The Radical Assault on Truth in American Law
Dana
Review of Beyond All Reason: The Radical Assault on Truth in American Law
by Dreadnought
Reports of the growing decadence of American scholarship have grown so
commonplace that Beyond All Reason: The Radical Assault on Truth in American
Law reads at times like a rather late report from the academic front of our
Kulturkampf. Even the alarm expressed by Daniel Farber and Suzzana Sherry,
two conventionally liberal law professors at the University of Minnesota, at
the growing influence of radical multiculturalism and post-modernism in law
schools is comparatively dulcent. After insisti ng that they view radical
multiculturalism as "serious, profound and dangerous," Farber and Sherry
hasten to note that their "liberal Jewish backgrounds" give them particular
discomfort in attacking the work of progressive minority scholars. Of
course, th is is the design of the ethic that contemporary liberalism shares
with radical multiculturalism: to put the work and ideas of "progressives"
beyond reasoned criticism and to establish for them a privileged place among
society's "regimes of truth."
And yet Michel Foucault's infiltration into the American legal academy Has
more immediate implications than the rise of French post-modernism in the
humanities. For the fugitive ideas of law professors, however fanciful, have
in time an aptitude to ani mate and command the law. Shelley aside, law
professors, not poets, are the unacknowledged legislators of the world. This
can be seen in the influence of critical race theory, a constituent part of
radical multiculturalism, in the Simpson jury verdict and in arguments that
ghetto rage exculpate criminal conduct.
Attacks on traditional legal scholarship are, of course, not new. Some
figures in the American legal pantheon, such as Justice Brandeis, are
ensconced in it precisely because of their innovations. Early in this
century, the "legal realist" school of th ought, associated with the New
Deal drive for efficiency in law and government, argued that legal doctrine
was "indeterminate," thereby making legal judgments the product of judges'
personal predilections. The legal realists' project was not to scrub the law
clean of distorting prejudices. That was the impossible hope of old "legal
formalists," who argued from "abstract logical concepts" and insisted on
clear rules of law upon which litigants could rely. Instead, the legal
realists sought to replace tradi tional rules of law with empirical social
research.
The perceived failure of legal realism and earlier systems of reform Gave
rise to the "critical legal studies" movement. CLS theorists noticed that if
law was indeterminate as the realists argued, then the social research
realists would substitute was also unreliable. Furthermore, the whole
enterprise of formulating rules is endlessly frustrating when the object is
political reform or revolution. Every rule breaks state action, and so can
be used in the fullness of time and variety of circumstance for and against
one's political objectives. In one case it can promote preferred political
objectives; in another case thwart it. Take individuals rights. Today, the
Free Speech Clause can be used to protect the rights of a flag-burner
protesting the fascism of the Republican Party -- a good thing -- but
tomorrow it could be used by the fascists to attack "progressive"
candidates -- a bad thing.
The story of "reform" in the legal academy is one of progressive Disillusion
with prior regimes of reform because of their failure to obtain sufficiently
thoroughgoing liberal objectives, and their succession by more radical and
openly political reform s. Thus when CLS did not achieve complete success,
radical multiculturalism replaced it on the vanguard. But where CLS
emphasized the supposed indeterminacy of the law, radical
multiculturalists -- critical race theorists, "gay legal" theorists, and
femin ists -- employ postmodern theories to make more universal claims:
moving beyond the supposed indeterminacy of the law, to contest the very
existence of truth, merit, objectivity, even reality itself. One radical
writes, "There is no objective reference po int, separate from culture and
politics, available to distinguish truth from ideology, fact from opinion,
or representation from interpretation." Everything -- some radicals claim
even the laws of physics -- is socially constructed by the dominant class t
o advance its own interests and oppress minorities. Another radical says
that what we know as merit is merely an index of what white men admire in
themselves.
Take the case of Tawana Brawley, a fifteen year girl from New York City, who
accused two white policemen and a district attorney of rape and later was
shown to have fabricated the story in order to avoid the ire of her
stepfather for having stayed out so late at night. Even after a grand jury
refused to indict and there was evidence that Brawley had scrawled racial
epithets on her clothing and smeared dog excrement in her own hair to give
her accusations the feel of truth, Patricia Williams, a prominen t law
professor at Columbia University, insisted "Tawana Brawley has been the
victim of some unspeakable crime. . . . No matter who did it to her -- and
even if she did it to herself. Her condition was clearly the expression of
some crime against her, so me tremendous violence, some great violation that
challenges comprehension." In other words, whether she was telling the truth
or not, she was violated by society and its agents. Another radical, Alex
Johnson, explains it is perfectly acceptable . . . if that which is
presented as the truth turns out not to be objectively true in the way in
which that standard typically is viewed and used." (A civil case against
Brawley is currently being tried.)
It should then be no surprise that "progressive" minority scholars Generally
do not attain the same level of success as their "mainstream" colleagues - a
distinction that may not be discernible outside the academy. The supposed
indexes of merit and obj ectivity are essentially contrived to deny
minorities advance, thereby securing the dominance of, variously, white
supremacists, the patriarchy, or heterosexuals. An opponent of the
multiculturalists captures the radical mindset, "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."
Naturally, if merit and objectivity do not exist, then traditional
scholarship by which professors demonstrate excellence is equally flawed.
Legal scholarship is generally concerned with discovering the intent of the
authority that promulgated the la w, or harmonizing or explaining complex
areas of the law, or with empirical studies of the real-world effects of the
law. This studies presuppose the existence of some degree of objectivity,
toward which scholarship is aimed. It also emphasizes the linea r reasoning
of the law, moving from established premises to a reasoned conclusion. But
as Stanley Fish of Duke University reminds, like "fairness, merit, and free
speech, reason is a political entity." Reason is merely a contrivance and
thus the work of s cholarship is a sham.
In place of traditional scholarship that thwarts their advance, radical
multiculturalists emphasize "storytelling." Only by use of stories can the
"dominant mindset" -- that of Enlightenment rationality -- be transcended
and the racist, sexist and homo phobic nature of society be challenged and
reformed. Stories release the emotional power of those who have "seen and
felt the falsity of the liberal promise," says one radical Storytelling,
says critical race theorist Gerald Lopez, "de-emphasize[s] the lo gical and
resurrects[s] the emotive and intuitive." Falling prey to the use of reason
and linear logic would be surrender to the established order which the
radicals have as their purpose to deconstruct.
All sorts of objection may be raised to the storytelling movement. The
stories may be atypical, not statistically representative of a larger
universe of data, and thus not the proper basis of generalization. The
stories may be inaccurate, incomplete o r entirely falsified, allowing their
authors to draw conclusions and demand action on the basis of facts that do
not exist. And whatever the veracity of these stories, they are susceptible
to all of the interpretative contests that surround ordinary stori es. But
to multiculturalists this is not merely beside the point, but proof of the
hold the dominant mindset has over the legal academy. If truth is socially
constructed, then these stories are no less true than those that are
measured by conventional ind exes. In this way, radical multiculturalism has
a wonderfully self-insulating quality. Every criticism of multiculturalism
is based on the false premise that truth, objectivity or merit exists,
employs illegitimately western rationality, and attempts to s ilence a
distinctive and authentic minority "voice" that tells the tale. If
everything established has no basis in fact, then nothing can be challenged
as untrue or less true than anything else. This is the democratization of
the truth.
If the whole system of western culture is arrayed against them, there is but
one way that radical multiculturalists can guarantee their success:
proportional representation at all levels of power within society. And their
representatives must be by aut hentic minorities, not collaborators with the
dominant class. There is no other way multiple cultures can attain the same
statistical level of achievement and respect within a society. Arguments
thatvarying levels of success among various races, ethniciti es and
nationalities are attributable to differences each culture place on, among
other things, education offend the egalitarian promise of democracy. But
with strict proportional representation the success that all prior systems
of reform promised but fa iled to deliver can be achieved. Here the social
constructionist theories of the radicals fatally undermine their demands.
The only rationale for effecting a revolution of this type in American law
would be some appeal to justice. But the radical multicul turalists
necessarily reject the objectively identifiable meaning of any such
abstraction. It's not merely that justice is amorphous, but that it simply
does not exist. If so, the radicals have no real basis upon which to make
their demands. After all, if truth is defined by the dominant class
independent of reality, is nothing but the exercise of raw political power,
what incentive does it have to change the system to benefit minority classes
at its own expense? The philosophy of multiculturalism preclud es an answer
to this question. In a perverse way, the theories of radical
multiculturalism not so much challenge as secured the established order, at
least in so far as their theories are treated seriously. There is no
objective rationale for substituting the radical notion of justice for the
status quo if both are socially constructed.
Farber and Sherry also express fear that if Enlightenment notions are
displaced by radical multiculturalism, then pre-Enlightenment evils, such as
anti-Semitism, will return. The authors find this particularly ironic, given
the prominent role Jews have played in the secularization of American
culture. It seems entirely beyond their grasp that the hyper-secularization
of America may be partially responsible for generating the decadence they
fear. As G.K. Chesterton wrote early this century, "In so far as religion is
gone, reason is going. For they are both of the same primary and
authoritative kind. They are both methods of proof which cannot themselves
be proved." When faith is displaced, men do not necessarily surrender their
passions to stern reason . As we have seen, when the fruits of reason are
unsatisfying, men may much more easily return to racial, national, ethnic,
or tribal loyalties, or turn to other forms of irrationality. Chesterton
explained that religion was the guarantor of reason, its d efenses arrayed
to prevent reason from turning on itself and denying its own capacity to
perceive reality, or even the existence of reality -- which is precisely the
menace of radical multiculturalism.
Conceivably, this thin volume could be read with optimism. It could be
argued that the vanguard of the American left has succumbed to the final
madness, denying the existence of objective reality. And yet, one is left
with persistent doubts whether Ame rican society retains any immunizing
defenses against even the most insensible ideas, or whether the post-modern
ideas that alarm Farber and Sherry have already so permeated American
society that the radical skepticism of multiculturalists defines not so much
the avant-garde as the mainstream. Daily there are attacks on standards of
every variety, be they standardized admissions scores and hiring criteria,
or standards of journalism and the practice of politics. Nothing really
shocks the conscience today. Everything is relative. There are no First
Principles. The television flickers relentlessly and monotonously with
universal empathy for the most freakish tales of decadence. And in the White
House sits a man who cheerfully exalts the emotive over cognit ive, and
whose aides delight in the manipulation of the truth. Rather than a fresh
report of outrages from the avant-garde, Beyond All Reason may more properly
read not as a sign of hope but of loss.
--
The two factors complemented each another. Clinton's immorality and Gore's
extremism reminded voters that at least since the 1960s liberalism has
represented an ideology licentious, corrupt, distasteful, and wrong.