Sunday, May 10, 2009

Iconoclasm of Law

I am reading Pierre Schlag's brilliant article, "Normative and Nowhere to Go" (43 Stan. L. Rev. 167 (1991), if you're interested). Now, I don't really know what I think about postmodernism, Derrida, Foucault, etc. I know that I don't buy their whole program, but I think they at least have important things to say to us. So I present to my non-existent readers the following from Schlag's article, because I think this passage (at 178-79) points at something important:
In short, [normative legal thought] cannot wait to tell you (or somebody else) what to do.

In fact, normative legal thought is so much in a hurry that it will tell you what to do even though there is not the slightest chance that you might actually be in a position to do it. For instance, when was the last time you were in a position to put the difference principle into effect, or to restructure the doctrinal corpus of the first amendment? "In the future, we should. . . ." When was the last time you were in a position to rule whether judges should become pragmatists, efficiency purveyors, civic republicans, or Hercules surrogates?

Normative legal thought doesn't seem overly concerned with such worldly questions about the character and the effectiveness of its own discourse. It just goes along and proposes, recommends, prescribes, solves, and resolves. Yet despite its obvious desire to have worldly effects, worldly consequences, normative legal thought remains seemingly unconcerned that for all practical purposes, its only consumers are legal academics and perhaps a few law students--persons who are virtually never in a position to put any of its wonderful normative advice into effect.*
The footnote ("*" here, "32" in the piece) reads:
The possibility that a significant number of judges might actually be reading significant quantities of this academic literature is undemonstrated and unlikely. The possibility that judges might actually be persuaded by this academic literature to adopt a position not their own is even more undemonstrated and even more unlikely.

The only kind of normative legal thought that might actually be having some significant and authentic normative efflect effect on judicial decisionmaking (and here again, it is difficult to know which way the causal lines would run) is the work of the treatise writers. But, this treatise work cannot really be seen as having much effect, since much of it is simply a reflection (an encyclopedic collection) of the modes of thought and norms already extant in the courts.

UPDATE: Incisive, brilliant, and witty. Best way to make a point:
What is truly wonderful about normative legal thought, then, is that it immediately compels people to take certain roughly predictable steps in the dialogic game: "You're evil." "No I'm not." And so on (except with more argumentative flourish).
43 Stan. L. Rev. 183. That is an absolutely accurate representation of the "dialogic game" involved in the torture debate, among others.

UPDATE 2: Last quote I'll add here, though there are many more worth putting up.
What [normative legal thinkers] all agree upon, in this implicit unexamined sort of way, is that they are all autonomous, rational, morally competent individuals who are having a meaningful, important, and effective discussion about how society or some subdivision thereof should be organized.

This pleasant fantasy is harmless enough, except that it reproduces legal academics and law students (and hence lawyers) in the image of humanist individual subjects. This, too, is a harmless self-indulgence, except that it provides instrumentalist bureaucracies with an absolutely marvelous and captivating rhetoric that defines, organizes, routinizes, and services their clientele. It's all really neat. 7-11 sells freedom (which you can find in their Slurpees). Pepsi brings you the downfall of the Berlin Wall. And normative legal thought guides the development of the law.
43 Stan. L. Rev. 190-91. Funny thing is, I'm pretty sympathetic to the liberal humanist vision of the individual subject, so this piece very much challenges the structure of what I identify as my system of beliefs. Particularly since I don't deny or disagree with much of what Schlag says in this article (although I also don't necessary accept or agree with all of it).

1 comment:

  1. Bamboozled, yes; non-existent, no.