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.