The following story is the sixth installment of the Political Science in Arkansas interview series, where we profile
political scientists throughout the state. Today, we talk with Dr. Hans Hacker, an expert in American jurisprudence, judicial process, and political theory. He is an Associate Professor of Political Science at Arkansas State University, where he has worked since 2007. From 2007-2019, he served as Co-director of the Phelps & Womack Pre-Law Center, and coached the award winning A-State Moot Court Team. His works include (but are not limited to) the book “The Culture of Conservative Christian Litigation” (Rowman & Littlefield Publishers, 2005); and the article “Democracies’ Guardian Genius: Pragmatism and liberal discourse in public policy” (International Journal of Organizational Theory & Behavior 12(4): November, 2009). He was the President of the Arkansas Political Science Association from 2019-2020. Previously, he taught at Stephen F. Austin State University, Wheeling Jesuit University, The College of William and Mary, Johns Hopkins University, The University of Maryland, and Ohio State University. He received his Ph.D. in political science from the Ohio State University in 2000.
QUESTION: You consider yourself a political theorist. For those unfamiliar with this subfield of political science, how would you describe it? What topics and questions interest you and what drives you crazy about the subfield? Who are your heroes and villains within the subfield?
My background is in jurisprudence. There is clearly some overlap between jurisprudence and political theory. Political theory primarily focuses on concepts, ideas, and values we use to describe political relationships within society. Some of these include equality, justice, and power. So, to the extent that law concerns itself with achieving a just society, or achieving equality through things like Rule of Law, the study of law and political theory overlap.
What drives me crazy about the study of law as political theory is this-Americans had an adequate, mature, and relevant theory of law and politics that we invented. It’s called American pragmatism. And, we abandoned it for a mythical, inadequate, and wholly immature theory of “social contract.” That makes John Dewey my hero and John Rawls my villain.
QUESTION: What has your experience been with Arkansas State University’s Moot Court Team? What have you accomplished, and what have you learned?
Moot court is a competitive program in which undergraduates argue a hypothetical appellate case against students from other universities as if they were arguing before the Supreme Court of the United States. So, the focus is on law and legal principles/doctrines. Because of its focus on the application of legal principles to new and untested areas, it is a much more effective tool for teaching abstract thinking skills than Mock Trial.
I was hired specifically to start a moot court and pre-law program here at A State, and to bring it to regional prominence. I think we did more than that. The A State Moot Court Team received significant press regionally and nationally. So, we accomplished quite a bit, especially in terms of moving our students on the career path they wanted. Former A State Mooters occupy some of the most powerful positions in the state. One has been ranked one of the top 1,000 attorneys in the nation.
I learned a great deal coaching students, how to help my students set realistic goals, how to manage a team of people with a common mission, how to accept defeat and victory graciously, and how to manage emotions effectively. I am very proud of the winning we did. But, I am much more proud of the calm, careful, and thoughtful approach my students took to developing as scholars and critical thinkers.
QUESTION: What advice would you give someone who wants to start a moot court team at their school?
It’s a wonderful program. It brings together everything we want to teach students in the university – research, writing, critical and creative thinking, problem solving, and public presentation skills. It was the best thing I did as a professor. So, I would say explore what you can reasonably do, and secure the unequivocal support of your administration. Your moot court students will raise the bar for every other student in their classes. It’s that effective in making the life of the mind real and tangible.
QUESTION: In a recent Ted Talk, you describe the problem of hording supplies at grocery stores as symptomatic of the country’s social and political disconnection. Could you explain your point?
My point was that Americans have always been angry, obnoxious, and ill-mannered. So, that hasn’t changed. Incivility doesn’t explain much about the current state of our politics. So, what has changed? I argued that we have lost our vital connection to each other, our sense of shared mission. Hording toilet paper is just an example (like Putnam’s example of bowling alone) of a much larger problem. I tried to explain this loss of connection by linking it to game theory. People who play as a group have a much more mature definition of “winning.” They win when the group wins. People who see life as a game in which they only win when everyone else loses (so-called zero-sum games) are self-centered, emotionally immature, paranoid, and likely to exploit others in ways that we would otherwise define as unethical and immoral.
QUESTION: While you reject incivility as an explanation for our current political predicament, do you think incivility has changed in any fundamental ways over time? Is the incivility of Hamilton fundamentally the same as that of Trump? Are the mobs of antifederalists fundamentally the same as mobs of Qanon followers?
That’s such an interesting question. I would say that QAnon is not dangerous because it is uncivil, it’s dangerous because it has brought playing zero-sum games to an entirely new level in which everything the group does is a conspiracy to deprive individuals of their selfish and self-interested rights. Conspiracy theory is another symptom of a lack of connection. It’s the highly advanced form of cancer in a society. When you see your society as composed of separate and distinct individuals who, like molecules, occasionally bump into each other for the purposes of economic exchange, voting, and procreation, it is easy to imagine that some secret cabal is out to get you. Maybe the purpose of voting and developing connections with your fellow citizens is to control those who might exploit others while keeping focused on achieving your goals.
QUESTION: You are fond of drawing on John Dewey. Who was he? What was his contribution to political theory and the discipline of political science more broadly? How has he influenced you?
John Dewey was one of only a few American scholars about whom we can say “he was a university unto himself.” He worked in multiple fields including sociology, psychology, educational theory, philosophy, and democratic theory. He is our American Hegel. His faith in democracy and in the subordination of the individual to the social place democratic institutions at the heart of his views. He said “Democracy and the one, ultimate ethical ideal of humanity are to my mind synonymous.”
His main influences on me have been to turn by attention toward the kind of republican virtue that sustains these democratic institutions. Humans only become their fullest and most complete selves in relationship with other humans. So, we have to focus policy on creating and maintaining those vital connections.
Also, his conception of truth stood my thinking on its head. He sees truth as not the end point, but the beginning of inquiry. Those who think of a true thing as having arrived, as the point where they can stop thinking, as the place where the flag goes up and they win the race, have got it backward. To say a thing is true should invite us to verify that thing. It is the beginning of inquiry, not the end. That changed a lot for me.
QUESTION: You recently finished writing two books. Tell us about them.
I wrote an eBook entitled Criminal Law and the Constitution. I’m working on a second edition now. While the textbook is aimed at criminal law courses, I organized it around the concept of police powers. Police powers are the ancient power of a state to act in any reasonable way to meet any threat to the order it has created in any form it presents itself. So, thinking about criminal rights and state power as interests that courts must balance helps us understand why the Supreme Court’s criminal rights doctrine is so complex. I hope it places law in the context of social good and encourages a rational conversation about the appropriate use of state power. Too often in our disconnected world we start with the presumption that any use of state power is illegitimate. But, I am reminded of James Madison’s comment in Federalist 51: “In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”
I also co-authored an eBook with Don Gooch entitled A Moot Court Workbook. It helps make moot court relevant in the classroom setting, helps professors organize for a moot court simulation, and provides case problems on a variety of topics.
Kendall-Hunt published both texts.
QUESTION: Your first book “The Culture of Conservative Christian Litigation” (Roman and Littlefield, 2005) addressed the complexity of right-wing Christian legal ideology. What are some of the major fault lines within this legal culture? Do you think your portrayal still describes this culture today?
The main difference had to do with religious ideology. Some firms were willing to make an argument in court that violated their religious beliefs. Others were unwilling. For example, the ACLJ was more than willing to argue within the framework of Roe v. Wade (that the Constitution protects a woman’s right to obtain an abortion). ACLJ lawyers could compartmentalize their legal arguments and their personal and religious beliefs. Other firms were much less willing.
The Religious Right has fallen apart and been replaced by extremist groups like the Tea Party, QAnon, and a host of media and social media sources. The ACLJ has morphed into a shadow conservative Department of Justice. So, no, my book examines a state of affairs that no longer exists.
QUESTION: What advice would you give to an undergraduate student who wanted to go to law school?
Take an aspirin and lay down until the feeling goes away.
- Things are changing in the world of law school admissions. The LSAT may be going away altogether, possibly replaced by the GRE. Things like undergraduate GPA, letters of recommendation, membership and involvement in a small number of student organizations, sustained community service, and preparation for a career in law (like moot court and internships) will become much more important for setting yourself apart from the crowd. Begin as soon as possible (preferably yesterday) working on developing these skills and attributes. Develop close associations with professors. Get to know them well, argue with them in class, develop a life of the mind. If you do so, your college experience will prepare you for law school and you will also cultivate some well-informed recommendation writers.
- Pick the law school that suits you the best, not the one with the highest ranking. Rankings are deterministic. Regional law schools are putting out well-trained lawyers that pursue excellence in their careers.
- Finally, do what you love. All the aptitudes that suit me for my job as a professor would have made me a particularly bad lawyer. I made a conscious choice not to go to law school. But, I love the law. I found something that I love to do rather than what I thought would bring me money, power, whatever else we are told is valuable.
QUESTION: What philosophical or political theory books do you think people should read to understand the world? Why should they read these books?
First of all, read. Read everything and anything. Read all the time. Reading and writing are the two things that distinguish us from monkeys throwing feces at each other in the treetops. So, read. I’d also recommend that students organize their reading. Read deliberately to develop as a scholar and just for pleasure. Also, read biographies. You learn so much about life from reading about the lives, struggles, and triumphs of others.
I have my biases when it comes to reading political theory and philosophy. But, I’ll recommend several books:
- Marcus Aurelius, The Meditations: The foundation of stoicism and the proper place of emotions in an indeterminate world. It lies at the heart of modern psychology these days. For example virtually everything Alaine de Botton produces (see, The School of Life)
- Charles Darwin, On the Origin of Species: The idea that knowledge is not simply a catalogue of attributes, but an understanding of how things respond to their environment revolutionized thought and spawned a multitude of new disciplines including modern Political Science.
- We desperately need to rediscover and begin teaching the American theory again. So, I recommend anything by William James, John Dewey, Jane Addams, or O.W. Holmes, Jr. But, in particular I recommend Holmes’ essay Natural Law. It roundly condemns natural law as a fiction, and it contains the most exceptional opening lines:
“It is not enough for the knight of romance that you agree that his lady is a very nice girl—if you do not admit that she is the best that God ever made or will make, you must fight. There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk.”