Volume 1, No. 10 (December, 1991), pp. 134-137
THE FATE OF LAW by Austin Sarat and Thomas R. Kearns (Editors).
Ann Arbor: The University of Michigan Press, 1991. 290pp. Cloth
$32.50.
Reviewed by Ira L. Strauber, Department of Political Science,
Grinnell College
The theme of THE FATE OF LAW is that feminist and post-
structuralist writing has forced legal scholarship into a
critical intellectual and political turn. The five essays in this
volume share the conviction that this turn requires strict
scrutiny of all "claims of neutrality or objectivity in law
and legal theory" (Sarat and Kearns 1991, 3). They differ,
however, on the political and legal implications of their
scrutiny. Whether one has made this critical turn or not, readers
will find the authors' attempts to make sense of the critical
turn provocative.
Martha Minow's opening essay anticipates the central themes of
the volume by describing a deep skepticism about the objectivity
of the rule of law, the determinacy of legal reasoning, the
dependability of rights-talk, and conventional understandings of
relations of self and politics. All the authors share this
skepticism; where they differ is on what to keep and what to
reject of traditional legal theory, and the extent to which law
is politically trustworthy.
For Minow, indeterminacy -- "honestly" reflected upon
-- has the potential to make for more socially efficacious legal
arguments and results. "Honest" arguments require the
willingness to accept the intellectually and emotionally
disquieting possibility that there are no right answers in law
because there are no incontestable legal authorities. Instead,
adjudication will be characterized by many versions of "the
law" which arise out of the "neverending permutations
of the multiple and inconsistent values of this society"
(pp. 38-39).
Minow argues that this kind of pluralism need not degenerate into
nihilism and relativism, for it is just as possible to
reconstruct rationality under new conditions (e.g.,
"ideal-speech" conditions, or "interpretive
communities"), or to mount relentless attacks against
powerful patterns of discrimination and oppression (even absent
the hope of success). Minow herself advocates a third
alternative: rejecting grand theories of law and asking
"different questions" which take nothing for granted
about relations between knowledge and power.
Asking different questions, she says, requires acquiescence to
constantly shifting lines of debate over the traditional issues
of law and politics, as well as acquiescence to the inevitability
that all the "stories" we tell ourselves about law and
politics are "partial." Minow predicts that the result
will be what she calls stories of "insiders"and
"outsiders." "Insiders" argue about more
global issues such as whether it is unceasing criticism or social
transformation that ought to be the focus of attention.
"Outsiders" (i.e., feminists and minority scholars) do
that too, but argue from a multitude of local political positions
(comparable to what "outsiders" leave out), taking on
more context-specific problems and solutions.
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All together, these stories add up to the realization that
"there is no one reality, no one version of the truth...[and
that] the task is to seek out the many truths" (p. 62).
"Outsider" stories in particular, Minow hopes, will
serve egalitarian ends by encouraging everyone to ask harder
substantive questions "about what to accept and what to
resist" (p. 67).
I would add that Minow's ultimate defense against relativism and
nihilism is the belief that both "insiders" and
"outsiders" will be constrained by a sense of legal
craft, intellectual integrity, and the willingness to make
substantive value choices. If the authors of this volume are
representative then there is some foundation for this belief.
Boaventura de Sous Santos writes that contradictions inherent in
the cultural presuppositions of modernity and capitalism render
social knowledge inevitability local. So, like Minow, Sous Santos
accepts the idea that paradigm shifts in cultural norms explain
the inevitability of the critical turn. To reduce a rather
complex argument, Sous Santos argues that modernism
(characterized by the rationalities of State, market, community,
and art/science/technology/law) is internally contradictory and
its promise thereby is unfulfilled. Modernism precedes capitalism
but will not outlive it, and in the process of its disintegration
reveals its own failures. As it disintegrates thought realizes
itself only as multiple knowledges: "against knowledge it
creates knowledges, and against knowledges,
counterknowledges" (p. 101). (Though worth the effort, this
essay may prove rough going for those unfamiliar with, or
disdainful of, this style of philosophical argumentation.)
For Sous Santo the cure (such as it can be) is a "socio-
aesthetic imagination lodged in emancipatory everyday
practices" (p. 102). As I understand it, this imagination
sets itself to struggle with issues of political agendas and
agencies. It seeks to determine what efficacious political action
might be in the face of capitalism and the decline of modernity
by asking questions about things like what the shared central
issues ought to be and how to engage in social action without
capitulating to the forces of the State and capitalism. These
questions seek answers in both "global" arguments
(which I presume means the style of philosophy represented by
this essay) and local ones (context specific considerations of
the household, workplace, citizenship, and nationhood).
Obviously, this echoes Minow's recommendation for multiple
political interpretive communities. For Sous Santos it also means
that legal studies ought to repress the idea of law as a coherent
system of thought and action, thereby resisting the domination of
the State in the name of socialism and democratic rights-talk,
and ever cognizant of the plurality of context-specific
conceptions of legal orders and of political struggles.
Robin West is also concerned with relationships between knowledge
and political power, but her account is less abstract than Sous
Santos' and, like Minow's, more focused on legal studies per se.
West too stresses that if the critical turn requires abandoning
"reason" (i.e., traditional philosophy and
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social science) it does not mean necessarily "giving
up" on social criticism as well. For West the central
question is where should legal scholars turn intellectually for
"disciplined" studies of self and society. Like Minow,
West recommends an outsider's story, and along the way posts some
warnings to insiders about the difficulties of constructing and
maintaining a truly critical turn. More specifically, West takes
great pains to analyze connections between inter-disciplinary
legal studies and a critical turn. The sum of the argument (which
I cannot do justice to here) is that such studies fail to resist
"legal authoritarianism" -- the tendency of legal
arguments to be self-referential by constraining arguments within
law's own terms, expressions, and values. More specifically,
whatever the significant differences between them, the
interdisciplinary studies of law and economics, and law and
humanities, both share in the taken for granted legal rationality
that there is no way to compare subjective value preferences,
whether they be economic experiences or competing conceptions of
community.
As a result, West says, legal arguments are reduced to merely
different versions of legal power against legal power. To avoid
that West claims that academic disciplines and the primacy of
reason should be displaced (although not rejected altogether) for
the sake of "nonrational, irrational, or arational, ways of
knowing the subjectivity of individuals or of communities"
(p. 152). (In that regard, I note without further comment that
Solicitor General Starr argues that the Lemon test for
church-state relations is "unsentimental" when it comes
to the nation's religious heritage).
Stanley Fish's essay also reflects on the intellectual
presuppositions of legal reasoning, but he casts doubt on the
role it can play in social transformations. He has a version of
legal authoritarianism -- the law's formalism -- which depends,
he says, upon argumentative rhetorics which reject the
intellectual authority of any criteria other than its own. Thus
moral reasoning and interpretative analysis are epistemological
enemies of the law because they threaten law's intellectual
self-image of autonomy and privilege.
Like the others, Fish agrees that the law cannot resist being
intrinsically indeterminate. Fish describes how lawyers and
judges confront the pragmatic necessity of coming down on one
side of a legal interpretation or another, and how the need to be
persuasive often requires reaching for criteria outside legal
reasoning, even though legal formalism requires that any such
criteria be embedded in arguments so as to appear as if they are
really within the law. Then lawyers and judges are simultaneously
evading formalism (because moral interpretations about
"deep" and tacit assumptions for normative,
institutional, and behavioral visions of what life is or should
be like are inevitable) and confirming it by hiding the role of
interpretation. The result of this is what Fish calls
"efficacious formalism," the capacity of law to
generate out of its own materials and tacit interpretations
(which it otherwise resists) multiple interpretations of itself.
Thus law's indeterminacy allows it to "forg[e] its identity
out of the stuff it disdains." (pp. 175, 179).
Fish then argues that because law is a results-oriented activity,
it closes out any broader or deeper
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transformations of itself than that which pragmatism
necessitates. For that reason, Fish takes pains to distance
himself from those who argue (e.g., Steven Burton, James Boyd
White) that the law is capable of transforming itself in the
sense of discovering or fundamentally revising values. That, Fish
says, is not the law's business. With that claim Fish distances
himself from the others by suggesting an unbridgeable gap between
the legal scholar's critical turn and the function of litigation
and adjudication.
The concluding essay by Sarat and Kearns reflects on the way
jurisprudence marginalizes its own violence and coercion.
Indeterminacy, the authors argue, makes it evident that legal
rules do not determine results. They assert that because law
provides no criteria for determining that one judgment is better
than another the centrality of force cannot be denied. They fear
that any critical turn that does not cast a critical gaze on
legal violence will not see the extent to which law is an
instrument of physical and emotional coercion, and thereby will
be complicit in the structures of hierarchy, inequality, and
oppression.
As I read it, the blame for this complicity falls on the
philosophy of jurisprudence; specifically HLA Hart's re-working
of Austin's positivist jurisprudence (with its central concern
over the Hobbesian connection between force and law). Since Hart,
jurisprudential studies are trapped by ubiquity of rhetorical
appeals to reason, which make force and coercion oblique as
"an affair of the mind rather than the body" (p. 235).
(Here again is an implicit challenge to the other essays.)
Not that they recommend giving up on the role of reason (and
rules) in law; rather they argue for putting the burden of proof
on reason by "focus[ing] on the disparate experiences of
ordinary citizens and various legal officials, especially on
understanding how pervasively the law's violence constructs their
self- perception, influences their motives and dispositions, and
determines what they are disposed or ill disposed to do" (p.
267). Only such local arguments about violence will, the authors
conclude, provide the kind of jurisprudence necessary to
determine the extent to which reason not force actually controls
law and society.
In summary, all the authors share in the concluding message of
Sarat and Kearns that "a jurisprudence...divorced from human
experience can have little claim to our allegiance, either as
theorists or as ordinary citizens" (p. 272). There much that
they do not share however, and readers will find much to disagree
with as well. The virtue of this volume is the opportunity it
provides to reflect on central issues of law and politics, and it
is worth repeating that one does not have to subscribe to the
critical turn to benefit from the arguments raised here.