Beyond All Reason: The Radical Assault on Truth in American Law
Beyond All Reason: The Radical Assault on Truth in American Law
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| ISBN-13: | 9780195355437 |
|---|---|
| Publisher: | Oxford University Press |
| Publication date: | 10/30/1997 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Lexile: | 1400L (what's this?) |
| File size: | 320 KB |
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CHAPTER ONE
Radical Multiculturalism and Its Discontents
Postmodernist theory ... is often ponderous rather than playful, and its jargon-filled texts are opaque to all who have not been socialized into its vocabularies. While it derides the idea that American universities should be outposts of British culture, it often has the effect of trying to transform them into the retail outlets for the latest Paris fashions.
--DALE JAMIESON
The past twenty years have been a time of great ferment in the academy. An approach sometimes labeled "deconstruction" has swept through universities, altering the landscape in discipline after discipline. The goal of the deconstructionist is to expose, or deconstruct, the underlying subjectivity and indeterminacy of everything we thought we knew. Radical multiculturalists adopt this approach, attempting to deconstruct such fundamental concepts as truth, merit, and law.
In scholarship, as in politics, one of the most common sins is to mischaracterize an opponent's position in order to attack it. In the hope of avoiding that failing, we use this chapter to make good on our claims about the positions taken by the radical multiculturalists. To avoid distorting their views, we present their views using their own language whenever possible, either by direct quotation or by integrating some of their distinctive language into our own prose. In the interest of brevity and readability, we have limited many of the direct quotations from their works to a single sentence or less. Readers who are concerned about whether the quotations are taken out of context should keep in mind that we are not quoting a few isolated statements that might have a different meaning in context, but rather a constant theme repeated by many authors and in many different sources. For readers who want to investigate the radicals' writings more fully, the endnotes provide citations for every quotation and paraphrase. Additional documentation of the views of the radical multiculturalists is also found in later chapters.
Although we refer to these scholars as multiculturalists, they represent only the most radical wing of progressive multiculturalist scholarship. The unique features of this radical wing have been variously described. The philosopher Charles Taylor distinguishes conventional multiculturalists, who presume that all cultures "have something important to say to all human beings," from radicals who demand "actual judgments of equal worth" for every culture. Diane Ravitch draws a similar distinction between pluralistic multiculturalists, who seek an inclusive common culture, and particularistic multiculturalists, who "insist that no common culture is possible or desirable." According to sociologists Stephan Fuchs and Steven Ward, a similar difference exists between conventional and radical deconstructionists: while the former challenge "only certain moves of certain competitors," the latter want to "play a different game altogether." Law professor William Eskridge, a leader of the gaylegal studies movement, explains that the difference is between people who would "create new and better stories that fit safely within the system of prior narratives" and others who "tear up the manual and start writing anew."
The common thread in all these descriptions is that the radicals would jettison our inherited culture in its entirety in the name of empowering the downtrodden. While we focus on somewhat different aspects of culture, we use a similar distinguishing feature to identify radical multiculturalists: dissatisfied with incremental change, they attempt to overturn the foundations of American legal thought.
The Origins of Radical Multiculturalism
The radical multiculturalists are located at the intersection of two intellectual trends. They are, first, indirect heirs of the legal realist movement that swept American laws schools from the late 1920s into the 1940s. Spearheaded by such luminaries as Karl Llewellyn at Columbia, and Jerome Frank and Morris Cohen at Yale, the legal realists attacked the formalist notion that law embodies neutral, general principles derivable from cases. The legal realism instead contended, in the words of one commentator, that "law is always the creation of some specific lawmaker, whether legislator, administrator, or judge, and it usually reflects the policy predilections of that lawmaker."
The realists contended that legal doctrine was both indeterminate and incoherent: "For each legal rule that led to one result, at least one more rule pointed toward another result." Thus Walter Wheeler Cook of Johns Hopkins remarked that "legal principles--and rules as well--are in the habit of hunting in pairs." Cook argued that two accepted but conflicting principles can always be construed to apply to any given case. Llewellyn similarly maintained that in interpreting statutes, "there are two opposing canons [of construction] on almost any point." By way of illustration, he listed twenty-eight pairs of contradictory principles of statutory interpretation that had been used by courts and set forth in treatises.
The realists suggested that judges are actually guided by subjective value choices, which are justified and rationalized in their "neutral" written opinions. The intense concern about the possible ideological tendencies of recent Supreme Court nominees shows that these realist ideas are now broadly accepted. But as anyone who follows the Court's work closely can testify, ideology is actually by no means the whole story; legal arguments can make the critical difference in decisions.
Although they believed that legal rules are indeterminate, the realists did not advocate that judges give free rein to their own biases. They suggested that the empirical social sciences should fill the void left by the realist attack on formalism. Instead of the formalists' "artificial logical concepts," realists urged reliance on scientific expertise and empirical data. Robert Maynard Hutchins, a prominent legal realist at Yale who later became the president of the University of Chicago, wrote that scholars ought to do empirical studies to investigate the actual "operation of legal rules." Indeed, one scholar has recently characterized the heart of legal realism not as what realists believed but as what they did: empirical legal research.
There was thus an affinity between legal realism and the contemporaneous political events of the New Deal. There is some dispute about the extent to which New Deal lawyers actually put legal realism into practice, but there is little doubt that New Dealers and legal realists shared an emphasis on efficiency, empiricism, and expertise. For all their rejection of formalism, then, the legal realists were not as much interested in societal transformation as they were in efficiency. It was left to the critical legal studies movement (popularly known as CLS) to turn the realist insights to progressive political goals several decades later.
Even before CLS, however, legal scholars wrestled with the implications of legal realism. If legal principles are infinitely flexible and decisions depend on what the judge had for breakfast, "law" is just another name for arbitrary discretion. Teaching and writing about rules of law become difficult, frustrating, and ultimately irrelevant activities. In the 1950s and 1960s, legal scholars ultimately restrained the insights of legal realism by focusing on the need for orderly processes to decide legal issues, rather than on substantive legal rules. Herbert Wechsler at Columbia--once a stronghold of legal realism--was a leading proponent of process theory. In his highly influential 1959 article, Toward Neutral Principles of Constitutional Law, he argued that judges must be prepared to explain their decisions by reference to principles that "transcend the case at hand." Unlike legislators, courts are not free to function as "a naked power organ"; they must instead engage in a principled judicial process. "A principled decision," wrote Wechsler, "is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved." Formalists had demanded that decisions apply clear rules announced in advance. Process theorists were willing to live without clearcut rules and were prepared to settle instead for a fair process of decision making and a principled explanation for the ultimate decision. For process theorists, a fair hearing before an unbiased, principled tribunal is the best we can reasonably expect from the legal system.
Wechsler's article simultaneously helped put to rest any remaining realist sentiments within the legal academy and posed a new problem. For Wechsler went on to apply his theory to the Supreme Court's then-recent decision outlawing segregated schools. That case, Brown v. Board of Education, decided in 1954 by a unanimous Court, provided Wechsler with the "hardest test" of his "belief in principled adjudication." Despite his fondness for the result, he found Brown an ultimately unprincipled decision. Blacks wanted to associate with whites, but many whites did not want to associate with blacks; how could a court choose which side to favor? No neutral principle could justify choosing between the freedom of association denied to blacks by segregation and the "repugnant" association forced on whites by integration. Constitutional scholars would spend at least the next twenty years trying to extricate Brown from Wechsler's critique without undercutting his rejection of legal realism.
The failure to formulate a satisfactory version of legal process theory led, perhaps inevitably, to a recycled legal realism. But the CLS revival of legal realism, which began in the late 1970s, differed in several ways from its predecessor. First, as we noted earlier, CLS critiques of law were focused on progressive--even radical--political change rather than on efficient government. Critical legal scholars also recognized and exploited a contradiction within legal realism. As historian G. Edward White has explained, the realist practice of exposing the incoherence and indeterminacy of legal rules conflicted with their attachment to empirical social science: "Why did they assume that while arguments based on legal doctrines were necessarily value laden, arguments based on empirical observation could be value free?" Critical legal scholars abandoned the latter assumption, uncoupling the realists' link between indeterminacy as the problem and social science as the solution. They adopted only the indeterminacy half of the realist program, leaving behind as naive the realist reliance on objective empiricism.
Thus, CLS scholars tended to embrace some of the nihilistic potential of legal realism, which the realists themselves had mostly avoided. Mark Tushnet (one of the founders of CLS), for example, once wrote that "critique is all there is." CLS scholars often focused on what came to be known as the "indeterminacy thesis": that "a competent adjudicator can square a decision in favor of either side in any given lawsuit with the existing body of legal rules." Thus, a sufficiently smart judge (or a judge with sufficiently smart law clerks) can always justify deciding a case either way. He can always twist the law enough to justify his decision. Much of CLS scholarship was aimed at deconstructing legal doctrine to show its indeterminacy.
One frequent CLS target was the liberal idea of individual rights, which CLS scholars sought to show were unintelligible. In his 1984 Essay on Rights, Tushnet suggested that any appeal to individual rights is a "masquerade." The masquerade is sometimes successful, he continued, "because the language of rights is so open and indeterminate that opposing parties can use the same language to express their positions." Reliance on rights is also dangerous, Tushnet argued, because the same rights that operate on the side of the angels in one case can be used against them in the next case. He gave as an example the extension of the right of free speech to include advertising. The Supreme Court had first invalidated a ban on price advertising in the drug industry, arguing that it deprived consumers of useful information. But in the very next commercial speech case, Tushnet observed, the Court struck down government attempts to help consumers; the Court invalidated limits on the speech rights of a monopolistic utility. The right that seemed so progressive in the first case was turned against progressive causes in the second. Peter Gabel, another critical legal scholar, denounced rights as part of "an ideological framework that coopts [people] into adopting the very consciousness they want to transform." Envisioning individuals as holding rights necessarily presupposes the existence of the government as the grantor of rights, Gabel argued. Thus, he said, the idea of rights subtly "establishes the presumptive political legitimacy of the status quo."
This "trashing" of rights had its critics among political progressives. The failure of CLS to recognize the real gains that individual rights theories produced for women and people of color led to a somewhat uneasy alliance between those groups and CLS. As Columbia law professor Patricia Williams, who helped inspire what eventually became critical race theory, put it in 1987: "'Rights' feels so new in the mouths of most black people. It is still so deliciously empowering to say." Kimberle Crenshaw, another prominent critical race theorist who is now a colleague of Williams at Columbia, suggested the next year in the Harvard Law Review that CLS's "`trashing' rights consciousness may have the unintended consequence of disempowering the racially oppressed while leaving white supremacy basically untouched." Discontented with CLS doctrine, progressive lawyers were also frustrated at the legal system's resistance to drastic social change. Eventually, their dissatisfaction ripened into the beginnings of the new radical multiculturalist movement.
Some straight white males also moved from CLS into the emerging radical groups. Although relations between CLS and the new groups were mostly cordial, the split did occasion some vituperative rhetoric on both sides. New radical and Georgetown Law School faculty member Gary Peller lambasted his colleague Mark Tushnet as "conservative" and "part of a larger group of white male progressives for whom the recent influx of minority and feminist scholars into legal education has been a source of anxiety." Tushnet responded by suggesting that Peller's attack contained an "oedipal element" compounded by Peller's insecurity about whether his contributions measured up to those of the older generation of CLS. More mildly, one critical race theorist chastised her CLS predecessors because they "exhibit the same proclivities of mainstream scholarship": they "seldom speak to or about Black people."
Like most parents and children, CLS and its progeny share some characteristics and differ in others. While CLS and the newer movements share a left-leaning or progressive political outlook, the new movements tend to have a narrower focus. Where CLS deconstructed every part of the law--one of the most famous CLS articles is on eighteenth-century legal scholar William Blackstone and another is on contract law--the new radicals concentrate on race and gender issues, and particularly on how the law creates or contributes to unequal power relations.
Critical race theory, according to Crenshaw, "focuses on the relationship between law and racial subordination in American society." Another prominent critical race theorist, Richard Delgado, lists eight themes of critical race scholarship, including "the belief that knowledge and ideas are powerful," a "critical examination of the myths and stories powerful groups use to justify racial subordination," and "criticism of liberal legalisms." He also asserts that critical race scholars must be ready to question the premises of civil rights law and to examine how legal doctrines impede reform. Other theorists assert that radical feminism is similarly an "attempt to describe and critique patriarchal jurisprudence." Likewise, gaylegal studies "investigates a particular but pervasive phenomenon that transcends multiple fields of human identity, experience, and knowledge and that negatively impacts all of our lives and many of our laws."
In addition to their focus on race, gender, and sexuality, the new radical multiculturalists expanded the core ideas of CLS by emphasizing the thought of French postmodernists such as Michel Foucault and Jacques Derrida. This meant extending the insight that law is socially constructed into an argument that everything is socially constructed. Peller describes this extension as the crucial difference between old and new radicals: "When left academic politics were about demonstrating how misguided mainstream scholars were--how much smarter the left was--critical legal studies and similar organizations were comfortable places for this left faction. Now that the agenda has begun to consider the social construction of intellectual merit itself, many likely feel threatened."
Although CLS was mostly interested in indeterminacy as a way of threatening law's legitimacy, the new radicals were more concerned with how indeterminacy conceals racism and sexism. This view had its roots in another strand of CLS scholarship. Although CLS scholarship had often focused on the inevitable incoherence of legal doctrine, some critical legal scholars also suggested that indeterminacy allowed judges to combine progressive-sounding rhetoric with oppressive results. Thus, legal discourse "conceals and reinforces relations of domination." The late Alan Freeman, for example, argued in one of the earliest CLS articles that antidiscrimination law actually undermined the cause of racial equality and legitimated discrimination.
The radical multiculturalists focused on this legitimating function of law, finding confirmation in Foucault's writings. Where some had found doctrinal incoherence, the new radicals found instead a deliberate concentration of power in the white male establishment. Law (as well as everything else) is constructed by the powerful to maintain and enhance their own power. Derrick Bell, for instance, argues that Brown v. Board of Education actually served the interests of whites at least as much as it furthered the interests of blacks. Indeed, he contends that as a general matter, "the interest of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites." Radical feminist Robin West contends that our legal, political, and social cultures are "pervasively misogynist." The radicals thus focus on the roles played by race and gender in the social construction of reality. Their mission is to expose the specific power relations that underlie legal doctrine and practice.
The Social Construction of Reality
The radicals' core beliefs go by many names: social constructionism, postmodernism, deconstructionism. Don't let all the isms fool you; their basic theory is both simple and astoundingly powerful. Stated baldly, their thesis is that reality is socially constructed by the powerful in order to perpetuate their own hegemony. As one radical feminist puts it, "feminist analysis begins with the principle that objective reality is a myth." Before you respond that this must be nonsense--that, as the philosopher John Searle notes, Mount Everest exists and is covered with ice and snow at its peak independent of human action or perception--let us explore the more particular claims of the radicals. Most of them, after all, are entirely uninterested in the climatic conditions of Mount Everest, and while their theory might require them to deny the peak's objective reality, they have no particular stake in doing so.
What they do have a stake in is making claims about social aspects of the world. Here their claims have greater plausibility. The statement "Mount Everest has snow at its peak" is different from the statement "Farber and Sherry have written a careful and scholarly book," or even the statement "Farber and Sherry are law professors." It isn't simply that a value judgment creeps into the middle statement that isn't present in the other two. Neither statement about the authors makes sense in the absence of particular human institutions: universities, law schools, scholarly books (as opposed to novels, collections of cartoons, or tabloid articles), standards of judgment about appropriate levels of care, and even what it means to "write" a book (which may or may not include using a pen or pencil, and may attribute authorship to only a limited subset of those who contribute to the final product). In that sense the statements necessarily reflect, at best, only a socially constructed truth.
But, as Stanley Fish among others has suggested, that reality is socially constructed doesn't tell us much by itself: "If everything is socially constructed then the fact that something ... is socially constructed cannot count as a reason for dismissing it." Tables are socially constructed--they're never found in the wild--but they're certainly real. What difference does it make that reality, or any particular part of it, is socially constructed?
Here is where the radical multiculturalists, drawing on Foucault and other modern French thinkers, make their most significant claims. Foucault at times suggested that underlying what counts as objective knowledge is a power relation, one category of people benefiting at the expense of another category of people. The radicals thus see the social construction of reality as a device to reproduce and perpetuate existing hierarchies. Derrick Bell, for example, writes that "law--and by extension, the courts" are "instruments for preserving the status quo" and only "periodically and unpredictably" serve as a "refuge of oppressed people." Our particular American reality, for Bell, is neither random nor generally benign and adaptive: it is constructed so as to benefit those currently in power. Thus it is no coincidence that Wechsler's call for neutral principles coincided with a defense of segregation: our social practices are constructed in such a way that support for the oppressed is perceived as non-neutral. To be neutral is to side with oppression, which is built into the very order of things.
The beneficiaries of this covert oppression are usually described as straight white males, or, more pompously, as "the white male establishment." Everyone else is either a victim, a collaborator, or an unwitting dupe. The background assumption of the new radicals is well stated by Richard Delgado: "Racism is ... natural and normal--the ordinary state of affairs.... It is the 'normal science' of our day, part of the baseline, the from-which-we-reason. Conversation begins with racist premises." Jerome Culp also finds racism both pervasive and the root cause of all social ills: "Without the racism of The University of Chicago and Northwestern and Duke University, Cabrini Green cannot exist."
Radical feminists take an analogous approach: "With the tools provided by social constructionism, feminists have uncovered the deep connections between our culture's understanding of the human relationship to reality, on the one hand, and our culture's commitment to gender difference and gender oppression, on the other hand." The goal of the radical multiculturalists is thus to expose the racism, sexism, and other pathologies of accepted legal doctrines and social practices, and to suggest changes to help current victims.
Radical multiculturalists especially focus on and criticize such concepts as knowledge, reason, and merit. These concepts are both fundamental and seemingly unbiased; they claim a universal validity. All of them involve standards of judgment, which according to the radicals are socially constructed and culturally contingent, and thus suspect. As critical race theorist Alex Johnson writes, "the presumed norm of neutrality actually masks the reality that the Euro-American male's perspective is the background norm or heuristic governing in the normal evaluative context." Stanley Fish, a Milton scholar who holds a joint appointment in the law school and the English department at Duke, similarly contends that "like 'fairness,' 'merit,' and 'free speech,' Reason is a political entity," an "ideologically charged" product of "a decidedly political agenda." Justice, too, is substantively contentless; one critic of the radicals suggests that they view "talk of 'injustice'" as "a rhetorically disguised demand for capitulation."
The view that talk about justice merely masks group interests and dominance hierarchies is well illustrated by a passage in Derrick Bell's story, "The Space Traders." This passage, which we mentioned in the Introduction, deserves a closer look. Recall that the story's premise is that aliens offer white Americans great benefits in return for an agreement to allow the aliens to take all of America's blacks away. One of the few groups that courageously takes a stand on behalf of the blacks is the Jews, who denounce the alien proposal as genocidal and form a secret Anne Frank Committee to organize resistance. It all seems very noble, but it turns out there is a hidden agenda that has nothing to do with "injustice" and everything to do with keeping Jews from being at the bottom of the social hierarchy. As Bell explains, "A concern of many Jews not contained in their official condemnations of the Trade offer, was that, in the absence of blacks, Jews could become the scapegoats for a system so reliant on an identifiable group on whose heads less-well-off whites can discharge their hate and frustrations for societal disabilities about which they are unwilling to confront their leaders. Given the German experience, few Jews argued that 'it couldn't happen here.'" Or to put it another way, this purportedly noble claim on behalf of blacks is instead rooted firmly in group self-interest, and a rather ugly interest at that--for it appears that what the Jews really need is to be sure that blacks remain available as targets for white racism. Rather than wanting to rescue blacks from being held hostage by white society, the Jews really want to use them as human shields to fend off gentile attacks. So much for abstractions like morality and justice.
This wholesale condemnation of purportedly objective standards stems from the radicals' rejection of the very notion of objectivity. Objectivity itself is a sham, perpetrated by the powerful. Radical feminist Ann Scales describes "the process of objectification: the winner is he who makes his world seem necessary." Or, as another radical feminist puts it: "'objectivity' is only a cover for a male viewpoint." To claim an objective viewpoint is, at best, to mistake a particular for a universal truth. "There is," writes one radical multiculturalist, "no objective reference point, separate from culture and politics, available to distinguish truth from ideology, fact from opinion, or representation from interpretation." We can thus have no universal or common standards of judgment. Anything that masquerades as universal is merely a "mas[k] for the will to political power of dominant hegemonic groups." All "normative orderings ... reflect the views of the powerful," and all "standards are nothing more than structured preferences" of the powerful. One opponent accurately captures the radicals' beliefs: "Rationality, objectivity, accuracy and standards of intellectual quality and merit are slogans or masks of oppression designed to convince the oppressed that subordination is justice."
Catharine MacKinnon offers a succinct summary of the radical position:
If feminism is a critique of the objective standpoint as male, then we also disavow standard scientific norms as the adequacy criteria for our theory, because the objective standpoint we criticize is the posture of science. In other words, our critique of the objective standpoint as male is a critique of science as a specifically male approach to knowledge. With it, we reject male criteria for verification.
Or, as she puts it a few pages earlier, "the feminist theory of knowledge is inextricable from the feminist critique of male power because the male point of view has forced itself upon the world, and does force itself upon the world, as its way of knowing."
The Attack on Knowledge and Merit
At least since the Enlightenment, knowledge has been thought of as universally accessible and objective. Something counts as knowledge not because of its pedigree but because of its content. That the Pope or the president or the New York Times says it does not insulate it from challenge. Moreover, you and I can know the same thing. We can convey that knowledge to others, and we can be persuaded through reason to reassess what we know. Some things even count as "common knowledge."
Objectivity is a tricky concept. (Ask any philosopher.) In using the term objective knowledge, we have in mind something more modest than eternal, unchanging truth, or what philosophers sometimes call the God's-eye view of the universe. Knowledge as understood at any given time is not necessarily the same as ultimate truth. We sometimes think we "know" things that seem well-established but turn out not to be true, as when everyone knew that the sun revolved around the earth, or that chocolate caused hyperactivity in children. These things have since been disproved, and we now have knowledge of--or at least a very well-justified belief in--their converses. Knowledge is nevertheless objective in the sense that it reflects something beyond fiat or a parochial viewpoint. We would, for instance, tend to discount an unsupported statement by the chocolate industry denying any relationship between chocolate and hyperactivity. This is because we generally believe that there are independent standards for evaluating claims to knowledge and for mounting challenges to established knowledge. Moreover, these standards are crucial to our common vision of knowledge as both objective and subject to change. What keeps knowledge from being stagnant is its universal vulnerability to challenge. Objectivity is the aspiration to eliminate beliefs based on bias, personal idiosyncracy, fiat, or careless investigation.