Nomi Maya Stolzenberg

Anti-Anxiety Law: Winnicott and the Legal Fiction of Paternity

Winnicotts good-enough mother does not, on the face of it, seem to have anything to do with the process of fact-finding in law. Yet there is an uncanny similarity between Winnicotts theory of the good-enough mother and the legal understanding of factual knowledge, both of which are premised on the unattainability of perfection and the need to construct simulacra of truth on the basis of merely probabalistic evidence. In Winnicott, this theory of knowledge is presented in terms of the process whereby the (good-enough) mother enables the infant to acquire the illusion of contact with a reality outside of himself on the basis of a repeated convergence of subjective need (i.e., hunger) and objective provision (i.e., milk provided at the right moment). In law, a surprisingly similar theory of knowledge as illusion/construction is presented in terms of standards of proof that fall substantially short of certainty and in the concept of the legal fiction. The way that legal fictions work to construct beliefs in reality and to shape reality itself is explored through the example of the fiction of legitimacy, according to which the husband is the father of a child born to a married woman, as a matter of law, regardless of biological facts to the contrary. A close analysis of the legal fiction of paternity reveals the unexpected similarities between Winnicotts theory of the good-enough mother and the legal theory of adequate, albeit less than perfect, factual knowledge. The analysis shows that one of the key functions of legal fictions is the suppression of the anxiety that attends uncertainty. In this respect, law serves as a matrix of belief in much the same way as Winnicotts good-enough mother does.

Waldron's Locke and Locke's Waldron: A Review of Jeremy Waldron's God, Locke, and Equality

ideas, they are perfectly knowable; they are knowable through human reason, that is, through the activity of reasoning about our reasons, which are perspicuous precisely because they are our own purposive invention. In short, egalitarianism is true because without it the very point of categorizing some creatures as ‘‘moral men’’—as creatures invested with the capacity for recognizing others as invested with the capacity for recognizing others as invested with the capacity for recognizing others, etc. etc. —would be undermined; and since there is no more to the ‘‘moral man’’ than what guides our act of categorizing some creatures as such (namely our abstract idea and the natural purpose furthered through employing it) this is all the justification of egalitarianism we could want or need. Still, it is true that this view does not involve giving reasons for egalitarianism—reasons can’t be given for that which is presupposed as basic in an adequate moral theory— and thus to some this view may appear to skirt the question of justification, rather than answering it. Waldron claims that religious doctrines supply what he takes to be missing from instrumentalist or species-ist theories. But what exactly does religious doctrine supply, according to Waldron? If there’s something missing from an approach that simply insists on the axiomatic status of the principle of equality, how does Christian religious doctrine fill the hole? It is not easy to tease out the precise role that religion plays in Waldron’s argument. In various places in the book, Waldron seems to suggest that, as a matter of logical or conceptual necessity, religious doctrines must be asserted in order to justify egalitarianism. For instance, in chapter 3 he writes, When I catch a rabbit, I know that I am not dealing with a creature that has the capacity to abstract, and so I know that there is no question of this being one of God’s special servants, sent into the world about his business. But if I catch a human in full possession of his faculties, I know that I should be careful how I deal with him. Because creatures capable of abstraction can be conceived as ‘‘all the servants of one Sovereign Master, sent into the World by his order, and about his business,’’ [2 T: 6] we must treat them as ‘‘his Property, whose Workmanship they are, made to last during his, not one anothers Pleasure’’ [2 T: 6] and refrain from destroying or harming or exploiting them. That, it seems to me, is the interest that is driving and shaping Locke’s moral conception of ‘‘man,’’ and motivating the interest in the particular range of capacities that forms the basis for Lockean equality. (p. 81) The point seems to be that to recognize a creature as possessing the cognitive capacities for appreciating and being guided by natural law is to Waldron’s Locke and Locke’s Waldron 203

Liberalism in a Romantic State

This article explores the connections between liberalism and romanticism, and argues that there is a split within liberal thought between a rationalist conception of liberalism, which relies on traditional moral psychology, and romanticist versions of liberalism, which adopt the romantic critique of reason and attach a positive value to the supposedly “irrational” faculties of the human psyche, such as passion, emotion, and love. Attending to this split within liberal theory provides us with a deeper understanding of what motivates religious fundamentalism and the more general movement of “return to traditional values” in religious and socially conservative quarters. Fundamentalists and other socially and religiously conservative critics of liberalism perceive that the embrace of a romantic picture of human psychology, and the implementation of doctrines of individual freedom and choice in the realm of marital and sexual relations (in the realm of love) undermines the premises of traditional moral psychology, which insists that “the passions” be subordinated to the faculty of human reason. Paradoxically, religion (a religious conservatism in particular) appears in this face-off between romantic and rationalist conceptions of human psychology and freedom on the side of reason. Religious conservatives attack (romantic) liberalism precisely because they perceive liberalism to constitute an assault on reason and morality. Liberalism has responded to this conservative attack by entering even further into a romantic state, in particular, the romantic state of war. War, love, and religion are the three domains of human experience in which the contrast between romantic and rationalist conceptions of human psychology and freedom is sharpest. Liberalism at war, liberalism in love, and liberalism on faith are the subjects of this Commentary.This article explores the connections between liberalism and romanticism, and argues that there is a split within liberal thought between a rationalist conception of liberalism, which relies on traditional moral psychology, and romanticist versions of liberalism, which adopt the romantic critique of reason and attach a positive value to the supposedly “irrational” faculties of the human psyche, such as passion, emotion, and love. Attending to this split within liberal theory provides us with a deeper understanding of what motivates religious fundamentalism and the more general movement of “return to traditional values” in religious and socially conservative quarters. Fundamentalists and other socially and religiously conservative critics of liberalism perceive that the embrace of a romantic picture of human psychology, and the implementation of doctrines of individual freedom and choice in the realm of marital and sexual relations (in the realm of love) undermines the premises of traditional moral psychol...