By Gwyneth K. Shaw
In his new book, Publics in Action: The Self-Making of Civic Life, UC Berkeley Law Professor Christopher Kutz dives deeply into what it means to consider something public — be it an institution, a service, or a value — as well as how we can learn from each other in creating the communities we want to share. The book is organized around a central metaphor of musical improvisation: reflecting how collective actions take shape as we draw on both tradition and inspiration, listening, responding, and reflecting one another in new melodies and rhythms.
Drawing on his training as a philosopher, his experiences living in the United States and Europe, and on his nearly three decades as a faculty member at a public university, Kutz explores some of California’s policy successes, along with pragmatic ideas from France, Norway, and other liberal democracies, to frame a path toward change here in the U.S. He writes for a broad audience, in the hope that anyone interested in education, criminal justice, political organizing, and even public utilities will find something to interest them — and discover that lessons and insights from philosophy can help them along the way.
Kutz, who has a J.D. from Yale and a Ph.D. in philosophy from UC Berkeley, joined the law school’s faculty in 1998 and has been the C. William Maxeiner Distinguished Professor of Law since 2014. He teaches courses in criminal law and international law theory, as well as moral, political and legal philosophy, and works with both Ph.D. students in the school’s Jurisprudence & Social Policy (JSP) Program and undergraduates in its Legal Studies major and in the Philosophy, Politics and Law minor he created in 2020. He discusses the book’s development and goals below.
Where did this book come from, and how does it fit with your previous work?
My work has always been motivated by the problems I see in the world. My first book came out of my learning with horror, in college in the late 1980s, about the Exxon Valdez Alaskan oil spill. I realized that we had this whole framework of moral philosophy that focused exclusively on individual harms and individual actions. After the Exxon Valdez and the Union Carbide accident in Bhopal, I realized that the most significant things, good or bad, that we do are things we do together. It’s hard to hurt that many people on your own, and so we needed a better theory of moral responsibility.
My most recent book was mainly about America’s wars in the Middle East, and so was also about our shared responsibility for causing harm. This one came out of a couple of different experiences. First is that I’ve been a faculty member at Berkeley for a long time, and so I’m used to people getting up and saying, “Well, it’s a public university, we have to do x.” And then somebody else will say, “Well, as a public university, we can’t possibly do x.” And I realized that in arguing about what it means to be a public university, or for a thing to be public, people have very different ideas.
These arguments can be really interesting. People do political philosophy in a very specific way, without really thinking, “I’m doing philosophy now.” They’re arguing about something really important and concrete — what kind of public institution do they want to inhabit?
The second and third things were more personal experiences. The book, in a way, is a lot about places I’ve known and lived. I’ve lived a fair amount in France, and after living in France for two years, I came back to the U.S., and I noticed the striking difference in the absence of a commitment to public spaces and public institutions. We’ve always had the sense in America — and maybe this is because I’m a creature of the ’90s — that public institutions are a response to a private market failure, the kind of neoliberal paradigm that public institutions are what we have to have as a backup because the market won’t satisfy it.
And living for years in France, a place with robust, universal health care and robust housing programs and a fantastic infrastructural network, I realized that what we were missing in the U.S. was failing to explore some of the ways that we could make very concrete public institutions, and we could think about them as commitment to democratic politics at the same time. But I was also struck by a contrary thing in France: how privatized so many things are — stuff that we wouldn’t think of privatizing immediately. Highways are private in France, road signs are private, water in most French cities is private.
It made me realize that a strong regulatory state can make possible great infrastructure and great institutions, but it doesn’t have to be only through state-managed enterprises. It was that shock of moving back and forth that also made me think maybe there’s something here to write about.
The third thing was that I was writing a fair amount of the book during both a moment of hope and a moment of fear, and that was during the Biden COVID era. And the longing for public engagement was something that I felt very acutely. I was on leave in New York and went to a lot of live music, including a lot of jazz, which supplies the organizing metaphor for this book of the public as improvisation. But it came out of that desperate feeling of being overjoyed to be in a live audience again and being out in public.
You write that “Philosophy’s value, as I see it, lies in giving us an orientation to a problem. But solving that problem means finding out something about the world as well — something we can’t get just from books and theories.” Can you talk a little bit about what that means to you, as an academic and a scholar, to engage people outside of the academy to think hard about these things?
I guess that’s another personal dimension. I had my education in moral and political philosophy at a time when philosophers were writing articles and books that were pretty widely read. I mean, they weren’t bestsellers, necessarily, but for example, John Rawls’ A Theory of Justice was probably read by a large number of American college students, and large sections of it by a lot of law students, business students, people in public policy. People read and talked about Judith Thomson’s famous articles on abortion, and so on. Over the last 20 years, as philosophy, like a lot of fields, has professionalized in a certain way, the articles have become a little more what I call scientistic. They use a very technical jargon, and they tend to be articles relating one theory to another theory, as opposed to attempts to get traction on a big problem. And this book was an attempt to try to help myself write in a bigger, broader voice, and it also came partly out of also having two kids in college at the time. As I was writing it, I figured if I can’t write something that will be interesting to them — not just readable by them, but interesting to them — I should give up. Because that’s who I want my audience to be. As much as I also want to interest the 50 other people in my subfield, I’d like it to be of interest to a broader educated audience.
The method for the book also came out of another conviction that has grown in me over time, which is that philosophy alone only gets you so far in thinking about politics and society. I’ve been teaching courses in moral and political philosophy for a long time, and they’re very good at pointing us kind of directionally towards equality, towards autonomy. But what it means to have equality or solidarity or fraternity or autonomy is virtually empty until you look at how those values take place in particular ways of living and in particular institutions. That’s why I thought I needed to look at how particular liberal democracies make publics.
Throughout the book, you come back again and again to the idea of improvisation, mostly involving music. What do you mean when you talk about improvisational publics? Can you give a couple of examples of ways that we might not imagine are improvisational?
I think pretty much every election that is free and fair and supported by a free press is an improvisation. People are coming into almost any political debate with ideas in mind — sort of old melodies, old tunes. But ideally, if things go well, they’re responding to new arguments, or they’re reacting even to the same old argument in a new way. Every election, every case of decision-making, where we together try to figure out what to do, whether it’s at a department level, business level, state level, or national level, those are cases of real improvisation.
Improvisation is, I think, familiar to anybody who’s helped to run a business or tried to create an organization. You have ideas, you try them out. Some of them work, some of them don’t. You’ve got new people, new resources. So improvisation is everywhere. We tend to notice it when people are exceptionally good at it — for example, the brilliant entrepreneur who’s able to create a wonderful startup. I’m more familiar with it in culture and music and comedy and theater, but it’s everywhere around us.
I got onto the metaphor a little before COVID. We have neighbors who host house concerts, and one of the musicians pointed out that in a big city — maybe everywhere, but particularly in a big city where people are ready to be seen — walking down the street is an improvisation. People are noticing who’s noticing them. They’re figuring out how to hold themselves, how to move. I took on this idea that improvisation is everywhere from that experience.
You spend a lot of time, understandably, talking about the idea of the “public good.” For the uninitiated, what are some of the ways in which all of us enjoy the benefits of public goods?
There’s obviously a technical economic definition. And many of the things that we tend to colloquially label as “public goods” are not quite economic public goods. Technically, a public good is something you can’t keep somebody else out of, and one person’s use of it doesn’t detract from another person’s. Colloquially, for example, think about the argument people often make for funding UC Berkeley. When they talk about Berkeley as a public good, they don’t mean that it can’t exclude people — it’s really hard to get in! — or that one person’s use doesn’t affect another’s. Just ask a student trying to enroll in a popular class! I think they mean something else, which is that the institution throws off what economists call positive externalities. And maybe some of those externalities are ones that you can’t cabin off from other people — it creates economic growth for the state, or well-informed citizens, and the benefits from that are economic public goods.
But the idea of a public good that I work within the book is the more basic idea of something that is good for us as a community. It might be that people outside the community are excluded from that good, but within the community, it’s a benefit that we enjoy both individually and collectively. It’s why we have educational systems, and freedom of speech, and roads and parks and community theatres — and also prisons. Why do we want these institutions? What do we want to do with them? It comes not from this negative idea that I mentioned before, this classical liberal idea that the public good is the solution to private failure, but that the public is itself creating something together is a positive good. It helps us do great things. It helps us understand each other. It helps us be the kind of social animals that we are.
And so, making publics is about making public goods. What are the goods that we produce through education? It’s not just economic growth. It’s not just enabling individuals to earn more in the marketplace. It’s about creating a community of people who know and understand each other across their differences, who are able to discover great things and gain new knowledge that is itself, perhaps, a public good in the literal sense. But the good is so much more than just this kind of external benefit — it’s the good of being part of a community that’s alive and active and inventive and discovering.
You hold out California as an example of a government that’s working in the public interest, with the support of a majority of residents. What does California offer as a model for other states (and perhaps the federal government), and what are some caveats?
Certainly, California has an enormous range of problems, starting notably with the price of housing and the shortage of housing and our inability to think about how to house our public. But I chose California as one of my liberal democracy models for a number of reasons. One was I was getting increasingly worried about the United States as a liberal democracy, having been through the first Trump administration and fearing a second one. And the second is, the United States is just so big, and the policies are so varied, that California is the fourth largest economy in the world. As one of the highest functioning, genuinely multiethnic democracies in the world, it seemed like an interesting comparison point. It’s about the same population as France and is bigger than Norway, which is another country I talk about.
What I love about California is, particularly back from the Pat Brown era, this level of statewide ambition to build: to build out the University of California system and the whole California higher ed system, to build out the infrastructure to preserve enormous amounts of public land. It’s one of the great things about California, as opposed to, say, France, that beaches are, by and large, publicly accessible. In France, particularly the lovely beach areas in the south and along the Mediterranean, there’s almost no access. It’s almost all privatized. Despite a history of being created by robber barons and of being a font of corruption for centuries, California made these big commitments to its public.
Even in these dark times, one of the moments of hope in the book is about trying to bring the Norwegian model of prisons to the United States. California’s had this model with the fire camps that is as close to the Scandinavian open prison model as I think the United States has. It’s one that has its share of problems — they’re underpaid and underprotected for the work they do, but it’s a part of the California prison system that, to some degree, recognizes the humanity and the inclusion in the public of inmates and sees that many of them want to want to serve, want to work, want to feel useful, and their work is incredibly valuable. So there were a lot of aspects of hope that I think we can find in California, even with the problems we have.
Speaking about the prison model in California, the state in recent years has swung from a very punitive, ’90s-style system to a system that’s intended to be more oriented toward equity and justice. Is that an example of something where you would say the influence of the public and the change in the way the public feels is a reason why that changed?
There are a lot of interesting questions, and I don’t know all the answers. My colleague Jon Simon would have better answers about why California embraced decarceration as enthusiastically as it did. It did so partly at the point of a Supreme Court opinion, but (Gov. Gavin) Newsom has seized it. I’ve been taking students on visits to San Quentin for 25 years. The first visits there, I felt, were incredibly important, because we need to see what’s being done in our name, and they were really depressing for all of us. You’d see people who had no prospect of parole, who were being trained for jobs they would never have, who were living in fear and hopelessness. And although material conditions at San Quentin are still not great, and COVID was a terrible time there, the reopening of parole, the creation of a lot of job programs, and a lot of investment, it’s transformed the lives of inmates there, and provides a of beacon of hope for decarceration.
I’m sure Newsom is following the public, and the public grew disgusted with mass incarceration in California, and other states too. I think that’s a case where a kind of public conversation was perhaps stirred by some of the referenda we have on crime policy.
As I talk about in one chapter, I have mixed feelings about our referendum system of politics, which I think can pass the buck on complicated institutional questions from the legislature to voters. But it can also engage the public in broad, shared conversations about big moral and political questions. The referenda do stimulate a kind of public conversation, a public improvisation, that’s led us in the right direction. The discussions taking place everywhere now, in coffee shops and at dinner tables, on the radio and in the newspapers, about the redistricting referendum are a good example of this improvisation.
Another example of improvisation is the current talk of soft secession among blue states and the formation of the West Coast Health Alliances — these are state-level publics, formal ones in this case, improvising in response to the failures of a national public health system. And in the book, I talked about the erstwhile Western Climate Initiative carbon-trading system, which is now just California and some Canadian provinces. They’re trying to improvise a new form of climate publics.
I know you’re trying to reach a broader audience with this book, but it is deeply rooted in philosophy. What are the main traditions and theories you’re talking about, and setting off against each other?
The philosophical model I prefer is one that comes out of what’s generally called the Kantian tradition, but the key figure is really John Rawls, whose Theory of Justice set out some of the most powerful arguments for building a public that takes equality, freedom, and democracy seriously. This tradition insists on not simply aggregating people together into a giant lump of aggregate utility, but also says that a country is happy and thriving when people have the kinds of individual lives that give them meaning, that allow them to have the families they want, that allow them to have meaningful work, that allow them to build shared institutions. I like the richness of the model of politics that this Rawlsian tradition provides.
My criticism of the Rawlsian tradition in the book is that it leaves things pretty under-specified, and there’s only so far you can go in thinking in very broad theoretical terms about what a just state is at this very broad philosophical level. I think that kind of the Rawlsian engine, the orientation of it, needs to be married to comparative politics, to look at the kinds of improvisations and experiments different places actually engage in.
There’s a third element which is vaguely Kantian that’s been a theme of my own work for 30 years, which is this idea that each of us has, in a way, two selves. We have an individual self or private self that’s worried about what’s in it for me. And then we have a collective self — we feel this very strongly as part of a family and as part of institutions we identify with. We feel this as part of nations and teams and unions and clubs, and often these things are in conflict. We need to do this, but it would be better for me if I didn’t show up for the rally, didn’t pay my dues, and so on. That’s a kind of standard conflict, but the overarching theme in my book is we have to be true to both the “I” self and the “we” self.
This book is about building out these “we” selves, these collective actions. I think the underlying message of a lot of Kantian theory is that taking seriously the fact of our moral equality — the fact that each of us is no better and no worse than anybody else — means being in solidarity with people. It means thinking about us as in this together, and knowing that we have to value others as we value ourselves.
You just hit on something which I think is extremely salient for this political moment right now. It does seem as though there’s a gulf between people who seem motivated by the public good and people who refuse to be. Obviously, there are other societies that have been through this and other other examples from history, but from your perspective, where’s the way back from that?
I think things are cyclical. It’s not an accident that one of the largest protest and mass movements in American history, the Black Lives Matter marches of June 2020, took place during COVID, when people were feeling very alone and very scared but also craving this connection. You had some of the most multiracial, cross-class protest marches in American history. My conservative Republican relatives were marching for racial justice. Later, there was a backlash to that, which we’re seeing now. People can rise together and create some change, and then there will be a response to that.
The main theme of the book, in a way, is we should start with the public. We are public creatures. We live in political states. We live surrounded by public power, and the question is how we use that power. We may often want to use that to empower individuals in their private lives to do all sorts of things, but to say that something is private is the conclusion of an argument about what the state allocates and doesn’t allocate — what we, as a collective, allow people to do. What kind of world do we want to make for ourselves? I’m glad to live in a world in which, at least in California, women get to make the decision about whether to reproduce for themselves. We want lots of privacy and lots of things to be private, but these are parts of shared decision-making.
You lead off the book’s conclusion with an extended anecdote about the Free Speech Movement at Berkeley. What are some of the lessons we can learn from those protests, given the politics that protests have kind of become embroiled in, regardless of their subject matter, in the ensuing decades?
The Free Speech Movement was this moment when students shook off the shackles of just being students. They decided to be citizens first and insisted on their constitutional rights. As I mention in the book, my wife’s parents were both very active in the Free Speech Movement, and there’s a family lore behind this, and it’s something I’ve taken great pride in recognizing as a member of the faculty here. I have loved learning from my senior colleagues Dick Buxbaum and Bob Cole about their roles in the movement.
People blame “radical faculty” for supposedly brainwashing their students, but I think social and cultural change in universities has always come from the students. Faculty are trying to keep up and not be too uncool. For me, the main lesson that comes out of the Free Speech Movement is that in a healthy community, in a healthy public, the public gets to say what kind of place we are. And Berkeley became a place that was not only about learning in the classroom, but learning in Sproul Plaza, learning from each other.
There’s an earlier chapter which has me complaining about the new French universities, which are built on this neoliberal paradigm that the university is an instrument to create Silicon Valley instead of its being a real, living, vibrant community. In a way, that’s the sort of meta lesson from the Free Speech Movement: You need to create the conditions in which people can define for themselves what kind of institution they want, and ideally you’ve got lots of continuity in that. Berkeley did not cease to be a place of great learning, but it became a place of real political energy as well, and has been so much the better for it.
You’re someone who’s trained as a philosopher and as a legal scholar. What do you think putting those two disciplines together does for your scholarship and your perspective? And what has it meant to spend your career among so many other scholars with interdisciplinary training and academic interests, not just at the law school but at the university?
I think having both those degrees helps me think through problems in the world. I get the advantage of the broader philosophical orientation and the insistence on general principles and on deeper explanations, but I also get a more detailed knowledge, and I’ve found that I rely on that throughout my life for thinking about these issues.
Being at JSP has been an incredibly good thing as well, because I have an academic background in philosophy, but I’m surrounded by colleagues who are sociologists and political scientists and historians. I learned from them all the time, and the kind of work that they do and that I read excites me to try to at least bring in as much of those perspectives as I can. Being married to a historian also helps.
It’s psychologically double-edged, because it makes me realize how little I know. But I get the benefit of their learning and they push me to ask newer, better questions. I think it’s enriched my work enormously to have the colleagues I have.
I love the fact that California has put so much taxpayer money into English literature and Icelandic poetry and philosophy as well as science and technology. I think it’s a beautiful thing for a public to be invested in knowledge. In a way, this book is a celebration of a lot of California institutions and some suggestions for how they can work better. I don’t want my audience to only be Californians, but I think Californians can read this with excitement and with interest to figure out how we can keep making our state better and better.