Edward Rothstein: Only foundationalism can save us from fundamentalism.

In reference to this stupidity, in comments, see this stupidity.
Rothstein is an idiot, but there are so many. It's amazing that for all the theorizing about what law means, there's no simple awareness of why we've chosen to construct our system as we have. Is any one of these idiots opposed to adversarialism as a method? Then why do they ignore the implications of our use of it?
Rothstein quotes Rorty: “it is impossible to step outside our skins - the traditions, linguistic and other, within which we do our thinking and self-criticism.” Rothstein is horrified, but this is the basis of our legal system: a lawyer must not seek the truth; his job is simply to defend his client. Does Rothstein think this a recipe for extremism?

Mr. Rorty was one of America’s foremost philosophers, who in midcareer, after devoting himself to the rigors of analytic philosophy, decided that “it is impossible to step outside our skins — the traditions, linguistic and other, within which we do our thinking and self-criticism.” He argued that we are always dealing with multiple and conflicting claims of truth, none of which can be conclusively established. We choose what to believe based on what is useful for us to believe. For Mr. Rorty, the importance of democracy is that it creates a liberal society in which rival truth claims can compete and accommodate each other. His pragmatism was postmodern, tolerant to a fault, its moral and progressive conclusions never appealing to a higher authority.

But the Caduveo of Brazil would not have welcomed that kind of all-inclusive embrace, and probably that embrace would not have been so readily offered to them. When Mr. Lévi-Strauss wrote about this dwindling tribe in “Tristes Tropiques,” his fascinating 1955 memoir, he compared these “knightly Indians” with their “aristocratic arrogance” to a deck of European playing cards; they even looked the parts of jacks, kings and queens, he wrote, with their cloaks and tunics decorated in red and black with recurrent motifs resembling hearts, diamonds, spades and clubs. The tribal queens, Mr. Lévi-Strauss noted, even seemed to trump Lewis Carroll’s imagined Queen of Hearts with their taste for playing with severed heads brought back by warriors.

The Caduveo, in Mr. Lévi-Strauss’s description, would never have considered for a moment that their beliefs and their society were arbitrarily constructed. The Caduveo had all the presumption and self-importance of royalty. They tattooed their bodies with elaborate “asymmetric arabesques” that served as coats of arms and signs of status. Their leaders removed every bit of facial hair, including eyelashes, and sneered at hairy Europeans. They even intimidated their Spanish and Portuguese conquerors.

They were, then, preliberal, premodern. In their midst every principle Mr. Rorty valued was violated. They provided their own transcendent authority and demanded its universal recognition. [unlike say... ??] A neighboring, related tribe essentially became their serfs, cultivating land and turning over produce.

...But what place would such a society have in a Rortian democratic landscape? How would they be answered if their claims to divine right and arbitrary power came in direct conflict with the more embracing arbitrariness of Mr. Rorty’s vision?

In reasoning one’s way into pragmatism, in minimizing the importance of natural constraints and in dismissing the notion of some larger truth, the tendency is to assume that as different as we all are, we are at least prepared to accommodate ourselves to one another. But this is not something the Caduveo would necessarily have gone along with. Mr. Rorty’s outline of what he called “the utopian possibilities of the future” doesn’t leave much room for the kind of threat the Caduveo might pose, let alone other threats, still active in the world.

One tendency of pragmatism might be to so focus on the ways in which one’s own worldview is flawed that trauma is more readily attributed to internal failure than to external challenges. In one of his last interviews Mr. Rorty recalled the events of 9/11: “When I heard the news about the twin towers, my first thought was: ‘Oh, God. Bush will use this the way Hitler used the Reichstag fire.’ ”

If that really was his first thought, it reflects a certain amount of reluctance to comprehend forces lying beyond the boundaries of his familiar world, an inability fully to imagine what confrontations over truth might look like, possibly even a resistance to stepping outside of one’s skin or mental habits.

But in this too the Caduveo example may be suggestive. As Mr. Lévi-Strauss points out, neighboring Brazilian tribes were as hierarchical as the Caduveo but lacked the tribe’s sweeping “fanaticism” in rejecting the natural world. They reached differing forms of accommodation with their surroundings. The Caduveo, refusing even to procreate, didn’t have a chance. They survive now as sedentary farmers. Such a fate of denatured inconsequence may eventually be shared by absolutist postmodernism. The Caduveo’s ideas weren’t useful, perhaps. Some weren’t even true.

So without absolute foundations we're in danger of absolutism.