Clarity in law

I have been thinking a lot about clarity as an aspect and alleged virtue of style--especially in literary criticism. The always amazingly clear words of Cardozo on the subject within the field of law (and specifically within the act of writing judicial opinions) might be relevant:

I suppose there can be little doubt that in matters of literary style the sovereign virtue for the judge is clearness. Judge Veeder in his interesting and scholarly essay, " A Century of Judicature," quotes the comment of Brougham upon the opinions of Lord Stowell: "If ever the praise of being luminous could be bestowed upon human compositions, it was upon his judgments." How shall his successors in the same or other courts attain that standard or approach it? There is an accuracy that defeats itself by the over-emphasis of details. I often say that one must permit oneself, and that quite advisedly and deliberately, a certain margin of mis-statement. Of course, one must take heed that the margin is not exceeded, just as the physician must be cautious in administering the poisonous ingredient which magnified will kill, but in tiny quantities will cure. On the other hand, the sentence may be so overloaded with all its possible qualifications that it will tumble down of its own weight. " To philosophize," says Holmes in one of his opinions - I am quoting him from uncertain and perhaps inaccurate recollection - "to philosophize is to generalize, but to generalize is to omit." The picture cannot be painted if the significant and the insignificant are given equal prominence. One must know how to select. All these generalities are as easy as they are obvious, but, alas! the application is an ordeal to try the souls of men. Write an opinion, and read it a few years later when it is dissected in the briefs of counsel. You will learn for the first time the limitations of the power of speech, or, if not those of speech in general, at all events your own. All sorts of gaps and obstacles and impediments will obtrude themselves before your gaze, as pitilessly manifest as the hazards on a golf course. Some-times you will know that the fault is truly yours, in which event you can only smite your breast, and pray for deliverance there-after. Sometimes you will feel that the fault is with counsel who have stupidly misread the obvious, in which event, though you rail against the bar and the imperfect medium of speech, you will be solaced, even in your chagrin, by a sense of injured innocence. Sometimes, though rarely, you will believe that the misreading is less stupid than malicious, in which event you will be wise to keep your feelings to yourself. One marvels sometimes at the ingenuity with which texts the most remote are made to serve the ends of argument or parable. But clearness, though the sovereign quality, is not the only one to be pursued, and even if it were, may be gained through many avenues of approach. The opinion will need persuasive force, or the impressive virtue of sincerity and fire, or the mnemonic power of alliteration and antithesis, or the terseness and tang of the proverb and the maxim. Neglect the help of these allies, and it may never win its way.
-Benjamin Cardozo, "Law and Literature"

Rationality

It strikes me, reading Habermas, that his achievement is (among many, many things) not so much the linkage of critical thought to empirical inquiry, nor the theorization of a rich notion of communication, but the recuperation of a field of rationality that remains less decidable than many thinkers (postmodern especially) would like to believe. Or rather, he understands that if you take their word for it, rationality (in its Enlightenment form) is so overarching, so massive in its effects, and so singularly responsible for the worst fictions about acting subjects and their world that one would think real discerning, responsible uses of it are few, or at least very hard to find--and affirms that this is the case. In other words, Habermas on a certain level restores meaning to reason by affirming what anti-Enlightenment thinkers say about reason: that a genuine use of it is very hard to find, even though it is everywhere. He then allows one to say that what we need is not to focus on how reason is ubiquitous and responsible for all atrocities, but on what a real genuinely responsible use of reason might actually look like.
It's not that we should brush off the effects of rationality. It's that, after reading something like Dialectic of Enlightenment, or Heidegger's accounts of reason, you lose all sense of the specificity of reason, and therefore any way (rational or irrational) of turning reason back towards the cultivation of a responsible function. As should be clear from my hesitant parenthesis here, this view also trades in a not unwarrented concern that any correction of reason will itself have to be rational--Freud in particular helped us see (and still helps us see) just how hard it is to think of something truly beyond reason, or that won't use reason against itself precisely in the effort to think reason's limits.
For me, Habermas gets a little too odd when he begins to say that the relative invisibility of genuine acts of reason means, not that they are rare, but that they are indeed everywhere: that certain aspects of practical action are themselves expressions of a certain form of rationality. This leads him to start to outline the amazing notions of the public sphere and discourse ethics. But I would rather he deemphasized the rationality of practical action and thought it more purely as mere action which may occasionally have a rational dimension. This would stay truer to the insight I'm outlining above: that reason is not as ubiquitous as we might think it is. This of course precisely means that reason isn't elevated into any particular good in itself, but that it remains just like any other specific (that is, not practical or pragmatic, as in Habermas) form of action that we engage in. It has its own specificity, and its own determinate or (at least) determinable force.
But in the end what we see is that there is a realm which thinking that is anti-Enlightenment and anti-reason overlooks when it understands rationality in its particular sense: the realm in which the extension of reason, its genuine deployment, remains undecidable as to its effects (Derrida, for his part, will theorize precisely this undecidability of reason, and it is in this that he is most powerful, I think--attempting as he is the project of Freud sketched above, but with greater rigor). In the anti-rationality model, it could either prop up various forms of technical and political domination, or it could allow liberation. What Habermas continually emphasizes (and Heidegger does this too, to his great merit, though with different motivations) is that the either/or here is way too rigid and is itself an effect of the ideology of those dominant forces, as well as the aspects of the liberatory forces which counter-productively rely on their opposition to the dominant. Rationality is only operative in the space at which it is extending itself or distributing itself further and further, such that it can be appropriated by both sides. This means that the use of reason isn't inherently, just because it is reason, going to fall into the hands of either. Again, I don't think that this space is as sustained in forms of practical and pragmatic action as Habermas does (I think it takes place in smaller spheres, like the classroom), but I do think he's right when he says that the cultivation of a sort of mastery of--or at bottom at least some ability to redirect--this space is what is crucial, and is what is left out in many accounts of reason. If one understands reason like Habermas does, one can begin to think about what its place should be--which is more than any mere denunciation of it (or an account of it that merely adds up to a denunciation of it) can really do.

The New Critics and feeling

While Sianne Ngai's Ugly Feelings is a truly, truly unbelievable and refreshing work, I'm disturbed a bit by the bashing that some the New Critics, and particularly Richards, take in the chapter on tone. Ngai wants to see tone as the following:

something much more holistic and explicitly affective than the narrow concept employed by Richards in Practical Criticism--namely, a speaker's attitude to his listener.
-Ugly Feelings, 41

She goes on to say that the New Critics following Richards on tone

notably muted, and in some cases took pains to avoid, the affective dimensions of the problem. This de-emotionalizing tendency is already apparent in the way Richards [in Practical Criticism] separates "Tone" from "Feeling."
-Ugly Feelings, 41

So the New Critics de-emotionalize tone. Okay, I'll bite. But it isn't clear that Ngai herself doesn't really get at tone either. She re-emotionalizes tone, perhaps, but in doing this is so much more concerned with things like mood and atmosphere that it isn't clear to me whether she is just making up something wholly new and just then calling it "tone." Making up something is okay, but I don't see why she would need to then act as if she is tying it back into a tradition of theorizing on tone, except to just bash away:

It should be clear that by "tone" I mean less the dramatic "attitude" adumbrated by the New Critics than a global and hyper-relational concept of feeling that encompasses attitude: a literary text's affective bearing, orientation, or "set toward" its audience and world. In other words I mean the formal aspect of a work that has made it possible for critics of all affiliations... to describe a work or class of works as "paranoid" [...] "euphoric" [...] or "melancholic."
-Ugly Feelings, 44-45

But I'll take what she's saying as if she is indeed picking a fight with Richards rather than just dealing with a straw man. In saying what she says about Richards, she acts as if an entire theory of communication (as it is represented in only one book--Practical Criticism--out of the many in which Richards elaborated and refined this theory) which is precisely constructed in order to account for affect in language would, by virtue of precisely this constructedness (the mere fact they tried to do it at all), exclude real affect. And while she has a very rich concept of what real affect is (though I'm not too sure what "global" and "hyper-relational" mean), it doesn't mean that Richards especially, and even some of the New Critics (as well as some of the philosophers she cites), haven't stumbled upon it before.
This however is the problem with studies giving pride of place to affect more generally: they merely invert the dominant paradigm, and in doing so, denigrate or keep virginal what they champion. Affect has to be overlooked in order to be celebrated. And while Ngai is better than everyone else who is concerned with the subject (by far), she here falls prey to this tendency. Obviously the New Critics didn't give pride of place to affect--I think that's true. But--like with Kant and Hegel and all the others she cites--that doesn't mean that they weren't some of the people that in fact were really trying to account for it and even combatting those (like scientists: see Richards' Science and Poetry and a lot of the work of Leavis) who denigrated it.
There is a weird progressivism at work here--which is otherwise generally merited because Ngai's work is really so new.
Even weirder is the picking of someone out of that tradition--Heidegger, whose theory of mood she champions--and using him as if he were more conscious than the rest of what real feeling is about. Frankly, it isn't really clear to me that Heidegger is the best choice, either. I think someone like Hume might actually be better. Heidegger's theory of mood is so emptied out of the ontic that mood merely stands in for facticity. And who is to say that facticity is the same thing as real feeling? Yet Ngai thinks with Heidegger that there's no incompatability between them--in fact, that facticity and feeling are more compatible than something like Richards' attitudes and feeling. Perhaps she's right on the first point (the compatibility): I doubt that she is on the second (the incompatibility of Richards' attitudes and feeling).
The bigger point, however, is this: why read Heidegger favorably and then turn on all the others? Why not read the others as favorably, and reconstitute a whole history of the theories of real feeling? It seems that Ngai has a pretty concrete sense of what real feeling is, and sees a lot of people excluding that over the years. Heidegger is more open to it. But who is to say that other thinkers of feeling and affect haven't just been mischaracterizing a little what Ngai is getting at--as Heidegger himself thought and in fact tried to demonstrate at length? Why assert that they have the entirely wrong phenomenon in view in the first place (and not just its ontic aspects)--as Ngai seems to do? It just seems like more bashing of the New Critics to me, combined with a sense that they in fact came a little too close to theorizing affect in literature in the way Ngai does. And it doesn't seem clear to me that a reconsideration of "tone"--as opposed to something else--is really what makes this possible.