SCHLAG'S ADVOCACY STEP IS WRONG

SCHLAG'S ADVOCACY STEP IS WRONG

1. SCHLAG'S ACTION STEP IS NEITHER ACHIEVABLE NOR DESIRABLE

David Gray Carlson, Professor of Law, Benjamin N. Cardozo School of Law, COLUMBIA LAW REVIEW, November, 1999, p. 1908.

Professor Schlag terminates one of his books with this memorable passage, in which he suggests that the entire project of legal scholarship be abandoned: "The genres of legal thought associated with legal process and Warren Court normativity are intellectually exhausted . . . Some legal thinkers are rendered quite anxious in the present moment. "What comes next-" they want to know. "What will be next-" they wonder. "What admirable vision of law will next capture the legal imagination-" Maybe nothing. Maybe what comes next is that we stop treating "law" as something to celebrate, expand, and worship. Maybe, we learn to lay down the law." Should normative legal scholarship be abolished, as Professor Schlag suggests- Some of Professor Schlag's points about legal scholarship are undoubtedly well taken. But it doesn't follow that it should or even could be abolished. In truth, whether he admits it or not, Professor Schlag himself does legal scholarship. He does not follow his own advice about not doing it. Nor could he. If legal scholarship stands for participation in the realm of the symbolic, then legal scholarship--i.e., culture--is the very medium that perpetuates self-consciousness.

David Gray Carlson, Professor of Law, Benjamin N. Cardozo School of Law, COLUMBIA LAW REVIEW, November, 1999, p. 1908.

In contrast to this view, Professor Schlag wants to say that freedom means the concrete self can do what it feels like. But he should know better than to exalt the authenticity of the pre-legal natural self, and he has on occasion chastised others for doing just that. To exalt the sovereignty of such a self (that may be in the thrall of criminal passion) instead of the liberal self is to permit the contingent side of the self to govern in its moral arbitrariness. In other words, the essence of personality is the rationality of the liberal self. Negative freedom denies the essence of personality and therefore ends up destroying its own self. To summarize, Schlag's work is based on a romantic psychology. If only the concrete self were freed from law, Schlag implies, it would know what to do. Law offers mere "norms" and presents the subject with empty choices. Such a theory of the self ignores the fact that human nature has two sides--the natural and the moral. One side cannot be privileged at the expense of the other. To be sure, many of Schlag's criticisms of liberal psychology are well taken. Liberal psychology absolutely denies a place for the unconscious and irrational. His accusation that liberal philosophy does not consider the challenge of deconstruction to liberal psychology is an excellent contribution. Liberal philosophy in recent times deserves criticism for not peering very deeply into the soul of the legal subject. But liberal philosophy is also on to something: The moral dimension of personality is constitutive and cannot be abolished without destroying personality entirely.
3. REJECTION WOULD MAKE IT WORSE: MORE HIERARCHIES WOULD POP UP

David Gray Carlson, Professor of Law, Benjamin N. Cardozo School of Law, COLUMBIA LAW REVIEW, November, 1999, p. 1908.

The legal academy refuses to duel with Pierre Schlag. But why should it- It lives well enough without defending itself from angry reproaches generated from abstract romanticism. Shall legal academics give up their jobs and their vocation at the mere invocation of deconstruction- Why should they, especially when Professor Schlag has not given up the Byron White professorship at his own university- The legal academy declines to duel, but this is not to say that postmodernism is a failure. It is only a failure if we accept that its task is to destroy in its entirety the existing hierarchy. This is not a valid task. If we destroyed the existing hierarchy, another would spring up in its place, and it too would have to be destroyed on the logic of romanticism. Destruction is a bad infinity. It never ends because desire itself does not end.

LAW IS NOT THE PROBLEM: LANGUAGE IS, WHICH SCHLAG MISUNDERSTANDS

1. LANGUAGE IS THE PROBLEM, NOT LAW, WHICH SCHLAG MISSES

David Gray Carlson, Professor of Law, Benjamin N. Cardozo School of Law, COLUMBIA LAW REVIEW, November, 1999, p. 1908.

Schlag blames law, conceived here as a historically situated, vaguely defined American linguistic practice, for its want of a "robust referent." Instead of delivering any such referent, as it promises to do, law tenders an endless set of signifiers (which Schlag likes to call "ontological entities"), each of which disappointingly refers only to other signifiers. In the end, law signifies nothing. It literally does not exist. Law engages in the petty pace of an infinite regress--a bad infinity--without ever reaching the ultimate signified. Law, in Schlag's opinion, is pseudoscience; nonsense rendered plausible; madness; deficient in its authority and ontology; "faked, bluffed, or simulated;" mere belief and not knowledge of a Real Thing; a Mobius strip; a language game circling around nothing at all. In Austinian terms, it pretends to be constative (i.e., reporting a pre-existing reality), but is merely performative. It illegitimately reifies (i.e., "thingifies") imaginary concepts.

David Gray Carlson, Professor of Law, Benjamin N. Cardozo School of Law, COLUMBIA LAW REVIEW, November, 1999, p. 1908.

Schlag excoriates legal practice for its want of a "robust referent," but never quite defines what he means by this. What would count as a "robust referent" - We can only infer his meaning by studying what he thinks law is not. Thus, we learn from Schlag that natural things have robust referents. Hence, one may infer that the absent robust referent is some "natural" thing beyond language. Law cannot signify the thing-beyond-language. This is a good Lacanian insight. But does this fault differentiate law from any other linguistic practice that we might identify- Is law different from politics or mathematics or geology- No. These practices likewise do nothing but refer to other signifiers in the same infinite regress that law does. One must conclude that law is not and never was the culprit. Language is.
3. THE REASON LAW CAN'T DELIVER JUSTICE IS ROOTED IN LANGUAGE

David Gray Carlson, Professor of Law, Benjamin N. Cardozo School of Law, COLUMBIA LAW REVIEW, November, 1999, p. 1908.

If language always reduces to a chain of signifiers without end, why single law out for abuse- Because law promises justice. Justice is law's Master Signifier--its "exceptional element." Yet just because justice is exceptional, law cannot deliver it. The inability of law to deliver what it promises can best be appreciated in the context of Lacanian theory. According to Lacan, the human subject is angry at language itself. This anger is inscribed in a false autobiography, according to which there once was a time in which the human subject felt no pain or desire; but something bad intervened to harm, maim or reduce our integrity. This story has been told a thousand times in myth, in the doctrine of Original Sin, in romantic nostalgia, in conservative or radical politics, even in Hegelian philosophy, where the human subject is portrayed as the diremption of Spirit into the world. In Lacanian theory, a subject who enters the symbolic realm of language can speak words recognized by other subjects who can speak back. The very idea of speaking presupposes some other subject who can listen and understand. Hence, our ability to differentiate (and thus identify) ourselves in language can only be bestowed on us by other speaking subjects. On this dialectical view of human subjectivity, we are, by definition, not whole--not entirely present to ourselves. A basic part of ourselves is beyond us. We are alienated in language. We suffer from "being-for-other."