can co-opt demands of outside groups by agreeing to employ their primordial categories as criteria for distributing patronage, prestige, and material goods. 414 Encounters with the Other Such situations, however, are rarely stable in the long run. The forms of integration they employ are thin rather than thick. Institutional and interactional accommodation may occur, but what is not transformed are the perceptual and affective ties that relate physically copresent members of societies to one another. The Torah distinguishes between obligations that Hebrews owe strangers "sojourning" in their homeland and those who are "dwelling" within it. The first, mere visitors, should be tolerated and not bothered. The second mean to stay, and they must be encountered, recognized, and incorporated: "If a stranger sojourn with thee in your land, ye shall not vex him. But the stranger that dwelieth with you shall be unto you as one born among you. and thou shalt love him as thyself; for ye were strangers in the land of Egypt."" Only when subjective ties are thickly and deeply transformed can collective identity be altered and social solidarity expanded in a powerful way. Only such authentic recognition of a common humanity can produce the intertwining of solidarity and autonomy that marks developed civil societies, and only it can lay the basis for the democratic political organizations that depend on this civil solidarity.12 When democratic societies employ primordial qualities as criteria for distribution—affirmative action in the United States, the scheduled caste system in India—they can maintain public legitimacy only if citizens perceive this emphasis on particularity as deepening the textures of common humanity.11 Because state societies have much more rigid and restrictive cultural codes, and communicative and regulative institutions, it is much more difficult to legitimate primordial criteria in this way. Such societies deny the civil sphere autonomy; they block or distort incorporation through the kinds of co-optative and manipulative processes I have described. Internal Colonialism and the Civil Sphere Of course, the existence of a more autonomous civil realm does not, in itself, guarantee that incorporation will proceed in a fundamentally democratic way The systemic and historical contradictions engendered by the institutionalization of civil societies means that civil status fot some groups is combined with antidemocratic rule over others. Indeed, even the most democratic civil societies have become implicated in internal colonialism. In the United States, internal colonialism was generated by the constitutional 4CS MODES Oľ INCORPOHATION INTO THE CIVIL Sl'HEItE Encounters with the Other legitimation of slavery between 1789 and 1S65 and, later, by Jim Crow laws in the American South.14 Other examples abound: England's often brutal and exploitative incorporation of the subjugated "British" territory of Ire- ; land; the Apartheid system in post-i94S South Africa; the decades-long occupation of Palestinian territory by the democratic Israeli state; the Western subjugation of native^ aboriginal groups in the course of early modern European expansion.15 Yet although internal colonialism has been historically significant, and " its repercussions continue to be widely felt today, it cannot easily be identified with the out-group domination that occurs in noncivil state regimes.16 If the dominating regime contains an independent civil sphere, conditions for emancipation are sometimes fostered within the structure of domination itself In chapter 11, I suggested that subaltern civil societies are marked by dualiry. In postslavery African American communities, such civil institutions as newspapers and entertainment media flourished, and professional associations created powerful office obligations to the comnTunity. In the black townships and proletarian communities of South Africa, thick civil connections also developed, not only culturally but in institutional, often quasi-legal ways.17 In dominated Palestinian territory, where critical communication is restricted and often distorted, counterinstitutions of office obligation and social regulation have still developed, and distinctively democratic discourses have sometimes emerged.1" Such nascent civil structures allow subordinated groups to make compelling protests against hegemony. Despite the enormous ideological and material constraints imposed by their exclusion, it is by no means impossible for dominated groups to successfully evoke the liberating discourses and even the communicative and regulative institutions of the hegemonic order. Indeed, in the examples I have cited— racially segregated America, Apartheid South Africa, and the occupied Pal- -7 estinian territories—fiercely contested, radical, and sometimes successful challenges to internal colonialism have frequently occurred. Of course, these challenges may not themselves be democratic, but rather mirror the repressive civil discourse that justified their own domination. Though internal colonialism in civil societies is an extreme case, its complexities illustrate the ambiguities that out-group subordination generates in every society that supports a relatively autonomous civil sphere. Because civil societies are sustained by assumptions about enlightened human I capacities and rights for participation, protection, and conmaunication, they -1 promise even the most dominated out-group historically unprecedented levels of accessibility and respect. Precisely because such societies possess a relatively independent civil sphere, they are in some manner committed to expanding solidarity, to opposing ascriptive bases for hierarchy, and to projecting common humanity as the cnterion for distributing status and rights. Attention must shift from the mode of intergroup contact to variations in the relationship that develops between out-group and fragmented host society. What is the fit, or lack of it, between the out-group qualities and the primordial distortions of civil society? How will the universalistic dimensions of culture and institutions be applied to the particularities of subordination? These are the questions we now address. Varieties of Incorporation and Resistance in Civil Societies A newly encountered out-group defines its collective identity in such terms as language, race, gender, sexuality, religion, ethnic origin, and economic status. Members of the host society primordialize these historically arbitrary characteristics into "essences" that are held to be uniquely capable or incapable of sustaining participation in their civil sphere. Yet, even when this primordialization constructs newly encountered out-groups in terms of the discourse of repression, the resulting representation of domination remains tense; it can never be legitimated fully. This is true even in extremis, as when civil society becomes implicated in internal colonialism. As long as there exists some autonomy for the civil sphere, primordial subordination produces a contradictory situation. Out-group contact may allow civil competence to be deeply primordialized; at the same time, however, the continuing existence of a civil realm maintains the possibility, in principle, that this polluted primordialization can be contested, neutralized, and eventually overturned. Closing Down tlie Civil Sphere As long as a differentiated civil realm remains, so too does the tension I have just described. This contradictory condition creates the possibility for the incorporation of out-groups into civil society. Progressive incorporative 4-17 MODES OF INCORPORATION INTO THE CIVIL SI-MERE Encounters with the Other movements aim to resolve the contradictions of civil society by more I including out-groups and expanding the autonomy of the civil realm. Hut this is only one possibility, for the contradictory situation need not be resolved in an inclusive, progressive way. Antidemocratic movements take a very different path to resolving such contradictions. They promise tn eliminate- the independence of the civil sphere itself. Because out-group subordination belies the promises of civil life, it threatens members of a society's already established, core groups. Core groups worry that dominated groups can make use of the cultural promises and institutional median of civil life. When excluded groups do make such efforts, backlash mc ments form in response. In the very midst of progressive movements toward incorporation, in other words, demands arise for new or renewed forms of exclusion, sometimes even harsher and more permanent ones. It was in die face of significant Jewish assimilation into late-nineteenth-century German, French, and American societies that massive anti-Semitism emerged. It was in response to intensifying European unification, in the late twentieth century, that there developed vociferous and exclusionary anti-immig movements.ltJ In the context of civil societies, then, social movements emerge that can successfully block further inclusion and sometimes reverse it. Indeed, backlash movements can threaten the existence of the civil sphere, demanding suppression of the very autonomy that allowed their own movements first to emerge. The goal of such backlash movements is understandable so. logically even if noxious morally If the civil aspect of society can be restricted or even destroyed, the immanent universalism that creates continuous satisfaction with inequality and exclusion can be eliminated; with this el ination, the threats to core-group status will disappear. When the force universalism are too weak to mediate exclusion and moderate the subordination of out-groups, civil ties can deteriorate into civil war, for efforts to enforce primordial identities lead to attempts to mobilize noncivil institutions, particularly the state. Stability is possible in so-called plural societit democratic societies composed of "coluiumzed" primordial groupings.-' It is empirically more likely, however, that processes of pluralization will gender new forms of domination and, eventually, secession and even civil war. In this manner, the social system can be transformed from a part: realized civil society into a primordial community, from a partially dei 4iS cratic Gacllschtifi to a modernized, authoritarian Gauc'njschqfl. It was just this kind of countercivilizing process that generated antidemocratic movements throughout the most advanced societies ot the twentieth century. These revolutionary fascist movements might well have succeeded in suppressing the civil sphere if their regimes had not been defeated from the outside, by Allied troops in the Second World War.21 Opening Up tlw Civil Sphere Such a descent to primitivism can be avoided only if excluded groups are incorporated in some manner and to some degree. When out-group representatives demand inclusion, there must be at least some influential core-group members who are responsive to their demands. As intensive symbolic and material conflicts develop between core group and out-group, social movements emerge that challenge the cultural legitimation ot exclusion, criticizing stigmatizing interactions and challenging distorted institutions of communication and corrupt institutions of regulation. Such movements demand that core groups re frame their perceptions of out-group identities, rejecting the categories of repression for those offered by the discourse of liberty. They demand that interaction between core-group and out-group members be more respectful; that fictional and factual media representations ot out-group activities be more sympathetic and even-handed: and that regulative institutions be more responsive, inclusive, and attentive. These demands of out-group representatives and social movement leaders should be conceived, in the first instance, not as connected with force, but rather as efforts at persuasion. They are translations of the discourse of civil society, which social movements and dissident intellectuals and artists broadcast via conmiunicative institutions to other, more integrated members of the core group. As we have seen in Part ill, these translations are often punctuated by efforts at gaining more regulative intervention through court rulings, administrative decrees, and electoral change, efforts that depend upon resources of a more coercive nature. Discursive struggles over exclusion revolve around two contentious issues, questions that obsess out-group challengers and core group members alike. 4.19 MODES OF INCORPORATION INTO THE CIVIL SPHERE Encounters with the Other 1. Is the civil sphere of a particular nation-state really autonomous? How "free-floating" can it be vis-a-vis the historical primordial-ities instantiated in various forms of national stratification? Is the nations civil realm so closely attached to primordial understandings that it shoLiId be regarded not as providing a counterweight to stratification but as simply legitimating it?- 2. How could the identities of outsiders be understood in relation to the binary discourse of civil society? Are they rational or irrational, honest or deceitful, open or secretive, autonomous or dependent? The democratic response to these fateful questions is straightforward. The demeaning contradictions of universalism can be ameliorated, and justice enhanced, only (i) if civil society can be culturally represented and organizationally empowered in a manner that is relatively independent of primordial identities and (2) if core-group members construct outsiders in terms that maintain or restore their full humanity. In 1S59, Carl Schurz, a German immigrant to the United States who eventually was elected a U.S. senator, addressed incorporation in these optimistic terms when he argued, in the face of backlash movements against immigration, that the United States was "a great colony of free humanity which has not old England but the world for its mother country."-3 By not identifying the mother country of American immigrants and founders with England, a particular nation, but rather with the world, Schurz was denationalizing American ethnicity, erasing Its primordial form. The contradictions between the civil aspirations of America and its historical and geographical specificity were in this way vitiated, and the nation Schurz was defending could be seen as composed of "free humanity" in more than a partial and rhetorical sense. In real civil societies, however, such ideal, politically correct answers have not been so easily forthcoming. They must, at any rate, always involve as much feeling and speculation as rational common sense, be symbolic and not simply pragmatic, as expressive as scientific. John Higham explained why this must be so in his account of the anticivil American nativism that challenged the waves of American immigrants in the late nineteenth century. "What was worse than the size and the strategic position of the alien pop- : ulation," Higham writes, "was its apartness."24 It was this moral distance 420 . that marked the chasm. "The new immigrants lived in a social universe so remote from that of the Americans on the other side of the tracks," Higham writes, "that they knew practically nothing of one another." If core-group members rarely encounter out-groups directly, neither evidence from actual encounters nor personal experience can guide their judgments of civil competence. It is more in response to untested beliefs, to fantasies, hopes, and fears that they place members of outsider groups at different points along the continuum of citizen and enemy. What are the sociological pathways by which civil reactions to out-groups have been constructed? To the degree that there is incorporation, it has occurred in three ideal-typical ways: assimilation, ethnic hyphenation, and multicultural ism. Stigmatized Persons and Their Qualities Assimilation has been by far the most common manner in which the historical expansion and revision of the civil sphere has taken place. For comparative and empirical reasons, therefore, as well as for normative ones, it is important to define assimilation in a precise way. In assimilative incorporation, members of primordially denigrated groups are allowed, and often encouraged, to "pass" into public life. As this notion of passing suggests, such incorporation is not merely the result of regulative institutions guaranteeing excluded groups civil treatment in a procedural sense. The communal life of societies is much too layered and culturally textured for that. Because civil competences are always interlarded with particular identities, any mode of incorporation must focus on the public construction of identities, on how the civic competences of core groups are related to the abilities of subordinate ones. Assimilation is an incorporative process that achieves this extension, or transformation, in a distinctive way. Assimilation takes place when out-group members are allowed to enter fully into civil life on condition that they shed their polluted primordial identities. Assimilation is possible to the degree that socialization channels exist which can provide "civilizing" or purifying processes—through interaction, education, or mass-mediated representation—that allow persons to be separated from their primordial qualities. It is not the qualities themselves that are purified or ac- 421 MODES OF- INCORPORATION INTO THE CIVIL SPHERE Encounters with the Other cepted, but the persons who formerly, and possibly still privately, bear them. This is the genius of assimilation; it is also, as we will see, its limitation sociologically and morally. From the perspective of the formal promises of civil society; and often from the perspective of core-group members themselves, this assimilating purification provides for out-group members a civic education, imparting to them the competences required for participation in democratic and civil lile. As we have seen, however, civil competence is, in fact, neither practiced « nor understood in such a purely abstract way. It is always and everywhere I filtered through the primordialities of the core group. Insofar as assimilative processes occur, therefore, persons whose identities are polluted in the pri- : vate sphere actually are learning how to exhibit new and different primordial qualities in the public sphere. What they are learning, then, is not civil competence per se. but, instead, how to express civil competence in a -different kind of primordial way, as Protestants rather than as Catholics or Jews, as Anglos rather than as Mexicans, as whites rather than as blacks, as northwestern Europeans rather than as southern or eastern ones. Civic education is not an opening up to the abstract qualities of Enlightenment rationality per se; civic education means, rather, learning how to embody and express those qualities that allow core-group members persuasively and legitimately to exhibit civil competence. When Eugen Weber wrote that the Third Republic in France turned "peasants into Frenchmen," he was " talking about assimilation in exactly this manner.25 The qualities of peasant lite, in and of themselves, remained highly stigmatized bv the core groups of France, particularly by Parisian elites. But members of rural France learned how to manifest Frenchness a la Paris, adopting qualities of lifestyle, bearing, language, religion, and thought that, when properly exhibited, gave them a J; newfound status, a social respect that allowed them to be much more thoroughly incorporated into the civil and democratic life of France.2''' Assimilation is historically the first and sociologically the most "natural" response to the contradiction between public civility and private particularity that has marked modern mass civil societies from their very beginnings. It is the most natural because incorporation can be achieved without appearing .:: to challenge the established primordial definitions of civic competence. In ; assimilative incorporation, the qualities that define foreign and different do not change; rather, the persons who are members of foreign, and thus putatively different, out-groups are allowed to shed these qualities in their 432 pubhe lives. They can change from being different and foreign to being "normal" and "one of us." The plasticity ot identity, its cultural and constructed character, allows such assimilative transformation to occur vis-a-vis everv conceivable primordial quality. Not only ethnicity and language, but the public identities of stigmatized members of religious, economic, racial, and sexual communities can be reconstructed in an assimilative way. The qualities of these groups remains stigmatized, but they can now be left behind at the door of private life. Those who carry them privately can venture forth into public exhibiting civic competence differently. With assimilation, the split between private and public remains in place; indeed, because the polluted qualities of stigmatized group membership are even more firmly restricted co the private sphere, this split becomes sharper and more unyielding. From a moral point of view, assimilative incorporation is paradoxical. On the one hand, it fails entirely to challenge the myth of transparent civility, leaving in place the illusion, so cherished by members of already established core groups, that primordial characteristics do not belie the substantive validity of the civil sphere. On the other hand, it is precisely this failure to challenge civil transparency that allows out-groups to be massively incorporated in an assimilative way. Despite its paradoxes, in other words, and even to some degree because of them, assimilative incorporation seems to validate the Enlightenment vision of democratic mass societies. It is for this reason extraordinarilv significant in both historical and comparative terms. Insofar as assimilative incorporation proceeds, the notion that all human beings arc rational, perfectible, and capable of self-control can be taken seriously, despite the enormous prejudices and distortions that continue to bedevil national social life. Insofar as an out-group is assimilated, its members seem to be treated, in the public sphere, according to the discourse of liberty. They are encouraged to shed those ascriptive qualities that insiders deem inimical to the requirements of modern civil societies and, insofar as they do so. they are treated as representatives of "humanity" rather than as members of a group whose qualities remain stigmatized. Because the contemporary discourse ot difference promoted by postmodern sensibilities has objectified and amalgamated the various phases of modernity, it has become fashionable to attack the incorporation of out-groups into civil society as "merely" acculturation or normalization, to ■P3 ODES OF INCORPORATION INTO THE CIVIL SPHERE regard it invidiously as simply the stripping of particularise identities and, thus, as a form of repression. Incorporation is reduced to assimilation, and assimilation is reduced to a kind of cultural cleansing. If, under the sign of Foucault, cultural knowledge is falsely equated with structural power, then exclusion of out-group primordial traits from the public arena is understood as simply another form of institutional domination. Such arguments, however, fundamentally misunderstand assimilative incorporation and civil incorporation more generally. Equating assimilation with domination both eliminates the distinction between state and civil societies and smoothes over the paradoxes that mark civil societies themselves.27 Affirming the most enlightened principles of human sensibility and confirming democratic against authoritarian morale, assimilation extends some important degree of civil status and participation to persons regardless of primordial origin and private identity. In earlier American history, and in the histories of other democratic nation-states, assimilating out-groups experienced a confirmation of their common humanity, not only its restriction. This is in part because the private-public split allows them to continue to reproduce their primordial cultures in a relatively integral way; it is also because their personhood has been affirmed with their enlarged participation in civil and public life. The paradox, however, is that by failing to challenge negative representations of out-group qualities, by keeping them private and outside of the public sphere, assimilation reproduces demeaning stereotypes in a different way, confirming the substantive restrictions and debilitating contradictions of civil society. We will explore this paradox, and examine the alternative possibilities, in the chapters that follow. 424 CHAPTER 17 The Three Pathways to Incorporation In comparative analyses of the United States and France, sociologists, historians, and national intellectuals have argued that incorporation in these nations is different from that in other nations because it proceeds under civic-ideological rather than ethnic-primordial understandings of citizenship.' Their revolutionary origins and self-conscious Enlightenment rationales are supposed to have initiated such radical ruptures with tradition that their postrevolutionary civil societies are legitimated not by any primordial particularities but simply by democratic ideology as such.2 In this chapter, I will demonstrate this is not the case. There are, indeed, highly significant differences between France and the United States, on the one hand, and central and southern European nations, on the other. Nonetheless, neither revolutionary country avoided the primordialization of its civil premises or the struggles over incorporation that issued therefrom. The three pathways to incorporation cannot be parsed into such neatly compartmentalized ways. All three forms are relevant, although certainly not equally relevant, to every national experience. Even in such a democratic country as the United States, in other words, assimilation has assumed a fundamentally paradoxical form. Though assimilation provided enormous opportunities for participation, it failed to challenge stigmatized qualities, confirming significant restrictions on promises for a democratic life. In the face of increasing immigration and internal 4^5 MODES OF INCORPORATION INTO THE CIVIL SPHERE stratification, these restrictions produced tensions that allowed out-groups eventually to produce changes in the assimilative model. Eventually, the possibilities for incorporation came to be envisioned in ethnic or hyphenated terms. This change allowed the primordial qualities that instantiated American civil society to be expressed in more plural ways. Recent historical developments have pushed struggles over incorporation into a multicultural mode. This new mode of incorporation remains partial, tentative, and highly contested, but it provides a framework for solidarity that is dramatically different from those that have been available before. The AssuTiilarive Mode of Incorporation As the Declaration of Independence symbolically announced in 1776, and as the Constitution legally institutionalized in 1789, the political government of the United States allowed the nation's civil society extraordinary autonomy. Political power in the new nation was to be formally submitted to civil power, which would be generated in an open-ended, democratic way. The implications for incorporation seemed clear. Membership in civil society-would be separated from primordiality, and the capacity of newcomers for civil competence would be evaluated in a rational, humanistic way. Yet as the first censuses of the new Republic demonstrated statistically, and as early nationalistic assertions demonstrated discursively, the founders of this American civil society were predominantly members of particular and specific linguistic, racial, religious, gender, and ethnic communities. Many founders believed, indeed, that it was precisely the primordial qualities derived from membersliip in these groups that allowed them to establish and maintain their uniquely civil society. In one of the first recorded expressions of primordial suspicions about the civil competence of out-groups, Benjamin Franklin decried the immigration of Germans to Pennsylvania. Describing German qualities in terms that linked them metaphorically to insects and animals, he graphically gestured to their incapacity for a cooperative civil life. Why should the Palatine Boors [Germans] be suffered to swarm into our Settlements, and by herding together, establish their Language and Manners, to the exclusion of ours? Why should Pennsylvania, The Three1 Pathways to Incorporation founded by the English, become a Colony of Aliens, who will shortly be so numerous as to Germanize us instead of our Anglifying them?3 In a similar manner, in their effort to gain popular support for ratifying 1 new Constitution for American civil society, the authors of The Federalist— John Jay, James Madison, and Alexander Hamilton—sought to reassure ordinary citizens that this historic democratic document would not be free-floating vis-á-vis more particularistic communities, despite the fact that it would impose new civil obligations. To the contrary, these democratic theorists suggested, the new Constitution would be mediated by solidarities of much more primordial, restricted, and local kinds. Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs.4 As we have seen, however, civil societies are deeply contradictory. Even as they stigmatized outsiders and primordialized their civil communities, Americas founding figures were compelled to deny, just as fervently, that any such primordial stratification existed and to assert the completely free-floating transparency of America's civil sphere. Membership in the American community, they declared, could be fully achieved simply with the acquisition of civil status itself Thus, in a debate over naturalization in 1790, an ally of Thomas Jefferson's in the House of Representatives argued that "it is nothing to us, whether Jews or Roman Catholics setde amongst us; whether subjects or kings, or citizens of free states wish to reside in the United States, they will find it in their interest to be good citizens." Addressing "the oppressed of all Nations and Religions," he suggested that they were "welcome to a participation of all our rights and privileges."5 In much the same manner, during the Constitutional Convention in 17S7, James Madison's concern about whether outsiders should be included was couched only in terms of whether or not they accepted the principles of civil society, not in terms of who or what they were in primordial terms. Though noting the danger of naturalizing those who had "foreign predilections," he argued, nonetheless, for inviting "foreigners of merit and republican principles." In 426 427 MOD iiS OF INC OKI" OR ATI ON INTO THE CIVJL SPHERE a similar vein.. Madison and his friend Thomas Jefferson later pushed through a naturalization bill that required any applicant simply to "make an express' renunciation of his tide or order of nobility"*' The danger to civil society suggested by this second set of statements rcters not to primordialitv but to antidemocratic beliefs and the authoritarian; practices they might inspire. The threat that such commitments represented' could be neutralized by conscious declarations of allegiance to civil society itself, pledges of allegiance that members of any primordial community easily could make. The gigantic distance between this more consistently democratic position and the first set of more primordial statements about incorporation reflects the contradictions produced by early institutionalization of American civil society. To articulate and legitimate the democratic aspirations of the new nation demanded, evidently that these contradictions should somehow be suppressed. An extraordinary example of such suppression can be found in the essays justifying the separation of powers that James Madison -contributed to The Federalist Papers. In these theoretical statements, which have become famous in the literature on democratic pluralism, Madison . focused almost exclusively on political differences, entirely ignoring primordial ones. Ethnic exclusions and the particularistic criteria they implied would have to be made invisible if the principles of civil society were to be institutionalized in an enthusiastic and legitimate way. It is within the confines of this contradictory frame that the assimilative period of incorporation into American society proceeded. On the one hand, civil society was asserted to be free-floating vis-a-vis particular communities, and the universal civil competence of all human beings was proclaimed. Jefferson had claimed in the Declaration of Independence that it was a "self-evident truth" that "all men are created equal." At the same time, the civil capacities of various out-groups were continually questioned and, on these grounds, strenuous efforts were made to maintain a tight homology between the American civil community and a much more restrictive and primordial one. As I have suggested above, the only possible "solution" to this contradiction was to spiit private and public Life in a radical way. A German visitor to the United States in the 18305, Francis J. Grund, starkly described this splitting process even while he extravagantly praised democratic Americas incorporative spirit. Grund observed highly separated and particularized German communities. To counterbalance the feeling "that they are strangers in the land of their adoption" and to make "their Thf Three Pathways to Incorporation exile less painful." Grund wrote. German immigrants had adopted a style "of remaining together, and settling whole townships or villages."7 In several states, Grund reported, there were villages "where no other language is spoken." Indeed, it was almost as if German inimigrants had "transferred] a part of their couutrv to the vast solitudes of the New World." Grund is describing a situation in which ethnic primordiahty was maintained in a radical, highly particularistic way. In almost the same breath, however, he insists that these German immigrants were thoroughly incorporated into American society, describing how members of these segregated German communities rallied "cheerfully round the banner of the American republic." Such contradictory observations can be reconciled when we see how Grund describes the nature of the ties that: these new immigrants to Americans so cheerfully embraced: "The Americans present the spectacle of a people united together by no other ties than those of excellent laws and equal justice."" The bonds that held these strangers to American society were, in other words, purely of a regulative kind. The strangers were so sharply separated from the core primordial identity of Americans that they hardly bothered to engage them. Their incorporation depended upon purely procedural participation; it consisted in their commitment to the regulative institutions of American civil society. In the purely assimilative model of early American life, stigmatized primordial identities were maintained in marginalized communities, whose practices remained invisible to the public eye. They flowed beneath the surface of what core-group members took to be the distinctively "American" way of lite. Members of primordiallv stigmatized groups could participate in the discourse and institutions of American civil society insofar as they completely shed these identities upon entering the public domain. Assimilation deepened to the degree that civil participation went beyond procedural participation in regulative institutions to engage communicative processes, which meant participating in such socializing institutions as schools, which provided the cultural resources to participate in discursive struggles over identity construction. Primordial identifications so reduced civic claims in the first decades of American democracy, however, that even the compromise formation represented by assimilation could proceed only in halting and restricted ways. In terms of national origins, the pool of putatively competent participants was restricted to northwestern Europe. Even within this primordial restric- ts 4-9 MODES OF INCORPORATION INTO THE CIVIL SPHERE The Three Pathways to Incorporation tion, moreover, it was much easier for outsiders who shared the founders' Protestant faith than it was for Catholics to make good use of the private-public split upon which assimilative participation depended. During the Reformation, Protestant dissenters had objected to the established Church on civil as well as purely religious grounds, decrying its hierarchical and collect! vist institutions, its suffocation of individual autonomy, the licentiousness of the priests. As Calvinist and pLiritan heterodoxies inspired the first democratic revolutions, "popery" became so strongly stigmatized that it was represented as fundamentally anticivil in an essentializing, primordial sense. During the same decade that Grund was extolling the civil participation of German: immigrants, for eNample, Samuel F. B. Morris proclaimed that Catholicism was "opposed in its very nature to Democratic Republicanism.On the basis of this polluting construction, early American "Nativists" went beyond insisting on the private-public split, often demanding overt repression. Declaring that Catholics should be denied access to most regulative institutions,;,; nativists wanted to make citizenship more difficult and to exclude Catholics and foreigners from holding public office.10 Morris argued that suffrage ; should be denied to such immigrants for their entire lifetimes. The inclusive and progressive elements of assimilation are demonstrated by the ferocity of J those who opposed it, even for inrmigrants who shared national origins, language, and the Christian faith. In nineteenth-century America, fears of being polluted by interactions with Catholic immigrants triggered massive • rioting aimed at denying Catholics access to public schools.11 :; Assimilation rests upon a contradiction between civil solidarity and pri-mordial exclusion, which expresses itself in the homologous split between | public and private spheres. These contradictions mark assimilation as a deeply-ambiguous social process. On the one hand, it implies that civic bonds can ^ create such powerfully democratic forms of national identity that they can ; supplant stigmatizing loyalties of more iniquitous kinds. On the other hand,.;. the very nature of assimilation and the social structures that allow it would H seem to make such neutralization impossible to achieve. The first, more optimistic scenario is what inspired Abraham Linco. ;| when he asserted that, though immigrants did not share the primordi n qualities of the founding fathers, they could become "a part of us." Imm ?| grants can become full partners in American civil society because, "whe ;| they look through that old Declaration of Independence, they find those j 430 old men say that 'We hold these truths to be self evident, that all men are created equal,' is for everyone." Lincoln reasoned that taking the promise of equality seriously demanded that the nation's communal bonds of primordial identification could be defined, somehow, in a thoroughly civil wav. The immigrants "have a right to claim it as though they were blood of the blood and flesh of the flesh of the men who wrote the Declaration of Independence," Lincoln argued, and. he concluded, "so they are."1-2 Lincoln is suggesting here that assimilation can not only establish for-malistic and procedural incorporation but can broaden civic solidarity in a more substantive, emotional, and discursive sense of the "we." Yet the contradictions that produce assimilation as an incorporative strategy, and the strict public-private split that allows it to succeed, make tiiis kind of broadening unlikely. As the reference to Catholic immigrants suggested above, the fullness of public participation that assimilation promises to members of excluded groups is compromised by the stigma that remains attached co their primordial qualities. For participation not only in regulative but communicative institutions, there would have to be significantly less pollution of outsiders' primordial qualities. Only with such discursive re-presentation can cross-group solidarities be established that allow truly significant public participation and, eventually, real public recognition. Even these cross-grotip identities, however, may be restrictive and primordial in other ways. The Hyphenated Mode of Incorporation In its ideal-typical form, assimilation is not only unsatisfactory in a normative sense but unstable in an empirical one. In social systems that have weaker and less autonomous civil spheres, this instability of assimilation can lead, not to a widening, but to a narrowing of the civil sphere, to its deeper primordialization. In the name of the threatened core groups, social movements arise that demand a more restrictive identification of civil competence and even the destruction of civil society itself In social systems with stronger civil societies, by contrast, the instability of assimilation can push incorporation in a more hyphenated, less either/or direction. This positive development involves a double movement. Outsider particularities are viewed in less one-sidedly negative ways; conceived as ethnic rather than foreign, they are more tolerated in private and public life. 431 MODES OF INCORPORATION INTO THE CIVIL SPHERE The Three Pathways to Incorporation At the same time, the possibility of forming stronger and deeper cross-group bonds that bridge, or transcend, these particularities is viewed more positively as well. In this manner, the emergence of ethnicity can be said to hyphenate the essentialized identities of a core group. "Ethnicity" suggests some fluidity in the interchange ot outsider and insider primordial qualities; at the same time, it contributes to the creation of a common collective identity that may be neither core nor peripheral. These more fluid exchanges cross various levels of civil society Culturally, hybrid discourses can emerge from metaphorical bridges between previously separated primordial codes ^ and narratives. At the interactional level, new sites for the public presentation ■ of self can emerge. New opportunities for dialogue and emotional connec- • tions arise, which in turn lead to increasing rates of friendship and inter-marriage between members of core groups and out-groups.L> ^ There are strong and weak versions of this hyphenated approach: to' ~ incorporation. Both have been metaphorically articulated in the trope of •> the "melting pot." As the French immigrant Hector St. Jean de Crevecoeur ; first expressed the notion in 17S2, "American individuals of all nations are melted into a new race of man."14 Insofar as foreign particularities are less i negatively perceived, this image paradoxically suggests, they can become -hyphenated with core identities and blended into a new race, one that will | exhibit only the unique particularity of "America" itself Emerson expressed 4 this paradox more sharply when he went beyond "melting" to "smelting--i pot," a shitt in poetics that more graphically suggests the liquefaction ofboth ^ core and out-group qualities, and the creation from "all the European tribes," 'v as Emerson wrote, of a distinctive "new race."15 When the Jewish immigrant 1 playwright Israel Zangwill popularized the term "melting pot" nearly a s century after Emerson, he was supporting the continuation of political _«lt^ asylum to outsiders and open ethnic immigration. Yet Zangwill's call for "ft intermarriage and his characterization of the American experience as "God's jj crucible" suggested that such openness to outsider particularities would I create new, more universalizing ties that eventually would obliterate them. • J As this historical dialogue demonstrates, ethnic hyphenation is itself an ambiguous model of incorporation. According more positive recognition to outsider qualities, it qualifies this recognition by wishing to absorb these qualities into a high synthesis. This new identity would, it is true, be more solidaristic and thus more complementary to the ideals of civil life, but lfc would effectively make outsider qualities invisible all the same. This ambivalence of hyphenation, and the particular kind of instability that attends it, is evident in the extraordinary struggles over incorporation, particularity, and American identity that were sparked by the great inflowing of immigration after the Civil War. The conservative side eventually triumphed, and powerful barriers against outsiders were put into place. The Civil War helped create a more hyphenated understanding of incorporation. The fight against the South united northern ethnicities in battle and blood, reinforcing a new and more generalized "American" identity, though one that still retained strong aspects of primordiality. In John Higham's historical description of this process, the paradoxes of hyphenation clearly stand out. "All over the country." he reports, "foreign-Americans flocked to the colors," a great coming together under a higher and more universal standard. Ethnic particularities remained evident and pronounced; -"Five hundred thousand . . . served the Union armies. . . organized in their own [ethnic] companies, regiments, and even divisions." Yet the shared experiences of sacrifice and victory did much to dissolve the very separations that supplied the Union Army's organizational base: "Everywhere the anti-foreign movement of prewar years melted away ... by absorbing xeno-phobes and immigrants in a common cause. Now the foreigner had a new prestige; he was a comrade-at-arms.""' In fighting for the Union, assertively defined under the banner of democracy, legality, and full citizenship, discrete and once stigmatized ethnic identities were re-presented in comradely terms. Following the binary discourse of civil society, they formed the pure and democratic counterpart to the hierarchical, factional, and aggressive other. It was the Confederate enemy, not the new immigrants, who now embodied the antidemocratic discourse of repression. Of course, assimilation as an incorporative strategy hardly disappeared in the post-Civil War period. Insofar as the hyphenation model involves forming new, extraethnic national bonds, one can, as I have earlier suggested, observe significant assimilative dimensions inside this alternative model itself. More important, the notion of ethnic hyphenation does not in any sense suggest the equal valuation of core and outsider qualities. Significant rank ordering of primordial qualities remains. What hyphenation suggests, rather, is revaluation, a process that allows more fluidity and hybridity, more exchange between the putatively primordial categories that represent civil competence in more and less polluted ways. Because asymmetrical valuation remains, hyphenation, like assimilation, continues to be an ambiguous and 433 MODES OF INCORPORATION INTO THE CIVIL SPHERE The Three Pathways to Incorporation unstable social form. The dynamics that produce it and follow in its w ■ can lead to a more independent civil realm and more recognition for outsi primordial qualities, eventually even to the creation of a less contradictnrv, more multicultural civil society. These same dynamics, however, can triager reactions that close civil society down, sharply narrowing the range ; primordial identities that are available for expressing civil competence i positively evaluated way. : After the Civil War, industrialization and territorial expansion triggered • massive increases in immigration to che northern and western United States. Certainly the relatively easy availability of free land and wealth, and th t federal, decentralized nature of the American political regime affected the ? possibilities of incorporation in a material way. Of greater significance, how- . ever, was the nature of postwar American civil society as it developed outside f; the defeated southern states. It was the culture, institutions, and interactional -possibilities of this ever-changing civil society that mediated the newl. intensified struggles over incorporation, creating a new field upon which :? insider and outsider groups, and their intellectual and artistic interlocutor, could argue, organize, and struggle for symbolic and organizational powei 1 Undergirded by assimilation, the new model of ethnic hyphenation framed these post-Civil War conflicts. Do all particular qualities have to be left at ; the door of private life? Is it only persons and not their qualities who are | allowed to pass into the positively evaluated arena of public life? After the Civil War, for some but not all excluded groups, these questions began to ;a be answered differenriy than before. ;! In its earliest forms, hyphenation meant that the primordial eric, defining the American core group expanded. Idealized national origins, ■ I example, increasingly came to include Germany. The particular, idiograp "™ qualities of German culture hyphenated with "old" American qualit allowing the discourse of liberty to find wider symbolic expression. Th "recreational gusto" of the new German immigrants, according to Higham,1 J shocked Americans with more traditional and censorious habits, yet in sue." .;; post-Civil War urban centers as Chicago they gradually won for themselvt ;| a reputation for "thrifty, honest, industrious, and orderly living," qualitie that sounded like variations on the discourse of liberty. The card-playing | beer drinking, and Sunday frolics of German newcomers came to be viev ' 4 not as licentious or lazy, but as legitimate configurations of democr.inc virtues. As one Chicago observer remarked in 1893, "The German not"-' | 434 that it is a good thing to have a good time has found a lodgment in the American rmnd."IH During this post—Civil War period, the civil competence of religious faiths also began to be more broadly conceived. Though Christianity continued to define its limits, Catholicism became more a viable refraction of Protestantism than its demonic enemv. In large urban centers, second- and third-generation Irish immigrants began to occupy some of the most important regulatory offices of urban civil society; from police officers to politicians. They created political machines for influencing the electoral expression of civil power, and these brought ethnic criteria explicitly into public life. In the context of this widening of national and religious criteria, reciprocal ethnic exchanges between out-group and iu-group became increasingly extensive and widely discussed. Formerly degraded groups reached into the origin myths of American civil society and retold them as hyphenated. In the iSSos in Worcester. Massachusetts, an Irish nationalist society, the Ancient Order of the Hiberians, held an ethnic picnic every Fourth of July, the exuberance of which was publicly presented, not only as a way of maintaining Irish customs, but as an effective way of defending American civil freedoms.1'' In the 1890s. also in Worcester, forty-six hundred of the city's eleven thousand Swedish-Americans attended another publicly reported and overtly ethnic celebration of Independence Day. Festivities began with Swedish Protestant church services and ended with speeches celebrating the democratic and civil character of the United States. Yet even though possibilities of hyphenation extended the concrete possibilities for legitimate expressions of civil competence, more restrictive understandings of the relation between founding groups and outsiders con- __tinued to be energetically asserted, even in regard to earlier and relatively more incorporated immigrant groups. In the centennial celebration of the beginning of the American Revolution in 1875, in Concord and Lexington, Massachusetts, a series of illustrious Anglo-Americans gave ceremonial speeches, but none were scheduled by representatives of Irish or German groups. One of these speakers described the Revolutionary soldiers' stand against the British as "the flower and consummation of principles that were long ripening in the clear-sighted, liberty-loving, Anglo-Saxon mind."-" The conflicts between more restrictive and assimilative as compared with more lncorporative and hyphenated approaches to civil competence were intensified toward the end of the nineteenth century as the geographical 43i MODES 01- INCORPORATION INTO THE CIVIL SPHERE tipping point of immigration shifted decisively from northwest to souther and eastern Europe. Frightened of pollution and displacement by Italian Russians, Greeks, Slovenians, and Jews from the Slavic Pale, the earfh members of America's core group used the institutions of communicatio to block incorporation of these new outsiders, asserting narrowly primordi; and increasingly restrictive religious, linguistic, and national versions of civi community. Most of the new immigrants would have been more thai willing to accept the bargain of assimilation, the procedural participatioi and public-private split that this restricted model of incorporation could supply. At the same time, however, many of their intellectual, journalistic, and artistic representatives did not hesitate to demand incorporation in a defiantly hyphenated, ethnic way. Representatives of the older Americai core group fervently opposed these claims. They made persuasive appeal through communicative institutions, and they made use of regulative institutions whenever possible, employing party organization, office power, and legal force to bolster their claims that only certain primordial qualities could manifest civic competence. Discursive confrontations over whether the civil sphere in the Unitet States was really free-floating and over the "true character" of the recen immigrants often centered on the nation's origin myths. These stories intertwined the primordial qualities of Americas founders with heroic account; of the nation's democratic beginnings. Was it possible to rewind these accounts, to ascribe different primordial qualities to heroic protagonists, and thus to narrate the founding of America differently? It is precisely in these terms that Werner Sailors has interpreted the turn-of-the-century debates that raged around the Statue of Liberty and other iconographic representations of American national identity.-1 In the poem that the abolitionist poet John Greenleaf Whittier wrote for the official dedication of the Statue of Liberty in 1886, he identified the "lightning-flash" welcoming the nation's new immigrants with "Reason's ways and Virtue's aim." Whittier described how- such new arrivals would, henceforth, encounter a monumental French construction when they fust touched "Freedom's soil" in the United States, and he put a positive, democratic construction on their character by linking it with the Civil War struggle to free America from the primordial restrictions of race, writing that "with freemen's hands we rear the symbol free hands gave." In the stanzas from the poem eventually engraved on the pedestal of the Statue of Liberty, the Jewish poet Emma Lazarus developed a similar The Three Pathways to Incorporation interpretation of the icon. Placing it firmly inside the antinomies ot civil discourse, she criticized the antidemocratic "pomp" of "ancient lands" for creating fearful and dependent "huddled masses" who wished to flee. With Liberty's "lamp" lifted beside "the golden door," Lazarus confidently predicted, this new iconic representation of America's much more civil society would guide this "wretched refuse" to America, where they finally would be able to "breathe free." Writers who urged restrictions on incorporation, like New Englander Thomas Bailey Aldrich, broadcast symbolic constructions of the icon, and of immigration more generally, that evoked danger and pollution. Through America's "wide open and unguarded" gates, Aldrich wrote in 1892 in a widely read poem, passes a "wild motley throng" motivated by "tiger passions," a mob obviously unfit for the autonomy and self-discipline that democracy demands. Rather than friendly, trusting, and cooperative, they were a "menace" ready to "stretch their claws," people "strange" and "alien." Faced with such dangerous pollution, it is no wonder that Aldrich urges "liberty, the white Goddess" toward repressive exclusion rather than recognition and incorporation. "With hand of steel," the figure of American civil society should "stay those who to thy sacred portals come to waste the gifts of freedom." The Statue of Liberty was placed on Ellis Island, where waves of new immigrants first entered the United States. This physical positioning set the stage for fierce discursive confrontations over whether a hyphenated semantic relationship could be established between Ellis Island and Plymouth Rock, where the Puritans had first entered the continent three hundred years before. "The ghost of the Mayflower pilots every immigrant ship, and Ellis Island is another name for Plymouth Rock," declared the Russian Jewish immigrant Mary Antin, whose writings legitimating hyphenation became lightning rods for symbolic confrontation during the last and most heated decade of America's open immigration. Pursuing this juxtaposition of Plymouth Rock and Ellis Island, Antin tried to purify public pollutions of immigrants by constructing a symbolic analogy between the motivations of the nation's earliest and most recent arrivals. Praising "the Pilgrims [as] a picked troop in the sense that there was an immense preponderance of virtue among them," she insisted that this "is exactly what we must say of our modern immigrants, if we judge them by the sum total of their effect on our country." If new immigrants did have civic virtue, of course, their 436 437 MODES OF INCORPORATION INTO THE CIVIL SPHERE The Three Pathways to Incorporation inclusion could not be resisted, and civil society would have to be defined in a much less primordial way. Speaking of "our fathers,"' of "our faith as--Americans." of "our American sensibility," An tin possessively appropriated the national identity, claiming that it is "the love of liberty," not any partic—-. ular primordial bond, that "unites all races and all classes of men into one i brotherhood." In such a free-floating community, membership is established ; purely by civil ties. "We Americans," Antin concluded, "owe the alien a : brother's share." • Denying Antins claims that the primordial qualities of ancient founders * and recent immigrants could be so easily interchanged, opponents of her hyphenated discourse resisted the expansion of civil society-. Once again, the ?| relative autonomy of civil society and the character of outsiders were the-; basic references for debate. A conservative .Tf/s use foreign words, follow foreign leaders, move in a foreign atmosphere, and that the children are thereby hindered from becoming citizens of the :: most useful type." For all of this, the justice asserted, language instruction in the United States must remain a private, parental decision. Schools j . orCTanized by communities of parents, who must be allowed freedom in their language choice even if this slows acculturation down. In so protecting private particularity, justice McReynolds referred to the unalterably civic, a nti-primordial quality of America's regulatory institutions, asserting that the Constitution "belongs to those who speak other languages as well as those born with English on the tongue." Two years later, stigmatized religious groups were also offered protection by American regulatory officials, who similarly evoked the private-public split upon which the assimilation model depends. In an effort to eliminate Catholic education, Oregon had passed a law mandating compulsory attendance in public schools. In striking down this ordinance, which had been approved by Oregon's highest state court, the U.S. Supreme Court ruled that privacy rights protected the practice of highly stigmatized primordial qualities, even if this meant protecting this practice against the intrusion of a democratically constituted state. Writing once again for the Court's majority, justice McReynolds wrote that constitutional freedoms prevented the state from taking actions "to standatdize its children." Evoking the autonomy of civil society, and the independence of civil from political power, he declared that "the child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligation."-*' In a post-inunigration society that remained extraordinarily diverse in demographic terms, such affirmations of the private-public split ensured the deepening of assimilation. Indeed, during this interwar period, America's socializing institutions triggered processes that pointed well beyond the core-group hegemony that conservative victors over immigration had wished to preserve. In public schools, children of immigrant minorities learned not only how to incorporate core-group lifestyles but how to express their own stigmatized ethnicity in more sympathetic, compelling, and legitimate ways. As the politically conservative 1920s gave way to the more progressive political and intellectual life of the '30s and '40s, expressions of hyphenated identity were increasingly broadcast by communicative institutions, and these expressions forcefully shaped public opinion once again. The Slovenian immigrant author Louis Adamic, who declared that "the old American dream needs to be interlaced with the immigrants' emotions as they saw the Statue of Liberty," became a widely popular figure on the national lecture circuit.-' Adamic founded the Common Council for American Unity, and 440 441 MODES OF INCORPORATION INTO THE CIVIL SPHERE The Three Pathways to Incorporation its journal Common Grown! attracted contributions from a wide swach of influential writers and intellectuals. Adamic's ambition was to ere intellectual-emotional synthesis of old and new American." This hyphens-: tion depended on rewinding the nations founding myths; the tales o: immigration and America's founding, Adamic suggested, would be into one story."2H Like the Civil War a century earlier, the searing experience of .-. " . War II pitted representations of a civil and inclusive America against jm.igc-s ofits racist and antidemocratic enemies. This synthesizing surge consolidated^ the construction of America as an ethnically hyphenated nation, a civic community of hybrid, fluid, exchangeable primordialities. It may -the case, as Higham has argued, that such a broadly inclusive consolidation: could have emerged only after massive migration had been shut Certainly, such closure gave out-groups time to further assimilate core : primordiality. For their part, core-group members had decades to t more familiar with outsiders who once had seemed foreign and strange By the 1940s, there had gestated a broader, supraethnic "Americanism" that, made ethnic contrasts seem far less acute. In the decades before and a war, it was still impossible for entertainers who wished to achie\ popularity to use their own, ethnically distinctive names. This assm unhyphenated model still held for Betty Joan Perske, who became 1 "h-'*m Bacall, for Anna Maria Italiano, who became Anne Bancroft, for Dc KappelhofT, who became Doris Day, and tar Bernard Schwarz. who becau„ Tony Curtis.30 In the early 1950s, by contrast, the Beat generation enteret the communicative institutions of American civil society with their name intact. Allen Ginsberg, Lawrence Ferlinghetti, Diane DiPrima, and Jacl Kerouac were never stigmatized as ethnics.11 The hyphenated model was b; then firmly in place. Space had been created for out-group ethnicity—for civil competence to be exhibited in ways different from the non-core group's. Yet althougl negative valences were being neutralized, neither ethnicity nor other pe> ripheral primordialities were positively represented as ends in themselves. Ethnicity was promoted in a nostalgic manner, not prospectively but retrospectively. Oscar Handlins The Uprooted, the paradigm-making history o America-as-immigrant-society published in 1951, begins in a hyphenate!* manner, asserting the successful retelling of America's origin mvth: "Once I thought to write a history of the immigrants in America. Then I discoveret that the immigrants were American history."12 The primordial founding -th that attributed civic competence to one group alone was being fun- my damentally displaced. Yet, in the 1973 postscript to his books second edition, Handlin relativized hyphenation by tracing its causes to the decline of actual ethnic differences in the American society of his own day. In the postwar years when he was writing his book, Handlin recounts, ethnicity had seemed "a fading phenomenon, a quaint part of the national heritage, but one likely to dinuuish steadily in practical importance." In the very same decade that Handlin published this postscript, ethnicity began to be conceived in a less ambivalent manner. In the mid-1960s, legal iiTimigration from non-core groups was greatly intensified. Incorporation began to proceed along non-ethnic dimensions in ways that allowed a more multicultural, posthyphenation model of inclusion to emerge. The most .important of these nonethnic issues was race. It was, in fact, the struggle against racial exclusion from civil society that allowed this new phase of incorporation to occur. By contrast, it had been the successful efforts to maintain and even to extend restrictive racial criteria for incorporation that had allowed the more hyphenated model of incorporation first to succeed, as we will now see. The Exception of Race: Assimilation and Hyphenation Delayed Race had not been terribly important in the struggle for ethnic assimilation before the Civil War, for che very reason that members of nonwhite racial groups had been so thoroughly separated from American civil society. Because the moral character of persons with black, yellow, and red complexions was so deeply polluted, the regulative institutions of American society thoroughly excluded them from participation. The authors of the Declaration of Independence had called the Indians "merciless savages,"33 and black slaves were widely regarded as subhuman. Because it seemed inconceivable to separate the members of these stigmatized groups from their racial qualities, assimilation was impossible for members of these racially subordinated groups to achieve.34 The post-Civil War amendments to Americas regulatory institutions indicated an opening in this racial primordialization of civic membership, 442 443 MODES OF INCORPORATION INTO THE CIVIL SPHERE The Three Pathways to Incorporation but the continuing racial structure of American cultural and psychological life soon reasserted racial categories in an anti-assimilative way. In thesuutii-ern United States, Jim Crow laws created an apartheid system of in! colonialism. As southern blacks moved to the North in the early ye; the twentieth century, segregation was actively promoted de facto i than de jure, and racially exclusive ghettos were created.35 Not only blacks ! and Native Americans, but Asian outsiders were symbolically excluded and institutionally subordinated. Entering the United States mainly as inden I workers. Asian access to full citizenship was opposed on primordial gro ....... 1 In 1865, a New York Times editorial justified the exclusion ofblacks and Chi- I nese by linking together, and polluting, their pntatively anticivil characters. ' We have four million of degraded negroes in the South . . . and i there were to be a flood-tide of Chinese population—a. population befouled with all the social vices, with no knowledge or appreciatic of free institutions or Constitutional liberty, with heathenish sou § and heathenish propensities, then we should be prepared to bid I farewell to republicanism and democracy.-"' I Racial exclusion became a more demanding political and social pi § in the post-Civil War period, even as outsider ethnicity was beginning to '-{ achieve a more hyphenated position vis-a-vis core group identity. As nun- I white Americans, especially blacks, began to penetrate the institution1' of £ the northern United States, the white racial identities of the new ii | grants from southern and eastern Europe, as well as the whiteness of | earlier immigrants as Irish Catholics and German Protestants, played an in- \. creasingly important role in aiding exchanges between nonracial e ■ | traits. This juxtaposition of increasing immigrant incorporation, 01 . I one hand, with affirmations of racial exclusion, on the other, was f § fully asserted in the Democratic Party platform of 18S4. After callin . | United States "the land of liberty and the asylum of the oppressed of . every nation," the Democrats explicitly excluded the Chinese, who were ;| described as "unfitted by habits, training, religion, or kindred for the ^ zenship which our laws provide." During that same period, a labor union % characterized the Chinese people in violently anticivil terms, as " f slavish and brutish than the beasts that roam the fields." adding that' tney J are groveling worms."37 The diverse and sometimes competing di:. ;| sions of primordiality are revealed here in a striking way. Even though various European origins and religions were becoming less stigmatized by core group members, racial identity was increasinglv evoked as a primordial requirement. Faced with these disqualifying restrictions, blacks followed immigrant writers in their efforts to use the communicative institutions of American society to broadcast new and more hyphenated versions of the nation's founding narratives. In 1903, W. E. B. Du Bois claimed that the slave ship that "first saw the square tower of Jamestown" was the true American beginning, asking his white readers "How came it yours? Before the Pilgrims landed we were there."3" In a variety of narrative forms, black writers not onlv juxtaposed and tentatively equated Jamestown with Plymouth Rock but made efforts to analogize the former with the newer immigrants' arrival -at Ellis Island. By equating race with ethnicity, and each with the earliest founding myth of the democratic nation, black writers sought to purify their polluted status and to create pathways for intergroup identification. In a publicity statement that Richard Wright composed for his autobiographical Black Boy in 194.5, the novelist tried to neutralize the perceived strangeness of his primordial position by developing an analogy between early and later immigrant stories of civil resistance and his own. [To] those whites who recall how, in the early days of this land, their forefathers struggled for freedom. Black Boy cannot be a strange story. Neither can it be a strange story to the jews, the Poles, the Irish, and the Italians who came hopefully to this land from the Old World.1'-' These appeals for civil membership were denied by the core group and, increasingly, by hyphenated ethnic minorities alike. Racial criteria were employed to strip interned Japanese-Americans of their citizenship rights, and strict segregation continued to be observed in the armed forces, even as the United States entered World War II to fight against nations that embodied the racial definition ot community in a much more primitive and less contradictory way. Still, the narrative of shared sacrifice for Utopian civil ideals that crystallized ethnic pluralism during World War II had a formative effect on the relationship of American civil society to race. Because public opinion remained intensely divided, at first it was exclusively the regulative 444 445 MODES ("JE IN"COUI'GRATION INTO THE CIVET SI'HEUE The Three Pathways to Incorporation institutions of civil society that intervened to open civil participati ■ members of stigmatized raciai groups. In 1947 the highest office holder in civil society, President Harry Truman, signed an executive order that fo integrated the armed forces, allowing minority groups for the first tin access to the levers that controlled the monopoly of violence. In adi. to opening up civil participation in an important institution, this tt opened up a new arena for civil interaction on the face-to-face level of? everyday life, regardless of the subjective, psychological or cultural fe of group members on either side. The U.S. Supreme Court made a s I intervention in 1954, when it outlawed racial segregation in the tu schools. Disregarding strongly held primordial feelings about race, the < i evoked the civil principles of the democratic Constitution and mandated; interracial interaction among the nation's school-age children. Citing socio-1 logical data that showed separate schooling prevented equal access to rea-j soning and emotional skills, the Court tried to open up this key socia J; institution so that racial assimilation into mainstream American could sue- ; cecd. ~: In the face of continuing public support for a raciallv fragmented inn.-sphere, however, these postwar regulatory efforts to separate America'! society from its racial coimmuiiri.es failed. Indeed, it was precisely be----- / of these failures, as we have seen, that the legal strategies of the NAACP gave way to the socia! movement for civil rights, hi its highly public -..... ." paigns for black access to public facilities and the ballot box, the Civil P 1 movement made full use of the communicative institutions of American society, particularly the mass media and civil associations, to create n i forms of identification that crossed over racial groups. From the cauldron of. the Montgomery bus boycott to the wrenching confrontations in Bin .;i ham and Selma. Martin Luther King performed a pivotal role as an intensely public figure, a symbol of transcendent democratic and religious ideal; whom white Americans in the North experienced an increasingly intense identification. The most charismatic American figure of the postwar period. King led a movement whose narrative of martyrdom and suffering eventui...-. succeeded in reformulating the American drama of democracy4" in mu racial, but not multicultural, terms. Black and white leaders of the Civil Rights movement became Amerii heroes, figures in a drama of collective national redemption in which they dignified, courageous, critical, self-disciplined, and broadly solidary—n 446 sented the discourse of liberty in a poignant and increasingly convincing way. hi the course of this drama, they succeeded m neutralizing much of ie stigma attached to nonwhite races. This indeed was their goal—to >utralize race, not to make black racial identity positively valued in and of self. Because of their efforts, assimilation for racial minorities became possible the United States for the first time. Blackness as such was not a primordial Mjality welcomed by white core-group members, but many believed that, r purposes of institutional participation, diis quality could now be left ide. For the first time in American history, the members of the black immunity could create a distance between their public selves and achicve-ents, on the one hand, and the still polluted quality of blackness, on the other. "Color blindness'' was the Civil Rights movement's mobilizing ""theme. It translated local struggles into national public dramas by convincing white Americans that their shared Utopian dream of a truly civil society could only be realized in a color-blind way. The regulatory reforms that followed specified and elaborated this communicative shift, backing up the normative separation of civil obligations from race with political, economic, and, at times, even physical sanctions. Blacks and members of other racial minorities were to be treated simply as members of civil society—as "human beings" in the parlance of the day— rather than as members of a stigmatized race. In a series of new laws extending from the mid-1960s up to the present day, judges and legislators transferred this new and fuller status in civil society to noncivil arenas, declaring discrimination to be illegal in one social sphere after another. Buoyed strongly by less racialized representations in the public sphere, these .. regulatory efforts have continued to be intensely pursued in the public realms of schools, employment, and municipal facilities, and they have met with significant success. Efforts to enforce Title 7 of the Civil Rights Act of 1964. which banned discrimination in employment, involve thousands of lawyers and administrators in the private and public sectors."" Public and private policies of affirmative action, which have become so controversial in recent years, should be seen primarily in these same assimilative terms. Primordial criteria of race are employed in order to purge the target institution, whether school or workplace, of the public distortions of race. By the mid-1960s, cultural, political, and demographic pressures made it much more difficult for elites and citizens alike to endure the intergen- 447 MODES OF INCORPORATION INTO THE CIVIL SPHERE erarional transformations upon which earlier assimilative incorporarii depended. Affirmative action was a "forced march" to the creation ofracialh-integrated working and middle classes."1- It applied to the public spheres of: higher education and occupational achievement, leaving private life relatively untouched. As American occupational and education worlds became '•■ more integrated, members of different racial groups within the same work- ; ing, middle, and upper strata tended to become more similar in their manners ^ of acting and feeling.1-1 Yet the neighborhoods where black Americans make I their homes—the interlinked personal residences that provide the site for! such informal activities as friendship, recreation, religious observance, ado- i lescent dating, and marriage—have remained largely separated until this 5 day.4"1 Only the residential integration of races would complete the hyphen- i ation process. Racial hyphenation depends not simply on allowing the public * separation of blacks from primordial qualities but on altering representations ^ of the qualities themselves. Nonetheless, as I will show below, this process I is already well under way | Even as racial qualities remained relegated to the private sphere, - I reaching changes in white perceptions of race resulted from the Civil Rights i movement itself, from the dramatic regulative shifts that followed, and from * the substantial changes in the occupational and educational environments off race relations that followed in their wake. Interaction at work and school ^ familiarized whites and blacks with one another, though strong mutual % suspicions often remained. Under the limited rubric of assimilation, whites 1 evidenced grudging but increasing respect for the civic competence of black ;| members of the working and middle classes, and the elites. i In the late 1960s and 1970s, communicative institutions were permeated | by widely broadcast narratives that separated blacks from the polluted codes -of earlier days, normalizing them through representations that emphasized S self-discipline, independence, and reasonableness. On network evening tele- "\ vision, situation comedies and family dramas employed well-accepted genres ^ to normalize the black situation in a way that allowed whites to ex....- '•• cultural understanding and emotional identification. Tliejcjfersons portrayed \ the life and times of what seemed to many whites a surprisingly mainstream, if eccentric, black family, closely imitating the hugely successful portrayal c"~ \ intergenerational conflict in the white program All in the Family. Whitt ,iuw black viewers made The Cosby Show the single most watched family 1 The Three Pathways to Incorporation of die ipSos, converting the modest and attractive black doctor and bemused family patriarch into a representative figure for broad segments of American life. Herman Gray describes these and other black programs of the time, including Good Times (1974-79), Sanford and Son (1972-77) and Wliat's Happening!! (1976-79)- These black folk were good-humored and united in racial solidarity, [they] idealize[d] and quietly reinforcefd] a normative white middle-class construction of family, love, and happiness . . . implicidy reaffirming] that such ideals and the values they promote are the rewards of individual sacrifice and hard work.45 Allowing white core groups to analogize between their own predicaments and those of their black economic peers, these television narratives supported assimilation, for they suggested that a shared humanity could be separated from the polluted qualities of race. The extraordinary success of :he miniseries Roots in the late 1970s deepened this process of cross-racial dentification and extended the nation's origin myths. Written by Alex rlaley, who as a committed 1960s radical had ghostwritten the militantly mti-assimilative Autobiography of Malcolm A", Roots recast the history of African Americans into the heroic immigrant mold. Gray observes how the :elevision show created a dramatic imaginative movement from polluted to purifying symbolic coding. With Roots the popular media discourse about slavery moved from one of almost complete invisibility (never mind structured racial subordination, human degradation, and economic exploitation) to one of ethnicity, immigration, and human triumph. This powerful television epic effectively constructed the story of American slavery [on] the stage of emotional identifications and attachments to individual characters, family struggles, and the realization of the American dream.41' t was during these same years that black entertainers and sports figures became iconic heroes for masses of white Americans, old and young. Recognized for their prowess in some of the most symbolically representative, 44S 449 MODES OF INCORPORATION INTO THE CIVIL SPHERE The Three Pathways to Incorporation if not the most economically or politically powerful, areas of American life "African Americans" were viewed by an increasing segment of the white1 core group as "like us" in certain critically important ways. Although race may still seem to many Americans an indelible marker, which no amount of acculturation can wash away, we would do well to remember that assimilation has always allowed outsider qualities to remain ■-strongly stigmatized; it simply relegates them to the relative invisibility of: the private sphere. With hyphenation, there occurs a marked lessening of-this pollution, and relationships of symbolic affinity begin to be established between the qualities of insider and outsider groups. Even with hyphenation, however, there is never symmetry; there remain powerful, if less clearly. demarcated, hierarchies in the valuations ot primordial traits. Hyphenated incorporation does not truly promote the valuing of difference as such. What it does allow is the increasing separation of civil society from existing-primordial affinities. Because it also can create a more blended "national" . identity, hyphenation is often perceived as a temporary situation, as some- < thing that will disappear as members of insider and outsider groups are :: absorbed into a more universal, if still culturally distinctive national community. Hyphenated incorporation is a process, a means rather than an end. Under both assimilative and hyphenated incorporation, civil societies remained riddled by primordial and asymmetrical conceptions of civil capacities. The Multicultural Mode of Incorporation The moral and sociological problem with hyphenation, and equally with assimilation, is that its ambition does not extend to redefining outsider qualities; rather, it allows members of denigrated groups to be separated from those qualities. The anticivil constrictions that have distorted national democracies from their verv beginnings can be overcome only by moving beyond hyphenation to a multicultural mode that is different not only in degree but in kind. Only very recently in democratic societies has such a possibility for repair emerged.47 It opens a new chapter in the history of social integration, and mv empirical discussion here is more sketch than historical account, as subjunctive as descriptive.tM My ambition, in fact, is 450 primarily theoretical: 1 want to offer a new understanding of this multicultural mode and to define it in a systematic and comparative way. The rhetoric generated by this new mcorporative mode does not, at first sjofit. seem terribly distinctive. It, too, focuses on whether civil society can be truly universal and whether it can be separated from the primordial restrictions of particular groups; and these possibilities continue to be discussed in terms of purifying or reconstructing out-groups in civil-discursive terms. There is, however, a fundamental difference. Instead of trying to purify the characters of denigrated persons, the focus shifts to qualities. Within 3 putatively multicultural frame, discursive conflicts revolve around efforts to pudfy primordial characteristics, not to get rid of them. It is the qualities of being woman, of being n on white, of being gay or lesbian, of being disabled that core-group and out-group members struggle to resignify and experience. Insofar as outsider qualities are seen not as stigmatizing but as variations on civil and Utopian themes, they will be valued in themselves. "Difference" and particularity become sources of cross-group identification, and it is in this seemingly paradoxical manner that common experiences are created that transcend the discrete communities composing civil society. The philosopher of hermeneutics Wilhelm Dilthey argued that social scientific understanding can never surpass the investigator's own experience of life. In contrast with assimilation and even hyphenation, multiculturalism dramatically expands the range of imagined life experiences for core-group members. In doing so. it opens up the possibility not just for acceptance and toleration but for understanding and recognition. Insofar as such understandings are achieved, rigid distinctions between core and out-group members break down, and notions of the particular and the universal become much more thoroughly intertwined. Multiculturalism can be understood as a moral preference. Yet it is also very much an empirical process. Even if multicultural incorporation remains in its infancy and subject to strenuous debate, the outlines of what it might entail for democratic societies are beginning to become clear. It is set in motion by discursive and organizational conflicts over incorporation—conflicts that can be resolved, participants come to believe, only by legitimating their different qualities. It is in societies that have experienced intense racial and ethnic conflicts, and have deepened civil society by hyphenating core group identity with primordialities of dominated groups, that such demands 45J MODES OF INCORPORATION INTO THE CIVIL SPHERE for recognizing particularity begin to appear, (n assimilation and hyphena-: tion, the particular is universalized. In multiculturalism, the universal is particularized. In assimilation and hyphenation, the ambition of out-groups is to replace ascriptive identification with cultural status based on achievement. In multicukuralism. the ambition is to achieve—to perform and tb;; display—a cultural status that once appeared to be ascriptively rooted. It is an achieved ascription, a performed identity, not a passively primordial or? cssentialized one. In multicultural incorporation, particular differences dor-not have to be eliminated or denied, so the sharp split between private and: public realms recedes. Non-core primordial!ties become publicly displayed.? They are folded into the "culture of authenticity" that Charles Taylor has-s described as one of the most distinctive achievements of modernity. For -Taylor, what the recognition of difference actually means is not separation^ and diminution, but sharing and enlarging. 3t "grows organically out of the^ politics of universal dignity," a key principle of civil society, in such a manner that a "new understanding of the human social condition imparts a radically | new meaning to an old principle."50 ? To the degree that civil society is multicultural, incorporation is not. celebrated as inclusion but as the achievement of diversity. Particularity,! difference, and symmetrical hybriditv become the guiding themes of the;; day Minority racial status, peripheral national origins, marginalized religions, subordinated genders, repressed sexualities, differently abled bodies, imnority5 languages, even alternative civilizational capacities—all these primordial;"' qualities become reinterpreted as representing variations on the sacred qual- .' ities of civility.51 Only insofar as such decentering succeeds, according to the / multicultural mode, can there be incorporation. Insofar as it docs succeed,; there is a dramatic decrease in the negative identification of previously/ subordinated, or subaltern identities. Aspects of these identities begin, in ;; fact, actually to be embraced by members of the core group. For example,; to gesture toward my analysis in the latter part of chapter 19, whereas the postwar generation of American Jewish artists and entertainers, from Saul : Bellow to Milton Berle, were intent on translating their particular experiences into universal, non-Jewish terms, such contemporaries as Philip Roth and Woody Allen publicly display their religious identities and introduce ; compelling forms of "Jewishness" into public life, which are sometimes emulated and incorporated by non-Jews and Jews alike. A wide range of developments that emerged and began to accelerate The Three Pathways to Incorporation during the last decades of the twentieth century can be understood in terms 0f this multicultural frame.52 "Black is beautiful" was not a slogan that emerged from the assimilative, race-blind program of the movement for civil rights but from the struggle to get beyond neutrality and invert negative racial identifications. It was expressed strongly and openly and broadcast widely because earlier models of incorporation into civil society were already cakins effect.5-5 Today, "blackness" is vigorously expressed in the world of fashion, and models of male and female beauty have dramatically crossed once forbidding racial lines. Citing "a whole new crop of black models, stylists, [an d j photographers." Paul Gilroy sees a "change of climate in the meaning officialized signs." The "perfect faces on billboards and screens and in magazines are no longer exclusively white," he writes, and "some decree of visible difference from an implicit white norm" often becomes "highly prized as a sign of timeliness, vitality, inclusivity, and global reach." Gilroy concludes from this partial eclipse ofhegeznonic whiteness that "the old hierarchy" is now "being erased."51 Intermarriage rates among p h eno typically distinctive racial groups— Asian Americans, blacks, and Hispanic Americans—have steeply risen, though at very different velocities. There can be no better indicator that civil interaction is beginning to break through some of the most restrictive barriers of private life. Indeed, in the United States, ethnicity is increasingly becoming an identity that is selectively pursued. Many Americans now display ethnicity volitionally, rather than for reasons of necessity, as symbols of occasional identity that gain distinction and esteem.5' Once considered an unchangeable and essentialized identity, the criteria for displaying ethnicity are, increasingly, novelty, attractiveness, and the possibilities for new sociation. Racial and even sexual stereotypes once considered natural are now being disassembled and reappropriated in parts. In advocating performative rather than oncological approaches to gender and sexuality, philosophers are following multicultural pop culture/1' As subordinated racial, gender, sexual, and religious ties are transvaluated, they have become fractured and displayed in increasingly hybrid terms. In American universities and among intellectual elites, the centrality of the purely Euro-Am eric a n artistic canons is being displaced. Central communicative institutions broadcast fictional narratives by "minority" writers which make their own particularities sacred and cast their minority protagonists as hetoes and heroines, not victims. Prestigious bodies of women's, 452 45} MODES OF INCORPORATION INTO THE CIVIL SPHERE The Three Pathways to Incorporation black, Hispanic. Native American, homosexual, and subaltern literature; have emerged, and their critical interpreters, themselves often members oj these once denigrated groups, have assumed influential intellectual positions^ on the American cultural scene. The extraordinarily public debates about multiculturalism and the literary canon, which until recently so politicized this subject, almost invariably' portrayed multiculturalism in a separatist, fragmenting light. The leading critical interpreters of their community's own literature, however, have often understood their emphases in a much more universal and incorporarive way. Henry Louis Gates Jr., the African American literature professor who has moved to the center of the civil sphere's communicative institutions, defends his efforts to reveal black literature's distinctive qualities against the narrowly assimilative mode. Long after white American literature has been anthologized and canonized, and recanonized, our efforts to define a black American canon are often decried as racist, separatist, nationalist, or "essential-ist." Attempts to derive theories about our literary tradition from the black tradition ... are often greeted by our colleagues in traditional literature departments as a misguided desire to secede from a union that only recently, and with considerable kicking and screaming, has been forged.57 At the same time, however. Gates argues that black literature is, in fact, • neither particularist nor separated from the wider democratic culture. Every black American text must confess to a complex ancestry, one high and low.. . but also one white and black. There can be no doubt that white texts inform and influence black texts (and vice versa), so that a thoroughly integrated canon of American literature is not only politically sound, it is intellectually sound as well. . . . The attempts of black scholars to define a black American canon, and to derive indigenous theories of interpretation from within this canon, ate not meant to refute the soundness of these gestures of integration.5" A similar perspective is expressed by the editor of Mas, an avant-guard national Spanish-language magazine. 454 Multiculturalism has a separatist current (if I'm Latino and you're not, you can't use my secret handshake), and some of it is. alas, necessary for survival—literally, in some streets: culturally, in some salons. It also has an integrationist current. And that means enlarging the barriers erected by chauvinism. In that current, culture is no one's hegemony, not one nationality's, not one class's, not one gender's, not one race's, no one's. It's culture as integration, instead of submission and assimilation. . . . If it's human, its yours. Take it. Share it. Mix it. Rock it.5'' The manner in which regulatory institutions enforce these shifts in public opinion has begun to change in complementary ways. When legal rights are extended for fuller civil participation, procedures are now put into place "with the express intention of preserving the "authentic" particularities of cultural communities. When access to the ballot box is protected, efforts are made to ensure that voting will allow the expression not only of individual rights but of collective identities, including not just racial but linguistic minorities. Affirmative action was initially justified on assimilative grounds, but in her majority opinion in the 2003 Michigan case Grittier \>. Bollinger, Justice Sandra Day O'Connor cited diversity as its principal contribution to realizing the "dream of being one nation, indivisible." Whereas in earlier legal opinions, affirmative action has been justified on the grounds of equality, as "remedying past discrimination," this is not "the only permissible justification for race-based governmental action." Things have changed. "Today," Justice O'Connor declared, "we hold that the law school has a compelling interest in attaining a diverse student body." Responding to supporting amici briefs submitted to the Court by a wide range of civil associations, she suggests, indeed, that there is now a "compelling state interest that justifies the use of race."11" When Congress radically opened up immigration flows in the mid-1960s, it discarded the national origins criteria that had been instituted, four decades earlier, to protect core-group primordiality and to keep the assimilative mode firmly in place. The millions of immigrants who have legally entered American civil society since then, along with the millions more who have entered illegally and stayed, have changed the racial complexion of the United States in a physical sense, but it is the new, more multicultural model that has allowed these post-1960s immigrants to invert social stereo- 455 MÜDES OF INCORPORATION INTO THE CIVIL S P H Ell E types. Not long ago, Asian immigrants were subject to virulent pollution-today, their intermarriage with Euro-Americans has approached 50 percent.''1 The incorporation of Central and South American immigrants, the other principal beneficiary of the 1960s regulative change, has proceeded much more rapidly than with earlier Mexican entrants. This time around, however, the Hispanic language has not disappeared. Laws to protect bilingualism have penetrated deeply into American society, and speaking abilities have been maintained beyond the second generation/'2 None of this is to suggest that demands for assimilative incorporation have disappeared, much less that the institutions that produce and enforce civil power—whether voting, party competition, and office, on the one hand, or law, on the other—have thoroughly converted the multicultural representations circulating so intensively through communicative institutions into new and binding,forms of civil regulation. When legal scholar Kenjf Yoshino writes that "closeting occurs whenever the state engages in homophobic lawmaking that makes invisibility a prerequisite for gays who wish to enjoy the basic entitlements of a free society," he is speaking, in rather precise terms, about how the assimilative mode continues to rigidly apply on matters of sexuality, and how the asymmetrical results distort the promise of the American civil sphere. Criticizing the "don't ask, don't tell" rule that informs American military policy toward gays and lesbians, Yoshino points to its stigmatizing, anticivil effect: "By forcing only gays to lie about their identities in a culture in which lying is held to be deeply dishonorable, the military inculcates in them a conception of themselves as second-class citizens, not only because of their homosexuality, but also because of their duplicity."''3 The varieties of civil incorporation I have presented in this chapter are ideal types. It is important to recall Max Weber's admonition that the empirical distinctions separating such distinctive types are emphasized for analytical reasons. In practice, assimilation, hyphenation, and multiculturalism blend into one another. It is not a zero-sum game, despite the fact that, as pure types, each of these three modes is different and opposed. Assimilation and multiculturalism are in principle antagonistic, but assimilation can continue to proceed even as multicultural incorporation emerges on the scent in real historical time, it would be surprising, indeed, if particular commu nities did not participate in all three of these processes. Members of th American black community continue to strive for assimilation, to find rec The Three Pathways to Incorporation ognition in thoroughly "nonracial" ways. At the same time, as they have come to define themselves as "African Americans," they have developed hyphenated identities. Finally, as members of a "community of color," contemporary black Americans strive to maintain and restore the distinctive and sometimes antagonistic aspects ot their racial culture, and demand that it be recognized in a multicultural way.''-1 I began this discussion of the modes of incorporation, in chapter 15, by suggesting that multiculturalism has often been fundamentally misunderstood. Not only social conservatives but also radical intellectuals and activists have described it as a process promoting separation and difference rather than inclusion and solidarity. By placing this new and challenging model of solidarity into the broader framework of civil society, and by systematically relating it to the other modes of incorporation, I have demonstrated, to the contrary, that multiculturalism sits between difference and integration. Multiculturalism frames a new kind of civil society, one in which groups employ its binary discourse to publicly assert the right to be admired for being different. It represents not the diminishing but the strengthening of the civil sphere, a sphere in which collective obligations and individual autonomy have always been precariously but fundamentally intertwined. Multiculturalism is a project of hope, not despair. It can be launched only amid widespread feelings of common humanity, of solidary sympathies that have already been extended significantly to persons, and which now must be extended to their qualities. 457 CHAPTER 18 The Jewish Question: Anti-Semitism and the Failure of Assimilation From the standpoint of marginalized groups, assimilation is a highly desirable alternative to exclusion and domination, representing a sociological opportunity unavailable before the emergence of a rela-ively differentiated civil sphere of society. Nevertheless, as I suggested in he preceding chapter, when civil societies offer out-groups the chance for ssirnilative incorporation, they are making an offer that is fraught with .mbiguity. Inspired by the universalizing dimension of civil society, core jroups assert that it is possible to separate the "person" who is a member of he marginalized out-group from the stigmatized "qualities" that pejoratively lefme that group's differences from the core group itself. The bargain seems o be something like this: Insofar as members of these out-groups agree to :eep these negative qualities out of public view, they can practice them reely in their private lives, families, neighborhood groups, circles of friend-hip, love relationships, and places of worship. In the public world, they nust learn to behave in a purely civil, universal manner, in this way dem-instrating their competence, psychologically and interactionally, to become ull members of civil society. When proposed in this manner, this sounds ike a hard bargain but a fair one. The problem is that it isn't really what's >n offer. Why not? As I suggested theoretically in chapter 8 and as I have tried 459 MODES OF INCORPORATION INTO THE CIVIL SPHERE ~ co demonstrate empirically in my discussions here and in part III, the public rs-'& sphere of civil society is always permeated by particularistic qualities. Because ' 1 of the vagaries of time, space, and function, civil capacities from the outset ; ; are primordialized, and the ability to perform adequately in civil society is ■ ! understood as being restricted to those who possess the particular qualities i ofcore groups. For these reasons, assimilation actually presents a rather unfair •.....-s bargain, requiring an asymmetrical exchange. To gain incorporation, out- v^l groups are, in fact, not required simply to demonstrate "civil" behavior but ",l behavior that is civil from the perspective of the primordialized framework i of the core group. They must learn to be Americans, Frenchman, Russians, I or Germans. They must learn to exhibit the traits of language, bearing, " .1 religiosity, or non-religiosity of the founders of their historically specific, | national societies. My point here is not that such learning is impossible. By no means. In the modern period, very high levels of assimilative incorpo---«s| ration have been achieved by scores of formerly marginalized class, religious, - \ ethnic, gender, sexual, and racial groups. What I am pointing to is the * \ asymmetrical nature of the assimilative bargain, and the costs that such a 1 transaction involves. ■ Because of its delicate and tense balance between negatively evaluated ' S qualities and positively evaluated persons, assimilation is a complex, uneven, ;= 1 and highly unstable mode of incorporation. Historically contingent forces >f? and events can push it "backward," to new forms of excluding and dominating a once partially incorporated group. On the other hand, if assimilation • r proceeds apace, if the civil sphere becomes more deeply institutionalized 1| and independent of core-group power, then assimilation can create relations - || between the core group and out-groups that are less asymmetrical, reflecting . §f less polluted cultural representation of outsider qualities. In the first pro- _j| gressive alternative to assimilation—hyphenation—the qualities of excluded groups are seen as in principle complementary to core primordialities. The . || latter qualities are de-essentialized; their symbolic terms arc metaphorically . !r& and metonymically linked to signifiers of once foreign primordialities. Even _ fj§ in such a hyphenated form, however, these qualities retain some markedly g negative connotations. Purified by their connection to sacred qualities of |g the core group, they remain subordinated to the hegemonic power. Though ~ §g| softer and much less cruel, therefore, hyphenated incorporation is still con- -^ji ceived, by core group and out-group alike, in an ameliorative, teleological ||f way. It is an acceptable middle point in what remains a progression away . s^Ig 460 Anti-Semitism and the Failure of Assimilation from particularistic qualities toward a homogenizing universalism represented either as a variation on core group identity or as a new "higher synthesis" that transcends the particular identities of core and out-group alike. As this intermediate position suggests, then, hyphenation is also a highly unstable mode of incorporation. Because it retains a rank order of qualities, its openness to abstract "persons" is qualified. Yet just as hyphenation can be pushed backward to assimilation and even to exclusion, it can also be pushed forward to more even-handed, more truly reciprocal understandings of incorporation. This multicultural mode of incorporation becomes available to the degree that civil solidarity has significantly deepened, for it requires not only the tolerance of difference in the legal sense but mutual recognition in the communicative sense, and the latter depends on nothing ••less than the positive evaluation of outsider qualities—psychologically, interactional! y, and culturally. Insofar as incorporation becomes multicultural rather than assimilative or hyphenated, the integration of society appears to be organized around difference and diversity rather than similarity and homogeneity. Jews and the Dilemmas of Assimilative Incorporation The deeply troubled and profoundly troubling course of Jewish incorporation into, and their consequent excision from, Western civil societies allows us to consider in much more empirical detail and conceptual complexity the ambiguities of the assimilative mode. By exposing issues of religious rather than racial, economic, or gender exclusion, moreover, this focus allows us to examine the dynamics of incorporation in a case study further removed front contemporary Western political debates. In the preceding chapter, I used primarily American historical data to elaborate the ideal-typical models of incorporation. Focusing on a single national unit proved useful because it allowed the differences between these modes to be highlighted against a common backdrop, and to be displayed not only analytically but concretely, in narrative chronolog)-. There are, however, distinctive drawbacks to discussing an exclusively American case. The relative historical success of American incorporative struggles can be used to give a seductively evolutionary cast to the modes of incorporation. 461 MODES OP INCORPORATION INTO THE CIVIL SPHERE Anti-Semitism and tin* Failure of Assimilation In moral terms, one can rank order these modes in an ascending hierarchy-' indeed, such ranking is imperative both for normative philosophical argument and for practical social and political struggles alike. In empirical terms however, to present an evolutionary progression between these ideal-typical models is to commit a basic sociological mistake. Our consideration of "the Jewish question" in Europe and the United States will amply demonstrate why such a mistake should not be made. In the history of Western societies, no issue has loomed larger for the civil sphere than the incorporation of the Jews. Indeed, for centuries, not only in everyday life but even in some quarters of high social theory, this challenge presented itself as the question, one that posed the most fundamental challenge to the civil sphere, even more troubling, perhaps, than the challenges posed by class, gender, and race.1 These other groups were also constructed as uncivil, and excluded, dominated, exploited, or enslaved; only the Jews, however, were also subject to periodic, massive, and premeditated group murder and, eventually, to a barbaric genocide that brought them to the edge of extermination. "It is not accidental that 'the Jewish question' should have become a major concern from the eighteenth century to the present," Richard Bernstein writes. "Like a red thread running through its many different and sometimes even incompatible uses, there has been an underlying anxiety about the fate of the Jewish people in the modern age."3 It is well known, of course, that from the origins of Christianity, and, indeed, because of issues surrounding its origins, the Jewish people were demonized.-1 The anti-Jewish discourse of early Christianity dehumanized Jews by representing them as murderers and as untrustworthy liars. What has not been so clearly understood is that this Christian anti-Semitism can be seen as a "discourse of repression" in civil society terms.'1 As a universal- _______ izing cultural code, Christianity saw itself as creating a community of equals in which membership was voluntary and interpersonal relations were trusting and solidary.5 As Christianity became institutionalized in the Holy Roman Empire, it created elementary forms of what would later become the regulatory institutions of civil society as well. Inspired by shared cultural reference to an impersonal yet sympathetic and righteous God, religious actors were envisioned as having the capacity to engage in ideally oriented communication and to form a solidary society that would be regulated by (canon) law and administrated by (church) officials, the most important of whom were subject to collegial self-regulation, including election. It should not be surprising, then, that in its early and ferocious struggles against Judaism as a hegemonic religion, and in its later, more institutional efforts to deepen and make permanent the isolation of the so-called Jewish heresy, Christianity understood its pollution of Jews as justified not simply by the difference of their religion, but by their failure to fit into a civil frame/' The Jews were represented as incapable of participating in the civic life of "Christian" societies, culturally, interactionally, or institutionally. In terms of their motives, Jews were said to be deceitful and hypocritical and motivated by a greedy materialism rather than by morality or ideals. In terms of relations with others, Jews were portrayed as fundamentally and irredeemably egotistical, self-oriented, secretive, and aggressive. In terms of institutions, Jews were held to be tribal and particularistic. It was claimed that the only effective allegiance of Jews was to members of their own community, with whom they conspired against the civil majority; andjewish institutions were described as archaic and arbitrary, provincial, hierarchical, and divisive rather than solidaristic.7 Because these anticivil traits were held to be endemic to Jewishness, Jews were conceived as producing an indelible stain that might ultimately prove resistant even to the continuous Christian effort to convert them. Thus, in terms of the model of incorporation, persons who were or had once been Jews could not be separated from the qualities associated with Jewishness. This symbolic framework explained why Christians could not be allowed to interact with Jews and why, quarantined in ghettos, Jews were neither allowed to occupy office positions nor to enjoy the protections of civil and canon law. Jewishness prevented participation in civil society. When the first national civil societies were formed, a process that stretched from the mid-seventeenth to the mid-nineteenth centuries, this denionizing, esscntialist representation of Jews was increasingly brought into question, as was the legitimacy of the institutional excision of Jews from every legitimate avenue of civic life. Overt, endemic religious exclusion presented an embarrassing denial of civil society's promised solidarity; essen-tialistic protestations of endemic inferiority seemed to flaunt the universalism of Enlightenment thought. If marginalized Jews were left to organize their own communities, moreover, how could the rule of law be secured? How could emerging nation-states or multinational empires extend their rule in a uniform way? In this manner, the Jewish question became increasingly significant in 462 463 modes of incorporation into the civil sphere Anti-Semitism and die Failure of Assimilation social systems that professed to be civil societies, whether they were politically democratic or not/ After creating the first democratic and constitutional monarchy, the British invited Jews to return to the land from which they had been expelled four hundred years before.'' In 17S2, Joseph II, king of Germany and Holy Roman Emperor, issued his "Edict of Tolerance" demanding religious tolerance, the encouragement of education, and unrestricted economic activity.1" Earnest discussions about transforming tne status of Jews permeated administrative and intellectual activity in the: German states throughout the later eighteenth and early nineteenth centuries. The French formally emancipated Jews in 1700 and 1791. What is important to see about this amorphous, highly uneven, ..'; nevertheless highly consequential thrust to incorporate Jews is that it framed by the assimilative rubric of the private/public split I have earlier;, described. Their incorporation was premised on an exchange. Only if J'j,ii' • relegated their religious ideas and activities to the invisibility of private life: would they be allowed to become fully enfranchised citizens, like every other member of the nation-state. The twenty-fifth and concluding article ; in the edict of Joseph II stated that "by these favors We almost place the:; Jewish nation on an equal level with adherents of other associations."u "1 lie . adverbial qualification was neither gratuitous nor rhetorical; to the contrary,f it was studied and apt. In the edict's first article, the emperor explicitly; forbade that Jews "be allowed public religious worship or public synagogues! [or] permitted to establish their own press for the printing of prayer books":;; in the seventh, he forbade them "to live in rural regions"; in the eleventh, „: he asserted that Jews "must remain excluded" from "the right of citizenship | and mastership" in a craft; in the fifteenth, he asserted that, "considering the numerous openings in trades and manifold contacts with Christians resulting4 therefrom, the care for maintaining common confidence requires that the * Hebrew and the so-called Jewish language and writing of Hebrew inter-,; mixed with German be abolished," forbidding "their use in all public trans-;~ actions." Later in the decade, Joseph II issued an edict compelling Jews "to ; adopt German-sounding personal and family names, to be chosen ffoi government-prepared list."12 What historical document could more clearly demonstrate the fun da- : mental ambiguities of the assimilation mode? The enlightened thinking thai directed the formation of civil societies allowed that, in principle, the persor , of the Jew could be separated from Jewish qualities. At the same time, tin. 7 lational or imperial communities that carried this universalizing ideology .vere permeated by primordial particularities, by deeply internalized cultural prejudices attesting to the fundamental incapacities of various groups. As Arthur Hertzberg once wrote, "modern, secular anti-Semitism was fashioned not as a reaction to the Enlightenment and Revolution, but within the Enlightenment and Revolution themselves. *,u These early civil societies ,vere not free-floating: they were founded by men, by white men, by white rten of property, by white Christian men of property. In order to enter civil iociety, it was not enough simply to demonstrate civil capacity as such; one .votild have to present these capacities by manifesting them in a particular primordial way. As long as core groups pejoratively defined out-group qual-;ties, then, it was extremely difficult to see members of these out-groups as fully human beings.14 The attitude of the founders of civil societies toward Jews was that they lad to earn incorporation, whether or not they were, in principle, entitled :o it. In order to do so—to take "care for maintaining common confidence," in the words of Joseph II—Jews would have to stop being the other and become, as much as possible, like the founders themselves. They would lave to learn to act less like excluded Jews and more like the Christians ,vho offered them emancipation. It is important not to understand this paradoxical demand ahistorically, from a contemporary point of view. In the :ontext of a deeply anti-Semitic civilization, to suggest that Jews had the rapacity to act like Christians actually was enlightened and progressive, for it reflected the universalistic belief that, somewhere inside themselves, Jews possessed the same fundamental capacities as other persons. In 1785 the Royal Society of Arts and Sciences at Metz sponsored an essay contest mticipating this transformation of Jewish status. Contestants were asked to ronsider whether it was possible to make the Jews of France not only 'happier" but "more useful." The winner, Abbé Henri Baptiste Grégoire, iuggested that it was indeed possible, proposing practical activities and moral ideas that would, he believed, markedly improve the capacities of the Jewish people. Let us cherish morality, but let us not be so unreasonable as to require it of those whom we have compelled to become vicious. Let us reform their education, to reform their hearts; it has long been observed, that they are men as well as we, and they are so before 464 465 MODES OF INCORPORATION INTO THE CIVIL SPHERE they are Jews [and] the great part of their customs are not contralto civii functions.15 Even the most progressive members of Western core groups, however continued to believe that Judaism, both as practice and belief, would irredeemably poison public life. In order to free their universal person! from the polluted qualities attached to it, members of Jewish commur would have to learn either to repress or eliminate their Jewishness. Anti-Semitic Arguments for Jewish Incorporation: The Asshnilative Dilemma from the Perspective of the Core Group Christian Wilhelm von Dohm was a key figure in Prussian intellectual and political life, whose 1781 essay "Concerning the Amelioration of the Civil Status of the Jews" served as a focal point for discussions about the Jei question, and for policies to affect it, throughout enlightened Europe.1 the well-meaning but contorted complexities of this pkidoyei; we fir prototypical expression of the distortions and hypocrisies that accomr. incorporation into fragmented civil societies. Even for the most conscientious and democratically inclined core group member, assimilating an out-group whose primordial qualities remain deeply repulsive is an awkward, deeply ambivalent business. Discursive struggles over incorporation revolve around the question of whether a nations civil sphere is truly differentiated, on the one hand, and whether the character of the marginalized out-gr is civil enough to merit incorporation, on the other. Dohm is confident of the openness and generosity of Prussian civil society. The problem, for him. is Jewish character. Dohm's famous essay can be understood, in fact, as a meditation on whether the contemporary degradation of the Jewish people makes it possible to separate their universal humanity from the qualities of tl religion. Concerned with the cultural and psychological requirement: civil society, Dohm asks: Is it inevitable that Jewish motives, relations, and institutions be constructed in terms of the discourse of repression? That t have been so constructed is what has allowed "European states unanimously to deal so harshly with the Jewish nation."17 The charge had been that Anti-Semitism and the Failure of Assimilation vish religion "contained principles" that made it impossible for Jewish •sons to manifest the universal and inclusive solidarity required for civil thus preventing Jews "from keeping faith in their actions within the mmunity and with single members of the community." After all, if Jews : indeed motivated by aggression rather than fellow feeling, if they do feel atred against those who do not belong to their faith," then they will be ceitful rather than honest in their relations with others, feeling "an obli-:ion to deal crookedly with others and to disregard their rights." If this nstruction of the "antisocial" Jew were accurate, Dohm allows, then efore the eyes of reason" it would be incumbent that "the rights of izenship should be withheld entirely only from the Jew and that he should permitted only partially to enjoy the rights of man." As a civil Enlightenment thinker recommending Jewish emancipation, Pohm earnestly criticizes this essentialist kind of anti-Semitic thought. He argues that, "according to what has become known about the Jewish religion us far, it does not contain such harmful principles." To the contrary "the v of Moses," the most important source ofjudaism, "is looked upon by iristians with reverence" and "contains the most correct principle of moral v, justice and order." If Judaism has such a universalist potential, then rson and qualities can be separated, and incorporation can be achieved, including that "the Jew is even more man than Jew," Dohm demands at the gates of the ghetto be opened to civil life: "Every art, every science ould be open to the Jew as to every other free man. He, too, should lucate his mind as far as he is able; he, too, must be able to rise to emotion, honor, and rewards by utilizing his talents." Yet Dohm is not only a civil intellectual; he also comes from a Christian .ckground and conceives of himself as speaking to a culturally Christian idience. Despite Enlightenment principles and protestations, this primor-al religious commitment leads him significantly to restrict his advocacy of fewish incorporation. Though he insists that, in principle, Judaism is as civil Christianity, he readily acknowledges that, in practice, Judaism is nothing : the kind. Precisely because of their historical mistreatment by Christian icieties, Judaism and Jewishness have become everything their enemies :cuse them of being. "In the faith of today's Jews," Dohm writes, there are deed "some principles" that "exclude them from the other groups of the ■eat civil society." In recounting "the general experience of our states of ie political harmfulness of the jews," Dohm points to their evident inca- 466 467 MODES 01- INCORPORATION INTO THE CIVIL SPHERE Anti-Semitism and the Failure of Assimilation pacitv for universal solidarity. In its present Iristorical form, Judaism is defined by "clannish religious opinions." Influenced by the "sophistic conclusi of the rabbis," Jews are filled with such "bitter hatred of all who do not belong to their tribe that they are unable to get used to looking at then members of a common civil society." These general anticivil motives and relations also manifest themselves in the institutional arena, for Jews have-shown a "lack of fairness and honesty in the one field in which they were; allowed to make a living—commerce." That Dohm himself adheres to this denigrating and polluting understand-; ing of Jewish qualities is demonstrated bv the fact that what makes him a' progressive is not that he denies the reality of this anti-Semitic portrait but that he denies its necessity.18 The "error" that he finds in anti-Sem reasoning is not in its ethnography but in its logic: It "states as cause what. in realitv is the effect, quoting the evil wrought by the past erroneous po as an excuse for it." Dohm's patronizing elaboration of this position is so revealing of the ambiguities of assimilation that it seems worth considering at some length. "Let us concede," he begins, "that the Jews maybe more morally corrupt s than other nations; that they are guilty of a proportionately greater num of crimes than the Christians; that their character in general inclines more ; toward usury and fraud in commerce, that their religious prejudice is more » antisocial and clannish." These facts must still be put in their proper histor context: "This supposed greater moral corruption of the Jews is a necess and natural consequence of the oppressed condition in which they have been living for so many centuries.'" It is very natural that these conditions cause the spirit ot the few to lose the habit of noble feelings, to be submerged in the base routine of earning a precarious livelihood. The varied kinds of oppression and contempt he experiences are bound to debase him in his activities, to choke every sense of honor in his heart. As there are almost no honest means of earning a living left to him, it is natural that he falls into criminal practices and fraud. Dohm escapes from antidemocratic essentialism, in other words, not by disagreeing with the contention that jews are unfit to join civil society but. instead, by advocating a sociological, rather than specifically religious u 46 s derstanding of this incapacity. "Everything the jews are blamed for," he explains, "is caused by the political conditions under which they now live, and any other group of men, under such conditions, would be guilty of iJentical errors." Corresponding with this typically Enlightenment emphasis 1 the influence of social environment is a reflexive and self-critical accep-f-ince of moral responsibility. "All this is our own doing," Dohm declaims his Christian audience. What has happened is that "the prejudices which we have instilled and which are still nourished by us in him [the Jew] are stronger than his religion." To continue to punish Jews by pursuing anti-bemitic social policies, then, would be profoundly hypocritical, for "we rselves are guilty of the crimes we accuse him of." Because Dohm acknowledges that Christian states are morally responsible, he argues that these civil authorities have an obligation to initiate ■. brms aimed at incorporating Jews. However, because Jewish degradation i« an empirical fact, Dohm makes the paradoxical suggestion that such reforms will have to be directed, first and foremost, not at Christian anti-^"■■mitism but at the beliefs and practices of the Jews themselves. True, giving [ews access to the public sphere might, in itself, have salutary effects on the Jewish character. Face-to-taee interaction, for example, could have a civilizing effect on cultural beliefs: "Frequent intercourse and sharing the burdens and advantages of the state equally is the most certain way to dull the edge of the hostile prejudices on both sides." In their present condition, however, Jews are not subjectively ready to participate in civic life. Thus, much more interventionist and restrictive government practices arc neces-..uty. Until these initiatives work their effects, Jewish access to the regulatory and communicative institutions of civil society will have to be forcibly restricted. Dohm asks, for example, whether Jewish emancipation would mean that "jews should be admitted to public office immediately." In principle, he acknowledges, the answer would seem to be yes, for "it seems, in fact, that if they are granted all civil rights, they could not be excluded from applying for the honor to serve the government." Winning such positions, however, would depend on whether jews "are found to be capable." Not only does Dohm express the opinion that "in the next generation this capability will not yet appear frequently," but he insists that "the state should make no special effort to develop it." Reasoning that the duties of office "require that the applicant be far removed from any suspicion of misdemeanors due to greed," he argues that "this will probably not always be the 469 MODES OF INCORPORATION INTO THE CIVIL SPHERE case in the Jews of today and of the next generation.'' Given the anticivil nature of contemporary Jews, die reformist obligation of the civil state must-be to exclude Jews from office: "Impartiality would demand that if a Jewish" and a Christian applicant show equal capability, the latter deserves prefer-:; ence." In justifying this reformist vet in many respects deeply antidemocratic policy vis-ä-vis Jews, Dohm points ro what he obviously believes are the. prima facie grounds of primordial distinction. "This seems to be an obvious -right of the majority in the nation," he writes, "at least until the Jews by wider treatment are changed into entirely equal citizens and all differences x rubbed off." Dohm describes himself as speaking in "the interests of civiD society,"1" and it is in terms of this civil interest that he seeks the moral reform of the Jewish character. Incorporation depends on assimilation, not only to civil society but to the particular primordial qualities of a society's™^ core group. Moral re-education would certainly be one area for reconstructive intervention. For example, "besides the holy teachings of his fathers," ; the government "should take care that. . . the Jew is taught to develop his reason." In this effort to civilize Jewish education, it also "would perhaps '•• be necessary to prevent the teaching of antisocial opinions against men of other persuasions." But mora] suasion will not be enough, for Jews may well not voluntarily give up their core beliefs. If differences are to be polished oil, the Jewish spirit must be broken. Assimilation demands eiilightened coercion. "The too mercantile spirit of most Jews will probably be broken more easily," Dohm concludes, "by heavy physical labor than by the sed- £ entary work of the pubiic servant." How might this be accomplished? "The., government," Dohm suggests, should "try to dissuade the Jews from the occupation of commerce." For example, the state might "restrict the number .... of Jews active in commerce or subject them to special taxes." The state should be "encouraging them to prefer such kinds of earning a living as are most apt to create a diametrically opposed spirit and character—I mean artisan occupations." Nor should "the Jews be excluded from agriculture." In the same patronizing and particularistic spirit of civic reform, Dohm acknowledges that he would "not wish to see the Jews encouraged to become owners of big estates or tenants." Because such occupation merely "nourishes the spirit of speculation and profit-seeking," it would not properly prepare the Jew for an active civic life. For their own sakes. Dohm would prefer to see the Jews become "peasants working their own land." 470 Anri-Semitism and die Failure of Assimilation Indeed, an enlightened government should consider "settling the Jews of the country on vacant pieces ot laud." The same kind of solution to the Jewish question, forced resetdement in far-off agricultural areas, was a response that another and obviously much less well-intended representative of German culture was to offer his compatriots one hundred fifty years later: the Nazi proposals for the Lublin Reservation and Madagascar Plan. That .1 bold and progressive demand for Jewish emancipation issued by an Enlightenment intellectual would produce proposals not entirely dissimilar to the anti-Semitic program for Jewish exclusion introduced by Adolf Hitler illuminates in a vivid way the structural instabilities of the assimilative mode of incorporation. The German tide of Dohm's essay is, in fact, a double entendre. Vher die bsiigctliche vcrbvssenwg dtr fitdeii can just as easily be translated as announcing its concern for the "civil improvement of the Jews" as being about the "amelioration" of their "civil status."2" In fact, as we can now see, slicIi a translation would more appropriately suggest the sociological sense of Dohm's work. It would also lead us more directly to the next questions we will consider: Did the Jews themselves want to be improved? If not, what other options did they wish to create? Initial Jewish Arguments for Self-Change: The Assimilative Dilemma from the Perspective of the Out-Group The deep subjective ambivalence manifest by Christian core-group representatives about Jewish emancipation translated into the objective contradictions of the incorporative process itself. A century and a half after the initial movements toward emancipation, these contradictions manifested themselves in the violent destruction, rather than the civil inclusion, of a vast swath of European Jewry. Though the contradictions of Jewish assimilation were objective, however, this dire expression of them certainly was not inevitable; it was determined, rather, by a complex of contingent historical processes and events.21 At any rate, the story of the Holocaust and its causes is not at this point our primary concern, although it inevitably shadows the dark side of the analysis I am developing here. Our concern is more general and systemic. We arc concerned with examining Jewish incorporation as a type case of the vagaries of assimilation. In our earlier 471 MODES OF INCORJ'ORATTON INTO THE CtVIt. SPHERE discussion of mcorporative processes in die United States, we observed how, ■'---¥ over long periods of rime and after bitter and often violent social struggles, ; the ambiguities of assimilation were resolved in a manner that allowed new modes of civil incorporation. The fate of the European Jews shows that this \ is by no means necessarily the case. The instabilities of the assimilative mode I of incorporation are resolved contingently, not by an inevitable develop- .''-.x mental or evolutionary logic. Assimilation can be pushed backward toward - | primitive modes of domination or forward toward more pluralist forms of " , inclusion that expand the primordial modes of expression of civil capacities. t We can deepen our understanding of these ambiguities by considering ; the responses of the actors themselves. In our earlier discussion of incorpo- ... | ration into the United States, the reconstructed statements by core-group . and out-group representatives were analyzed from the outside, adopting, as I it were, the perspective of civd society itself The more detailed case study- - - 3 in this chapter allows us to enter much more deeply into the perspectives I-of the out-group undergoing assimilative change. Our question is, How did t the Jewish people themselves respond to the asymmetrical bargain ofassim- < ilation? From the perspective of contemporary society, and with the advantage of hindsight, the answer to this question seems rather surprising, for the j initial Jewish response to the ambiguous offer of incorporation was highly § positive. Eventually, however, the Jewish response became as involuted and J§ ambivalent as the incorporative process itself.22 . | For two thousand years, since the Roman destruction of the Israelites' . g Second Temple in 70 C.E., the Jewish people had been living on the polluted ]| margins of core societies, at first on the margin of Roman civilization and _ | then, after 379 C.E., when Emperor Theodosius I made Christianity the > state religion of the Roman Empire, of Christian civilization broadly con- :-Z ceived. At the same time, Jews continued to conceive of themselves as God's chosen people. When the newly constructed civil spheres of national societies promised Jews, for the first time, "almost" full access to the Christian ■ -j| centers, this was certainly considered by Jews to be a world-historical event. j| It is no wonder, then, that as soon as the first national civil societies were p| constructed, jews began knocking on their doors, asking in a polite but ^| persistent manner to be let into this new, avowedly tolerant and inclusive ^| space. These requests began with the initial success afCromwells democratic t| revolution, when jews who had earlier been expelled from England peti-tioned the radical Protestants for the right of return, and they continued for ^ Anti-Semitism and die Failure of Assimilation two hundred years, until the gates of every ghetto in western and central Europe had been pried opened. The formal edicts of emancipation thus assumed for the Jewish people an extraordinary significance. But what of the asymmetry of the bargain upon which this emancipation was premised, the sacrifices which, as we have seen, even the most progressive Christians demanded of Jews—the insistence on self-transformation and the barely concealed anti-Semitic threats? The truth is that, in light of the unprecedented promises of freedom and participation, massive numbers ofjews, including most of their enlightened leaders, were willing, even eager, to overlook the ambivalence and qualifications with which the promises of emancipation were made. According to an old adage, jews did not walk out of the ghetto, they ran. Two factors were at work. First, Jews wanted out. and assimilation represented the only terms on offer, presenting, in fact, a historically unprecedented opportunity. Second, the Christian demand for Jewish self-transformation appeared attractive, in certain respects, at least, to many ]t*wish leaders themselves. Emancipation was not only a proposition emanating from Christian Enlightenment representatives but from enlightened, ami traditionalist Jewish intellectual and religious figures. Though the latter certainly did not accept the anti-Semitic denigration ofjewish qualities, they did accept the idea that Judaism could and must be changed, that the religion should be transformed in an "enlightened" way. For both these reasons, then, among the Jewish communities ofWestern and Central Europe there were initially expressions of great optimism about the possibility of what might be called the deprimordializarion of national civil communities. In exchange for the "gift" of this transformed public world—the promise of the first fully transparent and universal civil sphere— Jewish intellectuals and religious leaders agreed to do their part, to both privatize and modernize the world ofjewish religion. That the Christian demand for privatization and modernization was motivated as much by repugnance for Jewish qualities as by belief in the innate reasonableness of the Jewish person was, in the first flush of emancipation, a possibility whose implications were either not seriously considered or else resolutely put aside. After all, in their relations with hostile and suspicious external communities, Jewish tradition had always accepted the necessity for a public/private split. To be "a man in the street and a Jew at home" became the motto for an entire generation of maskilint—participants in the Jewish Enlightenment— 472 473 MODES OF INCORPORATION INTO THE CIVIL SPHERE in the latter nineteenth century.23 With the new possibility that the war. of the street would assume a much more civil and democratic form, tl payoff for keeping Judaism "invisible" to non-Jews would be that muc greater. What these early Jewish leaders did not. perhaps could not, forest was that the contemporary denigration of Jewish qualities would not I ; transitional, that it would persist into modernity itself, and would make tl private/public split impossible to achieve. In truth, Jews would not fc : allowed to be "men" in public life. Jewish civil participation would becon : skewed and distorted even as emancipation paradoxically continued apace.: In the first flush of the Enlightenment, however, these possibilities were ' remote to the early Jewish leaders of emancipation as they were to the philanthropic Christian counterparts. Such early Jewish optimism, which in retrospect seems naivete, was n more clearly embodied than in the figure of Moses Mendelssohn. Tl ; appearance in Berlin cafe society of this brilliant, self-taught Jewish savan who had been given formal permission to live in the city, is said to have provided for many German intellectuals a simple and powerful proof of the possibility of Jewish emancipation; Mendelssohn seemed a validation th.i\ Jewish persons could be separated from Jewish qualities. It was at Mendel sohn's request that Christian Wilhelm von Dohm wrote his brief for civil inclusion ofjews. It was not, however, simply his own irrepressible characti that allowed Mendelssohn to appear unfazed by Dohm's anti-Semitic pre : posals for restricting Jewish economic and civil participation. In composing his critical response to Dohm, Mendelssohn demonstrated not only an in- -nocent trust in the power of rational discourse; he displayed, as well, misplaced confidence in the rationality of his would-be Christian emanc pators, a confidence that failed to take seriously the strength of their pr mordial stereotypes about Jews. Mendelssohn refuted Dohm's anti civil fran ing of the effects of Jewish economic life by explaining that "the pettie trafficking Jew is not a mere consumer, but a useful inhabitant (citizen, 1 must say), of the state—a real producer."24 Applying the universalizir discourse of liberty, in other words, Mendelssohn claimed, contrary to Dohm, that Jewish economic life made Jews autonomous and independen He rurther resisted primordial denigration by advising Dohm that the phra; biirgcrlkhe Aufnahme (civil admission) would be a much more appropriai description of what Dohm actually intended than his own term, hiirgcrlid Vcrbessemng (civic improvement).25 Anti-Semitism and the Failure of Assimilation Yet even as this Enlightenment Jewish intellectual staunchly maintained, ioainst his Christian compatriot, that contemporary Jewish life contained rronglv universalist qualities, Mendelssohn was more than ready to live up o what he understood to be his side of the bargain. In doing so. he provided famous and controversial theoretical grounding tor what came to be known s the "reform" of Jewish religion. Mendelssohn claimed that "Judaism mows nothing of a revealed religion," and he insisted that the "immutable ruths of God" were not transmitted to the Jews privately, by "direct reve-ation," much less "forced on the belief of the people, by threats of eternal ir temporal punishment." Suggesting in this manner that Judaism was more n ethical and moral system than a metaphysical one, Mendelssohn argued or the inherent complementarity of Jewish qualities with modern civil ocieties. Rather than a secretive, private, in-turned religion, in his view udaism was founded on a structure that adumbrated key aspects of contem-iorary public life. Writing of the Jewish commandments, Mendelssohn laims that God "gave them publicly" to the Jewish people and that, in .oing so, God had "recommended" certain principles and ways of life for he Jews' "rational consideration." Far from being an antirational and eth-ioceutric dogma, then, in Mendelssohn's eyes Jewish principles are "as iniversal as the salutary influence of the sun, which, while revolving round its orbit, diffuses light and heat over the whole globe." If Judaism so partakes of universal natural laws, it must be viewed as a facilitating input to civilized society rather than a barrier to its realization. Thus, contrary to Dohm's suggestion, the qualities of the Jewish religion need hardly be eliminated or suppressed in the course of building an inclusive civil life.21' Ten years after Mendelssohn penned these confident words of advice and inspiration to his fellow Jews and their German emancipators, a Frenchman named Berr Isaac Berr formulated similar sentiments in a public letter he issued to the Jewish congregations of Alsace and Lorraine on the morning that the French National Assembly passed the resolution emancipating the Jews of France. This remarkable missive of gratitude and caution fuses religious and civil language in an argument that simultaneously imitates and underscores the ambivalent, contradictory logic of the Jews' Chris tian-cum-civic emancipators. Employing the discourse of repression, Berr characterizes pre-re vol utio nary Jewish ghetto life as "bondage and abasement."27 Precisely because it had so transformed antidemocratic secular bondage, the French Revolution held out hope to ghetto-bound Jews. "Surely our chains had 47+ 475 MODES Ol- INCORPORATION INTO THE CIVIL SPHERE become the more galling," Berr recalls, "from the contemplation of the rights of man, so sublimely held forth to public view." The French R nation's decision to extend these revolutionary principles to the Jews ognized how Jewish humanity had been belied by their bondage, a se| tion of persons from qualities for which Berr believes all Jews shoul thankful. "What bounds can there be to our gratitude for the happy evi he exclaims. It is revealing, however, that in applauding this imminent recogn of the Jews' universal humanity, Berr also emphasizes the connection between these newly offered universal rights and membership in the primordial community of the French nation, a membership that Berr links to the assumption of new and compelling obligations. "From being vile slaves, mere serfs, a species of men merely tolerated and suffered in the empire . we are, of a sudden, become the children of the country, to bear its common' charges, and share in its common rights." Berr views the destruction of the ghetto as creating the conditions for solidarity between Jews and Christian Frenchmen, for a horizontal, civil relationship without which domination would inevitably be the Jewish fate. "At length the day has come," Berr proclaims, "when the veil, by which we were kept in a state of humiliation, is rent." Once again, Berr himself recognizes that this promise of civil emancipation is linked to membership of a distinctly primordial kind. "We are now, thanks to the Supreme Being, and to the sovereignty of the nation; not only Men and Citizens, but we are Frenchmen! What a happy change Thou hast worked in us, merciful God!" What are the "common charges" that emancipated jews must assume-vis-a-vis their new civil-cum-primordial community? Berr recognizes quite clearly that there is a bargain involved, a promise that Jewish persons can become members of the French nation only in return for their commitment to purifying their own Jewish qualities. He calls on his Jewish brethren to "examine with attention what remains to be done, on our part... to show, in some measure, our grateful sense for all the favors heaped upon us." The problem Berr comes back to is, in fact, the same one that troubled Dohm, namely the civil competence of the Jews. Recognizing that "the name of active citizen [is] the most precious title a man can possess," Berr warns that "this title alone"—civil status in the legal sense—"is not sufficient." Jews must themselves measure up: "We should possess also the necessary qualifications to fulfill the duties annexed to it." Anti-Semitism and the Failure of A^imibtion In order to qualify for civil inclusion, Berr insists that Jewish emancipation must involve not only universalism but a demonstrable shift in primordial affinity. In order to "give signal proofs of [our] glowing patriotism," Jews must "work a change in our manners, in our habits, in short, in our whole education.*'2'' In demands ranging from his insistence that Jews learn to speak unaccented French to his suggestion that they take up science and manual labor in order to shed their "sloth and indolence," Berr reproduces Christian anti-Semitic stereotypes. This is nowhere more apparent than in his argument about what is "absolutely necessary" for this self-transformation: Jews must "divest ourselves entirely of that narrow spirit, of Corporation and Congregation, in all civil and political matters." Though Berr protests that he intends by this advice no criticism of Judaism as such— "God forbid that I should mean anything derogatory to our professed reli-" gion [or] presume to alter [its] dogmas"2''—he is protesting too much. He realizes that the qualities of Judaism remained deeply stigmatized even among Ms French emancipators; he is dispensing advice so that his brethren might learn publicly to present themselves as Frenchmen, not as Jews. The Post-Emancipation Period: Religious and Secular Modes of Jewish Adaptation to the Dilemmas of Assimilation This enthusiasm for civil inclusion among early Jewish Enlightenment figures had consequences for Jewish religious practices in the modern world. It set off a chain reaction with consequences that could neither be foreseen nor controlled. "Adopt the mores and constitution of the country in which . you find yourself," Moses Mendelssohn had advised his religious brethren in 1783, "but be steadfast in upholding the religion of your fathers, too. Bear both burdens as well as you can."'1" But if the Jewish religion was to be maintained, it would not be that of the patriarchs themselves. Bearing both burdens meant that religion would have to change as well. In fact, an extraordinary enthusiasm for religious self-change accompanied the embrace of Enlightenment and assimilation, and it transformed organized Judaism from the turn of the nineteenth century. 476 477 MODES Oi- INCORPORATION INTO THE CIV1I. SPHERE Anti-Semitism and die Failure of Assimilation Restructuring Organized Judaism It is true, of course, that this self-change responded in part to outside pressures. Napoleon himself, speaking in 1806 through his appointed commissioner Count Louis Mathieu Mole to the leaders of French Jewry, bluiulv demanded loyalty in exchange for emancipation: "Do those Jews who are born in France and who are treated as French citizens regard France as their native country, and do they feel themselves obligated to defend it. to obey-its laws, and to submit to all regulations of the civil code?"3' Yet it was not only in response to the implicitly coercive implications of this question 1 radical and moderate reformers alike insisted on separating what they called the "spiritual" from the 'national" elements of Judaism. They themselves.' were highly motivated to leave the Jews' traditional pariah status behind..' This is clear from the passion with which they hastened to assure their™ secular national leaders that post-emancipation Jews no longer considered ; themselves a nation but a religious grouping, an identification that allowed, full primordial attachment to their respective nation-states. In 1845, David : W. Marks, the first rabbi of the West London Synagogue of British Jews. . attested "we unequivocally declare that we neither seek nor acknowleuge f subjection to any land except the land of our birth." The support which i-Rabbi Marks expressed for this new primordial attachment was intense: "To • this land we attach ourselves with a patriotism as glowing, with a devotion as fervent, and with a love as ardent and sincere as any class of our British \ non-Jewish citizens.For many Jews, indeed, this shift in primordial loy a liv -. went so far as to compel them to give up the Messianic idea of the return -: to Palestine, one of the most cherished creeds ot the Jewish Diaspora, in .; 1885, the leaders of American Reform made such a declaration part of their. ;j Pittsburgh Platform, which became a guide for the liberal branch of Amer-ican Judaism for fifty years to come. We recognize in the modern era of universal culture of heart and intellect the approaching of the realization of Israel's great Messianic hope for the establishment of the kingdom of truth, justice and peace iamong all men. We consider ourselves no longer a nation, but a religious community, and, therefore, expect neither a return to Palestine, nor a sacrificial worship under the sons of Aaron, nor the restoration of any of the Jaws concerning the Jewish state.-13 47S The issue clearly was not just a pragmatic shift of geopolitical loyalty. As the historian Joseph Blau has put it, nineteenth-century reformers of Judaism wanted an "inner emancipation" that paralleled the outer, political emancipation.*,! For the most radical among them, who started the antitradition-alistic branch ofjudaism known as Reform Judaism, this inner emancipation meant subjecting every Jewish religious belief to the test of reason. In 1843, in its "Program for a Declaration of German Israelites," the Frankfort Society of Friends published a streamlined creed that centered on three principles: t. We recognize in Mosaism the possibility of an unlimited further development. z. The collection called the Talmud, as well as all the rabbinic writings and statutes which rest upon it, possess no binding force for us either in dogma or in practice. 3. We neither expect nor desire a messiah who is leading the Israelites back to the land ot Palestine; we recognize no fatherland other than that to which we belong by birth or civil status.35 The same standard of reason was employed by the fifteen American rabbis who prepared the Pittsburgh Platform. Declaring that "we recognize in Judaism a progressive religion, ever striving to be in accord with the postulates of reason," they urged their fellow Jews to reject all moral laws and ceremonies "which are not adapted to the views and habits of modern civilization."3'' The To rah, the Jewish Bible that Christians later included in the Old Testament, itself must be subjected to scientific test: "We hold that the modern discoveries of scientific researches in the domains of nature and ...history are not antagonistic to the doctrines ofjudaism, the Bible reflecting the primitive ideas of its own age and at times clothing its conception of Divine Providence and justice dealing with man in miraculous narratives."37 From this postmetaphysical perspective, self-change not only involved giving up the idea of messianic return but any specifically Jewish idea of salvation. Indeed, the Reform movement sublated religious into secular messianism, into the belief in the universal progress ofhumankind. According to the German Reform leader Ludwig Philippson, whereas Jews formerly "had striven to create a nation, an independent state." their goal now "was to join other nations and reach for the highest rung of development in human society."-1'' The very definition of the "new age" was to expand 479 modes op incorporation into the civil sphere solidarity in a fully horizontal, civil manner, "to form a general human society1' which would "encompass all peoples organically." In order to enter fully into this civil sphere, Philippsou declared, particularistic definitions of; community, including the Jewish one, must be abandoned. It is "the task of '■■ the jews not to create their own nation . . . but rather to obtain from the > other nations full acceptance into their society and thereby attain to ( iparion in the general body social."-1'* The Reform leaders' rejection of particularistic definitions of Jewish I community, however, did nDt indicate a desire to erase all distinctions. Their ; new secular messianism, rather than eliminating the idea of Jewish particu- I larity, reinterpreted chosenness as "the mission of Israel." Though revisers I in all the new movements of Judaism promoted a new understanding of | Jewish particularity', it was Reform Judaism that came to be identified with I the notion of mission. At the Frankfurt rabbinical conference in 1S45, Hand I Einhorn articulated this shift. The collapse of Israel's political independence was once regarded as a misfortune, but it really represented progress, not atrophy but an g elevation of religion. Henceforth Israel came closer to its destiny. || Holy devotion replaced sacrifices. Israel was to bear the word of God to all the corners of the earth.""' | Einhorn and his colleagues, in other words, universalized messianism and || added a more human understanding of agency to historical progress; but :'| they hardly rejected the idea of the jews' divine vocation. Claude Montef- .;•? iore, a prominent spokesman for Britain's Liberal Judaism—that nirinns ($ version of Reform—saw the Jewish mission to carry God's message to 1| humanity as the "one specifically Jewish commandment," defining Jews ai: || a "religious brotherhood" rather than as a nationality or even a people."- g| In response to such far-reaching change, backlash movements formed J! within these reforming Jewish communities, movements that eventually became organized as Orthodox and Conservative denominations in contrast to Reform. It is important to understand, however, that for most 01 tne -nineteenth century at least, these backlash movements departed from l^e-form not because they were more pessimistic about the possibility of fewish S| incorporation but because their very optimism about this possibility led J| them to worry deeply about its effects. They resisted not reform per se, Anti-Semitism and the Failure of Assimilation much less full inclusion into national citizenship. Rather, they resisted Reformism as threatening the distinctiveness, indeed the very specificity, of Jewishness as such. In his widely read Nineteen Letters on Judaism, published in 1S36, Samson Raphael Hirsch, one of the intellectual founders ofModern Orthodoxy, wrote that although he respected the "good intentions" of Reformers, he wanted to "weep and mourn" when he examined "the aims to which their efforts are directed."'12 Hirsch claimed, and not without some reason, that the Reformers' rejection of traditional Jewish beliefs and practices seemed to echo the anti-Semitic perspectives of Christian core groups. In Kantian terms, this disagreement can be described as a struggle over ;he relationship between the right and the good, between the moral life of :he civil public sphere and the ethical life of the private sphere and primary ronrmunities. Should "moral" forces and representations exercise control jver definitions of the good? From the perspective of Orthodox and Conservative intellectuals, Reformers were all too eager to subordinate Jewish pod to civil right. Hirsch claimed that "the champions of contemporary reform . . . have failed to recognize the good and have erred in their comprehension of the truth."4-1 Accusing them of dissolving religion into mere :ivility, Hirsch resisted this sacrifice—which for Reformers, of course, was not a sacrifice at all—because he viewed certain aspects of traditional Judaism lot as primitive and irrational, but as superior religious truth. If one accepts "the eternal ideals of our faith," Hirsch wrote, then Jews certainly must refrain from merging fully into a civil solidarity.1'1 In fact, Hirsch viewed Christian core-group spokesmen as strangers and potential enemies. "To take a standpoint somewhere outside of Judaism," he wrote, is "to accept a option derived from strangers, of the purposes of human life, and the :t of liberty, and then to cut, curtail and obliterate the tenets and ordinances of Judaism.""15 The backlash movement against Reform, in other words, strangely mirrored the antiuniversal, primordial loyalties of the Christian emancipators. Hirsch worried that civil solidarity would bring about "a close union with that which is different and alien, and a severance of the ties that bind us all to Israel's lot."-16 Though professing, "I bless emancipation," and insisting fin "the duty of the community no less than that of the individual to obtain for all its members the opportunities and privileges of citizenship and liberty," Hirsch wanted the separation between jew and civil society to be niaintained.47 For Orthodox and Conservative Jews, religious redemption— 480 MODES OF INCORPORATION INTO THE CIVIL SPHERE not civil emancipation—remained the ultimate goal. Civil incorporation would make the Galut (exile from the land of Israel) more palatable; ultimately, however, jews must return to the Holy Land to be reunited with God.'1H It was in this peculiar, limited, but nonetheless important sense the goal of the opponents of Reform was "the avoidance of assimilat as Baruch Stern, one of Hirsch's successors in the Modern Orthodox movement, put it."1-' This conflict within the lewish Reform movement highlighted the ambiguities of incorporation, adumbrating the dilemmas faced not just by Jews but by every assimilating group up to the present day. In the long run. of course, both the unbridled enthusiasm of European Jews for assimilation and their anxieties about the effects of its imminent success turned out to be profoundly misplaced. The Holocaust was proof. Even in the middle term, however, the fervent Jewish commitment to self-change could be said to-have had only mixed results. In Western Europe and the United States, the assimilative exch; despite its asymmetry, seemed an honest one conducted in good faith. In return for Jewish assiduousness in taking up opportunities to become socialized to their respective civil-cum-primordial communities, openings appeared for Jews to participate in public life. In England, France, Gerr : and America, as they took on the coloring of their respective primordial communities, Jews became artists, intellectuals, and professionals, and even, < in the case of Disraeli, held the highest positions of civil office. By the later nineteenth century, assimilation had proceeded to the extent that such "in- :. corporated" Jews often demonstrated open antipathy to newer Jewish immigrants, legal and illegal, who came streaming into their countries i sponse to the sudden rise in anti-Semitic violence in Eastern Europe and \ Russia. Sometimes they even embraced such anti-Semitic terms as "kike" to stigmatize and distance themselves from these unwelcome newcomers, whom they saw as behaving in an uncultivated manner and as looking and acting "too Jewish."5'1 The barely suppressed fear, of course, was that these raw and unpolished immigrants, with their "typically" Jewish beliefs and practices, would nite the publicly bracketed but still powerful core-group antipathy to Je""'"1, qualities and would reinforce the stigma that assimilating Jews, whether Reform or Orthodox, were intent on trying to escape. American Jews or Western European origins, writes Gerald Sorin, encouraged the new im- 4s; Anti-Semitism and the Failure of Assimilation migrants to "discard social habits that made them embarrassingly visible and that got in the way of rational and efficient adaptation." 51 Spokesmen for [he relatively more incorporated Jewish groups declared the presence of these newer immigrants as "dangerous to the Jews of refinement and culture," asserting that nothing but "disgrace and a lowering of the opinion in which American Israelites are held . . . can result from the continued residence among us of these wretches."52 In 1805, a statement by a German Jewish public school teacher in Cleveland reflected the unacknowledged but nonetheless real connection between the public universalism of American democracy and the polluted primordiality ofjewishness, which continued to be reproduced in private life. She called upon authorities to protect her immigrant pupils from the influence of their own homes and neighborhoods, describing the latter as filled with "bigoted followers of the orthodox rabbinical law [andj uneducated paupers . . . whose minds are stunted [and] whose characters are warped."-" Even in the midst of the very real transformation in the civil status of Western European Jews, in other words, these new members of civil societies manifested a distinctive unease. What Cuddihy aptly termed "the ordeal of civility" can be traced to the awareness, among even the most assimilated jews, that the public incorporation of their persons in no way mitigated the private stigmatization of their religions qualities.5"' Properly socialized, Jews could participate in significant if still limited ways in public life. In terms of the everyday private lifeworlds, however, Jews still remained worlds apart, segregated residentially, excluded from primary groups of friendship and clubs, denied opportunities for intermarriage.53 In the context of this tense duality between public and private orientations, anti-Jewish pollution inevitably circled back into the public sphere, significantly undercutting the incorporation that assimilation had promised to provide if Judaism withdrew into private life. Religious Conversion The dilemmas of assimilation also produced "adaptive" responses of a very different kind. Some jews tried to resolve the harsh dualities of incorporation not only by changing what it meant to be a jew but by leaving Judaism entirely behind. The most obvious way was converting to Christianity, an 4^3 MODES Ot: INCORPORATION INTO THE CIVIL SPHERE option particularly attractive to jews in German civil societies where access to state positions often remained formally "jndcnrciu" 0ewish free).Though' Christianity had, in principle, always welcomed Jewish conversion, the facf-that earlier Christian societies did not possess constitutionally regulated, formally egalitarian civil spheres had made the prospect of full participation^ much less likely and conversion much less attractive. With the Enlightened transformation of European societies, the prospect of civil participation became more real, and the incentive became much greater to leave the private stigma of jewishness entirely behind.57 If assimilation freed Jewish" persons in public but did not change the estimation of their private qualities, . then one logical alternative was to change these private qualities by claiming not to be Jewish. The history of Jewish communities in nineteenth-century central Europe is filled with conversions; in fact, in mid-century Vienna, the city with the highest conversion rate in Europe, one estimate has it that S percent of the Jewish population annually made efforts to convert.5* Heinrich Heine, = one of the most famous German poets of the Romantic era, asserted that "the baptismal certificate is the ticket of admission to European culture/'3''' "; and he was by no means the only talented jew who was able, as a result of conversion, to enter centrally into the primordial community of his or her national civil society. Still, the very situation that led more than two hundred \ thousand Jews in the nineteenth century alone"1' to seek conversion seemed also to guarantee that this approach to dissolving the contradictions of incorporation was bound to fail. Converted jews were not Christians but Taufjude—literally, baptized jews, jewishness was an underlying, highly pol-luting quality', not just a formal status, and such qualities were very difficult, : if not impossible, to shed. In this respect, these early, highly fragmented civile societies were not so different from the more traditionalist, antidemocratic societies of earlier times."1 Faced with the Inquisition, many Spanish and '! Portuguese Jews in the fifteenth and sixteenth centuries chose conversion rather than exile or death. Yet, identified as converses and Marmuos, they remained forcibly separated not only from Spanish society" but from the core groups of other European nations as well.''2 In the nineteenth century, by contrast, conversion did allow Jewish intellectuals to take professorships in German universities and Jewish lawyers to become German municipal officials. Yet the contradictions of assimilation remained. Fourteen years after . converting to Christianity for professional reasons. Ludwig Boerne, the 484 Anti-Semirisin and the Failure of Assimilation rjerman-jewish political essayist who became a leader among the political £nrjgTes in Paris in the 1S3OS, observed that "certain people object to my beins a Jew; others forgive me; still others even praise me for it; but everybody remembers it."'1-1 The separation from the primary groups of Christian society reflected this continuing pollution of Jewish qualities. In Christian eyes, Jews remained Jews, whether they had converted to Christianity or not. Secular Revolution If internal religious reform did not alleviate the strain caused by the continuing stigma of Jewish qualities, and if even the conversion to Christianity could not purify it, many jews began to wonder if post-emancipation European societies really contained any universalism at all. If not, the Jewish orientation to these purportedly civil societies would have to proceed in radically different, much more contentions way. In the wake of the early Napoleonic reforms that helped open up German civil societies. Heinrich Marx, an ambitious and well-positioned young man in the Jewish community of Trier, pursued a secular education and law degree. In the backlash against £ tighten men t beliefs and practices that followed Napoleon's defeat, and which stimulated increasing anti-Semitism in the decades thereafter. Heinrich Marx felt compelled to convert to Christianity to protect his career in the civil service because a new edict prohibited jews from being advocates or lawyers.1''1 Seven years later, Heinrich Marx had his eight children converted to Protestantism. His son, Karl Marx, initially an idealistic and fervent believer in the possibilities of German democracy, personally experienced the repressive and politically intolerant underpinnings of the Prussian state. Along with other disappointed radical democrats, manv of them also of Jewish origin, the young Marx became convinced that the contradictions of European civil societies could never be resolved, indeed that they emanated not just from Christian anti-Semitism but from the capitalist economic system in which it was imbedded. In this deepening alienation, Karl Marx was by no means alone. As industrial capitalism began to destabilize and polarize European societies, increasing numbers of Jewish intellectuals opted to escape the dualities of assimilation by dissolving Judaism not in Christianity but in revolutionary socialism. 4*5 MODES OF INCORPORATION INTO THE CIVIL SPHERE Anti-Semitism and the Failure of Assimilation They were converts not to a non-Jewish religion but to a non-Jewish sea faith. In Marx's extraordinarily controversial "Essay on the Jewish Question,'' \ written in y S43 in the midst of his transition from radical democrat revolutionary socialist, we find striking parallels between his revolutionary I critique of capitalism and the ambiguities of Jewish assimilation we h | identified thus far. Marx responds to the contradictions of assimilation | generalizing them into a theory of the deeper, fundamentally irresolv; | contradictions of capitalist society. He builds upon anti-Jewish stereot} | to develop an anticapitalist critique, and transforms post-Enlightenm<'n*:! religious antagonism into a theory about the empty pretensions of c f solidarity and the selfishness of bourgeois society tout court. § In the midst of his brief for revolution, Marx admits to being prima | concerned, as were his Christian and Jewish intellectual predecessors, v | "the question concerning thejew's capacity for emancipation.""5 LikeJev - | antitraditionalists before him, he accepts Christian contentions about § anticivil failures of the Jewish community; acknowledging that "we perct || in Judaism a general and contemporary anti-social element."1'1' What makes It this argument different, however, is that Marx ties this anticivil particular ■ !| not to the Jews' religion but to their central participation in economic Jite. || "What is the secular basis of Judaism? Practical need, self-interest. Wh;" ;-|| the worldly cult of the Jews? Bargaining. What is his worldly god? Mone) f| But if Christian critics were right that public participation had not cured H anticivil Jewish qualities, they are wrong to believe that the contradiction f| between public ideals and private life has anything specifically to do v I* Jewish life. Contending that "out of its own entrails, civil society prodi :fP the Jew," Marx insists that Christianity itself is uniquely associated with c rB society: "Judaism reaches its height with the perfection of civil society. 111 civil society achieves perfection only in the Christian world."68 It is religion, then, but a historically specific form of society that creates J|f problem. In bourgeois society, the private/public split places the "egoi independent individual on the one hand and [the] citizen, a moral pers s| on the other."'1'' Neither Judaism nor religion as such establishes "the dual V|| between individual life and species-life"; rather, "religion is here the sr. .tgf of civil society expressing the separation and withdrawal of man fr man."70 Civil society is nothing more than the superstructure, the fig ^ covering capitalist economic life. The hypocritical function of its pub ^ private division is to shield capitalism from criticism, allowing selfishness and profit-making to cake place in the name of universal rights and individual iiitonomy. Marx confirms thatjewish qualities must be abolished for a good society to be established: "Very well! Emancipation from bargaining and money, and thus from practical and real Judaism would be the self-emancipation of our era."71 He insists, however, that this abolition o f Judaism can occur only through the economic transformation of capitalist society. [Only] an organization of society that would abolish the preconditions of bargaining and thus its possibility would render the Jew impossible. His religious consciousness would dissolve like a dull mist in the actual life-giving air of society."'2 In a very real sense, then, Marx continues to insist, as other Jewish reformers had before him, that Jews must change to achieve the emancipation promised by civil society. Jews can abolish dualism and achieve real emancipation only by abandoning religion and working for revolutionary transformation. The Jew must become a revolutionary critic, an anticapitalist thinker, for only in this way can he abolish the real source of his own oppression, both in its religious and nonreligious forms. The Jew must stop being religious and start being a socialist, working in a universal quest on behalf of all oppressed people everywhere. Only "when the Jew recognizes this practical nature of his as futile and strives to eliminate it," Marx advises, can he move away "away from his previous development toward general human emancipation."7-1 Marx can be seen as having created a project that gave to the still excluded Jew an opportunity to actively transform the world that continued to oppress him. He could accept the Enlightenment project and, at the same time, express his anger and resentment at its false promises in a violent and aggressive way. Revolutionary jews could even participate in the hatred generated by anti-Semitic stereotypes, for Marx affirms that "the social emancipation of thejew is the emancipation of society from Judaism."7"1 As socialists, moreover, these radical Jews could extend this hatred from Jews to Christians and property holders more generally, and they could dedicate themselves to working toward a future solidarity in which these and other false divisions would be permanently overcome. This is not an effort to explain away revolutionary socialism as a Jewish 487 «odb! oF ,nco.po»a™» ,nto t„e civil „mm movement. Still, it is an undeniable fact that the intellectual and ideologic clarification of secular radicalism was accomplished by the son of a TewSp convert whose life had been contorted by the contradictory promises ~M assimilation- For this reason, Marxism can be understood as, among otHeJ things, another response to the agonizing dilemmas ofjewish incorporating! providing a major form of self-expression and a promising path of self transformation for Jews caught in the contradictions of anti-Semitic crtl societies. Though adaptive in many ways, this response, like the others have considered, proved relatively ineffective. Even for those willing to ghj} up their ethnic and religious identity, social radicalism remained a minoritl option. Participation in revolutionary movements that were often viciously repressed seemed a high cost for incorporation, which was, at any rate. 31 distant prospect at best. It involved, moreover, not only a radical break wit|§ the past in the name of an uncertain future, but participation in a movement^ from which anti-Semitism had not been entirely expunged. The enemies 66 socialism were not the only anti-Semites. Socialist movements themselves:t| though often dominated by jews, frequently carried powerful anti-Semitic overtones. The intellectual reasoning underpinning this bias is spelled out^ in the early philosophical argument we have considered by Marx. After the Bolshevik Revolution of 1917, "actually existing socialism" would dem-i onstrate this failure of universalism in a decidedly nonintellectual way.75 New Forms of Symbolic Reflection and Social Response in 1 the Fin de Siecle: The Dilemmas of Assimilation Intensify | In the latter part of the nineteenth century amid these varied responses to-l the asymmetrical bargain of assimilation and despite the continuing if highly ;| uneven incorporation of jews into European societies, the obdurate reality,';t of Christian anti-Semitism became ever more difficult to ignore. In the ;'| 1870s, mass collective violence against Jews emerged in Russia and her J3J parts of the Pale of Settlement, that broad segment of Eastern Euroj . indjt Western Russia where by far the largest group of European jews h re-mained segregated in traditional shtetl communities. In addition to trig-'-ring J; massive Jewish immigration from the Pale to Western Europe and the I '-"'ted 1; States, these pogroms sent shock waves of horror throughout the W u-rn, less traditional, more assimilated Jewish communities. In the 1890s, :dy Anti-Semitism and the Failure of Assimilation - reaction to this new wave ofjewish immigration and partly in response [0 the very gains jews had been making in these Western societies, anti-Semitic social movements for the first time entered publicly into Western civil life- Certainly the civil spheres of Germany. England, and the United States were further fractured by these developments. However, the most arresting public appearance of this anticivil sentiment against Jews—sentiments that had, up until that time, largely remained confined within the private sphere—was the Dreyfus Affair in France. The public imagination of the age was captured by tire accusation in 1S94 that Alfred Dreyfus, an earnest French artillery captain, actually was a spy for la patrks German enemies; by the public persecution of Captain Dreyfus and the distortion of French institutions of communication and regulation it revealed and entailed; and by the massive and contentious public social movements that simultaneously refracted and exacerbated the polarization of French civil society.™ They symbolized, for many jews at least, a dangerous narrowing of opportunities to participate, even in an asymmetrical manner, in the universal, public life of post-emancipation societies. In this context, as the situation of jews became tenser and future incorporation more uncertain, there emerged inside the Jewish civil sphere new forms ofjewish literary and political reflection. Irony and Absurdity: New Religious and Secular Litcraiy Genres The shift in Jewish mentality was symbolized by the emergence of an ironic, self-deprecating literary genre that narrated the helplessness ofjewish protagonists in the face of shattered hopes and communal despair. These new antiheroic narratives—which, decades later, were presented as "prototypi-cally Jewish" stories bv such neotraditionalist writers as Isaac Bashevis Singer—were broadcast in Yiddish and Hebrew via the communicative institutions of still sharply segregated Jewish civil societies.77 In the iSSos, for example, one can observe a decided shift in the writing of Shalom Yankev Abramowitz, the Odessan writer who, under the pen name Mendele Mokher Seforim, became a giant of modern Yiddish and Hebrew literature. For twenty years, Abramowitz had modeled his work on Russian authors, devoting himself to upgrading the quality of Yiddish literature so as to modernize and "enlighten" the traditional Jewish communities of the Pale. 4SS 489 MODES OF INCOHPORATION INTO THE CIVIL SPHERE Anti-Semitism and the Failure of Assimilation Faced with the devastating implications of the pogroms, however, Abra-i mowitz gave up on the project of Jewish integration into Russian society and began writing satirically and critically, chough sympathetically, about tb.es passivity and credulity of traditional Jews."" Abramowitz's famous modern parable. "Shem andjapheth on the Train" (1890), is narrated in the first person by Mendele the Bookseller, a pious' traditional Jew whose itinerant commercial travels in the Pale appear to have-completely cut him off from contemporary events.7'* In the course of an? extended train ride filled to overflowing with Jews traveling to what theyi hope are better lives, Mendele makes the acquaintance of Moshe the Tailor.; At first, Mendele patronizes Moshe, describing him as "one of those 'happy-' paupers' of whom we have many in our midst" who "bow their heads'; submissively before storms" and who believe "it is their inexorable lot to-pass their years in squalor and privation." However, when, at Mendele's-request, Moshe recounts his life story, it is Mendele's turn to feel ignorant: and humbled, qualities Abramowitz displays in bitingiy satiric dialogue.^ Responding to Moshe's assertion that "1 and my family were Jews," Mendele.:: exclaims: " 'What is all this?' . . . 'Do you mean that now you are not a?1 Jew?' " 'i Moshe's response shocks him. 'I am a Jew no longer, for there are no Jews left anymore,' answered^ the tailor with a smile. 'It seems you do not know what age we are living :; in.' " Mendele answers: "How can I fail to know? Look, here is my calendar. . . . This weel -portion of the Law is about Korah, it is the year five thousand six hundn v' and forty." - This reference to the stability of Jewish tradition betrays Mendele's isolation both from contemporaryjewish efforts at incorporation and the backlash by "enlightened" authorities against Jewish entrance into modern life. Moshe makes this perfecdy clear in his tongue-in-cheek monologue, breathlessly recounted by Mendele. 'But the Germans think otherwise,' said Reb Moshe quietly. 'The Germans, who perform miracles of science, have turned the clock back a thousand generations, so that all of us at this day are living in the time of the Flood. . . . The non-Semites are hostile toward the Semites; they discover imaginary wrongs. ... At first these reactionaries were derided by 490 their neighbors, and held to be madmen, but the madder they became, the niore followers ihey found, until this lunacy struck root in the midst of people and rulers alike, and seemed to be a right and proper attitude.' " jvlendele mocks the wonders of German science, and with it modernity itself- The private life of traditional Judaism is impossible and, indeed, irrational But the carriers of modern enlightenment are irrational in a different and more frightening way. Anti-Semitism is a lunacy that has increasingly wide appeal. In the hands of Franz Kafka, this sense that the modern world has been turned upside down, that rational pretensions have become lunacy and that madmen rule the world, became secularized and transformed into the prototypical scuff of avant-garde modernism. This Jewish writer transformed his experience of the contradictions of Jewish assimilation into narratives .....that, broadcast tar and wide via the communicative institutions of civil societies, became authoritative sources for understanding the contradictions of modernity more generally. Kafka lived in a marginalized Jewish segment of a small German-speaking community in Prague, itself an outpost of the Austro-Hungarian Empire.*0 He attended a secular German high school, and he wrote only in German. In none of his literary works, moreover, did he ever make explicit reference to Jewish characters or link his fictional representations in any manner to issues of Jewish identity. Yet in his private lifeworld Katka identified strongly as a Jew and experienced powerfully the anxieties of that status. He had a Bar Mitzvah celebration; socialized almost entirely with Jewish friends; frequented exchisively Jewish resorts; closely followed Jewish newspapers, both in Yiddish and German; and was deeply inspired by Yiddish theater."' His private letters to his sisters and intimate friends and the records of his personal conversations reveal an intense preoccupation with the increasingly dismal state of Jewish affairs. Kafka lived out the confusing and dispiriting dualities of Jewish incorporation, this insurmountable paradox serving as a trigger for his art. Kafka participated publicly and successfully in Prague's economic life, holding an executive job of significant influence and responsibility in the Workmen's Accident Insurance Institute. Yet, during his sixteen-year tenure at the prestigious insurance company, where he was reported to have been "highly esteemed as a staff member and universally popular as a person," Kafka was one of only two Jewish employees among its workforce of approximately two hundred and fifty.*2 The contradiction between public 4yi MODES OP INCORPORATION INTO THE CIVIL SPHERE Anti-Semitism ;md the Failure of Assimilation recognition of his personal abilities and the widespread Czech and German degradation of Jewish qualities reinforced Kafka's sense of the contradictions of civil life. When asked to sponsor the application of an Orthodox Jewish--friend for employment at his company, Kafka refused, writing that "the < institute is off limits for Jews." explaining that "it is incomprehensible how i the two Jews that work there managed to get in," and adding, "it will never ^ happen again.""3 At the same time, however, Kafka felt estranged from, and1' often humiliated by, his Jewish identification. "Most ot those who started' to write in German," he once wrote to his closest friend, "wanted to get I away from their Jewishness. . . . They wanted to get away, but their hind I legs still stuck to the fathers' [ewishuess, while the torelegs found no firm/ ground. And the resulting despair served as their inspiration. "M4 Surely it was'"-this contradictory splitting of private and public life to which Kafka alluded5! in the lengthy and bitter "Letter to His Father," the private but oddly polished and formal piece of writing that his mother refused to deliver and f that was published posthumously, along with so many of his other literary^ works, against his own expressed wishes. S The world was for me divided into three parts; one in which 1. the ^ slave, lived under laws that had been invented only for me and which / I could, I did not know why, never completely comply with; then I a second world, which was infinitely remote from mine, in which « ^ you lived, concerned with government, with the issuing of orders i| and with the annoyance about their not being obeyed; and finally a third world where everybody else lived happily and free from orders and from having to obey/* Kafka may well have experienced such freedom and happiness during*^ his hours of writing after his day job, but it was the combination of enslave-merit and remoteness that became expressed in his art. In such works as 77re/~' Trial and Metamorphosis, he sublimated his wrenching experiences of the l| antagonism and repression of anti-Semitic society by creating the style that would become known as "Kafkaesque." His representations ot the mean-;;/ inglessness and amorality of civil institutions and their dehumanizing effects - j! on personal life created the aesthetic frame for the absurdism that, beginning;// with Samuel Beckett, eventually informed avant-garde fiction throughout^) the twentieth century. His narrative connection of such estrangement wi'tagf. ■I domination and impersonal control adumbrated, and supplied a conceptual vocabulary for, that century's critical political vocabulary as well. It was during the first days ot World War I that Kafka wrote the opening sentence of 77ie Trial, which became emblematic of so much of that century's social and political life: "Someone must have been telling lies about Joseph K., lie fcnew he had done nothing wrong but, one morning, he was arrested."K6 The first sentences of The Metamorphosis, composed ar about the same time but on a much more personal and intimate canvass, expresses the same fictional transformation of the Jewish condition and manifests the same universal reference for expressing the cruelty of modern life: "When Grego Sanisa awoke one morning from troubled dreams he found himself transformed in his bed into a monstrous insect. . . . 'What has happened to me:' he thought. It was no dream."" Zionism: The Effort to Withdraw from Western Civil Society The externally oriented response that emerged alongside this dramatic, fictional narrative deflation of Jewish subjectivity was a new kind of Zionism, which, as one influential historian has put it, "became, for the twentieth centurv, the vital issue in Jewish life."Bti Theodore Herzl's politically oriented Zionism, which emerged as an organized movement in the iSoos, differed from the long-standing Messianic belief in the Jews' return to Israel by its programmatic call for Diaspora Jews to leave their respective societies and by its organizational concentration on the practical means for allowing them to do so. Herzl's life experience mirrored the intensifying contradictions of incorporation. An assimilated Hungarian Jew with a secular upbringing, Herzl was working in Pans as a journalist for a Viennese newspaper when the Dreyfus scandal broke out. As Herzl later told the story, his illusions about the possibilities of [ewish assimilation were shattered when he witnessed masses of French citizens marching in the streets shouting "Death to the Jews." Having come face to face with "the profound barbarism of our day," Herzl recommended that Jews should eschew what would, he predicted, be an ultimately futile effort to gain recognition and incorporation; for their own protection, Jews must physically withdraw from European civil societies.m In Herzl's presentation of political Zionism, we find a profoundly pes- 4y2 493 modes of incorporation into the civil sphere Anti-Semitism and die Failure of Assimilation siniistic response to the early Jewish emancipators' enthusiastic demam their brethren assume their "common charge," that Jews change them in response to the inmiinent opening of Christian civil societies. As I lerz] sees it, Jews had, indeed, upheld their side of the bargain. Not only die sincerely devote themselves to self-change, but they had largely succe Before emancipation, Jews had "slavish habits," but Herzl believes thai had now become autonomous and rational candidates for civil socit persons "strong and free of spirit." It is not only that Jews had become "civil"; they had willingly taken on the primordial coloring of their re tive national states. "We have honestly striven everywhere," Herzl ; "to merge ourselves in the social life of surrounding communities." This quid received no quo; a stimulus to assimilation, it triggered no incorpoi response. In vain are we loyal patriots, in some places our loyalty running to extremes; in vain do we make the same sacrifices of life and proper! as our fellow citizens; in vain do we strive to increase the fame t our native land in science and art, or her wealth by trade an con: merce. Despite their sacrifices, in other words, Jews have not been allowed la enter into solidary relations with their non-Jewish neighbors in civil sot "In countries where we have lived for centuries we are still cried dov strangers." The reason, Herzl suggests, is that these post-emancipatioi cieties are not actually universal in their aims. In matters concerning relii they are acutely particularistic, ruled by irrational "prejudice," "jealo and "intolerance." This is true of every country, "even in those mosth civilized—France itself is no exception." Herzl draws the logical conclu There is notliingjewish persons can do; it is simply a matter of the qua of Jewish religion as such, for their mere "presence soon produces persecution." In the face of this implacable primordial antagonism, Herzl bell' the very notion of civil incorporation becomes misleading, a dangerous chimera. By putting Jews into closer contact with their Christian enei emancipation actually had the effect of exacerbating repression rather mitigating it: "In the principal countries where anti-Semitism prevai does so as a result of the emancipation of the Jews." In formulating political Zionism, Herzl recapitulates the logic deployed 494 kv 'vdical spokesmen for other stigmatized groups in Western civil societies. Generalizing from the demoralizing and often tragic experience of his own lunity, he concludes that, because the civil sphere is dominated by nlepibers of an antagonistic primordial group, civil society as such is irre-d-"'iiubly distorted by particularistic claims. Faced with the anticivil injuries ;s, revolutionary socialists argued in a similar manner, that under capitalism the economic and civil spheres cannot be separated. Necessarily rather th.in contingently reducing the universal to the particular, capitalism cannot he reformed, and revolution alone can realize the possibilities for justice promised by the ideals of civil society. Over the long history of racial on:;ression in America, many influential African Americans employed the same logic. Believing civil status in the United States to be irredeemably permeated by primordial whiteness, they suggested that exit from the United was the only viable possibility for obtaining civil freedom. Radical ists have sometimes also argued this way, suggesting that the universalist ideology of civil society is so undercut by male domination as to be prac-meaningless. On this basis, they have suggested that women, whenever possible, should withdraw into all-female societies. The Crisis of Anti-Semitic Assimilation in the Interwar Period: Resolving the Dilemmas of Assimilation by Going Backward As I have argued throughout this book, such a maximalist, exit-rather-than-voice strategy to resolve class, race, gender and religious inequality is not usually necessary. Of all the rejectionist movements, only the predictions of European Zionism turned out to be right. Indeed, only exit would have saved European Jews.w The qualification "European" is, however, essential. If Zionism is shifted from a claim about an ineradicable, fundamental complicity between anti-Semitism and civil society tout court to a historical lent about the fundamental anti-Semitism of European civil societies, then the Jewish maximalist position—the Zionist argument that civil uni-ism is fundamentally undermined by religious particularity—turns out -re been tragically correct. As the fate of European Jewry demonstrated, there was no mode of adaptation that could resolve "the Jewish question." The religious primordiality of European civil societies simply was too deeply ingrained, too unthinkingly accepted as the only legitimate way of expressing 495 MODES OF INCORPORATION INTO THE CIVIL SPHERE civil capacities. It was not only "Eastern" Jews of the traditional Pale who - = were decimated by the Holocaust, but "Western" Jews who had been gradually assimilating into more enlightened civil societies. In fact, as the German case would so dramatically demonstrate, the more successful at assimilation the Jews were, the more anti-Jewish antagonism could actually be produced. Individual persons could participate in public life, but the qualities of Judaism remained despised. The contradictions of assimilation became ever more intense, and European Jews who once were free became enslaved and finally put to death. The tact that the members of this despised group became the objects of the most heinous mass murder in human history was, however, not a necessary outcome of their contradictory status, even in European society. World War I marked a turning point, and not only because it concluded with die enormously destructive Treaty of Versailles, a "peace" treaty that - -had the effect of pushing Germany to the brink of Nazism and the next world war. The consequences were even wider than this. The First World War not only reflected but intensified what I called, in chapter S, the spatial and temporal contradictions of civil societies, those which derive from ethnic origins and express themselves in terms of national particularity. On the one hand, it was during the interwar period that national societies, whether via social democracy or less ambitious, more restricted welfare regimes, began J to repair the "functional" distortions of the civil sphere, particularlv those that were economic- and class-based. On the other hand, during this same period these very national societies dramatically narrowed the ethnic, racial, and religious options for expressing civil capacity.9' Restrictions on Jewish Incorporation in the United States Struggles over the Jewish question during this interwar period assumed distinctive forms in Continental Europe and the United States, and this parting of ways had enormous consequences for the Jewish relation to civil society. In our discussion thus far, we have not emphasized national differences in how "Christian" core groups constructed their offers of assimilation or in the responses jews made to its asymmetrical terms.''2 By the 1930s, as the contradictions of Jewish incorporation intensified, it had become unmistakably clear that national differences in responding to the Jewish ques- 496 Anti-Semitism and the Failure of Assimilation tjon were becoming overwhelmingly significant. In light of this development, which in the post-World War II period contributed so powerfully to the ideology of "American exceptionalism,""-1 it is particularly important to recognize that in many, even if not in all respects, Americanjews experienced the same intensifying assimilative contradictions as their European counterparts, the same sense of their increasingly tenuous position in civil society. In the United States, the growing national, ethnic, and religious xenophobia of the fm-de-siecle and interwar periods expressed itself in a massive, historically unprecedented public campaign against tree immigration. In the inid-i920S, as a result of this antiliberal mobilization ot communicative institutions, America's regulatory institutions for the first time placed highly restrictive limitations on immigrants whose ethnic qualities diverged from the primordialities of the nation s core group. In this decades-long campaign to narrow the American civil sphere, anti-Semitism played a particularly important role. It allowed fears about radical socialism and disorder to be deepened by an anti-Jewish discourse that was itself embroidered by ethnic stereotypes about the nations from which most of the new Jewish immigrants came.94 This anti-immigrant social movement did not, in the long run, achieve its intended effect of making assimilation the only viable mode of incorporation, much less of stopping Jewish incorporation into American civil society itself. In the short run, however, it seriously exacerbated the contradictions of assimilation, intensifying prejudices against out-group qualities even while individual persons in these groups continued to be allowed formally free civil participation. In the early decades of the twentieth century, children of the new Jewish immigrants began to enter in large numbers into the communicative and regulative institutions of American life, for example as science, medical, and law students in elite universities, and as entrepreneurs in the radio and movie industries. In response to such inroads, however, anti-Semitism became increasingly explicit; restrictive quotas on Jewish participation and barriers of all different sorts were imposed for the first time in American institutional life. Though these restrictions were not formalized in legal codes, they were widely known and broadcast throughout the nation's communicative institutions.'^ This rising tide of anticivil feelings and regulations against Jews, even in the most democratic nation-states, provides a framework for understanding the notorious, and now widely discussed, failure of Allied leaders in World 497 MODES OF INCORPORATION INTO THE CIVIL SPHERE "War II to take action against the Nazis' mass murder of jews in the final years of the war. In retrospect, after the defeat of the Nazis and the cxposu-of the European genocide—after the holocaust became the Holocaust—tf failure was seen as anomalous. However, when viewed against the backdrop of the growing restrictions on Jewish incorporation, which marked virtuallv ; every major industrial society during the interwar period, that failure is noC: nearly so anomalous as it was later constructed to be. American and British^ leaders were silent when information about the systematic extermination, of^ the jews leaked out of Nazi-occupied Europe in 1943 and 1944. Roosevelt ■ and Churchill neither allowed civil institutions wide access to this infor--' mation nor responded to it by bombing and destroying the Nazi concen-"; tration camps, whose locations were well known and whose deadly activities I had not, even by that time, yet achieved their full intensity. This abysmal q failure can be denounced in moral terms, but the sociological reasons ftii^ them should not be overlooked. As Walter Lacquer and others have dem-f onstrated, Roosevelt and Churchill feared that such intervention might have I the unintended effect of symbolically transforming the Allied military effort*v into what might be regarded as a "Jewish war." If Allied military abjectives-f were extended to saving Jews from extermination, these leaders believe i, the anti-Nazi war might have become polluted for large segments of the [',, American and British publics, and national elan might suffer drastically as | result.'"' I It should not be altogether surprising, then, that during this interw ■ ? period one of the most pessimistic Jewish assessments of the pos | emancipation incorporation was launched from inside the United States..;! Salo Baron was a professor at Columbia, and he was one of only twn;?| specialists in Jewish history employed by a secular American university, in |; 192S, he published "Ghetto and Emancipation," a deeply revisionist eva \ uation of Jews' relation to the modern world.''7 Baron takes note of & -warning signs of anticivility that marked the interwar period, the "grown | dissatisfaction with democracy and parliamentarism" and the great popular! . ^ of "Fascism" and "Sovietism.'"'8 In the midst of this crisis, he issues an iconoclastic warning against what he considers the grave dangers of the ^ assimilative mode of incorporation. The Jewish "absorption by the major-.5j icy," Baron asserts, is a process "that lias often proved to be harmful both $f for the absorber and the absorbed.'"'" For the Jews. Baron insists, the Er- ;v Anti-Semitism and the Failure of Assimilation liajitenrnent and its aftermath brought not progress but dissolution and disillusion. The highly cherished Jewish myth of progress, he claims, is just that: a myth. What Baron proposes is to turn this myth inside out: "A more critical examination of the supposed gains after the [French] Revolution and fuller information concerning the Jewish Middle Ages both indicate that we may have to reevaluate radically our notions of Jewish progress under Western liberty."""' Baron proceeds to paint a rose-colored romantic picture of pre-Enlighteument ghetto life. Rejecting the previously accepted portrait of the "Dark Ages" before emancipation, he calls for a denunciation of this "lachrymose theory of pre-Revolutionary woe." Most startling, perhaps, is his suggestion that earlier Jewish segregation was self-imposed, an expression of internal Jewish democracy that "grew up voluntarily as a result of Jewish self-government" and defense long before it became a "legal compulsion.""" Looking backward from the tensions produced by contemporary assimilation, Baron argues that it was their very separateness that allowed medieval Jews "to live a full, rounded life" and to preserve Jewish nationality. The ghetto, tar from being a distorted and repressed community, should be likened to "a corporate governing institution"—"the Jew, indeed, had in effect a kind of territory and State of Ins own."1"2 Reminding us that all pre-modern European societies were made up of such corporate bodies, each with its own rights and duties, Baron advances the claim that Jews were not necessarily worse off than any other non-elite group. Even the draconian restrictions on Jewish occupational life, which Baron acknowledges, are described as having produced a decidedly positive effect. "Paradoxical as it may seem." he insists, "the very restrictive legislation proved in the long run highly beneficial to Jewish economic development," for it —."forced them into the money trade, and throughout the Middle Ages trained them in individual enterprise."HO Having thus redefined medieval Jewish ghetto life as prosperous and democratic—"to most Jews it was welcome"1""1—Baron draws the ironic conclusion that "compared with these advantages, social exclusion from the Gentile world was hardly a calamity."105 For Baron, emancipation was a "necessity" forced upon Jews by the "modern State," which, after the French Revolution, "could no longer suffer the existence of an autonomous Jewish corporation" or of any other corporations, for that matter.'00 At the end of this bitter exercise in revisionism. Baron observes that "among the younger intellectual leaders of national 49vS 499 MODES OF INCORPORATION INTO THE CIVIL SPHERE Judaism one discovers [today] a note of romantic longing towards the Jewish Ghetto.""" It is revealing of the interwar situation of assimilating Jews, even in America, that Baron could just as easily have been writing about himself Europe's "Final Solution" to the Jewish Question: Resolving the Dilemmas -l^sy of Assimilation by Eliminating the Jews ov* Transformed into the dominant metaphor in our time, the Holocaust has' been generalized from a contingent event in Jewish-Christian history into: a narrative about an evil that has redefined the twentieth century, modern society, and even human nature itself.HW From a moral and cultural perspective, this generalization is all to the good. From a sociological point of view, however, conflating the Holocaust with the principal contours of modern-life is a mistake. Whether it is Horkheimer and Adorno identifying the Nazi destruction of the Jews with capitalist "abstraction" and "industry," or Zyg-/ munt Baumann making the complementary claim, almost fifty years latere that the Holocaust represented the very quintessence of modernity, such' efforts have the effect of making invisible the difference between democratic and undemocratic versions of modernity.1"" They ignore the all-important; issue of whether a particular social system—capitalist or socialist, modern or postmodern—contains within itself a relatively independent civil sphere. If Germany had managed to maintain its democratic form of government/ which allowed the relative independence for the communicative and reg-f ularive institutions of the civil sphere, it is unlikely that the systematic mass-*' murder of the Jews could have been carried out. This is simply to say, of. course, that if the Nazis had not come to power, the Holocaust would not-have occurred, for their coming to power entailed the brutally effective.; repression of the civil sphere. Nonetheless, it has been a principal aim of this chapter to demonstrate that the Nazi destruction of the Jews, while constituting a heinous, antih-"* uman, and thoroughly contingent intensification of anti-Semitism, can be;i seen, at the same time, as markedly continuous with the post-emancipation efforts of Western civil societies to resolve the contradictions of Jewish assimilation bv "purifying" stigmatized Jewish qualities. It was the existentialist philosopher Jean-Paul Sartre, with his phenomenological focus on ~ 500 Anti-Semitism and the Failure of Assimilation cultural textures and microinteractions, who came closest to getting this right- not the social theorists and social scientists who took the birds-eye vjew of macrohistory. Writing in 1944 in the shadow of French collaboration with the Nazi occupation, Sartre makes an argument, in Anti-Semite and Jew, not about the evils of modernity but about the particularly insidious manner in which anti-Semitism sharpens the contradiction between civil society and ethnic nationality. What is most striking about this essay is that, despite his role in the Resistance, Sartre speaks as a member of the French national core group that, though not actually committing mass murder, actively collaborated with it. "The Nazi ordinances." Sartre writes, referring to the legal basis of the Nazi occupation of Paris, "only carried to its extreme a situation to which we had formerly accommodated ourselves very well."11'1 The situation that Sartre sets out to describe is the deeply ambiguous situation of assimilation, which rested upon the split between public civility and private pollution. Before the armistice, to be sure, the Jew did not wear a star. But his name, his face, his gestures, and a thousand other traits designated him as ajew; walking in the streets, entering a cafe, a store, a drawing room, he knew himself marked as Jew.1" In terms of the framework developed here, Sartre is pointing to how, despite the theoretical promises of assimilation, it was empirically impossible for the French to separate Jewish persons from Jewish qualities: "Whatever effort we made [to reach the person], it was always the jew whom we encountered.""2 The promised universalism of French civil society was undermined —by. the primordial interests of the national core group: "Anti-Semitism is the expression of a primitive society that, though secret and diffused, remains latent in the legal collectivity.""1 Affirming the principles of the Enlightenment position. Sartre argues that the Jew, as a person, proved himself to be "perfectly assimilable by modern nations.""4 He notes, for example, how rapidly Jews donned the primordial qualities of their national communities: "He speaks the same language; he has the same class interests, the same national interests; he reads the newspapers that the others read, he votes as they do, he understands and shares their opinion.""5 Yet no matter how closelyjews adopted primordial 501 MODES OF INCORPORATION INTO THE CIVIL SPHERE coloring, no matter how their socialization allowed jews to achieve positions in institutions of the public sphere, their invisible stain bl< true civil recognition. He may be decorated with the ribbon of the Legion of Honor, \ may become a great lawyer or a cabinet minister. But at the ve moment when he reaches the summits of legal society, another s< ciety—amorphous, diffused, and omnipresent—appears before h . . . and refuses to take him in. . . . The greatest success will nev> gain him entrance into that society which considers itself the "re; one. As a cabinet minister, he will be a Jewish cabinet minister, once an "Excellency" and an untouchable."1' The problem is not class or modernity. The structured, subjective disposition to stigmatize Jews forces a distance that belies the civil promise c inclusion. From the experience of Nazism and the widespread collaboi with it, Sartre drew the logical conclusion: "The Jew remains a strange . intruder, the unassimilated at the very heart of our society."117 It would take the violent destruction of European fascism, am extensive reconstruction of civil and uncivil societies, for the Eurt project of Jewish incorporation finally to be carried out, for "theje^ be converted from a strange intruder into a familiar friend. This task depended upon the intervention of the United States, a nation in whic relation between Western civil society and the Jewish people would, almost immediately upon the conclusion of the Second World War, take a surp turn. CHAPTER 19 Answering the Jewish Question in America: Before and After the Holocaust I- :he preceding chapter we examined the extraordinary difficulties :ountered by the project to incorporate Jewish out-groups into Western civil societies. In the case of the Jews, I suggested, the profound ambiguities of the assimilative mode of incorporation—recognizing the civil st:-ms of Jewish persons while continuing to denigrate Jewish qualities— were never resolved. To the contrary, these contradictions became so deep ■rosive as to generate the most heinous mass murder the world has ever known. Considering the Holocaust in the framework of the theory of fragmented civil society demonstrates how misleading it is to insist on the uniqueness of German resistance to Jewish incorporation, much less of German anti-Semitism. The issue is not why Germans disliked jews so Intensely, or even why they had so much trouble with the Jewish question, but why they turned to mass extermination to resolve it. It was the collapse ivil sphere in Germany, not German anti-Semitism, that allowed the Holocaust to proceed. t it was problems in the civil sphere that caused the Holocaust, not anti-Semitism, much less such "world-historical" problems as capitalism or lity, is demonstrated by the uneven but increasingly substantial Jewish iration into the modern, capitalist, and often deeply anti-Semitic States in the latter half of the twentieth century.1 We will complete 502 503 MODES OF INCORPORATION INTO THE CIVIL SPHERE Before and After the Holocaust our discussion of civil society and the Jewish question by considering thiS critical case. It will provide one final demonstration of how contingei the institutionalization of the promises of civil society. Whether these pre issory notes are paid does not depend on the presence or absence of Enlif enment ideals. What is decisive is their implementation in a fragmented < sphere. Contrary to claims for American exceptionalism, claims that have alwavs carried heavy ideological as well as scholarly weight, the relation of Jews to civil society in the United States was not, until the early 1940s, substanrJ different from that in Europe.2 This is not to say, of course, that there no difference at all. There had never been Jewish ghettos in the United States, a form of direct domination shunned for religious reasons by radical Protestant dissidents who founded the American nation and democratic reasons by those who later founded its constitutional sta Demography also mattered. That the new nation was populated by im -grants dispersed over a large territory made it more possible for the civil and religious rights of minorities to be maintained. Still, the Jews' formal status in American civil society was counteracted, more forcefully even than in many European civil societies, by the deep and pervasive Christianity of American core group, a consensual commitment that provided one of fundamental sources of primordial identity for the new nation.4 Despite the relative universalism of Protestant American Christianity, this primon community polluted the quality of "Jewishness" even as it assured indivic Jews that they would be treated fairly as persons. It allowed anti-Semit to flourish even as the American core group encouraged massive immk tion by promising emancipation to the increasingly oppressed members of anti-Semitic European societies. Keeping Jewish Identity Private: Self-Change and the Utopian Project of Hyphenation This contradictory character of incorporation suggested to American Jews, as it had to European ones, that they make their polluted identity as invisi and private as possible, and that they learn to express themselves publicly terms of the primordial idioms of the national core group. In the nineteei century, the primarily German Jewish immigrants embraced the Refo 504 reject of fewish self-change even more enthusiastically than their European counterparts. Early American Jewish immigrants, according to David Ellen-son "purged 'oriental' patterns of worship from the synagogue, devised a jjWriry almost wholly universalis tic in orientation, abandoned dietary laws, and rapidly conformed to the cultural patterns and mores of the United States."5 Yet a similar eagerness to enter into the assimilative bargain also characterized the second, "Eastern" wave of Jewish immigrants in the late nineteenth and early twentieth centuries. Despite their much more traditionalist backgrounds, they, too, "quickly abandoned observance of the Sabbath and dietary laws" and demonstrated a "lack of attachment to either traditional Jewish learning or laws of family purity."6 Face to face with the contradictory, civil-cum-primordial American nation, Jews aspired to leave religious particularity behind, not necessarily by becoming completely assimilated to an implicitly "Christian" or WASP nation as much as by entering a new, hyphenated community that was putativelv neither Christian norjewish but "American."7 As I have suggested earlier, in chapter 17, hyphenated incorporation actually can take two different forms. One blends core and out-group identities into a putatively higher civil culture that is not, at least explicitly, the original core group's but, nonetheless, remains deeply imprinted by its original primordial values; the other form continues to maintain the two cultural identities but in less rigidly m-group/out-group form. In practice, both forms of incorporation typically exist alongside one another in the hyphenated mode. Hyphenation is less sharply critical of out-group qualities than the assimilative mode, but its continuing primordiality, and implicit hierarchies, still mark it as significantly different from, and less truly inclusive than, multiculturalism. Jewish immigrants to the United States provided ideal-typical formulations of both hyphenated forms. It was a Jewish playwright, working inside an influential communicative institution of American civil society, who popularized the term "melting pot."H Israel ZaugwiU's play by that name opened on Broadway in 190S.'' Its hero, a Jewish violinist named David Quixano, is writing a symphony celebrating American freedom. After falling m love with Vera, the daughter of a Russian military officer. David discovers that his own parents, who had been murdered in a Russian pogrom, had been victims of Vera's father. Rather than breaking off his relationship with Vera, however, David decides that he will overcome the anticivil conflicts of the Old World, whether ethnic, political, or religious. In the climactic 505 MODES OF INCORPORATION INTO THE CIVIL SPHERE speech of the play, he cries: "God is making the American. . . . He will be the fusion of all races, the coming Superman."10 Performed in an atmospliL'n.' of increasingly anti-Semitic core-group demands for Jewish assimilation, 77ir.! Melting Pot shows how hyphenated incorporation represented a kint Utopian aspiration for Jewish immigrants. They wanted to be treated nt Jews but as persons, to be allowed to make their Jewish identity sufficiently invisible as to allow them to enter into the nations civil sphere." Yet while entirely accepting the demand for self-change, many if ikh most of these immigrant Jews hoped that incorporation could be aco plished in an ethnic and hyphenated rather than an assimilative way. They wanted to be incorporated not into "WASP America but, as Jews, into a i American race. Fifteen years after Zangwill's play, this aspiration toward hyphenation was expressed in an explicitly anti-assimilationist manner by-Horace Kallen, whose writings helped lay the philosophical basis for pluralist theory. Just "as in an orchestra every type of instrument has its specific ti\ and tonality'' and "its appropriate theme and melody in the whole s-phony," Kallen declared, "so in society, each ethnic group may be the instrument," and "its temper and culture may be its theme and melody" in "the symphony of civilization."12 The Dilemmas of Jewish incorporation and Communicative Institutions: Factual and Fictional Media No more telling illustration of these early Jewish responses to the incorpo-rative dilemma, and the complications it entailed, can be found than the manner in which Jews contributed to establishing the modern commi cative institutions of American civil society, in both their factual and fictional forms.13 The formation of the New York Times was, in fact, bound up with the German Reform Judaism of Adolph Ochs, who transformed the ne paper after purchasing it in 1896. Ochs's ambition, in the midst of a period heavily marked by yellow journalism and politically biased reporting, was to create a more detached and objective news vehicle. Ochs chose a new epigraph for the Times, the universalistic motto "All the News That's Fit to Print," and succeeded in making the newspaper the principal arbiter of "factual" information about the nature and composition—the motives. Before and After the Holocaust lations. and institutions—of American civil life. Ochs's ambition, however, was fueled not only by the commitment to journalistic objectivity but by his personal desire for civil incorporation. This important early effort at making the communicative institutions of the American civil sphere more universalis tic and civil society more autonomous can be seen, in other words, as an institutional and cultural corollary of the German Jewish drive for incorporation. Yet even for wealthy and prominent German Jewish immigrants, the incorporative bargain on offer was never truly reciprocal; it rested on fundamental asymmetries, demanding the continued repression of polluted primordial traits. In The Kingdom and the Power, Gay Talese connected Ochs with "the old German-Jewish attitude [of] disenchantment with American Jews who dwelled on the jewishness," and their "desire that Jews blend into the American scene."14 It is revealing how the Times'' hard-won objectivity was sometimes distorted by its failure to provide denigrated out-groups, including Jews, full access to its communicative resources. In the early days of the First World War, for example, Ochs warned his city editor not to give too much space to the American Jewish Committees effort to aid Jews in the war zones of Europe.15 The publisher evidently did not see such a news event as "fit to print," given the fragmented nature of the American civil sphere. Ochs felt that he could not allow the Times to reconstruct the motives and relations of the American Jewish Committee and its loyalties to European Jews. The publisher's coimnitment to journalistic neutrality, in this instance, was not only produced but also distorted by his understanding of the requirements of Jewish incorporation. "I don't approve of it," Ochs said of the American Jewish Committee. They work to preserve the characteristics and traditions of the Jew, making him a man apart from other men, and then complain that he is treated differently from other men. I'm interested in the Jewish religion—I want to see that preserved—but that's as far as 1 want to go.1" It is thoroughly consistent with the Times'' sense of vulnerability vis-avis core group sensibilities that, in 1939, Ochs' successor and son-in-law, Arthur Hays Sulzberger, urged President Franklin Roosevelt not to appoint 506 507 MODES OF INCORPORATION INTO THE CIVIL SPHERE Before and After the Holocaust Felix Frankfurter, a Jew, to the Supreme Court. Fearing that the appointment of a Jewish justice would exacerbate anti-Semitism, Sulzberger opp Roosevelt's effort to universalize one of the central regulative mstitutio the civil sphere.17 A similar anxiety was revealed when, in the early i the Times received reliable information about activities in Nazi concentration ; and death camps and barely reported it. The paper justified this decisii a legitimate deferral to President Roosevelt's concerns that the anti-Sei I prejudices that crippled American civil society would, upon the publication ! of this news, undermine wartime solidarity. This fateful decision to bury | news about what would later come to be known as the crime ot the centurv ! betrayed, once again, the Times'' fear of exposing itself to accusatioi | "Jewish" loyalties, which might have threatened its status as a civil institu- J tion.IM ? Even more decisively than in the institutions of factual communica ; Jews were deeply involved in creating the organizational framework | symbolic content of the most powerful fictional medium of early-twentieth- I century American civil society—the movies. More than any other - * institution, it was the cinema that created the nation's collective self- ;| understanding, constructing mythical representations of the motives, ■ | tionships, and institutions of the nation's religious, racial, ethnic, and ceo- | nomic groups. In the early decades of the century, at a time of intense I struggle over increasingly primordial restrictions on civil participation, Hoi- | lywood frequently projected images that downplayed the negative and f rosive sides of these conflicts, projecting optimism about the benevolence | of America's core group and its possibility for civil interaction with excluded ": others. In the name of a transparent, universally accessible civil sphere, i| prejudice and conflict were minimized, and patriotic loyalty exalted. | What makes this popular iconography relevant to the present discussion J is how extraordinarily revealing it is of the contradictions of civil incorpo- ' ration. For these symbolic representations were invented and distributed by j| marginalized, if institutionally powerful Jews whose primordial identitv re- § mained deeply polluted bv the very Americans whose commercial loyalty || ensured their business success. The major Hollywood studios were founded | by first-generation Jewish immigrants, primarily from eastern Europe: the || "studio system" that churned out such a prodigious supply of films from the J 1920s to the 1940s was supervised by members of the second generatio - || was Jewish exhibitors who from 1910 to 1920 transformed storefront theaters into grand cinema palaces; and Hollywood writers and producers were overwhelmingly Jewish.1'' This deeply paradoxical situation is underscored by the insistent manner in which Hollywood projected sanitized images of a Utopian civil society practicing an idealistic, reciprocal form of hyphenated incorporation. Via such purified iconography, Hollywood's Jews re-presented not only the nation but themselves. "What united them," Neil Gabler writes, "was their utter and absolute rejection of their pasts and their equally absolute devotion to their new country." on the basis of which thev created a "powerful cluster of images and ideas [that] idealized America on the screen [and] reinvented the country in the image of their fiction."-0 Although these Utopian projections were wildly successful in commercial and popular culture terms, the Jews creating the movies could not fully succeed in making their religion invisible. The continuing negative evaluation of Jewish qualities prevented it. That, in Gabler's apt phrase, "the movies were quintessentially American while the men who made them were not"21 was a constant anxiety to the anti-Semitic opponents of Jewish incorporation. Seeking a restricted civil sphere, these opponents used a number of pretexts to react aggressively against the "Jewishness" of the movies: if movies appeared too progressive or phiralistic; if thev seemed to project implicit aspersions on xenophic and nativist activities and values; if Holly-woods actors, directors, or producers became publicly associated with lifestyles or politics that deviated radically from primordial constraints. From the 1920s sex scandals to the anticonimunist witch hunts of the late 1940s and early 1950s, conservative groups complained bitterly about the Jewish influence on film. They demanded that Hollywood be liberated from "the hands of the devil and 500 un-Christian Jews" and horn those who "are outside the moral sphere of American culture."- These efforts at public denigration and exclusion were not always confined to provincial circles. When the bohemian cosmopolite Scott Fitzgerald met with frustration in his sere en writing career, he complained that Hollywood was "a Jewish holiday, a gentiles [sic] tragedy."23 The irony was that Jewish Hollywood was intent on creating images that made Jewish identity invisible, and tended to sugarcoat the harsh contradictions of American civil life.2'1 508 MODES Ol- INCORPORATION INTO THE CIVIL SPHERE Before and After the Holocaust The Dilemmas ofJewish Incorporation and Regulative Institutions: The I Because Jews were largely barred from attending or teaching at presri law schools and from working at influential law firms, they did not influence the regulative institutions of American civil society nearly so much : their Gentile counterparts.25 Nonetheless, on those few occasions when were in a position to exercise substantial regulative power, they did st manner that similarly revealed their contradictory, asymmetrical stat civil society. As a crusading lawyer, Felix Frankfurter became famous for defei civil liberties during the Progressive period, and he worked to ameli the inequalities and distortions of the civil sphere as a member of Roost New Deal "Brain Trust" in the 1930s. Yet once he took up his official t on the Supreme Court, Frankfurter's opinions demonstrated more con ment to the primordial solidarity of the American nation and more defe to the power of the American state than to excluded individuals, mir group rights, and the normative restriction of political power. In his d from the Court's 1944 decision that Jehovah's Witnesses had legit: religious reasons to object to a compulsory flag salute, Justice Frank publicly identified with his fellow Jews.2fl "One who belongs to the vilified and persecuted minority in history," he wrote, "is not likely to be insensible to the freedoms guaranteed by our Constitution." Yet ii precisely his identity as a jew, Frankfurter suggested, that justified his sion, in the case at hand, to subordinate the freedom to be different. " my personal attitude relevant," he wrote, "I should whole-heartedly ciate myself with the general libertarian views in the Court's opinion." His personal opinions were not relevant, Frankfurter believed, precisely be he was a Jew; as he understood the bargain of incorporation, he was obli to subordinate every personal feeling and identification. To become a r ber of American civil society meant leaving Jewish particularity be High officials must act in the name of a more general, hyphenated solid "As judges we are neither Jew nor gentile, neither Catholic nor agn -[We] are equally bound by our judicial obligation whether we deriv citizenship from the earliest or the latest immigrants to these shores." " years earlier, before the onset of World War II, the Supreme Court had been less sensitive to minority rights, supporting a statute requiring all stut including the children of Jehovah's Witnesses, to salute the flag. In thi jrr i-iklurter wrote the majority opinion. According to the recollections of then Chief justice Charles Hughes, the new Jewish justice had been offered [his opportunity "because of Frankfurters emotional description, in confer-■lice of the role of the public school in instilling love of country' based ; own experiences as an immigrant child."27 :e Frankfurter's regulatory efforts reflected his perception of the jvrMic-'private split required by the bargain of Jewish incorporation. To [venule part of civil society, outsiders must learn to exhibit primordial ;nt to the nation; to encourage this learning, a state can legitimately ;itizens to repress other kinds of primordial attachments, including ones. The Failure of the Project: Jewish Exclusion from American Civil Society ining the contradictory position of American Jews, we have seen chat, like their European counterparts, most were more than willing to trade ige for civil incorporation. Through the reorganization of their religions institutions and through their active participation in a wide range of civil institutions, Jews tried to efface their religious identities from the public sphere and to project their enthusiasm for hyphenating and general-izins,J, and Discrimination, Cohen framed his findings in a manner that implic analogized American practices with Nazi Germany. "Many discriminate employers," he reported, "feel that for an establishment to be Juden [Jewish free] is a kind of tangible asset."58 The extent of this new concern was demonstrated by the decision the editors of Fortune magazine to devote a special section in their Febru 5T8 Before and After the Holocaust 1936 issue to the topic of "Jews in America."5" Straddling the sensitive boundary between market and civil sphere, Fortune was a critical communicative institution in American civil society. It was owned by Time Inc., whose publisher, Henry Luce, the son of Christian missionaries, had been educated at Yale. Fortune's editors began with the observation that "the Jewish Problem' has become violently acute in recent years." "Faced with die unbelievable record of Nazi barbarities," they asserted, "any man who loathes Fascism will fear anti-Semitism." Reassuring their readers that America was, indeed, fundamentally different than its anticivil enemies, Fortunes editors distinguished prejudice from anti-Semitism. Though they acknowledged that the former was present in America, they insisted that the latter was exclusively "German in manufacture," as could be seen "in the light of Hitler's career." Yet the manner by which this leading business magazine chose to validate its assertion that America was not anti-Semitic seemed actually to demonstrate that the opposite was the case. The journalistic ambition of this special issue was to challenge the factual accuracy of anti-Semitic claims that some overreaching Jewish conspiracy controlled America's economic life: "The fact is this. . . . There is no basis whatever for the suggestion that jews monopolize U.S. business and industry." The manner and tone of the report reveal, however, that anti-Semitism in American was actually alive and well. Fortunes reporting assuaged its fearful Christian readers by claiming to have unearthed facts that "were totally unexpected ... by non-Jews." The magazine's reporters discovered that from heavy industry to banking, from the learned professions of law and medicine to high judicial and political office, the key American institutions had virtually no Jewish imprint at all. The manner in which such assurances eerily echoed the Nazi ambition of making German institutions Judenrein was an irony that escaped Fortune's editors, who breathlessly repeated their findings about American institutions being Jewish free. They do not run banking. They play little or no part in the great commercial houses. . . . The absence of Jews in the insurance business is noteworthy. - - - They have an even more inconspicuous place in heavy industry. . . . The coal industry is almost entirely non-Jewish. . . . Rubber is another non-Jewish industry. . . . Shipping and transportation are equally non-Jewish. 5i9 MODES OF INCORPORATION INTO THE CIVIL SPHERE Before and After the Holocaust If jews were so absent, what then was the problem? It was the attitudes of Jews themselves. According to Fortunes editors, jews have "notoriously"-, tended "to agglomerate." In the few industries and professions open to them, they could be seen "clannishly crowding together." Faced with such behavior, "the non-Jew ... is more than ever impressed with the exotic character of this unusual people." The "true difference" between Jewish and non-; Jewish Americans is "cultural." It has to do with civility. Because of centuries-of mistreatment, jews have "the underlying feeling of foreignness." Ever the eternal "stranger," they are so enmeshed in their particularity that they reject' participation and inclusion in the civil sphere. \ All other immigrant peoples accept the culture of the country into which they come. The Jews for centuries have refused to accept it and are now, in any case, unable to accept it when they would. It is because at this Jewish refusal of American civil society, according lu Fortune, that Nazism remained a threat to the American state, for such narrow clannishness confirmed the paranoia ot anti-Semites. "Granted," the editors acknowledge, "there is a strong reason . . . for believing that Fascij can be defeated in this country;" nonetheless, "it still remains true that the future of the jew in America is puzzling." The critical question is this: "C„ . the universal stranger be absorbed in the country which has absorbed every other European stock?" The question can be answered affirmatively only if . Jews become more civil. "The first condition of their success will be the " quieting of Jewish apprehensiveness and the consequent elimination of the aggressive and occasionally provocative Jewish defensive measures." It was not enough for Fortune's putatively rational non-Jewish editors to refute the paranoia of anti-Semites, jews themselves would have to be changed. A-"' century and half after the Enlightenment, in the nation that saw itself as the open and democratic alternative to Europe, one hears the echoes of Christian, von Dohm. Responding to Nazism and Holocaust: America's Decision to Be "With the Jews" In less than one decade, this situation changed remarkably. Though in 1945 the vast majority of American jews continued to live, work, and commu- nicate in strongly segregated primordial communities, there began a seismic shift in civil discourse, one that eventually resulted in major institutional change. Despite the continuing strength of anti-Jewish feeling in right-wing groups, feelings that fueled the anticommunist hysteria of the McCarthy years, by the mid-1950s Jews and mainstream Gentiles alike came to believe that the Jewish dream of hyphenated incorporation into American society was becoming a reality. By the early 1960s, Jews were postwar Americas newly favorite ethnic group. In the decades following, lewishness was constructed, not only by cultural elites but their mass audiences, as a widely admired and distinctive quality of American civil life. What caused this transformation was not some developmental process triggered by the modernization of American society, much less the modernization ofitsjews. The civil sphere does not expand in an evolutionary way, any more than how and whom it excludes is determined in advance. Whether and how the ideals of civil society are instantiated is an open question, a contingent matter of historical, not genetic time. What changed the civil status of America Jews was an unexpected and deeply unwanted military confrontation, one whose repercussions on American civil society could scarcely have been foreseen. When the United States entered the battle against German, Japanese, and Italian fascism, the anti-Jewish restrictions on American civil society remained fully in force.w' In order to legitimate this bloody and ferocious struggle, however, the United States had to proclaim itself a healthy civil society. As our earlier discussion has suggested, while the war was actually being conducted, this idealizing nationalist discussion could nor be extended explicitly to the nation's jews. Indeed, during the first three years of American fighting, with the ultimate battle against Nazism in doubt, anti-Semitic feelings actually rose in strength.''1 It was only after the war's conclusion that the American nation began to repair the civil status of Jews. Neither the victory nor postwar geopolitics made the difference. It was the now unavoidable and extraordinarily weighted knowledge that the principal American enemy in that wartime battle, the German Nazis, had had as their own principal enemy the jews. Revelations of the Nazi concentration camps, transmitted with graphic immediacy by communicative institutions, created shock waves that reverberated among core groups of American civil society. As with Christian and secular core groups in Europe, these images of massive and systematic murder MODES OF INCORPORATION INTO THE CIVIL SPHERE forced into public view the ugliest underside of civil life and strop tradicted its idealizations. These challenges were handled differently in the: postwar Western democracies. What every reaction shared, however, was the tendency to deflect responsibility for anti-Semitic exclusion awav fronv the nation as such to social actors that were more narrowly defined, .u more marginal groups that had been directly or indirectly associated with die Nazi; movement. In Germany, as Bernhard Giesen has shown, this meant ulaminp: the "deranged" and "abnormal'" vanguard group directly associated with the I Fuhrer himself/'2 In France, it meant accusing only those who pubJkiv had I collaborated, the relatively small group of "anti-French" leaders of Vichy.'-1 In both the German and the French cases, this deflection of responsibility I away from national core groups had the corollary effect of making the Jewish question external, and largely irrelevant, to the postwar reconstruction of; those national societies. 2 Like Europeans, Americans interpreted the mass murder of jews as the;; logical result of anti-Semitism in particular and anticivil prejudice in general. | and they, too, employed narratives forged in wartime to project blame far J away from themselves/vt What differed in the American case was 1h.11 this \ interpretation also became, paradoxically, the foundation for reconsidering" the Jewish question inside of American society itself. ^ In the face of revelations of anti-Jewish mass murder, American core-? group leaders rejected any possible similarities between the anti-Semitic I German nation and their own. To take responsibility for the American g history of anti-Semitism, to engage in self-critical recognition and repuai- , ation, would have equated the sacred discourse of American civil society | with the degraded impurity of its defeated German enemy. To have allowed 1 such a juxtaposition would have been culturally incoherent/'5 It would nave £ challenged a wartime identity constructed in the fiery cauldron of sacrifice. |f Nazism had been narrated as the "dominant evil of our time," its barbarism V; and violence represented most distinctively in terms of racial and religious;:, hate. That Nazism embodied the very paradigm of anticivil evil had .....A the presupposition of America's four-year prosecution of the world war. >1 After the prosecution was successful, only one symbolic logic made sense: 4 postwar American society must be defined in relation to anti-Semitism in : the same manner as the American war effort had been oriented to Nazi v Germany.'"' According to such cultural reasoning, anti-Semitism now became the • Before and After the Holocaust iemy of Americanism. Faced with the revelations of what would eventually ?ie represented as the Holocaust, Americans transformed their deeply anti-Nj3Zj feelings into "anti-anti-Semitism.""7 During wartime, the American horror of Nazism had little explicit connection with the nation's domestic religious strife; the horror had been connected, instead, to civil values and primordial antipathies of a uonreligious kind. In the postwar period, the profane symbols that silhouetted the sacred national identity changed. The anti-Nazi repulsion became enlarged to include, and eventually to center upon, a horror for those who hated Jews, and these necessarily included not only Europeans who hated Jews but Americans as well.1'8 Americans came to believe that being "against the Nazis" necessarily meant being "with the Jews." In France and Germany, such an identification could not be made. Important members of core groups in Continental -Europe had themselves directly or indirectly collaborated with anti-Jewish murderers. In order retrospectively to insulate their recovering, post-Nazi national identities from such polluting association, such groups had to separate themselves entirely from the Jewish question in the postwar period."1' It was possible for Americans, by contrast, to view themselves in a sharply different way. Because they did not perceive themselves, and were not perceived by others, as even indirectly associated with Nazi collaboration, Americans could enter the postwar period by embracing rather than separating themselves from the Jewish question. Indeed, in order powerfully to project their wartime collective identity into the postwar period—-to adapt and sustain the high national morale of cultural and social triumph-—Americans actually felt compelled to embrace the Jews. Beyond the Assimilative Dilemma: The Postwar Project of Jewish Ethnicity This complex, historically contingent chain of reactions opened up the possibility for redefining the social relationships between Christian and Jewish Americans. Vis-a-vis the Jewish question, it created, for the first time in the history of Western civil societies, the conditions tor transcending the asymmetries of assimilation.7" The private antipathy toward Jewish qualities that had long distorted the civil orientations of American life began to dissipate; explicit expressions of anti-Semitism were publicly condemned MODES ÜP INCORPORATION INTO THE CIVIL SPHERE Before and After die Holocaust and began gradually but persistently to disappear. Only days after the cessation of hostilities in World War II, in response to an appeal from the National Council of Christians and jews, the three candidates tor mayor hi New York City pledged to "refrain from appeals to racial and religions divisiveness during the campaign.'' One of them made explicit the connections of this public anti-anti-Semitism to the meaning of Americas triumph in the anti-Nazi war, and the New York Times published this appeal. This election will be the first held in the City of New York since our victory over Nazism and Japanese fascism. It will therefore be an occasion for a practical demonstration of democracy in action— a democracy in which all are equal citizens, in which there is not and never must be a second-class citizenship and in which . . . the religion of a candidate must play no part in the campaign.7' Progress toward establishing civil relations between Christian Americans and Jews was woven into the patriotic postwar narratives projected by the fictional and factual media of communication.72 In the 1945 box-office hit Pride of (lie Marines, the Jewish protagonist chides his friends for their pessimism about eliminating postwar prejudice. He cites the ideals that had sustained their fighting during the anti-Nazi war: "Ah, come on, climb out of vour foxholes, what's a matter you guys, don't you think anybody learned anything since 1030?"73 Later, as the film's closing music turns into "America the Beautiful," the hero comes back to the link between the anti-Nazi fight and postwar civil repair: "Don't tell me we can't make it work in peace like we do in war. Don't tell me we can't pull together. Don't you see it guys, don't you see it?" Better Homes awd Gardens, a magazine central to the domestic space of middle- and upper-class housewives, framed civil repair of the Jewish question in a similar way. Its r947 feature titled "Do Yoli Want Your Children to Be Tolerant?" proclaimed that "the old indifference and local absorption cannot continue" and warned that Americans must not "relapse into our before-the-war attitudes and limitations."7'1 In a Better Homes story later that year. "How to Stop the Hate Mongers in Your Home Town." the writer observed "I suspect that many a decent German burgher, hearing tales of Nazi gangs, likewise shrugged off the implications of uncurbed racial and religious persecution.""5 That same year, a movie promoting anti-anti-Semitism, Gentleman's Agreement, won the Academy Award 5^4 for best picture, for which another similarly inclined movie. Crossfire, had been nominated as well. Explaining the success of Gentleman's Agreement, the Saturday Review of Literature asserted that "the Jewish people are the world symbol of [the] evil that is tearing civilization apart," suggesting that the film's success "may mean that the conscience of America is awakening."7" In the year following, the Saturday Evening Post profiled "the story of the Jewish family Jacob Golomb." Describing the Golombs as "just nice folks who lead busy, fruitful, decent lives," the writer reported that, despite their being "members of a race with a long history of persecution," the family had "kept their faith" with the belief "that the United States really was, or would soon be, the land of the genuinely free."77 Four years later. America's most popular photo magazine published "Life goes to a Bar Mirzvah: A Boy Becomes a Man."™ Members of American core groups became interested not so much in allowing Jewish persons to separate from Jewishness as with recognizing the civil legitimacy of Jewishness as such. This core-group movement beyond the narrow restrictions of the assimilative mode of incorporation reflected and triggered shifting orientations among Jewish activist groups. In November 1945. the American Jewish Committee changed not only the name but the mission of its principal publication. The Contemporary Jewish Record had spoken to Jews about Jewish things. Its successor, Commentary, was given a much broader scope. Encouraged to write broadly about national and international issues and to address a wide civil audience, the magazine became an increasingly influential voice on the American scene.™Jewish civil activists now became deeply concerned, moreover, not only with public speech and behavior, but with private opinions and beliefs. Jewish and non-Jewish groups, both private and public, began to turn their attention to the newly emerging communicative institution of public opinion polls. They devoted vast resources to creating and evaluating opinion surveys measuring anti-Jewish feelings and to designing educational campaigns to transform them.H" These radical postwar shifts were institutional as well as discursive. By 1950, anti-Jewish quotas had been successfully exposed and often defeated,"1 and deep pathways tor continuing civil repair were put into place. For the first time in American history, Jewish groups could publicly mobilize the communicative and regulative institutions of civil society. Jewish civil associations bad begun to organize against quotas in the latter part of the war, but they entered the public sphere as aggressive political advocates only in 525 MODES OF INCORPORATION INTO THE CIVIL SPHERE Before and After the Holocaust 1945. In the years immediately following, they held news conferences, wrote editorials, and issued detailed proposals for legal and political change. This advocacy was effective because the civil audience was primed. During the same month that New York's mayoral candidates announced their anti-anti-Semitism, the American Mercury, a leading popular magazine, published an article, "Discrimination in Medical Colleges.""2 The story was replete with graphs and copious documentation, but the facts of anti-Semitic pracrices had, of course, already been well known for a long time. What changed now was its public representation. This mass magazine declared the behavior of the nation's elite medical institutions to be "spurious" when judged according to "democratic or sheerly human" criteria, denouncing such practices as "un-American." A few months earlier, when the president of " herst College publicly defended Jewish quotas in college admissions, the New Republic responded that "we can no longer afford the luxury of these obsolete myths of racial differentiation," adding "if you don't believe it. ask Hitler.""-1 In 1949, Collier's magazine devoted a story to the practice of restricting fraternity membership to "full-blooded Aryans." They reported that for "scores of college men" such restrictions suggested "a false and undemocratic sense of SLiperiority" that was "a little nauseating in this day." Such reactions explain, according to Collier's, why "the anti-discrimination movement is hopping from campus to campus.""4 This incorporative movement, at once the discursive cause of shifts in civil institutions and their effect, created the conditions for a new hyphenation between "American" and "Jewish," triggering the same kind of search for common values, intertwined roots, and overlapping narratives thai, in earlier periods of American history, had marked a newly enshrined ethnic status of non-Jewish European immigrant groups. Less than one week after the Japanese surrendered, on September 2, 1945, judges in Atlantic City-awarded the title of "Miss America" to Bess Myerson, a second-generation Jewish woman from the Bronx whose family still spoke Yiddish at home.-At the end of that same month, on the last day of the major league baseball season, Hank Greenberg hit a grand-slam home run in the ninth inning that won the pennant for the Detroit Tigers, and with that, Greenberg, the r prominent Jewish athlete of his time, became an American hero as well.* In the years that followed, the Zionist effort to create a Jewish state, one that became home to many Jews who had fled anti-Semitic Europe, became identified in the national imagination with the history of America itself. with the founding narrative of the "first new nation" settled by immigrants fleeing from earlier forms of European religious discrimination."7 The extraordinary success of Leon Uris's novel Exodus, which sold four million copies during the 19.50s and formed the basis for box office movies, television films, and song, demonstrated and also crystallized this once unlikely convergence of Jewish and American fates. Alongside this Zionist-American representation of "fighting Jews" who won independence through courage and heroism, there emerged other, equally familiar forms of ethnic sentiment and appreciation. In 1946, an inspirational and upbeat self-help book called Peace of Mind raced to the top of the New York Times best-seller list, sold more than a million copies, and was translated into ten languages. Its author, a Boston Reform rabbi named Joshua Loth Liebman, offered his readers counseling of a human, not spe-" cificallyJewish kind. That Christian Americans would seek "helpful insights about human nature that psychology has discovered" from ajew who mined "the truest religious insights and goals of the ages" would have been unthinkable in the prewar years.H" Later, in such best-selling autobiographical memoirs as Only in America and For Two Cents Plain, Harry Golden, publisher of the Carolina Israelite, reconstructed New York's turn-of-the-century "Lower East Side" as a golden era in which Jewish ethnicity was so seamlessly connected with national legend and myth that one historian of postwar America called him the "Jewish Will Rogers."H'' Such sentimental narration provided opportunities for revising Jewish-Christian relationships not only from the Jewish but from the non-Jewish side. Fiddler on the Roof, which became one of the longest running musicals in Broadway history, offered a similarly emotional and revisionist representation of Jewish history. Starting • from the fiction that immigration to the New World redeemed Old World suffering. Fiddler narrated Jewish life in the shtetls of anti-Semitic Europe, and even the long-term effects of the pogroms, in an ultimately uplifting and ethnic way. Yet although this dramatic embrace of hyphenation transformed civil society's relation to the Jewish question, it did not eliminate the asymmetries of incorporation. Even while Judaism was equated with Americanism, it remained subordinated to it. There was still the order of hierarchy, the subde aura of patronizing benevolence that lay just beneath the surface of American construction of ethnicity. Jewish persons might now be fully admitted into the American mainstream, but there still remained the ever- 527 MODES OF INCORPORATION INTO THE CIVIL SPHERE Before and After die Holocaust present danger of appearing "too Jewish,'"'" The anthropologist Karen Brodkin recalled, in a bitter but revealing way, how this danger markedJier postwar childhood. My parents moved to the suburbs in 1949. . . . We lived where J. had not been allowed to live a few generations earlier. . . . My parents bought me a storybook, The Happy Family, where life began in the kitchen and stopped at the borders of the lawn, where Mom, Dad, the kids, and the dog were relentlessly cheerful, and where no one ever raised their voices except to laugh. It was my favorite, and I desperately wanted my family to look like the one in the book. When I became an adolescent, my goal in life became to have a pageboy hairstyle and to own a camel-hair coat, like the pictures in Seventeen magazine. I thought of storybook and magazine people as "the blond people," a species for whom life naturally came easily," who inherited happiness as a birthright, and I wanted my family to be like that, to be "normal." My childhood was divided between--; everybody I knew and the blond people.''1 In 1959, Ruth Handler, a Jewish woman in Los Angeles, created the Barbie doll, the tall, blond, pug-nosed, buxom, and blue-eyed icon that embodied the primordial WASP stuff that Jews had never been allowed to be."2 In the early postwar world of high culture, even as Jewish intellects -and artists were transforming their once lowly social status, they still felt compelled to transcend the "particularism" of their Jewish identities if they were to succeed. In the 1950s, Jewish persons stood at the center of-the American avant-garde, but not as Jews; they did so, rather, as carriei creators, and definers of humanistic culture. Lionel Trilling and his fellow "New York intellectuals" placed the existential idea of authenticity at rf . center of American civil discussion.''3 During the interwar period, many ■ these figures had published in the Menorah Journal, an assertively "Jewish" publication concerned not only with religious but with social and ethic questions. Yet when Trilling looked back to this earlier participation from the vantage point of the postwar years, he claimed that, for contributors to the Menorah Journal, the "idea of Jewishness . . . had nothing to do with religion." 528 We were not religious. . . . Chiefly our concern with jewishness was about what is called authenticity, [with] the individual Jewish person recogniz[ing] naturally and easily that he is ajew and 'accepts himself as such, finding pleasure and taking pride in the identification.-M Similar concerns for separating Jewish persons from their qualities were evidenced by a wide range of Jewish writers who became central to the communicative institutions of that time. J. D. Salinger, Normal Mailer, and Saul Bellow fictionalized the new postwar Jewish consciousness in secular narratives that revolved around the tensions between alienation and community, conformity and individuality."5 Writing as secularized Jewish persons, their art translated historically religious qualities into broad reflections on humanity and modernity as such. In much the same manner did the -Jewish social theorist Philip Rieff translate the "true" theoretical significance of Sigmund Freud. The interest in psychoanalysis that inspired so much postwar thinking, Rieff asserted, derived not from the great Jewish thinker's obsession with libido but from his humanistic commitment to the idea of moral responsibility."0 As we observed in chapter 18, concerns with alienation and authenticity can be seen as Jewish responses to tensions generated by the asymmetrical bargain of incorporation. Even as Jewish artists were allowed for the first time to move into the very mainstream of a national high culture,''7 these concerns still could not be expressed in anything other than a non-Jewish way. Arthur Miller acknowledged that, after fictionalizing anti-Semitism in his 1945 novel Focus, "I gave up the Jews as literary material.""" In his 1949 play Death of a Salesman, which came to be regarded as a classic of twentieth-century American drama, the characters were not recognizably Jewish in anyway. When Saul Bellow looked back at his first two novels. The Dangling Man (1944) and The Victim (1947), he described a different literary reaction but revealed a similar insecurity vis-a-vis mainstream uneasiness with Jewish qualities. Explaining the meticulous, self-consciously Flaubertian style of these early works, as compared to the earthy and melodic language that emerged later in The Adventures of Augic March (1953), Bellow acknowledged that he had been "timid" and "felt the incredible effrontery of announcing myself to the world (in part I mean the WASP world) as a writer and an artist." Pointing to his student days in the 1930s, Bellow said, "it was made 5^9 MODES OF INCORPORATION iNTO THE CIVIL SPHERE Before and Atter the Holocaust clear to me when I studied literature in the university that as a Jew and the son of Russian Jews I would probably never have the right feeling for Anglo- • Saxon traditions, for English words." His response, in Dangling Man and 77(L> Victim, was that "I had ... to demonstrate my abilities, pay my respects to formal requirements. "y,) It was the same with the newly prominent Jewish ■ comedians. No longer isolated in the Catskills, their routines, no matter how "typically Jewish." were still comedy that never spoke its name.10" As - -Herman Wouk graphically suggested in his best-selling 1955 novel, Marjorie Monringstar, Jews were not yet truly inside the institutions of Americas core groups, and their desperate desire to be so not only underscored their v nerability but reinforced continuing anti-Semitic frames. Though universities effectively dropped their quotas by the late L9_sos and early 1960s, the -large corporations and law firms remained segregated religiously for decades after..So did primary relations generally, as revealed by patterns of residence," ^ friendship, and marriage.101 All of this underscores the instability of hyphenated incorporation. Be- "'■ cause it represents a lessening of antagonism to out-group qualities, it allows the persons who are members of these marginalized groups to gain civil incorporation in a much more substantial way. Still, the orientation to these qualities, while definitely changed, remains highly ambivalent; the qualities are still rank-ordered below those of the core group, even if they can now be productively hyphenated with them. This unevenness prevents incorporation from proceeding in a truly effective and egalitarian manner. The instabilities of hyphenation can be resolved by moving backward toward the narrower terms of the assimilative mode or by legitimating out-group difference in a manner that moves toward multiculturalism. Not only can the instabilities push in either direction, but they can be resolved in different. ways for different groups at different times. Making Jewish Identity Public: The Multicultural Mode of Jewish Incorporation In the context of the commitment by American core groups, after Nazism and the Holocaust, to be "with the jews," and the intense identification of ' ' Americanism with Jewishness that flourished in its wake, it should not be entirely surprising that the instabilities of Jewish American incorporation were pushed in a multicultural direction. In fact, Jewish intellectuals and artists were among the first to thrust particularity into the center of the national discussion about integration. At the same time that "Black Power" challenged the incorporative strategies of the Civil Rights movement during the mid-1960s. Jewish intellectuals and artists, and eventually radicalized students as well, began demanding the right to be recognized as different, to be incorporated without changing their identities in any significant way.1"2 Looking back from the vantage point of 1969, the Jewish sociologist Peter Rose suggested that, in the immediate postwar period, "for the majority of Jewish young people, things looked bright and the future even brighter" because "they had made it into American Society and, in this sense, they 'had it made,' or, at least, they thought they did.""0 Two decades later, however. Jewish incorporation had taken a new turn: "Few anticipated the day when Christian Americans or, at least, some middle-class Christian Americans, would begin to want to 'thinkJewish'—or, at least, think 'thinking Jewish' was in."10'1 If thinking Jewish was in, then the mode of incorporation had indeed begun to change; for the first time, the primordial "givens" of civil society could be expressed in a religiously multicultural way. As Rose understood it, in the postwar period "the Jew became every-mau"; twenty years later, through "a curious transposition," according to Rose, "everyman became the Jew."103 When Charles Stember analyzed his surveys of the American public in T962, he noted that "anti-Semitism in all its forms" had "massively declined in the United States," that "significantly fewer people than formerly believed that Jews as a group had distinctive undesirable traits" or "thought Jews were clannish, dishonest, unscrupulous."100 Stember went beyond his data, however, when he went on to interpret these findings as evidence that Americans now viewed jews as not "having any distinctive traits or characteristics at all, whether bad or good."107 The discourse of civil society is binary. Rather than becoming unmarked, Jewish qualities had moved from the polluted and repressive to the purified and liberating side. By the early and middle 1960s, being "with the Jews" shifted from anti-anti-Semitism to philo-Semitism. Rather than simply being open to full civil participation by Jewish persons and tolerating Jewish qualities, Christian Americans began to find Jewish qualities attractive in themselves. American primordiality was being opened to "Jewishness." In the nation's elite popular culture, in matters of emotion, ideas, and aesthetics, conmiunicative insti- 530 MODES OF INCOHPORATION INTO THE CIVIL S I'M [hie tutions played the chords of civil discourse in a new key. In T966, in "Notes on Cult: or, How to Join the Intellectual Establishment"' in the New },V/, Times Magazine, Victor Navasky jokingly assured his readers that "rumors to the contrary notwithstanding, you don't have to be Jewish to be an intellectual."'08 In 1968 in the Atlantic, Calvin Trillin published an apocryphal story about a thoroughly assimilated Jewish American named Lester Drentluss, who comes to realize, during the course of the 1960s. that he is not, in public terms, nearly "Jewish" enough. Although Lester was Jewish, he felt left out. [H]e began to spot some signs of a trend ... a boom in Jewish novels here, a Jewish Lord Mayor of Dublin there. He noticed an increasing use of Jewish mothers by comedians and ofjewish advisers by politicians. Scotch-Irish professors seemed undisturbed about being included in the category ofjewish intellectuals." The gentile movie stars who failed to convert to Judaism repented by donating their talents to Bonds for Israel benefits. The subway graffiti had begun to include phrases like "Media Is a Yenta" and "Kafka Is a Kevetch." Lester's final decision came in February, 1965, while he was reading an article in Life magazine about Robert Lowell, the New England poet. "Do I feel left-out in a Jewish age?" Lowell was quoted as saying. "Not at all. Fortunately, I'm one-eighth Jewish myself, which I do feel is a saving grace." . . . Robert Lowell had been right; it was a Jewish world.10'' Shifts in popular culture echoed, and also triggered, these high cultural themes. When Barbra Streisand asked, in her 196S hit film Funny Girl, "is a nose with deviations a crime against the nation?" it was understood as a rhetorical question: her conspicuous "Jewish nose" had by that time becor an object of admiration, if not beauty, for millions of her non-Jewish fans. New and powerful tropes emerged about Jewish openness and warmth. The most striking were representations of an endearing "Jewish mother" who embodied a sometimes overwhelming physical and emotional indulgence, parenting qualities that were taken as notably lacking in the culture of America's WASP core group. The 1964 best-seller that brought this tro-into the popular imagination was Dan Greenberg's How To Be a Jewish Mother: A Very Lovely Training Manual.1" In this new emotional context, tl 5.12 Before and After the Holocaust prohibitions against Jews as neighbors and marriage partners, which Christian Americans had upheld for centuries, were rapidly fading.112 An African American comedienne, Caryn Johnson, changed her stage name to Whoopi Goldberg, thinking, quite rightly it turned out, that such a public transformation would be of real benefit to her career.113 I will examine this new situation in more detail by focusing on the unprecedented Jewish self-representations created by a novelist, Philip Roth, and a filmmaker, Woody Allen. After considering the wider effects of these symbolic constructions. I will return, in conclusion, to the repercussions of multiculturalism on the Jewish community itself, and how this new mode of incorporation brought a new set of tensions in its wake. Making the Good Jew "Bad": Philip Roth's Confidence Bv his own construction at least, the literary career and real life of Philip Roth present a mirror of the changing Jewish position in American society, both in the sense of reflecting it and providing an opportunity for reflection upon it."4 Growing up in a Jewish neighborhood in Newark, New Jersey, in the 1930s and '40s, Roth experienced the near-total segregation of primary relationships and the radical disjunction of private and public life that characterized American Jewish efforts at incorporation in the assimilative mode. In I Married a Communist (1999), Roth's Jewish narrator, IraRingold, recalls the repulsion for Jewish qualities that permeated this period. He does so via a retrospective account of Focus, the now largely forgotten novel published by Arthur Miller in 1945. In Roth's retelling, Millers story concerned the fate of "a cautious, anxiety-ridden conformist" named Mr. Newman. A Gentile who worked as a personnel officer in a big New York corporation, Newman is "too cautious to become actively the racial and religious bigot he is secretly in his heart." After Newman is fitted for a new pair of glasses, however, he confronts an experience that reveals, to employ terms drawn from the present discussion, how the hatred for Jewish qualities effectively prevented the civil incorporation ofjewish persons. After Mr. Newman is fitted for his first pair of glasses, he discovers that they set off "the Semitic prominence of his nose" and make him dangerously resemble a Jew. And not just to himself. When his 533 J I M0DE5 OF INCORPORATION INTO THE CIVIL SPHERE crippled old mother sees her son in his new glasses, she laughs ar says, "why, you almost look like a Jew.'1 When he turns up at woi in the glasses, the response to his transformation is not so benign: 1 is abruptly demoted from his visible position in personnel to a low job as a clerk, a job from which Mr. Newman resigns in humiliatio: From that moment on, he who himself despises jews for their look their odors, their meanness, their avarice, their bad manners, eve for "their sensuous lust for women," is marked as a jew everywhe he goes."5 As Roth has told the story both in fiction and in fact, when h Newark to enroll at Bucknell University, at the end of the 1940s, and for graduate work in writing at the universities of Iowa and Chicag was making a sociological transition, not only a geographical one, ent a nonreligious world of "humanistic" learning that promised the opport of escaping from his particularistic and segregated roots. As an aspiring writer, he majored in English literature, becoming a follower of the Trilling Bellows of the postwar period. In Letting Go (1962), his first novel aft* short story collection Good-bye Columbus (1959), Roth displayed th phisticated irony and distancing tone that distinguished the newly an highly influential Jewish intellectuals in that hyphenated time. By the n conclusion, however, when Roth's protagonist tells his mentor, an t lished older writer, that he finally has found his "voice" as a novelist, Roth is announcing his transition to a different kind of jewishness, to a 1 more explicit, robust, and complex public representation of Jewish life. In the controversial stories that culminated in his 1969 novel, Portnoy's Complaint, and in the string of books he published from The Breast (1972) to The Anatomy Lesson (1981) and Zuckcrman Bound (1985), Roth projected aj( voice that had never been heard before.Uf' Introducing both a new ki Jewish character and a new kind of Jewish author—which seem, for Roth. invariably intertwined—Roth's fictional constructions of core and group relations marked the transition to what later would be called the politics of difference. The Roth author-character was brash, vulgar, assertive—in a \ decidedly uncivilized. Most important, he was openly, sometimes revolt "Jewish" in an often self- and group-demeaning, thoroughly public Alexander Portnoy's accusing self-pitying takes up the whole of Pot Before and After the Holocaust ,mp}aint, which is one long, first-person spiel from Portnoy's prone position his psychoanalyst's couch. On the surface, Portnoy's life looks rosy. He lb well educated, has a devoted family, and at thirty-three has a promising and respectable position. Yet rather than feel grateful to his Jewish mother and appreciative of his loving family, Portnoy feels fear and loathing toward diem, certain they are responsible for all his personal torments and travails. He lashes out at his overbearing mother as castrating and at his "Philistine" father as weak, accusing them of being "the outstanding producers of guilt in our time!" Linking the guilt he suffers from compulsive masturbation to die historic crimes against the Jewish people, Portnoy asserts the former, not the latter, to be a much more significant and proximate source of his pain. Who made us so morbid and hysterical and weak. ... Is this the Jewish suffering I used to hear so much about? Is this what has come down to me from the pogroms, the persecution? From the mockery and abuse bestowed by the goyim over these two thousand lonely years?"7 Rather than present his characters' Jewishness through the lens of some suprareligious shared humanity—the strategy that inspires Bellows great middle period work—Roth's protagonists achieve their humanity via their intense and contradictory Jewishness. Portnoy took Roth almost ten years to complete, with several fragments and partially completed manuscripts strewn along the way. He would later write that he was not able to complete the novel "until I found, in the person of a troubled analysand [Alexander Portnoy], the voice that could speak in behalf of both the Jewboy' (with all that word signifies to Jew and Gentile alike about aggression, appetite, and marginality), and the 'nice Jewish boy' (and what that epithet implies about repression, respectability, and social acceptance)."11" In many quarters, Portnoy was accorded an immensely enthusiastic reception, with a biographical spread in Life before publication, talk show appearances after, and applause in high-toned reviews along the way. Critics praised Roth for continuing the radical thrust of modernism by exposing private, previously hidden and repressed thoughts and desires, for bringing the private self into the literary public sphere. Inside the Jewish community, however, Roths effort to reconfigure the line between ptiblic and private 534 535 MODES OF INCORPORATION INTO THE CIVIL SPHERE was viewed in an entirely different way. His new Jewish voice, aesthetic ambitions, even his religious credentials were harshly, sometimes violeni criticized. In the United States, in an essay widely read in the Jewish con munity, one reviewer claimed that "anti-Jewish stereotype" was at the con of Roth's book, and asserted that "there is little to choose" between "Roth's interpretation of what animates Portnoy" and "what the Nazis call rassen schaiidc {racial defilement)," that Roth's construction of his protagonist w "straight out of the Goebbels-Streicher script."11" In Israel, Gershon Sholem a widely admired cultural historian of medieval Jewry, published an ess; attacking Portnoy as "the book for which all anti-Semites have been praying.; At the "center" of "Roth's revolting book," Sholem fulminated, "stands t loathsome figure whom the anti-Semites have conjured in their imaginatioi and portrayed in their literature."'2" Roth responded to his Jewish critics with a series of searching essays-tl illuminated the relationship between his fictional representations and the................ ambiguous, rapidly changing civil status of American Jews.121 As Roth u -derstood the Jewish community's charges against him, he was accused of having committed the sin of informing on the private, usually hidden worlds of Jewish life. I had informed on the Jews. 1 had told the Gentiles what apparently.. it would otherwise have been possible to keep secret from them: that .> the perils of human nature afflict the members of our minority.122 The not entirely pristine perils of their own human natures—the complex, often down-and-dirty realities of motive and desire—were precisely what assimilating Jews had always tried to keep from public view in their ongoing effort at self-change. Undergoing "the ordeal of civility,"12-1 jews had felt compelled to present themselves as wholly and completely capable of performing the exacting exercises in rationaliry, self-control, and other-orientei moral obligation required for participation in civic life. Roth argues thai even in the postwar war decades of Jewish hyphenation, America's most influential Jewish writers distorted their fictional reconstructions of hum; motives and relations under the constraint of this civilizing imperative. "The Jew in the post-holocaust decades," he wrote in 1974, "has been identified in American fiction with righteousness and restraint, with the just ani measured response rather than with those libidinous and aggressive activities Before and After the Holocaust that border on the socially acceptable."121 Roth saw his fiction as violating ^is unwritten civilizing constraint on Jewish self-presentation. It was for this reason, he believes, that he had been so vehemently ostracized from the Jewish community: Going wild in public is the last thing in the world that a jew is expected to do—by himself, by his family, by his fellow jews, and by the larger community of Christians whose tolerance for him is often tenuous to begin with, and whose code of respectability he flaunts or violates at his own psychological risk, and perhaps at the risk ot his fellow jews' physical and social well-being.125 In his own defense, Roth evokes both moral and aesthetic criteria. For the first time in American history, he suggests, it is not only possible but necessary for the true Jewish self, the self that assimilation and even hyphenation had made private and invisible, to make its noisy and distinctive appearance on the public stage. He starts with the aesthetic criteria of modernism itself. Citing Trilling's own protest against mass society's "acculturation of the anti-cultural," Roth justifies his iconoclasm in general social and artistic, rather than religious or ethnic, terms. He describes it as providing an alternative to "that deadening 'tolerance' that robs—and is designed to rob—those who differ, diverge, or rebel of their powers."i2f' Fiction does not help people be "upright citizens," Roth argues; neither is it designed to "guarantee the appropriateness of our feelings" or to "affirm the principles and beliefs that everybody holds."127 What distinguishes such art is precisely that it frees the self from such "circumscriptions that society places upon feeling," allowing the self "to experience in ways not always available in day-to-day conduct; or, if they are available, they are not possible, or manageable, or legal, or advisable."125* Whatever the truth of these aesthetic observations, it seems safe to say that, for Roth, they ultimately gain their power for reasons closer to home. Roths most sustained and compelling response to his Jewish critics is not about art or even the responsibilities of the artist. It is about the obligations of the Jewish artist in the context of what Roth regards as the drastically transformed position of American jews. Drawing a sharp contrast between the experience of his own generation of Jewish Americans and the older generation of assimilating and hyphenating American Jews. Roth makes the 537 MODES OP INCORPORATION INTO THE CIVIL SPHERE large claim that, in contemporary American society, jews no longer need to change themselves, or even the public image of themselves. Roth ch that his critics in the Jewish community are "ashamed of what I se reason to be ashamed of, and defensive where there is no cause foi . fense."1-' Et is precisely because he is not ashamed or defensive aboutJe qualities, precisely because he does not accept the need to distance i qualities from Jewish persons, that Roth has insisted on making his complex and ambivalent protagonists flamboyantly and, for many, disturbingly Jewish.1-1" Criticized for identifying one of his early characters, a misanth: . and self-seeking Army sergeant, as a Jew, Roth acknowledges thai character's "moral complexities are not exclusively a Jew's," but he assert1., nonetheless, "I never for a moment considered that the characters ii story should be anything other than Jews."131 Roth links his aesthetic commitment to the public presentation ofjc-qualities to the sociological transformation of Jewish incorporation. He accuses his Jewish critics of thinking in terms or an outdated, traditional model of Jewish-Gentile relations, in terms of a pre-Holocaust world has largely disappeared. Failing to recognize "the success of the struggle against the defamation of Jewish character in this country." Roth asserts, his Jewish critics cannot accept the fact that "neither defamation or persecution are what they were elsewhere in the past."132 In a 1961 speech at L< University in Chicago, a leading Jesuit institution, Roth ruefully presents his own perception of the times in which Jews live: "3 fmd that 1 amsuddenh living in a country in which the Jew has come to be—or is allowed follow to think he is—a cultural hero."133 In the context of this astonishing recognition by American popuk culture. Roth believes that it is no longer necessary for Jews to worry abou "putting on a good face."13"1 If not only Jewish persons but Jewish qualitie are purified, why should the putatively anticivil motives of Jewish people be hidden? Indeed, Roth claims that only by presentingjewish idiosyncrasies as sociologically normal—as public—can Jews fight against the "restrictiot of consciousness as well as conuiiunication" that anti-Semitism, still cai create.I3S Only by being themselves in public—not only a Jew at home bu a Jew in the street—can Jews participate fully in the world of civil com munication that characterizes democratic societies. This, of course, was tb Utopian promise offered by the early Christian and Jewish civic reformers Before and After the Holocaust ■ Vvhat Rath understands is that it could be made good only by tejecting the symmetrical bargain they had earlier undertaken. The Universality ofJewish Difference: Woody Allen us Cultural Icon In 1973' ul The Masks Jews Wear, Eugene Borowitz made an observation that seemed to confirm the wisdom of Philip Roths choice to go public with the once-denigrated qualities of Jewish life. Today [humanityJ needs people who are creatively alienated. To be satisfied in our situation is either to have bad values or to understand □rossly what [persons] can do. . . . Creative alienation implies sufficient withdrawal from our society to judge it critically, but also the way and flexibility to keep finding and trying ways of correcting it. [ think Jewishness offers a unique means of gaining and maintaining such creative alienation. This was not its primary role in the lives of our parents and grandparents.13" Whether, in fact, creative alienation has anything specifically to do with laism or Jewishness is not our concern here. What does hold our interest is Borowitz's claim that a specifically Jewish quality, now positively represented by the liberating discourse of civil society, can and should become a ' universal aspiration for the broader non-Jewish world—for "humanity." In making this claim, Borowitz registers the same sense of historical transition as Philip Roth, and derives from it the same confidence. Roth would undoubtedly have found the term "creative alienation" soporific and the idea of its contributing to the American ethos conventional and cloying. Still, Borowitz s prescription of the Jewish experience as a therapeutic tonic for non-Jewish America echoes Roth's insistence that Jewish dissimulation should be a tiling of a past and that the aesthetic representation of Jewish motives and relations can deepen the texture of civil life. In fact, the transparent simplification of Borowitz's proposal puts its sociological implications into sharp relief Jewish difference can be publicized rather than repressed because, for the first time, it has come to be regarded as a rich and important variation on the universal traits of humankind. 539 MODES 01= INCORPORATION INTO THE CIVIL SPHERE Before and After the Holocaust In the latter decades of the twentieth century, Woody Allen's films, and I Allen himself, became artistically vivid and socially iconic representations of i this transformation in the mode of incorporation, both for Jews and no,,, , Jews alike. What could more powerfully portray the transition from assinu = ilation to multiculturalism than this new and unabashedly conspicuous Jewish figure in the communicative medium that immigrant Jews had created in an effort to hide their particularity behind the gauze of American pastoral-Woody Allen's comic presentation can be traced directly to the "new-Jewish literature" of Mendele and other Jewish writers of the middle and later nineteenth century, to the satiric, despairing, doggedly unsentimental and ironically self-critical genre they created in response to the schizophre promises and disappointments of post-emancipation Jewish life.137 In I interwar period, when American Jews struggled with, and often were defeated by, the dilemmas of assimilation, Jewish comedy was segregated, projecting images into the margin of the mainstream from the Catskills and"''-' other specifically Jewish resorts and clubs.i3H In the postwar period of hyphenation. Jewish comedians moved into the center of the communicative^ institutions of civil society. In the 1950s and early 1960s, the television "comedy hours" of Sid Caesar and Milton Berle provided weekly rituals of family entertainment, and symbolic media for face-to-face civil interaction, for tens of millions of non-Jewish Americans, even as they were hailed critics for their cutting-edge originality in artistic terms. But this Jewish comedy by Jewish comedians was presented without any explicit reference -to their Jewishness as such. As a high school student, Woody Allen started his professional careerby contributing material to these closeted Jewish comedians. When he beg writing, directing, and acting in his own movies, however, the mode > presentation dramatically changed. Allen s films are permeated by his public-. obsession with "the Jewish question" What is a Jew? Are they really different, or is it only Christians who think they are? Does this difference mean th . Jews are inferior, that they will inevitably be persecuted and excluded fro civil society? Caught in the asymmetries of incorporation, Jews themselves of course, have always worried about such questions. What made Woody Aliens worries so atypical was that, rather than keeping these anxieties arid speculations private and separated, he exhibited them in the public square, and miUions of non-Jewish Americans paid to see.'-VJ In making these one 540 rivate Jewish obsessions public, Woody Allen's art broke down the often j-iiquitous barrier between the civil presentation of a public self and the true self of private life. In doing so, he emphatically announced that self-lan^e need no longer be exchanged for Jewish incorporation. Rather than denying or hiding the stereotypes about Jewish qualities promoted by anti-Semitism, Allen seems, at first glance, to acknowledge their truth. His literary persona is a bundle of weaknesses, uncertainties, and insecurities. He presents himself as besieged by self-deprecating doubts about his masculinity and, if not his intelligence, then his ability to cope in a rational, self-controlled, and competent manner with the relations and inanitions of contemporary life. At the same time, however, Woody Allen is ever simply the laughable schlemid of Hebrew-Jewish literature or the pathetic and foolish humbler of anti-Semitic lore. The power of the Woody Mien character is his ability to nudge the distinctive images ofjewish char-cter from the negative into the positive discursive frame. In the midst of tughter and the often intense discomfort produced by the shock of self-recognition, Allen's neurotic self-recrimination morphs into a tolerance for mbiguity, his obsessive doubt into a becoming modesty, the constant questioning of his own commitments into an ironic and mature reflexivity. The Woody Allen figure is not only funny but endearing and wise. His stories portray him as engaged in a Bilduno, a developmental learning process that increases his competence to understand and to successfully navigate the omplexities of modern society. These abilities make his character central, not marginal, to contemporary civic life.1'"1 There is no better illustration of this Roth-like duality of self-presentation than Annie Mali (1977). an Academy Award-winning film that became powerfully emblematic and influential in matters of speech, fashion, nd emotional style for more than a decade. Annie Hull is a multicultural transformation on the fable "Jew meets Gov," drawing broadly and graphically upon American religious and ethnic stereotypes even while revising hem in a radical way. In the character of Alvy Singer, Allen presents himself is the "typical Jew," speaking obsessively and fearfully about the injuries of Ins race and anxieties about his character. He meets and falls for Annie Hall, portrayed by Diane Keaton, just after she has arrived in New York City, fall, thin, light haired and open eyed, Keaton is the prototypical American WASP, as the tortured and hilarious Thanksgiving dinner scene in her small 5+1 MODES OF INCORPORATION INTO THE CIVIL SPHERE northern Wisconsin hometown reveals, with her grandmothers open ; Semitism, Allen's visual and visceral fantasies of Jew hatred, and the mutual discomfort of all concerned. The central concern of Annie Hall is the possibility of civil relations between Christians and Jews. The key statement in this regard is Annie's spirited riposte to Alvy, "You're a real Jew!" Until the mid-1960s, such, an expressive identification of Jewish particularity would have been purelv pejorative, not only to non-Jewish but Jewish ears. It would have communicated the feelings of unease and disgust toward Jewish qualities, the sense of their separateness, that blocked the extension to Jewish persons of civil solidarity. In Diane Keaton's mouth, however, the expression signifies something entirely different. Woody Allen's Jewish difference is recognized, even emphasized, but it is now a positive identification, a source of ac ration, an object even of emulation. As this hermeneutical transformation suggests, in Annie Hall the traditional relation of Jew and non-Jew has been inverted. There is neither the assimilative representation of domination and degradation nor the hyphenated image of sameness and complementarity. The symbolic receding of [e\v and Gentile allows a new narrative to develop, one in which it is the civilized jew who brings the primitive Gentile into the realm of civic life. It is now the goyim who feel stupid and inferior to the Jew, not the other way around. Woody Allen is not simply Diane Keaton's lover but her tutor, her mentor in the intricate learning of things sophisticated. Metaphorically speak Allen brings Keaton from Wisconsin, the negative geographical repre tation of the Christian core group, to New York, a location at once physical and semiotic that is presented, here and elsewhere in Allen's films, in an idealized way. Alvy encourages Annie in her aesthetic interest in photography; he introduces her to the higher intellectual realms of philosophy classical literature; he sponsors her social mobility by encouraging her to take night-school classes in composition. In Annie Hall, Woody Allen transforms the standard narrative of American civil society not by changing the plot but by changing the religious and cultural identities of its principal characters. The heart of this cinematic Bildungsronian is the transition of an innocent from the periphery to center, from provincialism to cosmopolitanism, from particularity to universalism. What has changed in this standard narrative is that it is the jew wfio does the Bildung and the Gentile who makes the journey. Before and After the Holocaust This valorization of Jewish difference creates something else that is new 3S well. The psychological end point of Annie's journey is not the standard American version of "health, happiness, and apple pie." Annie is being tutored in a more complex and ambiguous, specifically Jewish kind of knowledge. Sigmund Freud insisted that the goal of psychoanalysis, what anti-Semites called the "Jewish science," is not happiness; its aim, rather, is to substitute for the irrational fantasies of neurosis the realistic unhappiness of normal health. Annie Hall becomes less cheerful as herjourney progresses. What she learns is not how to become happy but how to enter more deeply and surely into the problematic and uncertain nature of her self. She begins psychoanalysis, starts writing fiction, and becomes increasingly ironic, skeptical, and wise. In the closing scene, she demonstrates her hard-won reflex-ivitv and intelligence not only by separating from Allen but by offering him emotional advice. Rather than being shattered by this rejection, Allen demonstrates his own deepening maturity by accepting and ruefully reflecting upon it, demonstrating a psychological integrity that even Annie does not yet possess. It is Allen, after all, who has written the story, cast the characters, and created the film. It is Allen, the Jewish character, who provides the film's voiceover narration and who, at critical moments, steps outside the mise-en-scene to explain to us, in his own authoritative words, what is really going on.1"" In The Melting Pot (190S), Israel ZwangwiUs Utopian representation of hyphenated incorporation, the Jewish hero enthusiastically gives up his religious identity to marry his Gentile lover and enter fully into American society. Seven decades later, in Annie Hall, the hero confidently maintains his Jewish identity, deploying it not to marry his Gentile lover but to transform her. Rather than move toward traditional Christian-American values, this rite of passage moves into the character and culture ofjewishness. It is the non-Jew, not the Jew, who must give up an earlier identity in order to learn how to enter into the heart of American civil life.142 The Dialectic of Differentiation and Identification: A Crisis in American Jewry? In the multicultural mode of incorporation, difference gains recognition not because it is separate and distinctive per se or because recognition is merited 542 543 MODES OF INCORPORATION INTO THE CIVIL SPHERE in normative terms, but because core group members have learned to perceive difference as a variation on shared humanity. The identities oi" once-marginalized groups come to be viewed both as legitimately and importantly different from the core group's and, at the same time, as fundamentally the same. It is for this reason that I have so strongly resisted the notion, suggested by conservative opponents of multiculturalism and radical proponents alike, that multiculturalism produces a less integrated and more divided society. Multiculturalism is a mode of incorporation, not a form of disintegration. In comparison with other modes, it is better able to combine integration and justice: it requires, and helps to produce, thicker and deeper forms of mutual identification and less unfair forms of civil solidarity. Yet this paradox is what makes the multicultural mode of incorporation unstable in its own way. The instabilities of assimilation and hyphenation have to do with asymmetries of super- and subordination, with sacrificing justice for integration. By widening horizontal solidarity—expanding the primordial symbols through which civil discourse can be expressed -multiculturalism addresses the suppressed vertical strains of hegemonic integration. The process, however, does not produce nirvana, a tranquil equilibrium. By expanding the range of the primordial variation of civil ideals, it produces horizontal rather than vertical strains, lughlighting problems of boundary definition and identity. Thematizing cultural issues like m fulness and authenticity, the multicultural mode of incorporation makes them criteria for the distribution of resources of a more material kind. A dialectic of differentiation and identification characterizes multicultural societies. In the contemporary United States, we observe confident assertions of Jewish difference and demands to go beyond the putative blandiiess of integration, not defensive or aggressive responses to the failure of assimilation or the promises of hyphenation. In terms of religious organization, observant jews have abandoned almost entirely the assimilative project of religious reform. Not only in Reform but in Conservative synagogues, there has been a marked return to such traditional religious practices as chanting and singing prayers, an upsurge of Hebrew rather than English in religious services, and a new emphasis on ritual observance, not only of Friday-night candle lighting and bread-breaking on shabat but of other holy occasions marked in the ancient Hebrew calendar. Among cosmopolitan and highly integrated jews there has emerged a movement of neo-Orthdoxy that revives some of the most traditional aspects of premodern Jewish life—from living 544 Before and After the Holocaust together near shut to davenning and dietary laws.143 When Nathan Glazer published his interpretive sociological treatise American Judaism fifty years ago, his prediction that Judaism was well on its way to becoming an ethnic rather than religious identity seemed like a provocative insight that was thoroughly compatible with the evolutionary spirit of the tenets of modernization theory that reigned in that day. Thirty years later, when the now-classic book was revisited by Jewish scholars, it was roundly criticized for not foreseeing such a revival in orthodoxy and religiously Jewish ways. In his introduction to the book's second edition, Glazer remarked, in reference to such criticisms, that "certainly something has happened that was not envisioned in American Judaism. "I44 But it is not only the relatively small minority of religiously observant Jews who have demonstrated a new interest in differentiation. The Jewish dav schools that have mushroomed throughout American society are more concerned with maintaining a sense of Jewish cultural difference than they are devoted to reviving Jewish religiosity. Throughout the American university system, it has primarily been secular Jews who have pressed for the creation of specifically Jewish studies departments and programs. Before the 1960s, only Salo Baron at Columbia and Harry Wolfson at Harvard directed such programs. In 1945, twelve positions existed in American universities, and in 1965 there were sixty. In 2003, the Association for Jewish Studies in the United States reported some sixteen hundred members.145 In these university settings, and in all kinds of other secular institutions, observant and nonobservant jews alike have felt entitled to make public demands for cultural recognition and for institutional attention to their distinctiveness. They expect to be paid when they refuse to work Jewish holidays, whether they actually attend religious services or simply remain at home; they demand the right to dress in traditional ways and the opportunity to eat kosher food in public dining places. Twenty years ago, Charles Silberman was already drawing attention to "the ease with which jews now display their Judaism in public." Observing that the mainstream communal organizations of American Jewry were facing criticism for "not being Jewish enough," he pointed to a broad and deep rediscovery of particularism" among American jews.140 It is striking that those participating in this new revival of jewishness, whether religious or secular, have by and large accepted rather than rejected the pluralism of civil society.147 This should not be surprising. It was the deeply democratic tur- 545 MODES OE INCORPORATION- INTO THE CIVIL SPHERE Before and After die Holocaust bulence of the 1960s that did so much to trigger the multicultural mode of incorporation. If there was a single seedbed event that announced the i newal of Jewish particularity in a public and political way, it was the "new jews" movement promoted by the largely secular radical students of th day. In 1969, several hundred members of Concerned Jewish Students threal ened a sit-in to disrupt the General Assembly of the Council of Jewish Federations. When a spokesman for the student group, Hillel Levine, was given a chance to address the assembly he denounced its priorities for favoring "a greater mobilization of resources to combat one crack-pot anti-Semite than to deal with the Jewish illiteracy of millions of Jews."14* In a collective publication that came out of this movement, a prophetic docu ment filled with the apocalyptic spirit of those rimes. James Sleeper described the "American Jewish community" as undergoing a "spiritual Hiroshima" and decried "the transformation of the Hebrew spirit into an increasingly dispensable appendage of middle-class aesthetics and culture."14" When, for the first time in American history Jews are demanding and succeeding in civil assertions of difference, how is it that that so many influential voices in American Jewry have, in recent decades, express* anxious concern about the continuing viability, even the bare existence, 1 Judaism in America? Why has there been such continuous discussion in Jewish magazines and journals about the crisis of Judaism? Why do social scientific students of contemporary Jewish life talk about whether Judaism-in America will soon disappear, not only as a viable religion but as a dis- f tinctive ethical and ethnic orientation?1''" I It is because of the continuing dialectic between difference and idenl fication. If difference can be recognized only when there is increased s< darity between core and out-group, it should not be surprising that, even as they begin to cultivate their differences, Jewish Americans would come 1 feel more like non-Jewish Americans and the latter more like them.151 It is, after all, an increasingly positive evaluation of Jewish qualities that allows incorporation to go beyond the asymmetries of assimilation and hyphenation. In a multicultural setting, the spaces between Jew and non-Jew—7 institutional, cultural, and interactional—become smaller and more permeable than ever before. Institutionally jews have entered the higher e< elons of once-segregated law firms and corporations, and they are the ex-, ecutive officers of formerly anti-Semitic elite universities. Culturally, opinion surveys show that Jews "affirm general values that make th< virtually indistinguishable from certain sectors of the general public."1" But it is perhaps in the dramatic shift in intermarriage rates—at the face-to-face, interactional level of civil society—that the effects of the extraordinary transvaluation of Jewish qualities can best be seen. In 1965, less than 10 percent of Jews married non-Jews; thirty years later, slightly more than half were doing so. For pessimistic observers, this remarkable trend set alarm bells ringing about a demographic crisis that could be a "Holocaust of our own making' and would jeopardize the Jewish community's "very survival."1-" The optimists in this demographic-cum-cultural debate, in which camp are included most academic observers, caution that intermarried Jews are not more inclined to abandon Judaism, that the non-Jewish partner often converts to Judaism, and that at least half of the children from intermarriage are raised as Jews.154 However the particulars of this argument are ultimately decided, from the perspective of civil society and the Jewish question, the broader implications of this rising tendency for Jewish-Christian intermarriage are clear. What could more clearly signal the positive evaluation of Jewish qualities than the growing Christian interest in marrying jews? What could more graphically demonstrate how multicultural incorporation points to increasing solidarity', to deepening sentiments of respect and affection between members of core groups and out-groups?155 H6 547 CHAPTER 20 Conclusion: Civil Society as a Project n this book, I have presented a new theory of society by defining a new sphere, its cultural structures, its institutions, and its boundary relations with discourses and institutions outside it. With this theory, I have tried to create a new social fact and to examine it empirically in a series of case studies. If this new theory is productive, and the case studies illuminating, we will better understand our society and ourselves, and we will see more clearly the possibilities of justice. Nothing is more practical than a good theory. For a good part of the last two centuries, many social theorists, activists, and ordinary persons interested in the project of social improvement have been preoccupied with a particular form of critical thinking called Marxism and, more recently, with critical theory. Their concerns have Iain less with thinking through the possibilities of justice broadly construed and the institutions it might necessitate than with justice as it might be realized in the form of socialism and with the equal distribution of economic resources. The purpose of this book has been to examine a more fundamental question, one overlooked in this narrower focus, that has to do with the foundations of social criticism per se, and I have sought throughout to broaden our understanding of these foundations. The death of the socialist dream is not the end of critical thought, deep institutional reform, or cultural 549 THE CIVIL SPHERE discourse in a Utopian vein. It is not this or that institutional form that marks the critical strand of democratic life. Civil solidarity—that is the real utopia" it lies beneath every particular demand for institutional reform, every his:/ torically specific demand for cultural reformation. The utopia of a truly čiyjj/ solidarity informs every manifestation of the restless and critically demanding spirit that marks democratic life. It is the general language ot every specific ^ historically delineated form of reformist speech. Utopianism is not over. To the contrary, it is being continuously rede-í fined. We do not know where this restless spirit will lead. We cannot guess> what new evil the intrusive spirit of civil hermeneutics will interpret andi construct nest. The civil spheres Utopian discourse is not an entirely free^l floating signifier, but neither is it rigidly defined. In the centuries sinceir! assumed a national form, there has never been certainty about where this! spirit will alight. ■■■ ■ ......% For now at least, the worker-centered dream of dramatically transform-': ing civil society into socialism has faded, in its moderate form, the dreartift transmogrified into social democracy and reformist liberalism. In its radical! form, it was a totalizing vision, a kind of big-bang version of civil repair. It may return again someday in another, less totalizing form, one that is less!; inclined toward an abstract equality that trumps justice in its other, pluraP ways. That might be a good thing. : For now, we are living in a world of smaller and more discrete Utopian dreams, of family, of conjugal and erotic love, of the kingdom of god orr^ earth, of the perfect market, of equilibrated nature, or a pure liberal state./; These are sphere-specific demands, and their advocates often want to be./ civil-sphere free. Rather than resenting civil injustice, they celebrate and idealize the qualities of noncivil life, sometimes as indispensable facilitating^ inputs to the good society, often as superior forms of justice in themselves,., and it is the civil sphere itself that often seems to intrude. There does, in fact, need always to be adjustments in boundary relations between civil and uncivil spheres. Institutions change. Industrial becomes postindustrial, sex ,, becomes more detached from love, women from husbands and men. The scope of private life becomes enlarged even as civil controls on arbitrary authority take hold. Boundary relations need to be adjusted for new historical times. The discourse of civil society is a pattern of signifiers. About its particular and specific signifieds, history will decide. But shifting involvements always shift again. We live in relatively con- Conckision: Civil Society as a Project servative, chastened, and sometimes frightened times, but the spheres outside civil society still cannot be seen as merely benign, much less as purely facilitating inputs to democratic life. They will inevitably be seen as destructive intrusions as well. Civil society is a project. It is a restless aspiration that lies deep in the soul of democratic life. Great Utopian projects of democracy rocked Western and Eastern societies in the last decades of the twentieth century In the world of intellectual life, one major result was the revival of "civil society." We must take hold of this concept before it is too late. We must make civil society into a major focus of empirical and theoretical thought and thus to everyday social life. That has been my ambition here. In Part I, t retrieved "civil society" from the cobwebs of earlier social theory. Once it made good sense to think of civil society as all the realms outside the state. Later, during the earlier "days of industrial capitalism, many were afraid that civil society had disappeared, or been narrowed to mimic the selfishness of economic life. It is this vision that, in modern social science, allowed the spirit ofThrasvmachus free rein. Realism is the salve for disappointment. But civil society has not disappeared. It is not everywhere, but it is not nowhere, either. Rather than dancing on its grave, we need to transform the idea of civil societv in a critical way. It needs to be recentered on the promise of a community of individuals, centered on solidarity of a distinctively civil kind. Civil society is not everywhere except the state. A differentiated sphere of justice, it contends with and often conflicts with the value demands of spheres. In Part II of Civil Sphere, we left the world of high theory to discover the imbedded discourse and institutions of everyday social life. Rather than an abstract deduction of philosophers, the normative stipulations of civil ..society turn out to be the language of the street, the television, novels, polls, parties, politics, office, and scandal. This rich and textured language is not only about Utopia but about the evils that impede it. It turns out, in fact, that ideal inclusion is always shadowed by pollution and exclusion. The evils of modernity are not anomalies. Postmodernity will not overcome them. They are systemic products of the search for civil justice and the good life. But if we cannot overcome bmarism, we can fundamentally change its referents. There will always be two goalposts, but we shift them, even in the middle of play. This is what concerned us in Parts III and IV. The civil sphere is a promise, and this promise can be redeemed. Outsiders demand the expansion of the discourse ot liberty. Stigmatized individuals and groups, 550 551 THE CIVIL SPHERE Conclusion: Civil Society as a Project polluted by the discourse of repression, can be purified and redeemed. If leaders are skillful, followers are brave, and the stars are right, movements for civil repair can succeed. But often they do not. History can go backward. The cracks in civil society split open. The golden bowl can drop and split into parts. It can be thrown down and shattered. The discourse of reprei can triumph, and barbarism can rise in its place. Though the empirical studies in Civil Sphere concern movements inside of nation-states or regions, its theoretical reflections have been developed without reference to scale. They refer to a way of imagining and organ a society, not to a particular expanse. They do not necessarily refer to city, nation, or region. It is possible, indeed, for the imagining and the organ of civil society to go beyond the territory of the nation-state. As the of other institutions, interactions, and discourses expands, so might organization of the civil sphere; If it were possible to organize a global sphere, the systematic proble earthly war would cease, for civil virtue could not be demonstrated by exterminating the other side. It would be extraordinarily difficult to achieve this new resting place for the spirit of civil Utopia. There would have to be a world state or some tiling Like a state for civil communication to become regulation on a global scale and for civil repair to proceed. Still, a j global playing field has already emerged. Even if were able to establish a global civil sphere, and to extend the goalposts of civil society to the other side of the earth, the binary nature of civil discourse and the contradictions of time, place, and function would not go away. Certainly, they have not done so in the nation-state. The of civil society will always be restless. Its boundary relations will continue to be dynamic, and it will be as liable to exclusionary integration as . within the nation-state. The contradictions would still be alarming, struggles over civil repair would still be contingent and dramatic. In a world of increasingly dangerous weapons and political tactics, such a globalized civil sphere may be the only way to proceed. Without a global range, the promises even of civil society in its national form may die. <• the civil sphere can regulate force and eliminate arbitrary violence., It does so through persuasion and civil power and, if necessary, by dispensing torce to defend democratic solidarity and to keep the aspirations of civil so alive. As violence becomes global, so must the civil sphere. We cannot foresee how the life and times of the civil sphere will proceed. 55: At the beginning of the last century we could not have predicted that the fledgling feminist struggle would eventually create massive movements of civil regulation to free women from male power; or that gays and lesbians would demand civil unions and eventually their full freedoms as equal and autonomous human beings; or that masses of nonwhite people would overthrow every great colonial power in the name of civil aspirations for independence, so that they could create civil power to regulate their own states. Nor could we have anticipated the horrifying scale of military technology and how difficult it would still be, at the beginning of the twenty-first century, to regulate violence in the name of civil life. What we can know for certain is that the discourse and structure of the civil sphere will remain. It will still be restless, and its dynamism will be dangerous and contradictory. But the discourse of liberty will continue, and the hopes for civil repair will remain. Civil society is a project. It inspires hope for a democratic life. 553 NOTES CHATTER I 1. Rawls, Theory of Justice, esp. pp. 3-54 and 1 [8-193. 2. Alexander, Meanings of Social Life. 3. Rawls, Political Liberalism, esp. pp. 1-32. 4. Habermas, Thcoiy of Cointimnicatii'c Action. 5. For an elaboration of this criticism, see Alexander, "Habermas1 New Critical Theory." See also Cooke, Re-Presenting the Good Society. 6. For example, Habermas, "Further Reflections on the Public Sphere," esp. pp. 441-44Ö; and Habermas, Between Facts and Norms, pp. 299-308 and 332— 384. 7. Walzer, Spheres of Justice. For a revealing analysis of tensions between such hermeneu tic philosophies of justice and the more universalizing sort represented here by Rawls and Habermas, see Warlike, Justice and luteqnetathm. For a much more developed discussion of the issues I am signaling here, and their relation to the themes of this book, see Alexander, "Theorizing the Good Society." S. E. Dürkheim, Division of Labor in Society. More generally, see Alexander, Antinomies of Classical Thought. 9. For these theoretical sentiments as highlighted by the theoretical shifts in Dürkheims later work, see Smith and Alexander, "Introduction: The New Dürkheim," pp. 1—40. 10. Marshall, Class, Citizenship, and Social Development. 11. Parsons, System of Modern Societies. 12. Alexander, "Contradictions in the Societal Community," 13. For example, Foucault, Discipline ami Punish. 14. For his later reconsiderations of the self, see Foucault, "About the Beginning of the Hermeneutics of the Self; and Z. Bauman, Postmodern Ethics. 555 NOTES TO PAGES 21-27 15. For a critical discussion along these lines, see C. Taylor, "Foucault on Freedom and Truth." 16. For example, M. Weber, Protestant Ethic and the Spirit of Capitalism. 17. Alexander, Classical Attempt at Synthesis. 18. Freud, Civilization and Its Discontents; Elias, Civilizing Process. ty. Eisenstadt, "The Axial Age"; and Alexander, "Fragility of Progress." CHAPTER 2 1. Seligman, Idea of Civil Society. 2. Hirschman, Passions and the Interests. 3. Franklin, Autobiography and Selection from Other Writings. Franklins equivalena of capitalistic thrift with virtue was related to the influence of Puritanism by Ma: Weber in Protestant Ediic and the Spirit of Capitalism, pp. 48-57, and derided b; Lawrence in his Studies in Classic American Literature, pp. 9-22, for the same association. Neither Weber nor Lawrence, however, highlighted the association of Frank Iinian virtue with democratic and civil life. See Morgan, Benjamin Franklin. 4. See Dumont, From Mandeville to Marx. 5. For the manner in which Hodgskms critique of Kicardo and his innovativ concepts adumbrated and facilitated Marx's own radical political economy, see Eh'e Halevy, Thomas Hodgskin (iySy-iS6g). 6. Polanyi, Great Transformation. 7. Keane, Democracy and Civil Society. 8. Jean Cohen, Class and Civil Society. 9. Easton and Guddat, Writings of the Young Marx on Philosophy and Society; and Alexander, Antinomies of Classical Thought, pp. 1 i-40. 10. Jean Cohen, Class and Civil Society, pp. 5, 24. t 1. K. Marx, "Contribution to the Critique of Hegel's Philosophy of Right." 12. Adam Ferguson, An Essay on the Histor)> of Civil Society, appeared in 1767; ii the German translation that appeared the following year, "civil society" was writte. as Burgerliche Gesellschaft (Bobbio, "Gramsci and the Concept of Civil Society," p. 80). 13. Hegel, Philosophy of Right, Part III, section ii: a-c. In addition to Jean Cohen's Class and Civil Society, see the argument about Hegel in Jean Cohen and Arato, Civ Society and Political Tlieory, pp. 91-nfi. For other arguments that develop the non egoistic interpretation of Hegel, see Pelczynski, State and Civil Society: Studies i Hegel's Political Philosophy; and Reidel, Between Tradition and Revolution. The problei with these interpretive discussions is that they are so concerned to save Hegel tror Marx—and, quite rightly, to provide an alternative to the reductionistic implicatioi of civil society II—that they tend to credit Hege! with too much originality, sue gesting, at least by implication, that he virtually invented the nonindividualist NOTES TO PAGES 27-30 conception of civil society from whole cloth. As the present discussion suggests, however, this underplays the Scottish, British, and French contributions to the earlier creation of civil society I and neglects the importance of discussions by Hegel's non-German contemporaries such as Tocqueville. 14. It was Keane who was the first to present this historical account of strong state versus civil society theory, in "Despotism and Democracy," pp. 35-71. 15. For the historical origins and traces of this conservative conflation, see Po-lanyis Great Transformation, pp. 135-200, and Hirschman s Passions and the Interests, pp. 100-113; for comparisons between historical and contemporary conservative conflations, see Hirschman, Rhetoric of Reaction: Perversity, Futility, Jeopardy: and Somen and Block, "From Poverty to Perversity." 16. For a discussion of the disappearing public in the writings of the American pragrnarists, see chapter 9 of this book; and for a discussion of Putnam's claims about democratic declension, see the section on "Civil Associations" in chapter 5. 17. Gramsci, Selections from the Prison Notebooks, e.g., pp. 12-13 and 234, 263, 26S. See also Jean Cohen and Arato, Civil Society and Political Theory, pp. 142-174. [8. Alexander, "Bringing Democracy Back In." This intellectual critique of big-state theory from a progressive, civil society perspective first appeared in a series of philosophical articles written by eastern Europeans, e.g., Kolakowski, "Hope and Hopelessness"; Michnik, "New Evolutionism"; Tesar, "Totalitarian Dictatorships." 19. See, for example, Sztompka, Trust, Seligman, Problem of Tmst; and for an earlier and still important treatment, see Barber, Logic and Limits of Trust. 20. E.g., Habermas, Knowledge and Human Interests; Rorty, Philosophy and the Mirror of Nature; Maclntyre, After Virtue; Nussbaum, Fragility of Goodness; Taylor, Hegel and Sources of the Self. 21. Keane, Democracy and Civil Society, pp. 3, 14. The same kind of broad, civil society approach informs such later work by Keane as Civil Society: Old Images, New Visions, e.g., pp. 6, 17-19, 53-55. This book presents, at the same time, an informative overview of the wide-ranging international discussions that the revival of civil society has triggered. M. Emirbayer and M. Sheller take up 3 CSI approach that resembles Keane's, defining it as including "willed communities" and "voluntary associations, on die one hand, and families, schools, churches, and other cultural or socializing institutions, on the other" ("Publics in History," p. 152). 22. Arato, "Civil Society against the State," p. 23. 23. Jean Cohen and Arato, Civil Society. 24. For a development of this criticism, see my review ofjean Cohen and Arato, "Return to Civil Society." 25. E.g., Habermas, Between Facts and Norms, pp. 352-387. As my argument unfolds, it will become clear that although with the idea of civil society III I am calling for a sharp analytic separation between civil society and diese other spheres, I am in no sense arguing for their empirical separation. The different possibilities 556 557 NOTES TO PAGES 30-22 NOTES TO PAGES 32-^0 for empirical separation and overlap are explored throughout the rest of this book i and are presented systematically as a model of "the contradictions of civil society" ~ in chapter 8. ': 26. A. Wolfe. IWiosc Keeper? 4 27. Seligrnan, Idea of Civil Sanely. i 28. Paternaii, "Fraternal Social Contract," in Keane, Civil Society and the Suit: ; 29. Shils, "Virtue of Civil Society." 5 30. Walzer, "Rescuing Civil Society." -| 31. Perez-Diaz, "Public Sphere and a European Civil Society." « 32. Putnam, Making Democracy Work and Bowling Alone, For a critical discussion • of Putnam's ideas in relation to the civil society HI alternative which 1 am proposing I here, see the section "Civil Associations" in chapter 5 of this book. A 33. Though die cultural and institutional sources of the civil sphere and their ^ interrelation with noncivil spheres form the main topic of this book, i will not have ? the opportunity to explore such historically specific interactional practices. Such an % examination would build upon Freud's understanding, in Civilization and Its Discon-J tents, of civilization as a distinctive kind of psychological structure; Elias's analysis of -:; the historical origins of the mannerisms marking civility, in Civilizing Profess (the 5 dark side of which he explored in "Violence and Civilization"; cf. Keane, "Uncivil-f Society," in GW Society, pp. 115-156); and Erving GofFman, a great theorist of □ face-to-face relations in contemporary social science, in, e.g., Picsenuitiou of Self "''^ Everyday Life and Interaction Ritual For contemporary empirical studies of the int || actional level of civil society, see Phillips and P. Smith, "Emotional and Behavioralsj Responses to Everyday Incivility" and "Everyday Incivility"; N. Eu'asaph and Lichterman, "Culture in Interaction"; and G. Fine and B. Harrington, "Tiny Pi I lies." I 34. For the religious origins: Troeltsch, Social Teaching of die Christian Chun! g Jellinek, Declaration of the Rights if Man and of Citizens; M. Weber, " 'Churches' a '^ 'Sects' in North America; and Taylor, Sources, esp. pp. 127-142. For individual! ; in the Renaissance, Reformation, and Enlightenment: j. Burckhardt, Civilizatiot g the Renaissance in Italy, esp. pp. 143-174; Greenblart, Renaissance Sc!fFashioni"n'> Erikson, Young Alan Luther, M. Walzer, Revolution of the Saints; and Gay, Enlighti ! mail: An Interpretation. For the sources of individuality in romanticism, see Tayl 1 Sources, pp. 368-390, and his book Ethics of Authenticity. For the eteventh-cciiti""" ■ roots of English individualism and its reflection in citizenship law, see Some 1 "Citizenship and the Place of the Public Sphere"; and Colin Morris, Discover)' of i individual: 1050-1200. For medieval parliaments and Western feudalism, see M. we- ; ber, Economy and Society, pp. 1038—1039, and, for their relation to individualism modern times, pp. 1381—1469; and Bendix, Kings or People, pp. 200—217. For t distinctiveness of Western cities and individuality, see M. Weber, "The City," 121 1372. For religious sect activity and individuality, see P. Miller, Life of the Mind ^jUL'iiar. | from, or jrhtion to. «1 paired term—rather than by its verisimilitude. For a broad"if discussion ot this sense of arbitrary vis-a-vis more materialistic thinking, see Sahlins, :M Culture and Practical Reason. For the consequences of this position for contemporary y. conceptions of culture, see Alexander, "On the 'Relative Autonomy' of Culture";"*?-and Alexander and Smith. "Strong Program in Cultural Sociology." .1 59. The notion that the discourse ot civil society is a structure, in the sense of-? the linguistic tradition initiated by Saussure, is homologous with the notion that it :§ is a language, as Wittgenstein first conceived it in Pitilosopitiail Investigations. Both perspectives argue against die idea of discourse as a congeries of speech acts in the | formal-pragmatic terms of Habermas. In Wittgensteins language game, the dehni- >,.. tions of words do not refer to real qualities in the pragmatic sense. They are uot-f "ostensive," a term by which Wittgenstein designated an approach to meaning that 4: locates it outside of words; they are not comurive but performative, in the terms-;f that Austin developed later, in How to Do Things with Words, which carried Witt- | genstein's language philosophy into a new key. The words of a language game define qualities telationany, as parts in a structural whole. The larger "game" of civil society ,f must already be known before the meaning ot any activity within it can be assigned;;; meaning or sense. As I will suggest in chapter 4, in the language of the civil sphere, «> such qualities as rationality, autonomy, and cooperation are not real attributes of J "democratic actors" but symbolically generated attributions. Wittgenstein articulated-:; this point in an important series of passages about naming, color, and standards of I evaluation: "One has already to know (or be able to do) something in order to be ■■, capable of asking a thing's name. . . , The meaning of a word is its use in the language. ? . . . Let us imagine samples of colour being preserved in Pans like the standard.^ metre. We define: 'sepia' means the colour of the standard sepia which is there kept • hermetically sealed. Then it will make no sense to say of this sample either that it., is ot this color or that it is not. . . . This sample is an instrument of the language used, in ascriptions of colour. In this language-game it is not somef/iffij* that is represented, "v| but is a means oj representation" (sees: 30. 43, 50). The presupposkional status ot this ; : NOTES TO PACES 4K-49 language game—the fict that it is a game with rules and a language rather than situational I v directed speech—is not accessible to the understanding of those who speak and use it. In her sustained effort to demonstrate the relevance of this perspective to political philosophy and democracy, Pitkin emphasizes this point with reference to concepts that do significant work in the language ot civil society: In Wittgensteinian terms one might say "individual." "society," "culture," "state," are. first ot all, concepts: thev are words in our language. That does not mean thai society is not real but a mere concept, any more than it means that the individual is not real but a mere concept. Individuals are real and so is society, but they are not separate entities of the same kind, and both are dependent on our conceptualization. We are tempted to suppose thar society is a mere concept while individuals are reallv real because individual persons have tangible, visible physical bodies. But deeper reflection easily reveals that our concept of the individual person is by no means equivalent to that of his physical body; rather, it is every bit as complex, as abstract, as conceptual, as our concepts of society or culture. What an individual is depends as much on the grammar of the "individual" as what a society is depends on the grammar of "society." Once that flier has penetrated into our habits ot thought, new ways of investigating old issues about individuals and social wholes become accessible, (p. 195) 60. A. Farge, Subversive Words, pp. viii-ix. 61. See. e.g., Kant, "What Is Enlightenment?" This is not to say, however, that that such Enlightenment philosophers envisioned even such abstractly defined ideals as having a truly universal reach. For a critique of Kant's restricted conception of the reach ot enlightenment rationality, see my discussion in chapter 15, n. 43. 62. See my discussion, in this regard, of Habermas, Rawls, Durkheini, and Parsons in chapter 1. In their major theoretical elaboration of civil society theory, Civil Society in Political Theory, Jean Cohen and Arato have been both inspired and limited by this Habermasian framework, as I argued in chapter 2. Suggesting that such normative criteria as transparency and autonomy arc at the heart of empirical discourse in the civil sphere, their analysis tends to remain restricted by the rational ideals of philosophers and the idealized norms of such regulative institutions as civil law. The cultural particularities that actually inform public speech as a social process, and the manner in which it bifurcates, particularizes, and divides as much as it transcends and unifies, is not for them a major concern. Among the philosophical descendants ot Habermas, Benhabib and Cooke have moved closer to a conception of culture as an independent process. Benhabib notes the narrative structure of democratic discourses in Reluctant Modernism of Hannah Arcndr (e.g.. p. 125) and their identity-creating properties in Claims of Culture. Criticizing critheal theory's 566 567 NOTES TO PACES 49-54. |^ abstract approach to rationality, in Re-Presenting the Good Society, Cooke argues fc ||| a more concrete and imagistic understanding of transcendental criticism. Again; % Habermass own version of critical theory, Cooke suggests that "shifts in perceptio II do nor come about solely—or, indeed, even primarily—as a result of the exchange of reasons through argumentation; typically they are prompted by experiences i '$ other, nonargumentative contents" {p. 111). She describes such contexts as cultura S "Regulative ideas such as [Habermas'sJ idea of the ideal speech situation are fiction *: fabricated myths." Rather than describing an actual method or practice for arrivin * at truth, they operate "in a metoiiymic fashion, signaling in a partly symbolic, parti substantive, partly imaginative way something that cannot be fully represented i language or rendered fully transparent to our knowledge and practices" (p. 115 From this perspective, "critical social thinking may be described as regulative idc; i? that have an imaginary, tictive character and re-present an idealized social condition" i (pp. 115 and 16r). r (13. L. Hunt, Politics, Culture, and Class in die French Revolution. 64. Bloch, Visionary Republic, Bercovitch. American Jeremiad; Middlekauff, "Rit ~ ualization of the American Revolution." CIIAI'TEIt 4 1. The theoretical logic that underlies this manner of conceptualization goesbac-.; to the interchange model developed by Talcott Parsons and such colleagues as Neil ; Smelser (e.g., Economy mid Society). Building upon Durkheim and Max Weber, z '" well as Keynes's macroeconomic model, this theorizing made it possible to concep tualize solidarity as an independent sphere with boundary relations to other subsys-terns (see Alexander, Modem Reconstruction of Classical Thought, pp. 73-118}. Th: ; new possibility for empirical theorizing was later developed in a more normativ and philosophical direcrion by Habermas in Theory of Communicative Action. I do nc . employ this Parsonian model in the theory I am developing here, for reasons I have outlined elsewhere, e.g.. Alexander, Modern Reconstruction, \~>y. 241-254; "After Neo :: functionalism"; and "Contradictions in the Societal Community." 2. The "new utilitarianism" can he taken broadly or narrowly. In the narrow sense, it is exemplified in the resurgent rational choice theories in political scienc and sociology, which take economic theory as their model. For a foundation: document, see Coleman. Foundations of Social Theoiy. For less rigidly defined ap proaches, see such collections as M. Grin ton and V. Nee, eds., The New Iris.'itutioiialisi in Sociology. In the broader sense, this new utilitarianism is exemplified by the kinc of realistic approaches discussed in chapter 3 under the rubric of the Thrasymachi tradition (cf. my critical discussion in chapter 6 of the political sociology of partic and power). For an example of the new utilitarianism more broadly defined, whic. contrasts directly with the position I am outlining here, see Michael Mann's hope NOTES TO PAGES 54-55 r]iat "if I could, I would abolish the concept of 'society' altogether," .4 History of power from the Beginning 10 A.D. 1760, p. 2. -j. There has been little work on institutional elites in the civil sphere. This reflects the right connection between elite theorizing and the tradition of Thrasy-machus, which, by conceptualizing elites in terms of instrumental rationality, can understand them only as threats to democracy rather than as sources of possible support The most important recent work on elites and civil societv is the discussion of movement intellectuals by Eyerman and Jamison in Social Moi'cments. For earlier, niore structurally oriented work, see die writings by Keller and Etzioni-Halevy cited in chap. 3, n. 34, and also R. Aron, "Social Class, Political Class. Ruling Class." 4. For the theoretical background to the empirical model of culture I am presenting here, see Alexander, "Analytic Debates: Understanding the Relative Autonomy of Culture," and, more recently, Alexander, Alcmings of Social Life. The roots of this approach reach into linguistic, literary, and anthropological theory, but they also grow from the classical sociological tradition. There is a "structure" and a "narrative" to the discourse of civil society (cf. Bardies. "Introduction to die Structural Analysis of Narratives"). Structure refers to the binary discourse that describes those who are in and those who are out. and it can be conceived in terms of the legacy of the Durkheimian and Saussurian traditions. In his later and more culturally sensitive work, Durkheim tried to theorize a secular equivalent of "religious society." He argued that the binary sacred versus profane classification, totemlike symbols, and subjectively experienced solidarity were not only keystones of primitive bur modem social structures and classification {cf. Smith and Alexander, "The New Durkheim"). The linguistic tradition that created semiotics took up this Durkheimian insight. For the sources of binary cultural analysis in the general linguistic tradition, see Saussure, Course in General Linguistics; for the widely influential Slavic version of structuralism, see Jakobson. On Umgänge; for the anthropological, see Levi-Strauss, Savage Mind, and Sahlins, Culture mui Practical Reason; for the social-seniiotic version, see Bardies, Mythologies, and Fashion System. The narrative element of contemporary civil discourse can be taken back to Weber's historical investigations of salvation religions (t--.g., Economy and Society, pp. 399-634). Weber understood that developed religions introduced a fateful tension between this world and the next, which could be resolved only through salvation, and that, henceforth, a focus on eschatology and theodicy dominates the religious consciousness of the age. The binary categories of sacred and profane upon which Durkheim based his religious sociology provide the reference points for the journey of salvation that Weber describes. For contemporary social scientific understanding, the challenge is to translate the understanding and relevance of these two strains of classical thinking into a framework relevant to the culture ot secular societies. Social scientific discussions ot culture in contemporary societies overlook the dualistic, sacred-versus-profane qual- 568 569 NOTES TO PAGE 5 5 NOTES TO PAGE 55 ity of symbolic systems. Whether framed as values, discourses, or ideologies, culture % has been treated in a one-sided way as normative ideals about the right and the 111 good. Certainly, political culture is normative and evaluative, but it is as concerned -II with defining evil as with the good, and inspires purifying conflict as much as M creating the foundations for order. |1| In a manner that is complementary to the cultural sociology I am employing || here, cognitive psychology, and cognitive science more generally, has emphasized 11 the role of structured categories in perception, the role of such relational structures, jl .is binaries, and the importance of analogical processes in relating preexisting cate~ ;|| gorical structures to perceptual inputs. See, e.g.. Lakoff, JVbntai, Fire, and Dangerous ( Tin tigs, and D. Hofstadter, "Analogy as die Core of Cognition." il 5. For thematizations of civilized and uncivilized in die history of social theory, ( see Freud, Civilization ,vid Its Discontents; Elias, Civilizing Process; and such discussions I as Cuddihy, Ordeal of Cit'ility, and M. Rogin, "Ronald Reagan." Though Rogin j| places concern for the projection of unworthiness at the center of the political I process and links it to the cultural process he calls demonology, it might be useful Jl to indicate how his approach, shared in sometimes less sophisticated forms by a wide I range ot critical cultural studies, differs from the one I pursue here: (1) Because his & conception of morivu is psychological, Rogin provides no independent analysis of | symbolic patterns; (2) Because he focuses exclusively an overt practices of violent 11 domination—particularly of American whites over Native Americans—Rngin fails I to tie demonology to either the theory or the practice of civil society, a structure 1 that can allow the inclusion as well as the exclusion of social groups. (3) Because | Rogin studies oppressed groups exclusively, he locates demonology as the practice | of political conservatives, whereas it also informs liberal and progressive forces. | 6. In his investigation ot "othering" in ancient Greek political philosophy, witli --4 special reference to aliens, slaves, and women, Paul Cartledge writes that "beginning 1 at the highest level of generality, the Classical Greeks divided all humankind into | two mutually exclusive and antithetical categories: Us and Them, or, as they put it, | Greeks and barbarians. In fact, the Greek-barbarian antithesis is a stricdy polar 1 dichotomy, being not just contradictory but jointly exhaustive and mutually exclu- | sive. Greeks + barbarians = all humankind. . . . Thus whereas Greeks were ideally „i seen as not-barbarians, barbarians were equally envisaged as being precisely what \ Greeks were not" (Greeks, p. n). ..; 7. The position i develop here is not antagonistic to the notion that exigencies ; of time and space create open-ended, contingent relations between social "signi- ; heds" and the set of structured symbolic "signifiers" that 1 refer to as the discourse \ of civil society. Cultural theory—in linguistics, literature, anthropology, philosophy, and sociology—has articulated this openness by constructing paired conceptual terms and specifying that both sides are present in any speech act: metaphorical and inetonyrnic, semiotic and poetic, langiie (language) and parole (speech), code and message, language structure ami speech-genre, syntactic-semantic and pragmatic, structure- ((//(/agency, constative and performative. See, e.g.. Jacobson. On Language and Language in Literature; Bakhtin. Speech Genres and Other Lite Essays; Sahlins, Historical Metaphors and Mytliical Realities; Charles Morris, Foundations of the Tlicory 0fSious; Austin, How ro Do Things with Id'ords; and Alexander. "Cultural Pragmatics." For an empirical discussion of how die contingencies of time, space, and functional differentiation articulate with the structure of civil society discourse, see chapter 8 of tins book; for how such ideological configurations as Left and Right function as "shifters" that mediate and specif.' the structure of civil society discourse vis-a-vis pragmatic interests and contingent events, see chapter 6. In its most polemical form, e.g., in the foundational work of Saussure and Levi-Scrauss, structuralism emphasizes static and homeostatic (synchronic) rather than dynamic and conflictuol (diachronic) approaches to cultural life. The cultural-pragma tic approach that informs this book, by contrast, embraces both sides of the • conceptual dualities discussed above, dualities which emerged in the dialogue with structuralism in its pure form. Even within structure qua binary there is an immanent conception of endemic cultural tension and strain. Because uach side of the binary constituting sociocukur.il language gives rise—indeed, necessitates—its moral, cog-nitive, and affective antithesis, it triggers an ongoing, dialogical process of assertion, comparison, and councerassertion. By contrast, social scientific traditions of cultural analysis understand cultural dynamics and conflict in terms of the tension between internally integrated cultural patterns and a society that fails to supply the resources necessary to fulfill or institutionalize them. In liberal or conservative versions, this leads to discussions about the failure of socialization and the breakdown of social control, which focus primarily on the social rather than cultural sources of conflict and strain and give an unreal picture of the opportunities for creating an integrated and nonconfiictual society. In more radical analysis, this understanding leads to studies of hegemony and dominant ideologies, on the one band, and resistance, on the other. The thinker who gave structuralism its name. Roman Jakobson, understood instability and dynamism as immanent to the binary structure of culture itself, which he described, in fact, as "dynamic synchrony" (On Language, p. 64). In concert with such an understanding, Bakhtin developed a dialogical approach to genre, and Derrida his theory of difference (in his essay "Differance"). Derrida insists that assertions about the meaning ot a text, while necessarily reterring to an extant structured binary, always also entail relations of difference, such that even actions that cite, or accept, existing meaning structures as their rationales—thus claiming meaningful equivakmce, identity, and true translation—must be understood, in fact, as making claims for analogy. It is in this moment of differance that there emerges the 570 57 t NOTES TO PAGES S5~57 NOTES TO PAGES 57~6o idea of performative action, first developed philosophically by Austin and critically reworked by Derrida (in "Signature, Event, Context"), and later by But "Critically Queer"). See also Alexander, Giesen, and Mast, Social Perforinar, 8. The focus on the particular and diverse cultural traditions of democrat! has generated a vast field of scholarship, the most influential works of wh singled out specific religious, social, and intellectual movements, influential thinker, and great books as critical to this or that tradition, or even to the demo progressive tradition per se. To consider only the political-cultural historiography of America, for example, one can trace the debate between those who empii?.size Lockean liberalism (e.g., Hartz, Liberal Tradition in America, and Appleby, C.ipiit1lism and a New Social Order); those who emphasize Puritanism (e.g., P. Miller, J Mind in America; and Bloch, Visionary Republic); and those who emphasize licanism (e.g., Bailyn, Ideological Origins of the American Revolution; and Pocock, Ancient Constitution and the Feudal Law). For an overview of these discu American cultural-political history, see Hesse, American Social and Political pp. 3-OT. When one surveys even a small part of this historiography, however, th of concentrating on particular causal sequences at the expense of broader neutic constructions soon becomes apparent. On the one hand, diverse ] movements contributed to the emergence of democratic discourses and and each has been responsible for particular emphases, constructions, and m in national and regional configurations of democracy. On the other hand, it i that there is an overarching structure, or "whole," of democratic discour more general and inclusive than any of these particular "parts." As I will si the course of this book, such a structure preceded early modern and movements, and had already taken shape in ancient Greece. y. Rorty, Contingenc)', Irony, and Solidarity, pp. 190-192. 10. At this early point in our discussion, the structure of civil discourse be presented schematically. It will be developed in a more historically ant tionally situated manner in the empirical elaborations presented in later chanter,. This cultural structure has not been deduced from some a priori, abstract t action, culture, or democratic society, whether empirical or normative. It developed, rather, through the hermeneutic reconstruction of a wide empirical materials, and its variations have been subjected to controls in a comparative and historical studies. My first inkling about such a nonce binary structure came as I studied fifty hours of condensed videotape at derbilt Television Archives in 1985, a compilation that presented, sequentia story mentioning the word "Watergate" on CBS Evening Television wi. Cronkitc between the break-in at the Watergate building in June 1972 and 1 Nixon's resignation in August 1974. This inkling became a conviction as I r< widely in the ideological history of the American, English, and French rev ■ind as I researched other crises that had been sparked by political and social polarization in American history in preparation for a book on the Watergate crisis that, In the end, appeared only as an article. This conviction took the form presented here in the late 1980s, when 1 developed a cultural-sociological theory that included a late Durkheimian version of structuralism. A paper about this cultural structure circulated as a manuscript among graduate students with whom 1 worked in the UCLA "Culture Club" and was first published as "Morale e Repressione"; in a longer form as "The Deceptiveness of Morality"; and, still more fully, in "Citizen EneniV-" Philip Smith and I documented the manner in which this cultural structure played a central role in a series of scandals and crises in American history: the jNJuIlification Crisis of 1832; the Bank War that rocked Washington in the 1830s; the scandals that enveloped Presidents Johnson and Grant in the mid-nineteenth century; die scandals of the Teapot Dome in the mid-i920s; Watergate in the early 1970s; Iran-Contra in ry86; and representations of Michael Gorbachev andglasnost m 1987—1988 (see Alexander and Smith, "Discourse of American Civil Society"). "Since that time, empirical investigations have explored this cultural structure in nationalist rhetoric in American history textbooks (Magnuson, "Ideological Conflict in American Political Culture"); the rhetoric of racial conflict between African American and white citizens in Los Angeles and Chicago, as recorded in the white and black newspapers of both communities during racial conflicts in the second half of the twentieth century (R. Jacobs, "Civil Society and Crisis" and Race, Media, and the Crisis of Civil Society); British popular and official rhetoric during the Falkland Islands war (P. Smith, "Codes and Conflict"); and American, British, French, and Spanish popular and official rhetoric during the Suez Crisis, the Gulf and the Iraqi wars (P. Smith, VWiy War? Tlic Cultural Logic of Iraq, the Gulf War and Suez, and Alexander, "Bush, Hussein, and the Cultural Preparation for War"): popular and official argumentation in Hong Kong during the transition crisis (Ku, "Boundary Politics in the Public Sphere"); fascist and communist variations of civil rhetoric (P. Smith, "Barbarism and Civility"); studies of class conflict and constitutional crisis in contemporary Brazil (Baiocchi, "Civilizing Force of Social Movements"); and in tlie framing of anti-American rhetoric among certain leading European intellectuals (Heins, "Orientalizing America"). 11. Which is to say that between the sides and the levels of civil society discourse there exists a powerful intertextuality, in Kristeva's sense in, e.g., "Bounded Text." 12. To fully encompass the discursive dimension of the nature of everyday social life, the binary element of semiotic analysis must be complemented by a narrative element. Narrative transforms the dualities of structure into patterns that order lived experience in a chronological way. For the philosophical background to narrative analysis, see Ricoeur, Time and Narrative; and Entrikin, Benveenness of Place. For the connection of narrativity to ontological and metaphysical themes in Western history, see Frye, Anatomy of Criticism; and White, Metahiswry. For recent narrative ap- 572 573 notes to pages 6o~() i proaches in cultural sociology, see Somers, "Narrating and Naturalizing Civil I ciety"; Wagner-Pacifici, Mow Morality Play: Kane, "Theorizing Meaning Constr tion"; P. Smith, "Semiotic Foundations of Media Narratives"; Sherwood. "Narrating the Social"; and the citations in note id. 13. Until the twentieth century, confession was, apparently, principally a Western institution, one that emerged in tandem with the gradual social recognition of ^= Generality of individual rights and self-control in the organization of political ; religious societies. At least from the medieval period on, criminal punishment-' not considered to be fully successful until the accused had confessed his or crimes, for only such confession could demonstrate that rationality had been achieved and individual responsibility assumed. In this manner, the discourse of civil society becomes tied to public confessions of crimes against individuals in the civil collectivity and, indeed, of crimes against the collectivity itself. This helps expl; why such great efforts are expended to extort fraudulent; confessions in those sil ations where coercive force has obliterated civility, e.g., in show trials, as well as in instances of political brutality in democratic societies. See Foucault, Discipline i Punish, pp. 36-47, and Hishvy of Sexuality, Vol. 1. pp. 58-65. For a detailed exposition of the Foucauldian position and its relation to the traditions of sociological theory, sec Hepworth and Turner, Confession. For a subtle investigation of confession that relates the emphases of civil discourse to contemporary legal practices, and is informed by semiotic and poststruccuralist literary theory, see P. Brooks, Troubling Confessions. ■■; 14. The notion that there is a discourse of repression that constitutes the hidden, other side of a discourse of emancipation is developed, in a certain manner, by Foucault in his reconstruction of the conflicts between Victorian and sexological, especially Freudian, approaches to sexual behavior in Histoiy of Sexuality, Vol. I. In Part II, "The Repressive Hypothesis," Foucault suggests that the purpose of Victorian pollution of an aberrant eros was not really to suppress it, purely and simply, but actually "to give it an analytical, visible, and permanent reality" such that it was ; "made into a principle of classification and intelligibility, established as a raisou d'etre and a natural order of disorder." The result, then, was "not the exclusion of these thousand aberrant sexualities. but the specification . . . of each one of them," i.e., "to strew reality with them and incorporate them into the individual" (pp. 44-45). I am saying something of the same about the specification of anticivil qualities by the civil sphere. Though these qualities are purported to embody heinous moral antipathies, qualities that civil democracies wish to, and could in principle, dispense .•<-with, they are, in fact, valued as alternatives that define and highlight the purity of civil forms. They are, in this way, necessary for both discursive and institutional reasons. My approach differs from Foucault s, of course, in terms of the substantive, i.e., civil/uncivil, contents that I attribute to the emancipating and repressive discourses, but in other ways as well. First, I suggest that the internal structuring of notes to page 6l this dichotomous discourse provides the possibility for relative autonomy vis-a-vis structures of domination rather than, as Foucault would have it, necessarily being intertwined or instantiated inside them—"interlocking, hierarchized, and . . . highly articulated around a cluster of power relations" (p. 30). Second, though the anticivil discourse of repression is not used merely or simply for the purposes of actual suppression, it certainly did. and does, motivate, promote, and legitimate brutality, domination, murder, and annihilation. Third, even while being symbiotically tethered to the repressive discourse, the discourse of liberty provides leverage for actual emancipation, even if still constrained in semiotic terms. In these emancipation processes, which I will discuss in Parts III and IV, the dark side of civil discourse is not eliminated, bur the construction of any particular group or individual can be shifted from anticivil to civil. Such leverage is possible because of what I have described as the nondetermined relation between symbolic signifiers and social signifieds—die relative autonomy of culture vis-a-vis social structure, an autonomy which the power-knowledge linkage informing Foucault's most influential writings was designed to deny. In his final lectures ("Hermeneutics of the Self," pp. 202-204), Foucault suggested that although the philosophy of consciousness in postwar Europe "had failed to take into account the formative mechanisms ot signification and the structures of systems of meaning," his own alternative strategy had been to emphasis "objects of knowledge" only insofar as, "at the same time," they became "objects of domination." Announcing an "autocririque," Foucault acknowledged this had been an overly restrictive response: "I insisted, 1 think, too much on the techniques of domination." He admitted that, "while what we can call discipline is something reallv important ... it is only . . . one aspect of governing people in our society," and he suggested that "I would like in years to come to study government . . . starting from the techniques of the self." Foucault justified this new focus on the self because "for the government of people in our societies everyone had not only to obey but also to produce and publish the truth about oneself." The problem, however, was that, despite this insight, Foucault did not allow techniques ofselfhood to connect with meaning and signification. He could conceive truth speaking and emancipation only as self-oriented, rather than as social and solidaristic, as involving only matters of resistance against social discourses rather than as being stimulated by diem. My position here is quite different. Government can respect the self, I would iuggest, only if there is an independent civil sphere and if the structure of civil discourse can be separated, in principle, from domination. 15. In Aristotle's discussion ot such efforts at justification, he puts together references from the three different levels of civil discourse: The name of citizen is particularly applicable to those who share in the offices and honors of the state. Homer accordingly speaks in the Iliad of a 574 575 NOTES TO PAGES 61—63 man being treated "like an alien man, without honor," and it is true thai those who do not share in the offices and honors of the state are just like resident aliens. To deny men a share [may sometimes be justified, but] when it is done by subterfuge its only object is merely that of hoodwinking others. Aristode's translator, Ernest Barker, footnotes this discussion with a conn that illustrates the rule of homology 1 am suggesting here, according to -\ concepts like honor, citizenship, and office are effectively interchangeable: 'The j Greek word time which is here used means, like the Latin litmus, both 'office' and [ 'honor.' The passage in the Iliad refers to honor in the latter sense: Aristode hiimctf is using it in the former; but it is natural to slide from one into the other" (Pphere must present their strategic interests in terms of an ethical discourse such that the" attribution, e.g., of being "Machiavellian," pollutes them and prevents their strategic':-v1 interests from being realized. 64. See Herbst's study of how congressional staffers relate to public opinion: Staffers find that the public and public opinion ate fairly amorphous entitiea, ■ and some staffers exhibit a fair degree of impatience with knowledge levels among the general public, so lobbyists seem to them a reasonable and appropriate stand-in for the public. In response to my open-ended question about the meaning of "public," one staffer said: "I immediately think of interest groups. That's how we gauge our public opinion. ... I rarely am clueless about where that constituency is because of the interest groups keeping me informed. ... I would have to say that from a public opinion standpoint, we don't really care what the average Joe drinks. I don't say that as if we're not representing them, but we're representing the people who . , ; 58fi represent them. It's one step removed from the general public." (Reading Public Opinion, p. 53) Herbst concludes that, for these political elites, "lobbyists are perceived to crystallize or clarify the content of intensity of vague public moods" (p. 53). 65. For a broader theoretical understanding of this specifying and translating of general civil codes, see my discussion of the role that ideological "shifters" play in the construction and destruction of civil power, in chapter 6. 66. Quoted in Skocpol, Boomerang, pp. 1 and 116, emphasis added. 67. Ibid., pp. 4-5 and 75. 68. Ibid., commentator quoted on p. 10. 69. Ibid., p. 136. 70. Ibid., p. 141. 71. Ibid., pp. 134- 76. 72. Ibid., p. 136. 73. Ibid. Though Skocpol s careful empirical analysis supplies the data from which this analysis is drawn, she herself would not agree with the discursive focus and the emphasis on communicative institutions that I present here. She presents, instead, a more "structural" focus, suggesting ([) that the fiscal resources and strategy available to Clinton forced him to offer a complex plan without financial incentives to the middle class and (2) that the nature of civil associations had changed in a manner that made citizen involvement in progressive movements more difficult. "The changing organizational and resource patterns in U.S. politics and society make certain kinds of political communication, mobilization, and alliance formation more or less feasible," she wrote, with the result that "President Clinton's options for explaining his health care reform plan to his fellow citizens. . . were sharply limited by the groups and technologies at work in the contemporary U.S. civic life" (pp. S3-84). For criticism of the kind of state- and resource-centered approach that Skocpol has introduced into the contemporary analysis of politics, see my discussion ot the tradition of Thracymachus in chapter 3 and chapter 6. 74. The campaign for the Patient's Bill of Rights was pushed by such issue-onented civil associations as "Public Citizen." Its Web site (http://www.citizen .org/), headlined by the banner "Protecting Health, Safety, and Democracy," justifies the Bill of Rights by polluting health maintenance organizations in strikingly anticivil terms: "When death or serious injury occurs because of an HMOs decision to deny necessary or appropriate medical care, the patient or surviving family members should have the right to go to court to seek redress and the insurer should be held accountable for the consequences of negligent or reckless decisions. ' 75. Tocqueville, Democracy in America, Vol. 2, Part II, chaps. 5-7. 76. Durkheim, Division of Labor in Society, pp. xxxi—lix. 587 NOTES TO PAGES 97-IOI 77. Arendt, On Revolution; Habermas, Structural Transformation, pp. 35-43. 78. Kornhauser, Politics of Mass Society: C. Wright Mills, Power Elite. 7y. Banton, "Voluntary Associations." 80. Sills, International Encyclopedia of the Social Sciences, p. 363. 81. Putnam, Making Democracy I I'brk, "Bowling Alone," and Bowling Alone. 82. Jean Cohen, "Does Voluntary Association Make Democracy Work?" p. 26S. 83. This purely associational, CSI emphasis on nonstate groups as, in themselves, carriers of democracy and civil society has also been articulated by contemporary sociologists in the language of networks. Harrison White, for example, speaks of publics as "interstitial social spaces which ease transitions between specific domaj [by] decoupling actors from the pattern of specific relations and understandings embedded with [in] any particular domain and network" ("Where Do Languages Come From?" Pre-Priut Series, Paul F. Lazarsfeld Center for the Social Scienc Columbia University, 1995, p- 4)- Drawing attention to the relevance of this network approach of White, and connecting it more explicitly with the Habermasian idea of deliberative publics, Emirbayer and Shelter define publics as "interstitial ni works," or as "open-ended flows of communication that enable socially distant interlocutors to bridge social network positions, formulate collective orientatio: and generate psychical 'working alliances,' in pursuit of influence over issues of common concern" {"Publics in History," p. 156.) Despite its technical quality, however, this broad formulation shares the problem common to CSI approaches and, specifically, to the voluntary associations approach to civil association I am discussing here. The approach applies to any communicative process inside any sphere society, whether economic, religious, ethnic, familial, or governmental, as long there is mobilization of communication among those who inhabit structural network positions. This definition has, in other words, nothing specifically to do with dei ocratic theory, much less with the discourse codes that inform the kinds of solidarity community that sustain citizenship. It does not, for example, differentiate the kind of publicity that might characterize influential market innovation from civil assO' ation. 84. See Putnam, Bowling Alone, p. 48. The reference is to Tocquevilles discussi in Democrat-)' in America, Vol. 2, Book II. chap. 5, of how "Americans of all ages, all conditions, and all minds are constantly joining together in groups'1 (p. 595). (Tiiis and all following quotations from Tocqueville are from the Goldhammer cranslatio 85. Tocqueville, Democracy in America, Vol. 2, Part II, chap. 5, p. 596. 86. Ibid., Vol. 1, Part II, chap. 4, p. 216. 87. Ibid., p. 220. 88. Ibid., p. 222. S9. Ibid., p. 220, emphasis added. yo. Ibid., pp. 220-222. 91. Ibid., chap, y, pp. 352-353. NOTES TO PAGES IOI-IO3 92. Robert Gannett makes a complementary argument in his analysis ofTocque-ville's discussion of the state's role in America as compared to England, from a draft chapter for Democracy in America not included in the published version of Tocquevilles book: "Central governments need not automatically usurp associational incentive or authority, Tocqueville thus argued, provided that they remain mindful of their proper role of giving short-term uclp,' not commanding long-term 'obedience' " ("Bowling Ninepins in Tocquevilles Township," p. 14; emphasis in original). The critical issue for Tocqueville's view oh the state, in other words, is whether it was civil in its orientation. 93. Schudson, Good Citizen, pp. 48-66. 94. Lipset et al., Union Democracy, p. 4. 95. Ibid. 96. Ibid., p. 5. 97. Sills, International Encyclopedia, pp. 368—369. 98. Putnam, "Bowling Alone," p. 32. In the book version of this argument, there is a similarly damaging admission, followed by the introduction of a major residual category that belies the entire thrust of Putnam's argument about the causal line from association to social capital to democracy: Social capital . . . can be directed toward malevolent, antisocial purposes, just like any other form of capital. . . . Therefore it is important to ask how the positive consequences of social capital—mutual support, cooperation, trust, institutional effectiveness—can be maximized and the negative manifestations—sectarianism, ethnocentrism, corruption—minimized. . . . Of all the dimensions along which forms of social capital vary, perhaps the most important is the distinction between bridging (or inclusive) and bonding (or exclusive). Some forms of capital are . . . inward looking and tend to reinforce exclusive identities. . . . Other networks are outward looking and encompass people across diverse social cleavages. ... It would obviously be valuable to have distinct measures of the evolution of these various forms of social capital over time. Howeverf,] like researchers on global warming, we must make do with the imperfect evidence that we can find. . . . Exhaustive descriptions of social networks in America ... do not exist. I have found no reliable, comprehensive, nationwide measures of social capital that neatly distinguish "bridgingness" and "bondingness." In our empirical account of recent trends in this book, therefore, this distinction will be less prominent that I would prefer. (Bowling Alone, pp. 22-24) 99- Putnam, Making Democracy Work, p. 125. too. Ibid., pp. 12S, 130. 101. Ibid., pp. 125—126. As Jean Cohen writes, "Without other mediations, there 588 589 NOTES TO PAGES 103-iaS I NOTES TO CAGES IO8-II5 is no reason to expect that the forms of reciprocity or trust generated within small"-groups would extend beyond the group, or, for that matter, chat group demands would be anything other than particularistic" ("Does Voluntary Association Make !-; Democracy Work?" pp. 269-270). For an extended empirical criticism of Putnan claims about the consequences of voluntary associations for Italian democracy,. <;, Mabel Berezins argument that the areas of greatest voluntary organization were also the most likely to become Fascist during the interwar period (M. Berezin, "Uncivil- ■ Society: Putnam's 'Italy' and the Other Side of Association," unpublished pap presented at the Conference on the Discourses of Civil Society,' University. California at Los Angeles, Center for Modern and Contemporary Studies, june ] 1998). 102. Schudson, Good Citizen, p. 42. 103. Ibid., p. 43. 104. In "Democratic Liberalism and the Challenge of Diversity In Late-Twentieth-Century America," Robert Wuthnow presents empirical data for an alternative reading of shifts in American associations, suggesting that, in complex societies, home and neighborhood have become more "loosely coupled" from work and formal associations, one result of which is that civil associations have a more professionalized, less voluntary staff. Current jeremiads about the supposed decline of such face-to-face groupings and their deleterious effects on democracy, of course extend considerably beyond Putnam's singular crusade. As I have suggested several times here, such alarmist claims have always been the stock-in-trade of both radical and conservative republican critics of modern societies. In Democracy on Trial, for example, j. Elshtain assercs that "it is no longer possible for us to speak to one another," and that "we quite literally inhabit our own little islands of bristli difference where we comport with those just like ourselves." In Trust: The Sochi Virtues ami the Creation of Prosperity, Francis Fukuyama similarly opines that "th. moral communities that made up American civil society at midcentury, from the family to neighborhoods to churches to workplaces, have been under assault, and number of indicators suggest that the degree of general sociability has declined:" Both of these conservative proclamations are quoted in Wuthnow, "Democrati Liberalism," p. 20. 105. Putnam, "Bowling Alone," p. 20. CHAPTER 6 -!tf 1. M. Weber, "Bureaucracy," pp. 214-2T5. 2. Skocpol, "Bringing the State Back In," "On the Road toward a More Ade quate Understanding of the State," and States and Social Revolutions. 3. Weber, "Bureaucracy." p. 230. Weber continues: "One has to remember th; bureaucracy as such is a precision instrument diat can put itself at the disposal ní \ quite varied—purely political as well as purely economic, or any other sort—interests in domination" (p. 23 1). it is this proposition that allows Weber to open his theory of modern rationalization to democracy, a process he conceptualizes, however, in its most minimal sense as plebiscitarian caesarism. He developed this connection between his bureaucracy theory and democratic politics in "Parliament and Government in a Reconstructed Germany," esp. pp. 1403-1405 and 1438. 4, It was Weber who first systematically distinguished between economic, policial, and symbolic ("status") forms of power in his foundational essay, "Class, Status, and Party." This distinction was elaborated for elite and class theory by such thinkers as C. Wright Mills in The Power Elite and as a model of "social power" by Mann in Sources. 5. For representative analyses, see, e.g., DomhotT, f I7iu Rules America and Powers That Be; and Miliband, State in Capitalist Society. d. In addition to the works cited in note 5, see, for example, Michels, Political Parties; and Poularitzas, "The Problem of the Capitalist State" and "The Capitalist State." 7. Downs, Economic Theory of Democracy, p. 36. 8. Crick, In Defense of Politics, p. 23. {). Polsby and Wildavsky, Presidential Elections, p. 3. 10. M. Weber, "Class, Status, and Party," p. 194. 11. Michels, Political Parties, pp. 65, 70. 12. Duverger, Political Parties: Their Organization, p. 4. 13. Key, Soudicrn Politics in State and Nation, pp. 303-304. 14. Polsby and Wildavsky, Presidential Elections, p. 27. 15. Polsby, "Coalition and Faction in American Politics." 16. Lipset, "Elections: The Expression of the Democratic Class Struggle." 17. The classic text here is Bendix and Lipset, Class, Status, and Power, first published in 1953 and subsequently reprinted several times. 18. Lipset, " 'Fascism'—Left, Right, and Center," and, pardy in response, R. E Hamilton, Wlia Voted for Hitler? 19. Bell, "Interpretation of American Politics," p. 21. 20. Lipset and Ladd, Politics of Unreason, p. 23. 21. Freidland and Alford, "Bringing Society Back In," pp. 421—422. 22. C. Brooks and J. Manza, "Social and Ideological Bases of Middle-Class Political Realignment," pp. 204—205. 23. See nn. 5 and 6, and also Zeitlin, "Corporate Ownership and Control." 24. C. Wright Mills, Power Elite, p. 303. 25. Ibid., p. 298. 26. Ibid., p. 302. 27. Ibid., pp. 309, 315. 28. Rokkan et al., Citizens, Elections, Parties, p. 143. 590 591 NOTES TO PAGES 110—122 29. Euripides, "The Suppliant Women," pp. 206-207, quoted in Arblaster, inocmcy, pp. 21-22. 30. Keyssar, Right to Vote, p. 2, emphasis in original. Keyssar is here adopt: narrower, strictly Aristotelian definition of democracy than the broader one I sug^r in this book. 31. Ibid., p. y. The reasoning is not any different in the contemporary efforts hv the Chinese Communist Party to restrict electoral participation in contempc China: The regime . . . claims that popular elections above the village level will no work because the suzclii (quality, character) of the people is too low. Tht masses are ignorant, and would be too easily swayed by passion or bias Therefore, they continue, we, the masters of the regime, have to be ii control. The logic is not only humiliating to the Chinese people but oddh circular: we must, the regime says, run things in our own repressive wai because the people are ignorant, and the people are ignorant in large part because we keep them from being informed. (P. Link, "China: Wiping Ou the Truth," p. 39) 32. Shklar, American Citizenship, p. 2. 33. Ibid., p. 15. 34. Ibid., pp. 16, 27. 35. Ibid., p. 38. 36. Quoted in Keyssar, Right to Vote, p. 5. 37. Montesquieu, Spirit of the Laws, Vol. 2, p. 155. 38. See Little, Religion, Order, and Law. 39. Blackstone, Commentaries on the Laws of England, ijój-iyôg, Vol. 1, p. 165. 40. Quoted in Dinkin, Voting in Provincia} America, p. 36. 41. Quoted in Keyssar, Right to Vote, p. 19. 42. Ibid., p. 35. 43. Ibid., p. 36. 44. Dinkin, Voting in Provincial America, p. 54. 45. Ibid., p. 56. 46. Ibid., p. 57. 47. Ibid., p. 93. 48. Quoted in Gillette, Right to Vote, p. 42, emphasis in original. 49. Ibid., p. 87. 50. Quoted in U.S. Commission on Civil Rights, Voting in Mississippi, p. 3. 51. Quoted in Gorfman, Mandley, and Niemi, Minority Representation, p. 8. NOTES TO PAGES 122-128 ,. Quoted in U.S. Commission on Civil Rights, \'~oting in Mississippi, p. 6, :iasis added. . Aldrich, l-Vliy Parties? p. 1, emphasis added. Mouffe, Democratic Paradox, p. roi. . This is a critical distinction. For example, though Carl Schmitt was a keen rver of how friend/enemy rhetoric permeated contemporary politics in such works as The Concept of the Political, he embraced polarization and irrationality not in an empirical manner but normatively as well. Ultimately, I believe, the normative weakness of Schmitt s political theory is connected with the empirical inadequacies of his political sociology. He views the binary distinction friend/enemy ■eflection of power-political forces rather than of concerns about a meaningful life. For this reason, he could not conceive the possibility that a differentiated civil -e and the power it generates can or should place democratic moral limits on 1 and state power. For further criticism of Schmidt, in relation to the framework invented here, see chapter 4, note 29, this volume. . Popkin, Reasotung Voter, Paige, Rational Public; Aldrich, l-l'by Parties? p. 21. . "By privileging rationality," Mouffe observes, "both the deliberative and the :gative perspectives leave aside a central element which is the crucial role played bv passions and affects in securing allegiance to democratic values." Such rational cts can be imagined, she adds, only if they are "abstracted from social and power relations, language, culture and the whole set of practices that make agency possible" (Democratic Paradox, p. 95). . It has often been argued, for example, that the American conflict over slavery narked by rational debates which are impossible in contemporary mass society, where "performance" rules. For an interpretation of the Lincoln-Douglas slavery debates that challenge this specific claim and, more generally, challenges Habermas's ■y that politics was more democratic and reflexive in the nineteenth century, ichudson, "Was There Ever a Public Sphere?" For Abraham Lincoln as a performative figure, and a storyteller par excellence, see Goodwin, Team of Rivals, e.g.. pp. 164-166. . See chap. 8. . Quoted in Dinkin, Voting in Provincial America, p. 112. . Quoted in Altschuler and Blumin, Rude Republic, p. 137. . Leviero, "President Likens Dewey to Hitler," p. 1. . Quoted in Abramson, Aldrich, and Rohde, Change and Continuity in the 1992 Llcuions, p. 58. fu. Wilgoren and Halbfinger, "Kerry and Dean, All Forgiven." . Sears et af, "Self-Interest vs. Symbolic Politics," p. 680. - Zaller, Nature and Origins of Mass Opinion, pp. 22—23. r>7. Jakobson defined shifters as a linguistic element that links the local and situated 592 593 NOTES TO PAGES i28-i2q NOTES Tü PAGES I2y—I33 references of speech aces Co the more general and abstract code. Shifters are necessary in Jakobson's words, "since we are far from confining our speech to events sen in the present by the speaker himself ("Shifters and Verbal Categories," p. 387). t 68. Stokes writes: For the average person, the affairs of government are remote and complex, and yet the average citizen is asked periodically to formulate opinions about those affairs. At the very least, he has to decide how he will vote, what choice he will make between candidates offering different programs and very ditferent versions of contemporary political events. In this dilemma, having the part)' symbol stamped on certain candidates, certain issue positions, certain interpretations of political reality is of great psychological convenience. [This] involves subtle processes of perceptual adjustment by which the individual assembles an image of current politics consistent with his partisan allegiance. With normal luck, the partisan voter will carry to the polls attitudes toward the new elements of politics that support his longstanding bias." ("Party Loyalty and the Likelihood of Deviating Elections," p. 127) 69. R. Maclver, Web of Government, p. 216. 70. Berelson, Lazarsfeld, andMcPhee, Voting, pp. 88-TT7; Campbell et. al., 1 thus and the Political Order, pp. 125-158; W. E. Miller and Shanks, New Aim Voter, pp. 120-133. 71. Green, Palmquist, and Schickler, Partisan Hearts and Minds, pp. 4, 6. 72. Ibid., pp. 6, 8, 205-206, emphasis in original. 73. Berelson et al., Voting, p. 223. In terms of disciplinary developm important corrective to this approach is the cognitive psychology of part and party politics, which is broadly informed by cognitive science. For exai Mora! Politics: How Liberals and Conservatives Tiiink, George Lakoff focuses anxiety as a putative emotional trigger for partisanship but on the divided st of thinking which "define incompatible moral worlds" that raise "the deepest qu^-tions of who we are" (p. 222). Though this approach generally complements perspective that informs this work, the partisan constructs that Lakoff identifier strict father (Republican) versus nurturing parent (Democrat)—suggest that frames of political rhetoric are built up directly from family feelings. This overloi the possibility that there is an institutionalized culture in the civic sphere, such t contemporary frames of partisan political cognition are imbedded in sets of hig structured ideological shifters that are relatively stable over long periods of his ton time. Lakoff's approach also neglects the manner in which such deeply institutic alized cognirive-cum-cultural structures not only sustain partisanship, and thus \ litical separation, but also allow partisans to speak to others in a manner that < create a wider audience, expand the authority of a particular position, and sustain wider solidarity. Lakoff focuses, in this sense, only on shifters, not on the more n-eneral cultural structures within which shifters are imbedded and which allow, 0n many occasions, a common language to be spoken by partisans on different sides. 74. Campbell et. al., Elections and the Political Order, p. 126; Berelson et al., Voting, p. 225. 75. Berelson et al.. Voting, p. 83. 76. In Nancy Eraser's "From Redistribution to Recognition? Dilemmas ofjustice in a 'Postsocialist' Age," she presents a philosophical mediation between more recent identity politics and earlier class politics, arguing that recognition and distribution are equally significant matters of political struggle. She suggests, however, that struggles for recognition are cultural and that those over distribution are not. Though it is certainly true that participants in economic and political struggles often believe that their fights are about means, not meanings, it is central to the argument I am developing here that distribution struggles are imbedded in cultural assumptions about motives, relations, and institutions in the civil sphere. 77. Mouffe, Democratic Paradox, p. 13. 78. Ibid., p. 103. Mouffe does not actually investigate the culture or the institutions of this common symbolic space. For example, liberty and equality are by no means the only positive discursive principles at work in liberal democracy, and the entire series of sacred symbols is balanced by those on the negative side. Mouffe's poststructural and deconstructive framework allows her to see the place of difference in political language, but her residual Gramscianism leads her to locate the impetus for conflict purely in social divisions of wealth and power, not in the cultural antinomies that structure civil life. 79. R. Hofstadter, Idea of a Party System, p. 10. 80. Quoted in ibid., p. 2. 8t. Ibid. 82. Quoted in ibid., pp. 251-252. 83. ibid., p. 251. 84. Ibid., emphasis in original. 85. Ibid. 86. A. Hamilton, Federalist Papers, Number 57. 87. For a discussion of the systematic opportunities for corruption that the boundary between economy and state offers to high-level state officials, see Rose-Ackerman, Corruption and Government: Causes, Consequences, and Reform, pp. 27-38. Rose-Ackerman writes: "Grand corruption" occurs at the highest levels of government and involves major government projects and programs. Governments frequendy transfer 594 595 NOTES TO PAGES 133-115 NOTES TO PAGES T 3 5 —I 39 large financial benefits to private firms through procurement contracts and the award of concessions. Bribes transfer monopoly rents to private investors % with a share to the corrupted officials. Privatization processes are vulnerabli to corrupt insider deals." (p. 27) 88. Weber, Economy and Society, p. 1418. I am grateful to Ates Altinordu for pointing this passage out to me. 8y. It is notable that when contemporary political scientists conceptualize the V institutions that create accountability in democratic societies, they focus exclusively on elections and party competitions. Their emphasis on strategic motivations, san ftons and rewards, and the organizational environments of rational actions makes it 1: difficult to conceptualize obligation of office, let alone the moral dimensions of civil society to which it relates. See, e.g., the contributions in Przeworski, Stokes, and V; Manin, Democracy, Accountability, and Representation. 90. Banfield, Moral Basis of a Backward Society, p. 89. : 91. Ibid., pp. iy, 89. 92. Aristotle, Politics, pp. 195-19S. 93. In liberal versions of the CS11 understanding, office universalism is located inside government, not civil society, interpreted as a controlling device vis-a-vis the particularism and plurality of the civil sphere: "Where the distinction between civil society and government is marked , . . there must always exist a boundary betwei . them, because each is defined in opposition to the other. Government fails if it embodies merely particularist values. A police officer betrays his office if he does not treat citizens equally, but gives favor to members of his own group . . .if the common good is conflated with, and understood to be conflated with, particularist goods . . . Without independence from civil society, government cannot prott basic rights." N. Rosenblum and R. Post, Civil Society and Government, p. 11. What is elided by such a Hegelian conception is what sustains the universalism oft mental office. It can only be the civil power generated from within the civil sphere, --=*v which according to the CSIII perspective employed here, has the potential for generating universalizing civil power through its regulatory institutions. 94. For a valuable discussion of the critical role that scandals play in affecting t symbolic power at the heart of politics, see John Thompson, Political Scandal. However, because Thompson adopts the conflict approach of Pierre Bourdieu, he does not conceptualize the democratic dimension of this scandal-creating process, neglecting the significance of an autonomous civil sphere for allowing communicative institutions to be independent of power and for defining the meaning of this sphei that constructs and scandalizes "deviance." Bourdieu's neo-Marxist approach has been corrosive even of culturally oriented attempts to understand the structures and processes of democratic societies. Homogenizing every form of power by snstru-mentalizing them as so many different forms of "capital," and every institutional doma'ri as an isomorphic "field" of Hobbesian power and strife, Bourdieu singularlv fails to distinguish between democratic and undemocratic societies. See Alexander, "The Reality of Reduction." Office obligation clearly structures positions of authority in organizations other than the state. Though these positions do not depend on civil power, they are, nevertheless, subject to weaker forms of civil control in both the communicative and regulative sense. These weaker controls can be regarded as manifestations of the "civil repair" processes E speak about in chapter S. 96. For the idea of an "ethic of responsibility," as compared to both a more fundamentalist ethic of "absolute ends" and a purely instrumental, means-oriented ethic of strategy, see Weber's discussion in "Politics as a Vocation." 97. Mosher, Democracy ami the Public Service, pp. 7—8, emphasis added. 98. See chap. 5, n. 1. 99. Selznick, Leadership in Administration, for an approach to organization that emphasizes value. 100. Lipset, Trow, and Coleman, Union Democracy, pp. 268-269. The quotations that follow are also from these pages. . 101. See M. Weber. Protestant Ethic, pp. 7yff. In the chapter "Conclusions: Confucianism and Puritanism," in his book The Sociology of China, Weber offers an enlightening contrast between office in the traditional patrimonial bureaucracy of the Chinese Empire and office in the more potentially democratic sense that emerged in the Protestant Reformation. It is not sufficiently appreciated that Weber's investigations into comparative religion are as potentially relevant to an empirical theory of democracy as they are for questions about the origins of capitalism, which is their explicit focus. See Alexander and Loader, "Max Weber on Church and Sect in North America: An Alternative Path toward Rationalization." 102. For a critical discussion of this fissure in Weber's work, see Alexander, Classical Attempt at Synthesis. 103. Walzer, Spheres of Justice, p. 129. 104. Walzer, Tlie Revolution of the Saints, which is one of the few explicit empirical applications of Weber's religious theory to the question of the origins of democracy. In his discussion of the corresponding shift in secular office obligations, in Spheres of Justice, Walzer cites Mosher, Democracy and the Public Service, pp. 53-98. 105. Walzer. Spheres of Justice, p. 149. 106. Ibid., p. 155. ro7. Weber introduced the idea of heteronomy as a critical distinction between Western and non-Western patrimonial systems in Economy and Society, pp. 1158-i2ti. It seems significant that he concluded this long historical discussion with one of his rare analyses of the relationship between religion and democratic political forms in modern life, "Sect, Church, and Democracy," pp. 1204—1211. 108. Telleubach, Church, State, and Christian Society, p. 48. 596 597 NOTES TO PAGES 130-147 109. Ibid., p. $0. 110. Ibid., p. 72. in. Ibid., p. 149 and passim. 112. Doyle, Venality. 113. Ibid., p. 153. 114. Ibid., p. 3. 115. Ibid., pp. 3-4. 116. Doyle. "4 August, 1789," p. 145. 117. Quoted in Doyle, Venality, p. 2. Ti8. Tagliabue, "Opening New Era, Poles Pick Leader." 119. "Mr. Giulianis Thunderbolt." 120. J. Thompson, Political Scandal, p. 12. 121. De Dampierre, "Themes pour l'etude du Scandale," quoted inj. Tho son, Political Scandal, p. 273. 122. For an insightful case study of a recent British scandal that takes up the I of cultural pragmatic approach I am suggesting here, emphasizing the relatio: office pollution to social dramas of purification, see Cottle, Tttc Race Murd, Stephen Lawrence: Media Performance and Public Transformation. For a related discus in this vein, see M. Jacobs, "The Culture of the Savings and Loan Scandal on the No-Fault Society." For more micro-studies that take a complementary cult approach to scandals, see Nichols, " 'Whistleblower' or 'Renegate': Defmiti Contests in an Official Inquiry" and "Social Problems as Landmark Narratfv For an institutionalist approach that analyzes "Scandal and Crisis as Catalysts" organizational reforms to combat corruption, see Rose-Ackerman, Corruption and Government, pp. 209-213. 123. Tara York, " 'Contamination by Corruption.' " 124. J. Warren, "No Gloating, Just Sadness." 125. Skeiton, "Pity Quackenbush?" 126. Los Angeles Times, March 7, 1991, A21, quoted in R.Jacobs, Race, Mcdi-J, and the Crisis of Civil Society, p. 84. 127. R.Jacobs, Race, Media, and the Crisis of Civil Society, p. 85. 128. Los Angeles Times, March 12, 1991, quoted in R. Jacobs. Race, Media, the Crisis of Civil Society, p. 86. 129. Bailyn, Ideological Origins of the American Revolution. 130. J. Madison, Number 48, Federalist Papers, quoting p. 309. 131. Kuder, Wars of Watergate, pp. 473-744. 132. Quoted in ibid., p. 474. 133. Quoted in ibid., p. 475. 134. Ibid., p. 477. 135. In the final version that was ratified in 1789. the U.S. Constitution sepan the impeachment process into two phases, corresponding to the two separate houses NOTES TO PAGES 147—IS2 of Congress. Technically, "impeachment" referred to the indictment ot a sitting president for "high crimes and misdemeanors." and it required a majority vote in the House of Representatives. If impeached, the president would then face trial in the Senate. If he were convicted in this trial, which required a majority vote, he would be removed from office. 136. See Alexander, "Three Models of Culture and Society- Relations" and "Watergate as Democratic Ritual": also Lipset and Raab, "An Appointment with Watergate." In the following, I draw from "Watergate as Democratic Ritual." 137. A. Lewis, introduction to Not Above die Law. p. 13. 13S. Quoted in Alexander, "Watergate as Democratic Ritual," p. 165. r3y. Ibid., pp. 169—171. 140. Ervin, W'ltolc Truth, p. 211. 141. Quoted in Alexander, "Watergate as Democratic Ritual," p. 165. 142. Ibid. t43. Jaworski, Right and the Power, p. 139. — 144. Representative William Cohen, quoted in Stanley Kutler. I \iirs of Watergate, p.521. T4_S. Kutler, Wars of Watergate, p. 518. 146. Representative Robert McClory, quoted in Kutler, Wars of Watergate, p. 528. 147. For an analysis of the third and last presidential impeachment in U.S. history, in terms of the broad civil society model I am developing here, see Jason L. Masts discussion of the polarization that triggered the Republican indictment of President Bill Clinton in 199S: "The Cultural Pragmatics of Event-ness: The Clinton/Lewinsky Affair." pp. it 5-145 in Alexander, Giesen, and Mast, Social Performance. Despite the substantive social conflicts involved, it is revealing that the articles of impeachment focused on such civil-discursive issues as deceit. In contrast with the two earlier impeachment episodes. Mast demonstrates, the hearings about Clinton in the House of Representatives did not achieve a ritual status; they had. by contrast, an often comic and partisan cast. The reason was sociological; there did not exist a widespread sense, in the broad political center, that Clinton's actions did. in fact, threaten the fundaments of the civil sphere. It is not surprising, then, that when the indictment reached the Senate, it was met with easy defeat. In striking contrast, the conviction of President Johnson was defeated by only one vote, and the conviction of Nixon had been considered a certainty. CHAPTER 7 1. J. Habermas, Between Facts and Norms. 2. M. Weber, Economy and Society, pp. 29-37, 215-222. 3- See Post, Constitutional Domains, which distinguishes between the instrumental, communal, and democratic aspects of law. 599 notes to page i 53 4. Quoted in P. Finn and D. Williams, "Yushchenko Vows to Prosecute." i-ie did win. 5. Because "the essential problematic of democracy thus lies in the reconciliation of individual and collective autonomy," Post observes, there is "a paradox a: e|1(, center of democracy," which ensures that "laws attempting to establish demo are intrinsically contestable." It "can always be maintained either that [laws] have overly stressed the preconditions of social cohesion and hence have impaired cj^ individual autonomy necessary for democratic legitimacy, or, conversely, that ihev have overly stressed individual autonomy and hence have impaired the social cohesion that is equally necessary for democratic legitimacy" (Constitutional Domains, 7-8}. For a discussion of this tension in terms of legal rights to privacy in r U.S. court decisions and their broader relation to democratic theory, see jean Cohen, Regulating Intimacy. 6. Those who particularly emphasize the critical and liberating force of democratic law are often loath to acknowledge its relation to overarching worlds of cu values. Among recent philosophers of law, Habermas has been particularly fiei this regard, proclaiming that law must be understood in an entirely procedural manner if is to be democratic, and lambasting every cultural approach to law, evUi the most liberal- or Left-republican, as communitarian. Arguing against the "republican tradition that binds the citizens' political practice to the ethos of an already integrated community," Habermas proclaims that his "discourse theory breaks with an ethical conception of civic authority." He asserts that "democratic will-form.iuon does not draw its legitimating force from the prior convergence of settled ethical convictions" but from "communicative presuppositions that allow the better arguments to come into play in various forms of deliberation and, on the other, p: dures that secure fair bargaining conditions." jurisprudential decisions about the "collective good," Habermas objects, are not derived from "the hermeneutic appropriation of'constitutive traditions' " (Between Facts and Norms, pp. 278-279}. The inadequacies of such a position are rooted in general problems of democratic theorizing that I discuss throughout this book, namely, that the normative commitment of democratic theorists to rational engagement, deliberation, and undogmatic, pragmatic decision making have often made them allergic to the empirical connection of democratic practices with cultural structures and culturally oriented theories. Though Habermas's discussion of law reproduces the same ambiguities about culture that come to characterize the rest of his later work, his principal argument is that law fills the gap in solidarity created by disenchantment: "How can disenchanted, internally differentiated and pluralized lifeworlds be socially integrated if, at the same time, the risk of dissension is growing, particularly in the spheres of communicative ac chat have been cut loose from ties of sacred authorities and released from bonds i chaic institutions?" (p. 26). Modern law is a "conscious organization" (p. 42), v "displaces normative expectations from morally unburdened individuals unto the | notes to page i 53 vs" which in turn "draw their legitimacy from a legislative procedure" {p. 83). In . modern legal medium, "the actors self-interested choice is released from the ligatory contexts of a shared background" (p. 119). At first glance, the approach of Robert Post, a leading figure in American First Amendment jurisprudence, would seem to assert the same untenable distinction between democratic legal reasoning and cultural commitment. Post identifies instrumental law with Weberian rationalization, communal law with culture, and democratic law with autonomy and reflexivity. He thus argues that democratic law is distinguished from communal law because of its refusal to sanction, a priori, any-given set of cultural values held by particular communities. "Within community," Post argues, persons "are conceived as thickly embedded within a constitutive skein of social norms that simultaneously defines their identity and invests them with dignity," whereas "within democracy, persons are represented as autonomous" and "they are imagined as beings who seek to determine their own fate and who are consequently able to transcend both the constitutive norms that happen to define them and the managerial purposes that constrict them" (p. to). Yet, while anticom-munitarian in normative terms, the demarcation that Post proposes is not, in fact, anticultural in the empirical sense. Particular attention should be paid, in the preceding definition, to such words as "conceived," "represented," and "imagined." Post acknowledges that "the social order of democracy exists only because of our commitment to the value of self-determinism" and that "if we inquire into the origins of this antecedent commitment... it becomes immediately clear that... it arises because it happens to be imbedded in a culture that desires to foster the end of self-government." It is in this manner, and for this reason, that a supraindividual cultural language constitutes an unavoidable background to self-determination in a purely pragmatic or rationalist sense: "It would be self-defeating for democratic authority to expand to the point of displacing the very culture that fosters the unique value necessary for the maintenance of democratic social order." Though "democracy imagines persons as just such autonomous agents who continually choose their purposes and ends," Post suggests, "choices have significance only within the context of an anterior horizon of commitments," and for this reason it remains a presupposition of democratic law that "persons who do not already have an identity are incapable of meaningful choice." Despite the critique of communalism, then, "democracy presupposes community, which alone can fashion persons with the identity capable of giving content to the value of autonomy." Such a "conclusion in fact requires us to distinguish two distinct senses in which community is relevant for law. On the one hand, community is a particular social order thematized and established by the law with discrete and ascertainable boundaries. . . . On the other hand, however, community is also a comprehensive social milieu that makes possible the very existence of the rule of law . . . Community in this larger, more embracing sense is a prerequisite for the institution of law itself (14-15, 17-18, emphasis 600 no 1 notes to pages t 53~ t 5 s added). For a particularly powerful argument for the cultural basis of Arne constitutional law. see Michelman, "Law's Republic"; this article served as 01 the principal foils for Habermas's andcultural criticism. 7. For an historical reconstruction of the shifting boundary relationship bet\ labor practices and the ideals of the civil sphere, see Forbath, "Caste, Class, Equal Citizenship." Forbath traces the movement from the more "hands-off terpretations of the nineteenth and twentieth centuries to the more reguk interventionist interpretations that legitimated such pro-labor legislation as the W.i.sj-ner Act in the 1030s. 8. A. Harris, "Equality Trouble," p. 1967. emphasis added. 9. Freidman, Total Justice, p. 33. to. Ibid., pp. 42-43. 11. See chap. 8, below. 12. K. Yoshino, "Assimilationist Bias in Equal Protection," p. 507. 13. Quoted in Siegel, "In the Eyes of the Law," p. 228. 14. H. Collins, Law of Contract, p. 173. 15. Ibid., and more generally pp. 171-206. 16. Ibid., p. 173. In his later work, Collins calls the contract "a form of t munication system," suggesting the "contract 'thinks' about the relation between people in a particular way." He writes that "the contract thinks, for instance, ahou: a promise, whether it was made, what the promise intended by the commitn and whether the promise has been kept" (Regulating Contracts, pp. 15-16). 17. Dürkheim, Professional Ethics and Civic Morals, 18. T. H. Marshall, Class, Citizenship, and Social Development.. 19. Heller, "On Formal Democracy." 20. M. Weber, "Categories of Legal Thought." On formalism more generailv. see Belliotti, Justifying Law, pp. 3-16. Luhmann takes a similarly formalist pos in his approach to law as a purely self-referential, and thus self-regulating, "auto-poetical system." See "The Autonomy of the Legal System." 21. The formalism of Weber's legal sociology complements his generally instrumental, noncultural approach to the other regulative institutions of civil society, such as office, voting, and political parties; his failure to discuss the communicative institutions of civil life: and his emphasis, more generally, on state rather than civil power. These difficulties reflect Weber's failure to integrate his political with his religious sociology, as I suggested in Alexander, Max Weber: Tiie Classical Attcmin .;r Synthesis. 22. Austin, Province of Jurisprudence Determined, chap. 1. 23. Kelsen, General Theory of Law and the State, pp. 58-63, 143-144. 24. Holmes, "Path of the Law," p. 171. 25. Frank, Law and the Modern Mind; and Lewellyn, "Some Realism about -alism." 602 notes to pages is8-162 26. F. Neumann, Rule of Law, p. 213. 37. Ibid., p. 229. 2S. D- Kennedy, "Structure of Blackstone's Commentaries," p. 205. 29. Posner, "Utilitarianism, Economics, and Legal Theory," p. 123. 30. Dworkin, "Jurisprudence," p. 4. 31. Hart and Honore, Causation in the Law, p. 123. 32. Hart, Concept of Law, p. 126, emphasis added. 33. Dworkin, "The Mode! of Rules I," p. 19. 34. Fuller, Morality of Law, p. 63, emphasis added. 35. C. E. Baker, "Ideology of the Economic Analysis of Law-," p. 3; Tribe, "Policy Science." p. 66, emphasis added. 36. Hayek, Road to Serfdom, p. 78, quoted in Fuller, Morality of Law, p. 65. 37. Sunstein, After the Rights Revolution, p. 139, emphasis added. 38. Belliotti, Justifying Law, p. 9. 39. Fiss, "Objectivity and Interpretation," p. 232. -...........40. Jean Cohen, Regulating Intimacy, pp. 151, 159. 41. Ibid., pp. I97-J99- 42. MacKinnon, Feminism Unmodified, p. 34. 43. Cicero, Republic and the Laws, bk. 3, p. 69. 44. M. S. Moore, "A Natural Law Theory of interpretation," p. 39. 45. This failure to thematize the differences between law and morality vitiates the strong position advanced by Patrick Devlin in his well-known book The Enforcement of Morals. Writing "as a judge who administers the criminal law and who has often had to pass sentence in a criminal court," this judge of the Queen's Bench and former Lord of Appeal was keenly sensitive to the inner life of law, and how it had necessarily to rest for its effectiveness on commitments of a moral kind: "I should feel handicapped in my task if I thought that i was addressing an audience which had no sense of sin or who thought of crime as something quite different" (p. 4). In his interpretation of this moral connection, however, Devlin took an old-fashioned organic view of culture that posited homogeneity, consensus, and collec- "'tive'community: "Society ... is held by the invisible bonds of common thought. If the bonds were too far relaxed the members would drift apart. A common morality is part of the bondage. The bondage is part of the price of society; and mankind, which needs society, must pay its price" (p. 10). However, it is neither society nor morality as such to which law refers, but the civil sphere and a very particular kind of anti-particularistic morality. See Post's remark that although "the Devlin model of law and culture usefully describes many phenomena within our legal system," it "undertheorizes both law and culture" ("Law and Cultural Conflict," p. 4S7). 46. See Menand, Metaphysical Club, pp. 58-69. 47. Holmes, "The Law," and "The Path of the Law," pp. 26, 170. 48. Holmes, "The Path of the Law," p. 167. 603 notes to pages 163-165 notes to pages [65-169 49. Holmes, "The Law." pp. 27-2S. 50. Hart's relationship to legal positivism is deeply ambiguous, as my reconstruction of his position here and elsewhere in this chapter suggests. In reference to the! relationship between Hart and the nineteenth-century founder of legal positivism John Austin, Dworkin observes that "Hart rejected Austins account of legal an. I thority as a brute fact of habitual command and obedience." Instead of this thm and ^ power-oriented approach, according to Dworkin, Hart "said that the true g. I of law lie in the acceptance, by the community as a whole, ofa fundamental nia^nfi rule." The consequence is a radically different understanding. Of that "master rule," I Dworkin says: "Propositions of law are true, when they ace true, not just in virtue = of the commands of people who happen to enjoy habitual obedience, but more ^ fundamentally in virtue of social conventions which represent the community's' acceptance ofa scheme of rules" ("Legal Theory and the Problems of Sense," ^ See also Frederick Hayek s remark that Harts work represented "in most regards | . . . one of the most effective criticisms of legal positivism" {quoted in N. Lacev, ,4| Life of PI. LA. Llart, p. 381). ' ' I 51. Hart, Concept of Law, p. 56. | 52. Fuller, Morality of Law, p. 30. For the exchange, see Fuller, "Positivism and | Fidelity to Law"; and H. Hart. "Positivism and the Separation of Law and Morals." | For a discussion of the complexities of their relationship, which was sparked bv the f personal encounters that led to this exchange, see Lacey, Life ofH.L.A. Hart. 197- | 202. I 53. Fuller, Morality of Lan; p. y. ^ 54. Dworkin. "Hard Cases," p. 82. |j 55. Dworkin, "jurisprudence," p. 11. Dworkin s argument parallels the distmc-| tion that Post makes between instrumental and democratic law and the connection | between the latter and the community. See n. 6, above. | 56. Dworkin, "Introduction: The Moral Reading and the Majoritarian Premise." J p. 4. John Hart Ely has argued to the contrary, suggesting that there is an jj democratic" quality of constitutions, or at least of the activist interpretation of J constitutions, and concluding that, in order to counteract such antidemocratic ren- || dencies, one needs to approach constitutions primarily as a guarantee for access rn |§ politics and voting. In issuing findings against the results of elected legislatures and Is officials, he argues, constitutional judges ignore the democratic will. See Ely, 0« Constitutional Ground, pp. 6-18. 57. J. Prager, "Free State Constitution and the Institutionalization of Valuef|| Strains," p. 68. §| 58. Dworkin, "Introduction," p. 17. 59. Dworkin, "Taking Rights Seriously," p. 1S5, emphasis added. 1| 60. Przeworski, "Democracy as a Contingent Outcome of Conflicts." pp. sy- J 80. 604 f,i. Habermas, "Struggles for Recognition in Constitutional States," p. 128. 62. The following quotations are drawn from Numbers ro and 5 i of A. Hamilton ei al., Federalist Papers, pp. 77-84 and 321-325. 63. In The Cultural Study of Law. Paul Kahn suggests that "the claims of reason are central to the cultural practice of law," observing that "the underlying structure of the debate" about American law "remains remarkably constant: my reason against your desire." The problem for a democratic order under law is to determine the collective will by reason, rather than desire. Politics is conceived as a struggle between good and evil, represented by reason and desire. . . . What is reasonable is universal and, therefore, good for all. Desire, on the other hand, is particular and private. Without reason, desires . . . are in conflict with each other, both within the individual and across various groups. A politics of desire is rule by special interest groups or, in Madison's term, factions. A system of law captured by factional interests and individual desire has only the appearance of laws rule. (pp. 17— r 8) 64. Quoted in Fuller, Morality of Law, p. 100, emphasis added. 65. Dicey, Introduction to the Study of the Law of the Constitution, p. 126. 66. Ibid. 67. Ibid., p. Tl8. 6S. Ibid. 6y. Ibid., p. 128. 70. Frankfurter, "Note on Advisory Opinions," p. 1004. 71. Thayer, "Origin and Scope of the American Doctrine of Constitutional Law," p- J 39- 72. Ibid., p. 133. 73. Ibid., p. 134. 74. Ibid., p. [39. 75. Ibid., p. 149, emphasis added. 76. Hart, Concept of Law, p. 87. In this section and the following, [ draw extensively from cases that Hart presents in his philosophical writings about law. Two decades ago. Ruth Gavison wrote about "legal philosophy as we find it after Hart has transformed it" (introduction to Issues in Contemporary Legal Plnlosophy, p. 1, emphasis in original). Lacey speaks of Hart's "worldwide reputation as the foremost legal philosopher writing in English in the twentieth century," observing that The Concept of Law "remains, forty years after its publication, the main point of reference for teaching analytical jurisprudence" {Life ofH.L.A. Hart, pp. 219, 224). No doubt Hart would not immediately have accepted the reconstruction of his thought I am developing here. Ordinary-language philosophy, whether in the person of Wittgen- 605 NOTES TO PAGES 1 Oy—i 71 stein in Cambridge or of j. L. Austin in Oxford, did not see itself as related to the Continental linguistic tradition that created semiotics and eventually connected with, and stimulated, the cultural turn in the social sciences today—and Hart was deeply affected by both Wittgenstein and Austin (Life, 112-151). From the cultural prag_ ma tic perspective, however, these theoretical traditions are complementary. Austin's philosophy of the performative has, posthumously, entered direcdy into the heart " ■ of discussions about culture, action, and society, and it informs the position I am taking here. See chap. 4, n. 7. 77. Hart, Concept of Low, p. 87, emphasis in original. 78. Kahn, Cultural Study of Law, pp. 35-36. 79. Ibid., emphasis added. 80. Hart and Honore. Causation in the Law, p. t. Hi. Kahn, Cultural Study of Law, p. 17. Rather than take his cultural-theoretical orientation from analytic language philosophers. Kahn follows ClitTord Geertz, as did Robert M. Cover in "Nomas and Narrative," the foreword to "The Supreme Court, ig82 Term'' in the Howard Law Review twenty years before: We inhabit a nomos—a normative universe. We constantly create and maintain a world of right and wrong, of lawful and unlawful, of valid and void. The student of law may come to identify the normative world with the professional paraphernalia of social control. The rules and principles of justice, the formal institutions of the law, and the conventions of a social order are, indeed, important to that world; they are, however, but a small part of the normative universe that ought to claim our attention. No set of, legal institutions or prescriptions exists apart from the narratives that locate, it and give it meaning. . . . Once understood in the context of the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live . . . trajectories plotted upon material reality by our imaginations. . . . Law is a resource in signification!, and] the creation of legal meaning . . . takes place always through an essentially cultural medium." (pp. 4-5, 8, 11) 82. Gewirtz, "Victims and Voyeurs, p. 151. 83. "The complexities ... are usually not apparent. . . because police and pros- ^ ecu tors structure their accounts of case to fit into legal categories. These categories are simple, often dichotomous (guilty/not guilty; sane/insane; intentional/not i tentional; reckless/not reckless; voluntary/involuntary) and deny the ambiguities and uncertainties of the world of experience" (M. McConville et al., Case for the Prosecution, p. 12). 84. Garland, Punishment and Modern Society, p. 268. NOTES TO PAGES I72-I76 The quotations in this paragraph arc from Fuller, Morality of Luv. pp. 20—22. 86. Hart, Concept of Law, p. 85. 87. Ibid., pp. T67, 160. 88. Hart and Honore. Causation in the Luv, p. 59. 8y. Hart. Concept of Law, p. 160, emphasis added. 90. Ibid.. p. 167. 91. Ibid. 92. Hart and Honore, Causation in the Law, p. 59. 9^. Hart, Concept of Law, pp. 160—161. 94. For contract in the context of civil morality, see above, pp. 155—157. Also see Dürkheim, Division of Labor in Society, bk. 2, chap. 7, e.g., p. 129. 95. Quoted in Dworkin, Taking Riohis Seriously, p. 23. 96. Ibid.. emphasis added. 97. Ibid., p. 24, emphasis added. 98. Ibid. 99. For the notion that allowing market efheiency to determine monetary results may. in a pluralistic society, be considered justice, see Walzer, Spheres of Justice, and mv discussion of the broader implications of this position in chapter 1. too. Hart, Concept of Law, p. 129, emphasis added. See chapter 1 for my discussion of how Rawls's philosophy displays a similarly flexible insertion of the adjective "reasonable" in his effort to reconcile the plurality of primordial meanings—meanings that are not "reasonable" for the actor—with democratic justice. 101. Hart, Concept of Luv, p. 129. Reasonableness is also the decisive qualifier in assigning noneconomic liability, even in cases of office abuse. On November T3, 2000, the U.S. Supreme Court agreed to consider a police officer's claim that he had "qualified immunity" to protect himself against a complaint accusing him of using excessive force when he arrested a protestor at a political event. Under the defense of qualified immunity, an officer or other public official cannot be held liable, according to the New York Times, "if they reasonably believed at the time that their conduct was lawful." At the same time, however, the Fourth Amendment to the U.S. Constitution guarantees that all persons should be free of "unreasonable seizure." The Ninth Circuit Court decision, the one subject to Supreme Court review, had decided that this constitutional reasonableness clause trumped the civil qualifier guaranteeing immunity. "An officer cannot have an objectively reasonable belief that the force used was necessary (entitling the officer to qualified immunity)," the Court had ruled, "when no reasonable officer could have believed that the force used was necessary (establishing a Fourth Amendment violation)." Linda Greenhouse, "Court to Decide Fine Point on Use of Force by Police." 102. "Protectionism" was the term Karl Polanyi employed to describe the movement by "society" to control an earlier form of industrial capitalism in Great Britain. 606 NOTES TO i'AGES 176-lKo NOTES TO i'AGES i S 1 — i 8 5 See chapter z, where I suggest that Polanyi did not put institutional or cultural teeth into his historical account, an effort that would have implied thematizing a specifically civil sphere of society. 103. As this example of major reform legislation indicates, the distinctions that Post makes between instrumental and democratic law must be seen as analytical, not concrete, as he himself acknowledges. In the antitrust case I discuss here, it could be suggested that the state made laws to ensure the better functioning of the economic sphere—the "instrumental" meaning of law in Post's sense. It is clear, however, that this functional concern can be understood only within the framework of concerns about the vitality of the civil sphere, which imposes a normative, democratic, and antieconomic obligation. As Post suggests, despite their being "in tension with one another in significant respects." the different forms of law "also presuppose and depend upon one another in ways that are fundamental and essential" (Constitutional Domains, p. 2). The passage of the Sherman Anti-Trusc Act represents a case study of. institutional interaction with the civil sphere. Legal regulation ---emerged from the confluence of voting, party, and office obligations, which were constrained and stimulated by civil institutions of a more conmiunicative kind, and also by social movements, ! explore similar kinds of multiple interactions between communicative and regulative institutions in my discussion of the Civil Rights movement in chapters 11-14 and of the pivotal role of social movements in civil society in chapter 0. 104. Quoted inj. Strouse, Morgan: American Financier, pp. 302—303. 105. Ibid., pp. 533-534- 106. Ibid., 622 11. 7. 107. Ibid., p. 624, emphasis added. Cf, Dworkin, Taking Rights Seriously, pp. 27- 28. 108. Fuller, Morality of Law, p. 162. loy. Ibid. We find here echoes of Durklieim's insistence that a pluralistic and ' modern society can be integrated only by the "cult of the individual." See Durk-heim's "Individualism and the Intellectuals," pp. 43-57. 110. How large or small this escape valve is and what constitutes incapacity and intention are subject, of course, to continuous change; that there is such a valve, and that it is related to the idea of capacity and intention, is not. in. Holmes, "Privilege, Malice, and Intent," pp. 118, 119, emphasis added. 112. Siegel, "In the Eyes of the Law," p. 227, emphasis added. 113. Ibid, emphasis added. 114. Hart and Honore, Causation in the Law, p. 23. 115. Ibid., emphasis added. 116. Ibid., pp. 62, 6i. 117. Ibid., p. 22, emphasis added. 118. Fuller, Morality of Law, p. 71. 608 119. Hart and Honore, Causation in the Law, p. 39. 120. Ibid., p. 134. I3i. Ibid., pp.145-146. 122. Hart, Punishment and Responsibility, p. 39. 123. Hart and Honore, Causation in the Law, p. 144. 124. Gewirtz. "Victims and Voyeurs," p. 152. 125. Hart and Honore, Causation in the Law, p. 3 1. 126. Fuller, Morality of Law, pp. 72-73. 127. Quoted in P. Brooks, "Storytelling without Fear? Confession in Law and Literature?" p. 116. All subsequent quotations by Warren are from this chapter. For u much more elaborate discussion of confession in this context, see Brooks, Troubling Confessions: Speaking Guilt in Law and Literature. The normative upshot of Brooks's literary investigation is to suggest that confession is a trope that is induced by the manner in which American law is imbedded inside the discourse of civil society; confession cannot, in other words, be viewed simply as a factual, self-willed action: How can someone make a false confession? Precisely because the false referentiality of confession may be secondary to the need to confess: a need produced by the coercion of interrogation or by the subtler coercion of the need to stage a scene of exposure as the only propitiation of accusation, including self-accusation for being in a scene of exposure. . . . Guilt can in any event always be produced to meet the demand for confession, since there is always more than enough guilt co go around, and its concealment can itself be a powerful motive for confession. One might wane to say that confession, even if compelled, is always in some sense "true" as a performative, indeed as a performance, but this does nor guarantee that it is not false as a conscative, as a relevant "fact." (pp. 21-23) 128. Quoted in P. Brooks, "Storytelling Without Fear?" p. 131. 129. Ibid, emphasis in original. 130. Ibid., p. 125. 131. Ibid. 132. Karst, "Supreme Court 1976 Term," quoted in Forbath, "Caste, Class, and Equal Citizenship." p. 20. 133. Kairys, "Legal Reasoning." 134. Unger, Tlie Critical Legal Studies Movement, p. 24. For other paradigmatic early statements, see D. Kennedy, "Form and Substance in Private Law Adjudication": and Klare, "Judicial Deradicalization of the Wagner Act." See also the contributions in Kairys, The Politics of Law, and in Spirzer, Research in Law and Sociology, Vol. 3. In a skeptical essay, Robert Gordon points to how the critical movement's antagonism to earlier functionalist reasoning caused its practitioners to "collapse 609 NOTES TO PAGES I