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SCHLAG'S PHILOSOPHY IS FLAWED
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- NORMATIVE DISCOURSE IS GOOD
SCHLAG'S PHILOSOPHY IS FLAWED1. SCHLAG PROPS UP BAD IDEAS BASED ON ELEMENTARY ERRORS David Gray Carlson, Professor of Law, Benjamin N. Cardozo School of Law, COLUMBIA LAW REVIEW, November, 1999, p. 1908. I began by suggesting that Pierre Schlag assumes the position of a duelist. He thinks legal academics are either fools or knaves. But he mistakes his opponent. The villain is language itself. Language is what causes the split in the subject, and Professor Schlag has made the classic error of assuming that legal academics are deliberately withholding l'objet petit a. They hold surplus enjoyment and are to blame for the pain and the lack that always accompanies the presence of the subject in the symbolic order. If this psychoanalytic suggestion explains the angry tone of Schlag's work, it also explains the basic errors into which he falls. When one considers this work as a whole, most of these errors are obvious and patent. Indeed, most of these errors have been laid by Schlag himself at the doorstep of others. But, in surrendering to feeling or, as perhaps Schlag would put it, to context (i.e., the pre-theoretical state), Schlag cannot help but make these very same errors. Some examples: (1) Schlag's program, induced from his critiques, is that we should rely on feeling to tell us what to do. Yet Schlag denounces in others any reliance on a pre-theoretical self. (2) Schlag warns that, by definition, theory abstracts from context. He warns that assuming the right answer will arise from context unmediated by theory is "feeble." Yet, he rigorously and repetitively denounces any departure from context, as if any such attempt is a castration--a wrenching of the subject from the natural realm. He usually implies that context alone can provide the right answer--that moral geniuses like Sophocles or Earl Warren can find the answer by consulting context. (3) Schlag complains that common law judges are "vacuous fellows" when they erase themselves so that law can speak. Yet, Schlag, a natural lawyer, likewise erases himself so that context can speak without distortion. (4) Schlag warns that merely reversing the valences of polarities only reinstates what was criticized. Yet he does the same in his own work. In attacking the sovereignty of the liberal self, he merely asserts the sovereignty of the romantic self. Neither, psychoanalytically, is a valid vision. One polarity is substituted for another. (5) Schlag scorns the postulation of ontological entities such as free will, but makes moral arguments to his readers that depend entirely on such postulation. (6) Schlag denounces normativity in others, but fails to see that he himself is normative when he advises his readers to stop being normative. The pretense is that Schlag is an invisible mediator between his reader and context. As such, Schlag, the anti-Kantian, is more Kantian than Kant himself. Thus, context supposedly announces, "Stop doing normative work." Yet context says nothing of the sort. It is Schlag's own normative theory that calls for the work slowdown. (7) Schlag urges an end to legal scholarship when he himself continues to do legal scholarship. He may wish to deny that his work is scholarship, but his denial must be overruled. We have before us a legal scholar, like any other. 2. SCHLAG'S OPPOSITION TO SOLUTIONS IS BASED ON FLAWED PHILOSOPHY David Gray Carlson, Professor of Law, Benjamin N. Cardozo School of Law, COLUMBIA LAW REVIEW, November, 1999, p. 1908. Schlag thinks himself opposed to such solutions. For Schlag, any attempt to end the infinite regress in a cosmological proposition creates new contradictions and hence new propositions. But Hegelians are capable of criticizing such easy surrender to bad infinities. According to Paul Redding: We should not think of "reasoning" without an absolute starting point as stretching back infinitely along a chain of presupposition of presupposition of presupposition: such an idea still rests on the image of some absolute distinction between a premise and a conclusion. The traditional image of the linear infinite regress still depends on the intelligibility of that which it cannot achieve, an absolutely immediate starting point, and so its intelligibility collapses with that of its unreachable ideal. Thus, hostility to cosmology cannot be privileged over cosmology. A cosmological solution can be postulated to put an end to the infinite regress between coherence and dissolution. All of this is implicitly admitted by Schlag, when he presumes to criticize the non-existent thing he calls law. Most of the time, this term seems to refer to what law schools teach and what lawyers do--a reference to customary legal practice. Yet by referring to law in such a way, Schlag has, in fact, "totalized" law as a coherent thing that endures over time. This is precisely the cosmological solution he claims to oppose.
1. ONLY ACCEPTING NORMATIVE DISCOURSE MAKES SENSE Steve Chilton, Professor of Political Science, University of Minnesota, GROUNDING POLITICAL DEVELOPMENT, 1991, http://www.d.umn.edu/~schilton/Articles/GPD3.html#SectionV, accessed May 1, 2001. In essence, then, social scientists must choose one of two visions of their project: on the one hand, a social science that disempowers people by denying the possibility they can change anything (or, to cast this as this project's adherents might, that liberates people from the dashed hopes attendant on a misguided faith in moral agency); and on the other hand, a social science that recognizes the possibility of moral change and ultimately of human emancipation (at the cost of the frustrations and conflicts of normative discourse). Two considerations argue that only the latter choice makes sense. First and most direct, people already make, and know deep down they can always already make, moral choices-that they are not victims. A complete social science must recognize that. Even in the face of the first argument one could continue to maintain that the role of moral choice is so slight, and its threat to our self-conception as scientists so immediate, that we are justified and even obligated to neglect it. We are comfortable with our long-established role as "scientists" and all too aware of the hubris tinging the role of prophet, visionary, or moralist. And yet this argument seems to depend at heart on our willed ignorance of the role of moral choice, not on a realistic assessment of the dangers of the different paths. We can choose to remain "scientists" in the narrow sense only if we are sure that moral choice is really of little consequence; but this is not at all certain. Each side sees what it wants to see: "scientists," ignoring the role of moral choice, devise experiments showing less and less role for it; "emancipators" discover, by contrast, that the more scope they provide for recognizing and making possible moral choice, the more important it seems to become. My second argument is cast in the face of this uncertainty: that when one cannot choose between two alternatives on the basis of clear evidence or logic, then one should choose the alternative with the more interesting consequences. If one ultimately decides that the consequences are not really very interesting, or if the evidence really does mount up in the opposite direction, one has lost no more than time and has by recompense acquired a firmer understanding of why the other alternative is superior. But to foreclose options without looking at them seems to me to be a grave crime, a crime only made worse by the excuse that we are afraid of ourselves. 2. EVEN IF NORMATIVITY CAUSES PROBLEMS, IT SHOULDN'T BE REJECTED Steve Chilton, Professor of Political Science, University of Minnesota, GROUNDING POLITICAL DEVELOPMENT, 1991, http://www.d.umn.edu/~schilton/Articles/GPD3.html#SectionV, acquired May 1, 2001. Our reluctance to define development in normative terms stems not from our settled conviction that development is not normative but rather from our reluctance to deal with the thorny issues that normative discourse inevitably raises. Our experience in Vietnam (and the underlying imperialistic moralism from which adventures like that continue to flow) gave us good reason to fear normatively involved theory and to suspect its impartiality. But once we agree that any complete theory of social change must deal with the problem of normative grounding, the major objection to defining "development" in normative terms disappears. To understand society we have to grasp normative issues - or so I will argue below - and thus we can give renewed credence to our intuitive sense of development as normative improvement.
Margaret Jane Radin and Frank Michelman, "Symposium: the Critique of Normativity: Commentary: Pragmatist and Poststructuralist Critical Legal Practice," UNIVERSITY OF PENNSYLVANIA LAW REVIEW, April, 1991, p. 1019. It seems that saying that cannot (coherently) be an argument about whether or how we should (or should not) talk. How can one argue that what makes an utterance (or a genre) unworthy of attention or respect is that it is normative talk? To argue is to invoke the practice of argument, and that practice consists of normative talk. (Maybe you could try by some other means to remove that practice from society's repertoire, but you can't well do that by arguing about it.) But if this utterance of Schlag's is not argument, then what is it?
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