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Answering Schlag

Introduction


Pierre Schlag is a law professor at the University of Colorado. If you track down a picture of him, you'll find out that he looks like you would expect a guy named "Pierre Schlag" to look -- nattily groomed, goatee, etc.
He also writes like you would expect a guy named "Pierre Schlag" to write: he's a poststructuralist, of course, uses colorful language like "hungry ghosts," and has reached that pantheon of debate authors referred to by their last name alone as if that last name were the name of a position. ("What's my next-round opponent running?" "Oh, he/she is running Schlag.")
Stereotyping aside, Pierre Schlag is a scholar that draws on the work of others in the critical legal tradition and extends their critique in a variety of areas. His work has to do with the nature of the law, whether it can ever be relied upon to protect peoples' rights and freedoms - and whether the discourse of the law is itself productive.
Schlag also challenges people who find solutions to problems in the law, saying that "normative" or "prescriptive" discourse - ("we should do this to protect rights"; "we should do that to eliminate threats to freedoms";) - should be minimized or even eliminated. Rather than jump immediately to the solution step, we should spend more time analyzing the problems we wish to attack. Rather than just getting in the car and driving, Schlag claims, we should orient ourselves to see where the car ought to go first.
This has a variety of implications for debaters. Aside from the fact that most debate topics at least imply a relationship with the law, much of debater discourse is prescriptive. After all, of what use is social criticism if there is no action step attached to it? Though Schlag is writing predominantly for his colleagues in academia - professors of law, judges, lawyers, and the like - reading his work from a debate perspective makes it seem as if it were written purely for debate.
Some of the value from reading Schlag is simply to soak up his perspective on how legalistic discourse can affect people engaged in it. Some of the value comes from enjoying his hyperbolic and overblown prose.
But most of the value comes from learning how to dismantle his type of pseudo-intellectual psychobabble when your opponents read evidence from him. Not that I'm BIASED or anything like that.

Explanation Of Schlag's Arguments

Schlag's most famous argument is the Critique of Normativity, first advanced in his seminal essay "Normative and Nowhere to Go." Where other Critical Legal Studies authors merely indicted the system of law, Schlag pushed his chess-piece a square further: not only is the law at fault, our entire way of thinking, arguing and discussion is at fault for the problems of the modern age. That way of thinking he slapped a word on: "Normative." That's normative as opposed to descriptive: descriptive language being that which describes (duh) the conditions we face in an "is" statement as opposed to an "ought" statement or a "should" statement.



Some Initial Problems With Schlag

As is true with most positions, understanding Schlag's argument is key to defeating it. The internal consistency of positions as well as the context of their advocacy is one of the most fertile grounds for attack.


An example: Schlag saves his harshest criticism for courts and the decisions of judges. Debaters can argue persuasively that their cases/the resolution have little if anything to do with court action, and that making the analogy between court action and academic debate is fatally flawed. This can be a good starting point to attack the argument.
Something else to consider: a risk or probability analysis. Much of Schlag's claims center around the system's lack of efficacy. Specifically, Schlag derides the legal system's ability to protect rights and human freedoms.
An intuitive response, though, is that this presumes total bankruptcy of the system. Even if the system has only a .001 percent chance of protecting rights, isn't that preferable to just giving up? In the absence of some reason not to attempt action (i.e., a disadvantage to acting), isn't the mere propensity of change enough?
Schlag's response to this argument would be to reject the game of power altogether, saying that it is better to reject an unjust system than to delude oneself by believing that system to be solvent. This is an alternative that we will deal with below.
One of the other ways to attack Schlag as internally inconsistent is the fact that he, himself, is within the legal system he purports to critique. If he feels that legal discourse is so wrong and corrupt, why doesn't he stop writing articles for law journals and quit his lucrative tenured job teaching impressionable young students the law?
There is an offshoot to this argument that is also popular. It is to this offshoot to which we now turn.

Ways To Answer Schlag, Starting With Contradictions

The most obvious way to attack Schlag's critique of normativity is the way most debaters end up doing so. By making the (implicit or explicit) statement, "Don't be normative," Schlag (and the debater advocating his work) is hypocritical. The fancy debate term we sometimes hear for this is "performative contradiction," a term which has crawled out of the work of Jurgen Habermas and one which we'll address in a second.


Initially, let's make sure we understand the thrust of this response. Schlag's work admonishes and urges people "Don't be normative." Yet this statement is itself just as normative as the resolution or as the affirmative advocacy. If the statement "Resolved: violent revolution is a just response to oppression" is normative, or if the affirmative's policy implication is normative, then surely a course of action which advises the judge "You should vote negative" is just as normative as the affirmative, if not more so.
In fact, the affirmative can say, the sin the negative commits is worse -- they KNEW that normative thinking and statements were bad, and yet made them anyway. This is worse than the poor beleaguered affirmative, who wandered in unawares. (This is often called the "premeditated murder" argument -- that knowing you're going to do something bad and doing it anyway is worse than doing something bad in ignorance.)
This argument is bolstered by the fact that Schlag and his colleague Richard Delgado are at least somewhat on the record as saying "Yeah, you got us: we contradict ourselves. But whaddayagunnado? (Shrug of shoulders)" Just kidding. Being law professors, they of course have to dress it up in pretentious language like "contradictions allow us to question our deepest held assumptions." Yeah, and if a frog had wings, it wouldn't bump its deepest held assumptions on the ground.
In one of the most ironic twists you'll find, this most obvious (and truest) argument against Schlag's critique has been the one least likely to defeat the critique in a debate round. This is due to two factors: the first is that Schlag (and the debaters who advocate his work) are most prepared to attack this argument.
The second reason, though, is that too few people think out the second line of analysis on the contradiction argument. I believe this is the real reason the hypocrisy/performative contradiction argument against Schlag has not been successful in the past.
I'll give you an example, but before that, let's examine the term "performative contradiction" means. It's understood none-too-well, and it's thrown around as a generic term for "my opponent advocated two arguments that contradict each other." While this is also a bad thing to do, and a good thing to argue against, it's not precisely what communication theorist and philosopher Habermas means when he says "performative contradiction."
Habermas is concerned with the truth value of statements and the ideal speech situations. He painstakingly constructs arguments for what constitute effective communicative utterances and what do not. Once these arguments are constructed, he applies them to what the ideal speech situation might be to utilize those utterances.
A "performative" is a speech statement that actually does something: i.e. an action or a plan of action. He defines a performative contradiction as when someone says one thing, and then does something else -- i.e., contradicting that they've said in their speech act with a contrary action in their performance.
The impact of this is that such an action destroys the potential truth value of any claim the speaker might make, corrupting the power of any utterance they might make. This is the opposite of the ideal speech situation, according to Habermas.
This long-winded explanation of why performative contradictions are bad serves two purposes: first, I hope it will inspire people to read and cut Habermas' communication theory, because that evidence serves to answer the "contradictions are good" tripe that is all-too-prevalent these days; second, it gives an impact to the argument that is often lacking -- as lacking as good second line responses on the "Schlag contradicts himself" argument.
My example of a poor second line of analysis is when the affirmative simply restates their argument. The negative says "Contradictions are good," and attempts to weasel their way out of the contradiction. The affirmative often replies (words to the effect of) "Oh, come on."
So after the negative - who I will refer to hereafter as the "Schlagging Debaters" or "The Schlaggers" - has read their answers, that's where the second line of analysis comes in. Don't make it be "yeah, but this is still lame," even though it is.
Instead, use your second lines to say why contradictions are specifically bad in academic debates: not only do they undermine the truth value of all statements as Habermas says, but they destroy all ground. If debaters can just shift their positions at will, no one knows what anyone will argue in the next speech.
The affirmative might point out to The Schlaggers that, if contradicting yourself is OK, then the affirmative could (and just might) stand up in the last speech and say "They're right; Schlag rules. The critique is true. By the way, this means you should vote affirmative, because I'm the last one to advocate the critique. Oh, and this is the last speech, isn't it? That means that they can't answer my 'you should vote affirmative' point. And if they're right that contradictions are good, then our contradicting ourselves in the last speech isn't any better or worse than their doing so in the preceding speeches. Thank you, drive through."
Just to expose my own bias further, I used to do janitorial work with another guy who served as my supervisor. Our worst job was to clean the fryer hoods of Burger King(tm) restaurants. The fryer hoods are where all the animal fat solidifies, chunks up, rots, etc. You have to climb up in a tiny tube with a pressure washer to clean it, and invariably it gets all over in your hair, your eyes, etc. As the rookie, I had to do most of this at first. But after a while, my supervisor started to do it. I asked him why. Quoth my janitorial compadre: "I'd be a pretty poor human being if I asked you to do something that I wasn't prepared to do myself, wouldn't I?"
Indeed. And if I ever meet Pierre Schlag, the first thing I'm going to do to him is shout: "Clean my fast food fryer hoods!" Because that will confuse him as much as his writing does me. I'll tell you the SECOND thing I'd do to him at the end of this essay.



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