Source: Kairys, Politics of Law. Chapter by Duncan Kennedy on First-Year at Harvard Law and the dominance and arrogance of hierarchy in institutional bureaucracy. pp. 61-65.

"patina of consent" - Focus on this phrase, and on Kennedy's suggestion that liberal first-years rate more highly the arrogant professors who abuse their positions of hierearchical authority to intimidate students than the "mushy" liberal professors who treat the students with respect. Sounds like we have the same confusion of issues over "respect" here that we do in theory and distributive justice.

On issues of "respect" we are actually talking about our ability to trust each other to remain accountable to each other for our contribution to the mutual effort. When we talk about such things as arriving "on time" and "with minimal disruption" to class, we quickly move to holding each other acountable to inflexible rules that harm us by categorizing us all as "not meaningfully different from one another." But such categorization is inaccurate. Some categorizations overlook identity issues of race, class, or gender; but others assume that we all learn the same way, share the same priorities and values, and are included members of a society firmly held together by consensus. Not so.

One of the criticsims of Habermas' legitimacy through public discourse has been that he places too much faith in consensus. Issues of international law have taught us the difficulty of getting consensus on most issues. (Need to cite this; but I've forgotten precisely where it came from, but from reading this semester. jeanne) We have trouble defining international crime even as relates to piracy and torture. I've always liked the response of anti-pornography leaders: We may not be able to define pornography within the necessary parameters for a court of law; but we all know the harm we speak of, and outside the court of law, there is nothing to prevent our working to eradicate that harm. (Cite from little gray book on Pornography by academics opposed to pornography.)

Duncan Kennedy argues that the dominance imposed by the institutional hierarchy violates the mutual respect in which we should hold each other in the academy. But students are dazzled by the wielding of such dominant power. People are dazzled by the dominance of power. Power is seductive, and without the kind of deep analysis as postcolonial theorists have brought to its underlying assumptions, we argue more with passion than with reason.

We saw this up front and personal in our own classroom. Jeanne howled when three or four students strolled in late, disrupting the lecture, going to sit in far corners of the classroom, and distracting her concentration, if no one else's. She sputtered and spoke of "respect for learning." That's when Tyron reminded her that "demanding respect for learning" bordered on the "structurally violent." That came home to us all just minutes later when Allan Knox strolled in late, took a seat right in the middle of a middle row, and proceeded to move right into the discussion. Allan didn't break jeanne's concentration. Yet, his appearance was just as physically disruptive. The difference was that his total absorption with the theoretical concepts discussed was clear to most of us. We do make exceptions; move over, make room for, include some of us. We are disrupted when we cannot muster the concentration needed to get the task at hand done. In Allan's case we had a measure of his "respect," that we had come to normatively expect. In other cases, we needed better measures to assure each other of our mutual effort to accomplish a mutual task.

Some of you spoke of "rules," to which Tyron referred as "structural violence," and rightly so. I think Duncan Kenneddy would agree that such rules were structurally violent. But there are no normative expectations that lead us to assure each other of our mutual respect for learning. That may be, at least partially, because we have been harmed by the heavy emphasis on grading and competition, to the detriment of a focus on the importance of the learning and questioning itself. Fellman on adversarialism AND mutuality.

This is more a matter of working to build trust in transformative discourse. We must be willing to hear each other in good faith, as part of our discourse. We may not agree. Consensus is hard to come by. But in communicating our awareness of one another, disrespect becomes less possible.

Discussion Question

What does Duncan Kennedy mean by "rights discourse" on p. 62. Does "rights discourse bear on "respect for learning?"

Click here for jeanne's perspective on this question.

---

---