When Philosophy meets law...

A 60 minutes discussion between Duncan KENNEDY and Mikhaïl XIFARAS, Co-Teachers of the Common Core Course, “Political Philosophy of Law” at Sciences Po.

In this interview, Duncan Kennedy, Carter Professor of General Jurisprudence (Emeritus) at Harvard Law School, and Mikhaïl Xifaras, University Professor at Sciences Po, share with us the building process of their Common Core Course of Master at Sciences Po, of their co-teaching throughout the years and their pedagogical methods. The interview has been conducted by Vasudha Rajkumar and Britta Gade, students at Sciences Po, under the supervision of Esther Rogan, Academic Advisor at the Studies and Pedagogical Innovation Division.

Vasudha RAJKUMAR is a student of Politics and Public Policy at the School of Public Affairs. She possesses a background in political science and philosophy, and specializes in South Asian politics. Therefore, she took this course up to familiarize herself with Western philosophy and its bastions.

Britta GADE studies International Security with concentrations in Human Rights and Middle Eastern Studies at the Paris School of International Affairs. Having worked on issues such as counterterrorism and organized crime, she is aware that especially in the field of security, rationalized discourses sometimes distort the essential character of political practices. She believes the content of this class to be vital for questioning established truths and for designing new creative approaches to peace, security and justice.   

Part 1. Building the course together from Harvard to Sciences Po

• Britta GADE: Thank you for joining the interview. Maybe you can start by explaining the idea of the course. How did it emerge and did you design it specifically for Sciences Po?

Mikhaïl XIFARAS: This course didn’t start as a Sciences Po story. It started as a Harvard Law School story, Duncan proposed to me the idea of teaching a seminar at HLS in 2011.

Duncan KENNEDY: Having known each other for twenty years, we found that we had many ideas in common, that we were both interested in thinking of ways of integrating philosophy and law, but at the same time, initially, my proposal to him was based on the fact that our ideas were also radically different. In terms of the construction of the curriculum, what is interesting is that although it is co-teaching, of course, it is not the idea of co-teaching with two people of the same academic specialty teaching together the same thing. The idea (at least, my view) was that Mikhaïl was just a philosopher, and I was just a jurist. Therefore, this course was supposed to be a rencontre between a philosopher and a jurist. The course, from the very beginning, was designed to both be an introduction to Western philosophy and an attempt to contribute to critical theory through our conversations while teaching the course. It would be a progressive event that would unfold over the years.

Mikhaïl XIFARAS: I would also like to add that each of us had to be bilingual both in Law and Philosophy. The fact is, we both speak the other’s language and that is absolutely necessary in order to put together stuff that is generally separated. Ordinarily, in the history of legal thought jurists are discussing the jurists, so we go from Savigny to Jhering to Kelsen and the idea that Kant or Hegel or Kierkegaard would have anything to do with them is just weird, like, having Savigny and Kierkegaard on the same list. The same is true with philosophers. A good example here is that of Marx. There is an entire library of work on the relationship between Hegel and Marx, and almost nothing on the relationship between Marx and Savigny. There is a disciplinary divide that is harsh to overcome. We are not dismissing that — Duncan comes from the perspective of a jurist performing a critique of contemporary legal thinking —, while I come from the perspective of a historian of ideas and a philosopher performing a critique of traditional history of philosophy, so we tried to articulate and discuss the merging of our two projects.

Duncan KENNEDY: On the merely legal aspect, because by the way, we are also both jurists, in this course, there is one person who is a ‘civilian’ (Mikhail) and another (me) who is the ‘common lawyer’, both deeply embedded in those traditions. This has been a fascinating aspect of the course, because we can see that through the discussion, we overcome the initial appearance that civil law and common law would be radically different, like ways of telling the history of philosophy and of law. In the course, there are still remains of this tension. The full integration has not been achieved, but we have now reached a level of ‘mutual understanding’.

• Vasudha RAJKUMAR: Designing this course material, with all of these heavy thinkers and reading material must have been difficult to condense within three months, so how did you manage?

Mikhaïl XIFARAS: I would say that we spent hours and hours thinking about what to assign, how to make it “readable” and how to cut it, edit it, etc. Through the years, a standard for the decision emerged that was merely aesthetic. The idea was that if we could get to the point of one author per class and one book per author, in chronological order, we would be happy. We did not completely manage it because we could not assign a whole book by Bentham, or Kant, or Jhering. We tried as much as we could to keep that structure. We really want students to get direct access to the material so we are not interested in secondary sources of reading, but in reading first-hand.

Duncan KENNEDY: I think there is a little more to be said about the relationship between the aesthetic and the substance. The aesthetic is the narrative. You are seeing a novel in which characters emerge one after another, they know each other and are living in this genealogical progression, due to which you as the reader, are supposed to involve yourself in it as a drama.

Mikhaïl XIFARAS: This narrative also has a strong ironic component, presenting itself as a ‘galerie de portraits’. That is a citation of Hegel, who is making fun of people who do the history of philosophy as a ‘galerie de portraits’ for doing it in the most unsophisticated way possible. We, in this course, are actually just doing that. But, obviously, there is also much more going on in the course because we are interested in the conceptual development and integration from an author to another, and the genealogy of their positions. But in aesthetic terms, this ironical narrative is key to the design of the course.

Britta GADE: Thank you for having shared the process of your co-teaching, the ambition of the course and its evolution through the years.

PART 2. TEACHING STYLE AND PEDAGOGICAL GOALS

• Vasudha Rajkuma : Now, concretely, could you tell us more about the way you proceed in the classroom in order to transmit and to share this unique “rencontre” between Law and Philosophy to the students?

Mikhaïl XIFARAS: I am coming from a milieu where the magisterial course is everything, so the professor is speaking the truth and the students are taking notes. Duncan is coming from a world where the truth comes from the ecclesia – that is to say the community of the students. We both arrived at that course with a very critical view on our respective mainstreams. I was very much against the magisterial way of running a class, and Duncan wrote a very important article on classroom pedagogy as a training of hierarchy, an instrument of domination (2004). So, the question was: how do we merge our respective critical insights? How do we do neither magisterial course, nor Socratic method? I would not describe what we are doing in this class as Socratic Method, especially because we erased the main disciplinary elements like “cold call”. Cold call is the professor asking one person to give the right answer. The whole thing about the Socratic Method is: you are ranked within the class according to your ability to provide the answer expected by the professor. It is no less dogmatic than the magisterial course. It is just that the slave is asked to contribute to his own domination. In one situation, you have active alienation, and in the other, you have infinite boredom. We are trying to navigate within that frame: Neither one or the other. This has led us to eclecticism. That does not mean, we never lecture. Sometimes we lecture and sometimes we are having more participatory ways of doing things. We are also trying to make the atmosphere smooth enough, so everybody feels comfortable.

Duncan KENNEDY: I think my picture of it is a little different. I actually believe in the ideology of a version of the Socratic method in which there is no cold call and participation is highly voluntary. In this version, there is nonetheless a rigorous progression of questions and answers. The first question asks to the student to state the law dogmatically and then, as the questioning proceeds, the plausibility of the dogmatic statement is undermined and the student is left in a situation of freedom of interpretation of the norm. It is a very powerful method and it can be done in a completely humanist way. I did that myself more or less successfully for 40 years. This experiment represents for me the simple abandonment of that. I have always liked magisterial courses. I have spent a great deal of my early life as a good student, sitting in classes, listening to the professor. Some of them were great, some of them were terrible. So, for me this represents an experiment with the magisterial method. My idea in the course has been to be like my best college teachers whose lectures I really enjoyed. For Mikhaïl it is completely different. Mikhail, actually, in the beginning of this exchange, at Harvard, discovered both the technical complexity and the accompanying delights of how Socratic teaching. For me, it is exactly the opposite movement. It was retirement associated with the delight of the narcissism of the magistery.

Mikhaïl XIFARAS: We also added a third element, which is our interactions. The question was: how far do we actually perform our differences? We are trying to restrain ourselves from just showing these differences in a raw way, but we are also trying to show a bit of it. The idea is that the course is not fully integrated, but has to have an element of coherence anyway.

• Britta GADE: What about your pedagogical approach? As you know, Sciences Po’s approach to teaching is in many ways more practical and policy-oriented than theoretical. It aims to educate young people who will later work for the UN or for their national governments. To what extent do you think that reading 19th century philosophy can contribute to that? How can theory be integrated into practice? Should it be integrated into practice? Is there maybe a lack of integration of theory into practice?

Mikhaïl XIFARAS: This is a very complicated question. When we started to build the Law School at Sciences Po, we had a very critical conception of what was going on in the French legal academia. And the key of the critique was that traditional teaching of Law was neither practical enough, in the sense that the Law that was taught was the Law of the Professors of Law, and not Law in real life, nor theoretical enough, because it was not giving any insight about what was going on above the level of dogmatics. And now the question is: if you want to become a policy-oriented practitioner, do you want to have a nearly technical, very disciplinarized conception of what you are doing, or do you want to think much bigger about your own subject? So, the idea is to help them theorize better and bigger their own field. Now, truth is, we do not do that down to the level of the practical in the course. We do not relate the Grand Theories with practical matters in, say, international security or environment. But we are confident that those connections will be made by the students themselves. Would you agree with that, Duncan?

Duncan KENNEDY: Let me just add something. Technical knowledge claims to allow neutrality and objectivity and to be merely factual which is obviously not true. I would say one of the major agendas of the course is to upset and to disturb the whole ethos of the technical which has been characteristic for Sciences Po since its beginning. In this respect, we would hope that students who are practically oriented would experience the course first as disorienting, demobilizing and crisis-inducing.

Mikhaïl XIFARAS: Yes, definitely. We think that the theoretical basis of the technical has been hugely undermined by critics emerging from the interaction of Law and Philosophy and this aspect is generally forgotten, ignored or denied within both the technical disciplines and, more surprisingly, within the various genealogies of critical theory.

• Britta GADE & Vasudha RAJKUMAR: But then the question is, if you engage so much with the critique, aren’t you at some point so disillusioned that you cannot work anymore as part of a bureaucratic organization? You become so cynical that you can simply not function anymore as part of the system?

Duncan KENNEDY & Mikhaïl XIFARAS: the fact is that the question is less about cynicism than about skepticism. And the question here is: Is skepticism depriving you from the possibility of action? And the answer is, obviously no. Then, what do you do, once you integrated all these sceptic arguments. And the answer is: whatever you wish, it is up to you. We understand this class also as a possibility to free people both from technique and from their own illusion of the possibility to justify technique by whatever fetish (like God, the Market or the Common Good…). Once that is done, it opens the possibility to play within this frame the way you wish. An answer to the question would then be, that we train policy-oriented students actually better than anybody else.

PART 3. FOR A CRITICAL APPROACH OF THE COURSE – QUESTIONING THE METHODOLOGICAL BIAS

• Britta GADE and Vasudha RAJKUMAR: this course does not include thinkers other than Western, German ones. Is the idea to have almost exclusively German authors for the majority of classes, part of the “aesthetics” of the course? Do you see the course taking up thinkers from other parts of the world?

Mikhaïl XIFARAS: I take the objection. The thinkers that we study are white dead males. The point is not to say that legal thought or critical theory can be reduced to a German, male or Western story. This course shall have a volume II or volume III. If it were so, we could and would definitely include non-Western thinkers, and women. Maybe, Volume II would be more French than anything else, and Volume III would be globalized.

Duncan KENNEDY: I would so not agree with that. It might be interesting to respond more directly or frankly to the question of other voices and trends. In my work, I have been very preoccupied with the global South. I have written about law in Africa, globalization of Western law in its relationship with the legal orders of the global South (2006). A very big part of my own work is on feminist theory as it relates to modern American law (2008). Therefore, I do not feel the need to apologize for this project. I am very interested in these dead white males, and by the way, as a white male myself, who will fairly soon be dead myself, I have a certain tenderness for the people we study. But it would be interesting, however, to do a parallel course, taking some thinkers from our genealogy, with people from alternate philosophical currents. For example, one cannot study the history of Western art without looking at what happens in the history of art of other cultures. In the history of Western art, the appropriation of the traditions of other cultural artistic traditions is central. But now that everything is more interconnected, we ourselves are constructing the idea of an interconnection between law and philosophy as opposed to there being no connection. When we set out to explore, for example, the influence on Hegel, of Hindu philosophy of the spiritual constitution of the universe, we find these interconnections.

Mikhaïl XIFARAS: I actually agree with Duncan, I am not apologetic either. I have been interested in Japanese philosophy (1999), and I encountered this guy called Kobayashi Hideo, who discusses the ‘overcoming’ of modernity in 1942, and how to overcome Western thinking, in order to make the ‘global’ really global, and not just an extension of Western thinking. Kobayashi Hideo says that in order to do that, one need not to reject Western modernity, but to pass beyond it (traverser in French). You cannot overcome something before experiencing what it is. My other non-apologetic answer to the question is that, even if you are really interested in other theories, you should know something about those ones. In that regard, it is not bad to spend 24 hours of your life being introduced to those white, dead males.

References:

1- D. Kennedy, “Legal education as Training for hierarchy”, in Legal education and the reproduction of hierarchy, New York-London, New York University Press, 2004.  

2- D. Kennedy, “Three Globalizations of Law and Legal Thought: 1850–2000”, in D. Trubek, A. Santos (ed.), The New Law and Economic Development, Cambridge, Cambridge University Press, 2006.

3- D. Kennedy, Sexy Dressing Etc., Essays on the Power and Politics of Cultural Identity, Harvard, Harvard University Press, 1995. French Translation : Sexy Dressing. Violences sexuelles et érotisation de la domination, Paris, Flammarion, 2008.

4- Mikhaïl Xifaras et Kenta Ohji, Eprouver l’universel, Paris, Kimé, 1999.