Liberal Talk Radio

A couple of days ago, I wrote a quick review of The Metaphysical Club, a book that’s having a great impact on me.

Among many things, I was struck by a description of Justice Holmes’ “Reasonable Man” test. In short, this is a legal concept in tort cases, a “test” of whether or not a reasonable man in similar circumstances would have taken the same action as a person being tried for liability.

To the Pragmatic Holmes, the Reasonable Man was a way to prevent legal judgements in the service of absolutes. He represented an average of opinion, so that no particular concept of justice, or right, or good would be used to decide cases in a plural America.

It occurs to me that in this era of kulturkampf, where we all know so well the “Two Americas,” maybe the real problem that we’re all having is that opinion and experience are now so diverse that there’s it’s impossible to speak of a reasonable man as an average across our whole population.

Consider something like extending marriage benefits to same sex couples. To us progressive (and largely urban) folks, this is a no brainer. We’re daily confronted with the exigencies of being surrounded by people who are fundamentally different than we are. Just to get through our days with a modicum of sanity intact, we have to accept these differences, and refuse subjective judgements based solely on our own subjective values.

But to small town folks, where being social and aspiring to membership in a tight-knit, almost clannish society requires a denial of personality traits outside the currently accepted norms, it makes some sense to reject social policies that upset the delicate apple cart.

How can a single legal system — especially one based on precedent — possible account for both views?

The sad fact is that it can’t. And that’s a great tragedy for America, now and in the future, because some day it’s going to have to be sorted out. And there are simply more reactionaries than there are progressives right now.