normativity answers

ARMY 07/08 JoePaAT: NORMATIVITY 1/24

AT: NORMATIVITY

2AC GOOD STUFF AT: NORMATIVITY ............................................................................................................................. 1 2ac: Norm – Schlag is paranoid – 1 of 2 ................................................................................................. 2 2ac: Norm – Schlag is paranoid – 2 of 2 ................................................................................................. 3 2ac: Schlag’s pessimism = luxury ........................................................................................................... 4 AT: Norm – material omissions – 1 of 2 ................................................................................................ 5 AT: Norm – material omissions – 2 of 2 ................................................................................................ 6 AT: norm – Schlag = racist, sexist – 1 of 2 ............................................................................................ 7 AT: norm – Schlag = racist, sexist – 2 of 2 ............................................................................................ 8 AT: Norm – Schlag hates language ........................................................................................................ 9 AT: Norm – language’s failure ............................................................................................................. 10 AT: Norm – no pure subject – 1 of 2 .................................................................................................... 11 AT: Norm – no pure subject – 2 of 2 .................................................................................................... 12 AT: Norm – assumes romantic subject ................................................................................................. 13 AT: Norm – Just deal with it! ............................................................................................................... 14 AT: Norm – rejection = self-defeating .................................................................................................. 15 AT: norm – Schlag’s epistmlgy simplistic ............................................................................................ 16 AT: Norm – Schlag links to self ........................................................................................................... 17 AT: Norm – Schlag uses reason ............................................................................................................ 18 AT: Norm – Schlag = inside law .......................................................................................................... 19 AT: Norm: Schlag = normative ............................................................................................................ 20 AT: Norm: Schlag = totalizing, too ...................................................................................................... 21 AT: Norm – Schlag = vanishing mediator ............................................................................................ 22 Norm = Consciousness – 1 of 2 ............................................................................................................ 23 Norm = Consciousness – 2 of 2 ............................................................................................................ 24


2ac: Norm – Schlag is paranoid – 1 of 2

SCHLAG’S FEAR OF NORMATIVE LEAGL THOUGHT IS A PARANOID REACTION THAT OVER-EXAGGERATES BUREAUCRACY, SUSTAINS THE STATUS QUO ORDER, AND ASSUMES A METAPHYSICAL AND ROMANTICIST VICTIM THAT LINKS MORE TO HIS OWN CRITIQUE

CARLSON IN `99 (DAVID GRAY, PROFESSOR OF LAW, BENJAMIN N. CARDOZO SCHOOL OF LAW, “REVIEW ESSAY: DUELLISM IN MODERN AMERICAN JURISPRUDENCE,” COLUMBIA LAW REVIEW)

Schlag presents a dark vision of what he calls "the bureaucracy," which crushes us and controls us. It operates on "a field of pain and death." 259 It deprives us of choice, speech, 260 and custom. 261 As bureaucracy cannot abide great minds, legal education must suppress greatness through mind numbing repetition. 262 In fact, legal thought is the bureaucracy and cannot be distinguished from it. 263 If legal thought tried to buck the bureaucracy, the bureaucracy would instantly crush it. 264

Schlag observes that judges have taken "oaths that require subordination of truth, understanding, and insight, to the preservation of certain bureaucratic governmental institutions and certain sacred texts." 265 Legal scholarship and lawyers generally 266 are the craven tools of bureaucracy, and those who practice law or scholarship simply serve to justify and strengthen the bureaucracy. "If there were no discipline of American law, the liberal state would have to invent it." 267 "Legal thinkers in effect serve as a kind of P.R. firm for the bureaucratic state." 268 Legal scholarship has sold out to the bureaucracy:

Insofar as the expressions of the state in the form of [statutes, etc.] can be expected to endure, so can the discipline that so helpfully organizes, rationalizes, and represents these expressions as intelligent knowledge. As long as the discipline shows obeisance to the authoritative legal forms, it enjoys the backing of the state... Disciplinary knowledge of law can be true not because it is true, but because the state makes it true. 269

Scholarship produces a false "conflation between what [academics] celebrate as 'law' and the ugly bureaucratic noise that grinds daily in the [*1946] [ ] courts...." 270 Scholarship "becomes the mode of discourse by which bureaucratic institutions and practices re-present themselves as subject to the rational ethical-moral control of autonomous individuals." 271 "The United States Supreme Court and its academic groupies in the law schools have succeeded in doing what many, only a few decades ago, would have thought impossible. They have succeeded in making Kafka look naive." 272

Lacanian theory allows us to interpret the meaning of this anti-Masonic vision precisely. Schlag's bureaucracy must be seen as a "paranoid construction according to which our universe is the work of art of unknown creators." 273 In Schlag's view, the bureaucracy is in control of law and language and uses it exclusively for its own purposes. The bureaucracy is therefore the Other of the Other, "a hidden subject who pulls the strings of the great Other (the symbolic order)." 274 The bureaucracy, in short, is the superego (i.e., absolute knowledge of the ego), 275 but rendered visible and projected outward. The superego, the ego's stern master, condemns the ego and condemns what it does. Schlag has transferred this function to the bureaucracy.

As is customary, 276 by describing Schlag's vision as a paranoid construction, I do not mean to suggest that Professor Schlag is mentally ill or unable to function. Paranoid construction is not in fact the illness. It is an attempt at healing what the illness is - the conflation of the domains of the symbolic, imaginary, and real. 277 This conflation is what Lacan calls "psychosis." Whereas the "normal" subject is split between the three domains, the psychotic is not. He is unable to keep the domains separate. 278 The symbolic domain of language begins to lose place to the real domain. The psychotic raves incoherently, and things begin to talk to [*1947] him directly. 279 The psychotic, "immersed in jouissance," 280 loses desire itself.

(CONTINUED…)


2ac: Norm – Schlag is paranoid – 2 of 2

Paranoia is a strategy the subject adopts to ward off breakdown. The paranoid vision holds together the symbolic order itself and thereby prevents the subject from slipping into the psychotic state in which "the concrete 'I' loses its absolute power over the entire system of its determinations." 281 This of course means - and here is the deep irony of paraonia - that bureaucracy is the very savior of romantic metaphysics. If the romantic program were ever fulfilled - if the bureaucracy were to fold up shop and let the natural side of the subject have its way - subjectivity would soon be enveloped, smothered, and killed in the night of psychosis. 282

Paranoid ambivalence toward bureaucracy (or whatever other fantasy may be substituted for it) is very commonly observed. Most recently, conservatives "organized their enjoyment" by opposing communism. 283 By confronting and resisting an all-encompassing, sinister power, the subject confirms his existence as that which sees and resists the power. 284 As long as communism existed, conservatism could be perceived. When communism disappeared, conservatives felt "anxiety" 285 - a lack of purpose. Although they publicly opposed communism, they secretly regretted its disappearance. Within a short time, a new enemy was found to organize conservative jouissance - the cultural left. (On the left, a similar story could be told about the organizing function of racism and sexism, which, of course, have not yet disappeared.) These humble examples show that the romantic yearning for wholeness is always the opposite of [*1948] what it appears to be. 286 We paranoids need our enemies to organize our enjoyment.

Paranoid construction is, in the end, a philosophical interpretation, even in the clinical cases. 287 As Schlag has perceived, the symbolic order of law is artificial. It only exists because we insist it does. We all fear that the house of cards may come crashing down. Paradoxically, it is this very "anxiety" that shores up the symbolic. The normal person knows he must keep insisting that the symbolic order exists precisely because the person knows it is a fiction. 288

The paranoid, however, assigns this role to the bureaucracy (and thereby absolves himself from the responsibility). Thus, paranoid delusion allows for the maintenance of a "cynical" distance between the paranoid subject and the realm of mad psychosis . 289 In truth, cynicism toward bureaucracy shows nothing but the unconfronted depth to which the cynic is actually committed to what ought to be abolished.


2ac: Schlag’s pessimism = luxury

SCHLAG’S OVER-ARCHING AND INCREDIBLY PESSIMISTIC VIEW OF LAW IS BASED IN HIS PRIVILEGED AND LUXURIOUS RELATIONSHIP TO LAW – HIS CYNICISM IS DISPASSIONATE AND COLD

CONAGHAN IN `03 (JOANNE, PROFESSOR, KENT LAW SCHOOL, UNIVERSITY OF KENT, “SYMPOSIUM: BEYOND RIGHT AND REASON: PIERRE SCHLAG, THE CRITIQUE OF NORMATIVITY, AND THE ENCHANTMENT OF REASON: SCHLAG IN WONDERLAND” MIAMI LAW REVIEW, APRIL)

Insofar as Schlag's concern is with developing strategies of resistance to these mind-numbing effects, I am with him all the way. Nor do I see this as a solely pedagogic issue, although Schlag's work has strong pedagogic promise. What Schlag does is open up a space for new understandings of what "doing law" can entail. His focus on the delusions that afflict those who deploy conventional legal methods does more than affect their discreditation. In his sharp delineation of the intellectual structure and internal dynamics of traditional legal arguments, Schlag exorcizes reason and frees the legal self from the prison of her own alienation; or, at least, he contributes to conditions in which we might come to believe this to be possible. It is a pity, then, to see that even he has blind spots. It is disheartening to recognize--just at the very point where liberation from "small thinking" 126 and "shallow forms of thought" 127 seems possible--that he is still, to some extent, imprisoned. It is impossible not to want to save him from his gloomy pronouncements about the inescapability 128 and dreariness 129 of it all. At the same time, one cannot suppress the lurking suspicion that his all-pervading scepticism derives from the luxury of occupying a position where he [*571] does not have to believe--passionately and unremittingly--in the possibility that we can shape the world to better ends.

In the end, it comes down to this. Representations are always approximations and we each simultaneously instigate and operate under conditions of constraint. These are the important insights. They should not remain obscured behind blustering invocations of the rational autonomous subject; nor should they be dismissed as trite or inconsequential. 130 In tracking the delusions and excesses of American legal scholars, Schlag makes these insights harder to ignore. Yet, he remains unwilling to look closely at what precisely they entail. After all, there is constraint, and then there is constraint. There are representations, and there are representations. Standpoint methodology highlights the gap between the representations of the dominant and the lives and experiences of the oppressed; it helps us distinguish the recognition that discourse generally is accompanied by constraint from the specification of the particular constraints that characterize the lives of oppressed and marginalized people. Without standpoint, there is a real risk, as Schlag's book demonstrates, that these differences simply will not surface. Effaced from discourse--radical or otherwise--they are simultaneously effaced from our consciousness.

The Enchantment of Reason is a powerful book with concrete political implications, but its standpoint (unsurprisingly) reflects the situation of its author. It is the standpoint of someone who is bemused by the prodigious invocation of an idea which is either not what it purports to be or which, pushed to its limits, is without substance. It is not the standpoint of an "outsider/within" the academy. That does not mean it is without value to feminists, critical race scholars, and others with "outsider" status. On the contrary, in collapsing reason into its "traditional enemies," Schlag's book constitutes a compelling indictment of the intellectual status quo in American law, exposing its tendentiousness, folly, and fragility.


AT: Norm – material omissions – 1 of 2

SCHLAG’S DECISION TO DISENGAGE WITH ANALYSIS OF MATERIAL AND HISTORICAL INSTANCES OF OPPRESSION LIKE SEXISM AND RACISM PROVE HIS CRITIQUE MERELY REPLICATES THE VIOLENCE OF THE STATUS QUO; IT’S SELF-DEFEATING


As critical lawyers, however, we recognize this to be absolute humbug. The act/omission dichotomy is a sham--in Derridean terms, it is a "logocentric hierarchy," part of a "categorical regime" that constrains, enables, and organizes the discursive practice of law . 10 It is also a dichotomy that is impossible to draw with any certainty, with efforts to do so inherently value-laden. In particular, the attribution of cause and consequence is almost always preceded by unarticulated, morally predetermined assumptions about responsibility. An omission can be just as morally heinous as an act (besides which, it is an act depending on how you choose to look at it), and it can certainly carry consequences, perhaps serious ones.

The Enchantment of Reason is a work replete with omissions. As it unpicks what is unthought, it resounds with what is unsaid. And, in the unsaid, it precisely echoes much of what it attacks. These omissions may have consequences--possibly serious consequences--both for Schlag's own project (however we understand it) and for that of critical legal studies (understood in its broadest and most encompassing sense). 11 If so, these consequences need to be examined. What is unsaid deserves as much attention as what is unthought. 12

What then does Schlag leave unsaid but that nevertheless speaks so loudly? What omissions leap from the pages of The Enchantment of Reason and, carrying their consequences, scuttle away in fear of detection? Well firstly, as a feminist, I cannot help but be struck by the total lack of engagement with feminist and critical race scholarship. By virtue of its omission, this body of work is situated outside Schlag's enquiry into reason. 13 This is surprising, not least because American legal scholarship--about which Schlag purports to have something to say--offers more quarter than most to feminist and critical race scholarship. It is also puzzling because feminists in particular have long been preoccupied with reason; women having been pronounced bereft of it at least since the time of Aristotle. 14 More recently, in the United States context, both feminists and critical race scholars have found themselves under attack because their scholarship is deemed to have "failed the test for rational discourse." 15 Reason is being deployed openly and aggressively to silence and devalue legal scholarship that departs from the conventions of the mainstream academy. 16 Schlag's inattention to the concrete political context in which recent debate in law has played out in the American legal academy is troubling, to say the least.

From this one is drawn not only to question the homogeneity of Schlag's representation of American legal scholars but also to impute his apparent depiction of legal discourse as autonomous and self-generating. His default presentation of legal scholarship is one that brooks little or no intrusion from the "outside" world of politics, society, economy, or culture. Most of the boundaries within which legal discourse purports to operate remain disconcertingly unbreached. As a consequence, there is absent from The Enchantment of Reason any sustained engagement with the broader social and political dimensions of the arguments Schlag makes. There are occasional oblique hints that legal discourse in general and the enchantment of reason in particular carry implications well beyond the confines of the academic community Schlag is addressing [*547] and critiquing. But why take this on faith? Surely the significance of Schlag's intellectual contribution stands or falls on the basis of whether or not he is berating American legal scholars for their bad habits or making arguments of weightier intellectual and political worth. Schlag's coyness here leaves the radical scholar with a deep sense of dissatisfaction and unease. How, she might ask, does all this relate to institutions, structures, practices, and discourses beyond the legal academy (or for that matter, within it)? Moreover, does not an understanding of the current reign of reason in the academy require at least some attention to the historical, social, and political conditions from which it sprung? Or can we confidently consign such factors to the background of enquiry into reason's seductive power and reductive effects? Most importantly, what does the enchantment of reason do to people (beyond befuddling American legal academics)?

(CONTINUED…)


AT: Norm – material omissions – 2 of 2

Thus, one arrives at yet another striking omission in Schlag's critique: it would seem that the material world and its corporeal inhabitants are missing. This is an ideational investigation unencumbered by the messiness and unpredictability of bodies or the dreary cataloguing of material disadvantage and suffering. Schlag's concerns are of a different kind, namely to chronicle the extent of self-delusion characterizing American legal academics and question the integrity and rightness of the positions they adopt. His is a study of intellectual moves, of the "rhetorical tricks" 17 and "Noble Scams" 18 passed off as legal reasoning, thus leading one reviewer cynically to remark that "for [Schlag], American law is a mind-game that is not played well enough." 19

Now, it may fairly be protested that this is a scurrilous statement, that Schlag's work constitutes a strong challenge to those who doggedly persist in the mind games of the academy. It may also be argued that Schlag does recognize the grave implications of legal mind games: law is, he has acknowledged, a field of pain and death, 20 and reason, he maintains, plays a central role in legitimizing the "ritualized forms of violence ... incarceration, killing, plunder, extortion and so on" 21 of which legal practices comprise. But, as I read on, the suspicion still lingers. Surely reason fails not just in the pages of law reviews, but also in the apologies for and rationalizations of material and social practices [*548] which yield inequality, deprivation, oppression, and hurt. Why does he shrink from talking with any particularity about these all too important implications of the legal mind game? And where are the voices of the unequal, deprived, oppressed, and hurt? Why are they not here? What role does reason play in suppressing them? (As it turns out, quite a lot.) And, if reason does suppress them, why does Schlag's critique not set them free? In this article, I seek to answer some of these questions by probing the extent to which the omissions I have identified unselfconsciously reflect the discursive frames Schlag is attacking. I want to track the consequences of this reflection. My overriding concern is the extent to which Schlag's preoccupation with the foibles of the mainstream legal academy may unduly inhibit the intellectual and political potential of his work. I believe such potential is there, and, far from counselling the jettisoning of Schlag's work--as others, attentive to his omissions, have done 22--I urge progressive legal scholars to take it seriously but not to take it on faith. In particular, I consider it both appropriate and constructive to call Schlag on what appears to be a glaring lack of engagement with the implications of positionality and its relationship to power. This seems to me to be the greatest omission in The Enchantment of Reason. It does not betray sufficient consciousness of its own standpoint, let alone that of those who are cast in its shadows. 23 As a consequence, it never fully escapes the frame, the grid, the web that reason weaves.


AT: norm – Schlag = racist, sexist – 1 of 2

SCHLAG’S BLINDNESS TO THE MATERIAL VIOLENCE OF REASON UPHOLDS A WHITE, MALE HIERARCHY THAT DEEPENDS THE RACIST AND SEXIST ELEMENTS OF LEGAL SCHOLARSHIP (CROSS-APPLY THE 1AC IMPACTS HERE..)


In a multitude of ways, this blindness to the gendered implications of reason reveals the limits of Schlag's critical interrogation. It fixes the point where he stops asking questions, the moment when his analysis is "marked by [his] own authorship." 108 It betrays both his standpoint and his lack of awareness of it. Most importantly, it exposes the consequences of this inattention.

First, take Schlag's apparent disregard for the dualisms typically invoked to denote and delimit reason's domain. In particular, neither the mind/body nor the reason/emotion dichotomies emerge as significant in Schlag's account of reason's role in legal scholarship. Emotion, for example, is listed by Schlag as just one of many sources of belief above which reason purports to stand. The rhetorical power and frequent invocation of reason over emotion in legal discourse does not fully emerge although it is actively played out in Sherry's article. 109 More importantly, it is not clear that Schlag's critique seriously undermines the reason/emotion dualism. Although Schlag intends to show that reason is no [*567] better than (among a host of other things) emotion, thus challenging the dualism's hierarchy, what he does not do is seriously question representations of cognition that assume the separation of reason and emotion. By restricting himself, for the most part, to a narrow investigation of reason as a source of belief (as opposed to a cognitive process), there lingers undisturbed an assumption that reason can be exercised without emotion (even if it very often is not).

Similarly and relatedly, Schlag not only fails to attend to the significance of the mind/body dichotomy in discourses of reason, but, as a consequence, actively reinforces it. Nothing in The Enchantment of Reason questions the separation of reason from our embodied condition; at no point is there any acknowledgement of the corporeal context in which reason is exercised. Bodies are simply not in Schlag's script. 110

By contrast, the symbolic association of the body with femininity in western philosophical and political discourse and its consequent exclusion from the parameters of rational discourse has inevitably drawn feminist attention, so much so that the body has become one of the most important and recurring themes in feminist scholarship, a powerful lens through which feminists can glean new understandings of what and how we know. 111 A focus on the body spotlights the extent to which knowledge-producing practices continue to be embedded in the mind/body dichotomy; that is, in the assumption that corporeal context is irrelevant to the exercise of the mind except insofar as it is governed by it. 112 Within this ubiquitous frame of reference, mind rules matter, logic tames experience, and reason, devoid of the corrupting influence of materiality, delivers truth. Moreover, the scholar is deemed immortal, his particularity erased, his standpoint denied. The body is a way of challenging this immortality and the limitations it imposes on understanding. It also renders standpoint explicit. As Bottomley observes: "A central theme of feminist work is the need for 'embodiment' ... which, in this context, emphasises that we think and write from a position in which we are never simply 'mind'... we are so much more and therefore so much less than that." 113

In The Enchantment of Reason, the body is simply assumed away, its banishment accompanied by a series of de facto exclusions, including [*568] gender, race, context, material practices, and history. Their exclusion operates metaphorically to affirm "the view from nowhere," the idea, crucial to conventional legal discourse, that reason, properly exercised, is independent of identity and circumstances; 114 that it is, in other words, unsituated. It looks like the mind/body dichotomy is at the heart of what is missing from Schlag's critique.

(CONTINUED..)


AT: norm – Schlag = racist, sexist – 2 of 2

Without the body, gender fails to materialize and its association with reason is overlooked. In fact, the problem here has a circularity to it. Because he fails to attend to gender perspectives, Schlag misses the importance of the mind/body dichotomy in conferring reason's authority. And because he misses the importance of the mind/body dichotomy in conferring reason's authority, he fails to take account of gender perspectives. In any case, the result is that both the specificity and systematicity of reason's exclusionary tendencies get lost. Schlag acknowledges that reason effects the "subjugation of the many to the one, of pluralism to monism, of polytony to monotony, of difference to sameness," 115 but nothing in his account tells us who or what is subjugated. By contrast, a focus on standpoint can illuminate how concepts such as coherence and fit--legal reason's favored form--help to sustain the political and ideological status quo by disqualifying the perspectives of marginalized and oppressed groups. As Margaret Radin remarks, "if the perspective of the oppressed includes significant portions of the dominant conception of the world, and the role of the oppressed group in it, then the oppressed perspective may well be incoherent... ." 116 It also follows that reason, effectively deployed, can do far more than convert "tastes and preferences into the idioms of law ... ." 117 Certainly, these are not random conversions. One might be forgiven, however, after reading The Enchantment of Reason, from assuming that they were. For similar reasons, race too is rendered invisible, and with it the concerns of critical race theorists. People of color have long had ample grounds for regarding the mind/body dichotomy as suspect, its philosophical endorsement having too long co-existed with material practices with which it contradicts. Thus, the narratives of critical race theorists are, to a significant extent, narratives of and about the body. 118 They are a direct challenge to academic discourses that render the body immaterial. Race is a lens that spotlights particularity because the general has been [*569] formed in the image of whiteness. Thus, the project of embodiment has strategic implications for critical race theorists as well as feminists. More importantly, the mind/body dichotomy implicates reason directly in racist and sexist beliefs and practices.

The lack of attention to any kind of material context in The Enchantment of Reason only serves to compound these problems. In an idealist exploration of reason, gender and race are concepts that are easy to overlook. Yet, when reason is (re)located alongside the material and social practices which produce it, gender and race are more likely to come into view. This is nowhere better illustrated than in the context of current debate in the American legal academy about the "rationality" of feminist and critical race scholarship. 119 It is difficult to come away from this body of literature without some awareness of the acute relevance of race and gender to the politics and practices of American legal academia. This wave of "attack scholarship" 120 has all the hallmarks of a power struggle in which the privileged, compelled to justify their privilege, fiercely defend the idea that "academic standards" act as neutral arbiters of intellectual value and worth. 121 Reason, unsurprisingly, is up to its neck in it. At best, it is a mantra for ignorance and smug complacency; at worst, it is a euphemism for intolerance, close-mindedness, and the preservation of white male supremacy. It is certainly difficult to disentangle current versions of reason, as articulated by mainstream American legal scholars, from the politics of racism and sexism in the academy. 122 Remarkably, Schlag manages it.


AT: Norm – Schlag hates language

ALL-IN-ONE: SCHLAG’S TIRADES JUST DEMONSTRATE THE INCOMMENSURABILITY OF LANGAUGE BUT THAT IS NOT A REASON TO REJECT LAW AND RETREAT TOWARDS A ROMANTICIST VIEW OF THE SUBJECT


In this essay, I wish to argue that, in spite of a bold and peremptory tone, Professor Schlag has not made his case that we should or even could "lay down [i.e., cast aside] the law." His critique begins well. Schlag rightly emphasizes that legal practice is not grounded in any unmediated, nonlinguistic thing. Rather, law is an endless chain of signifiers. [*1910] Each signifier simply refers to yet another signifier. The "signified" is never reached. This is an excellent point, but what Professor Schlag fails to comprehend is that his brief is not against law. It is against language and against concepts. His attack is nothing other than logomachy - a tirade against the symbolic order itself, and on the wound that language inflicts on the human spirit. 3

Implicitly, Schlag's program is a romantic one. Law should abolish itself, so that the concrete subject can act from passion, the child of integrity. Feeling, the guarantor of truth, must outrun the pauser, reason. Any submission to the symbolic order or to reason would count as a betrayal of the subject's sovereign right to feel. Meanwhile, Schlag angrily challenges the legal establishment because it holds (or so I will suggest) "surplus enjoyment" 4 - the objet petit a referred to in the passage quoted above. 5 That is to say, the elite of legal academia, steeped in self-satisfaction, "enjoy" themselves. It therefore follows that legal scholarship has stolen something and will not give it back. If Schlag can prevail in his duel, the subject can recapture its "honor" - the objet petit a. All of this, however, is the romantic modernist illusion of the Napoleonic duellist. The elite legal academic establishment never took the missing piece and cannot possibly restore it. The logic of the duel is a false one - the insult is merely imagined. The duel should be called off.

[*1911] This essay reviews the prodigious body of work produced by Professor Schlag, concentrating on his two recent books, supplemented, where useful, with citation to other work. I conclude that Schlag has vastly misinterpreted his discovery that law is nothing but an endless chain of signifiers. In truth, we need not think ill of law or feel bad because we enjoy reading and writing legal scholarship. These conclusions arise from an application of Hegelian and Lacanian theory to the issues Schlag raises. Hegel, a philosopher from the early nineteenth century whose truly revolutionary import is only now being rediscovered in America, 6 was the philosopher of Sittlichkeit 7 - situatedness within the very symbolic order that Schlag so bitterly regrets. His modern disciple, Jacques Lacan, has much to say about the exact structure of Schlag's argument.


AT: Norm – language’s failure

SCHLAG’S INVECTIVE AGAINST LAW JUST DEMONSTRATES THE FAILURE OF LANGUAGE – IT’S A NON-UNIQUE ARGUMENT THAT DOES NOT REQUIRE TOTAL REJECTION


Schlag blames law, conceived here as a historically situated, vaguely defined American linguistic practice, 9 for its want of a "robust referent." 10 [*1913] Instead of delivering any such referent, as it promises to do, 11 law tenders an endless set of signifiers (which Schlag likes to call "ontological entities"), 12 each of which disappointingly refers only to other signifiers. In the end, law signifies nothing. It literally does not exist. 13 Law engages in the petty pace of an infinite regress - a bad infinity - without ever reaching the ultimate signified. 14 Law, in Schlag's opinion, is pseudoscience; 15 nonsense rendered plausible; 16 madness; 17 deficient in its authority 18 and ontology; 19 "faked, bluffed, or simulated;" 20 mere belief 21 and not knowledge of a Real Thing; 22 a Mobius strip; 23 a language game circling around nothing at all. 24 In Austinian terms, it pretends to be [*1914] constative (i.e., reporting a pre-existing reality), but is merely performative. 25 It illegitimately reifies (i.e., "thingifies") imaginary concepts. 26

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. 27 Hence, one may infer that the absent robust referent is some "natural" thing beyond language. 28

Law cannot signify the thing-beyond-language. This is a good Lacanian insight. 29 But does this fault differentiate law from any other linguistic practice that we might identify? Is law different from politics or mathematics or geology? 30 No. These practices likewise do nothing but refer to other signifiers in the same infinite regress that law does. 31 One must conclude that law is not and never was the culprit. Language is. 32

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 [*1915] Master Signifier - its "exceptional element." 33 Yet just because justice is exceptional, law cannot deliver it. 34


AT: Norm – no pure subject – 1 of 2

THE IMPERFECTION OF LANGUAGE IS ITS INHERENT CONDITION; THERE WILL NEVER BE A PURE, PRE-LINGUISTIC SUBJECT WE CAN RETURN TO


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, 35 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. 36

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. 37 A basic part of ourselves is beyond us. We are alienated in language. 38 We suffer from "being-for-other." 39

[*1916] From this basic position of depending on linguistic material for self-identification, we are not, and cannot be, happy consciousnesses. By entering the symbolic realm, we feel "castrated." Castration, in Lacanian terms, is "the understanding that we only exist as subjects within law and language, yet law and language are external to, and imposed on, our subjectivity." 40 Castration refers to "the subject's alienation by and in the Other and separation from the Other." 41

The castrated subject thus experiences a split between its symbolic existence (being-for-other) and that part of the self that language fails to express (being-for-self). Indeed, self-consciousness is nothing but the experience of a scissiparous intervention - a gap between the phenomenal and noumenal worlds. It is not merely that the Lacanian subject has a split as one of its characteristics. Rather, "the subject is nothing but this very split." 42 The subject is, if you will, the very absence of a robust referent that might underwrite linguistic practice. 43

According to Lacan, this submission to the realm of the symbolic is experienced as a kind of failed bargain. The subject supposes that he was forced to give up the primeval unity with otherness when he submitted to the symbolic realm. 44 The subject constantly wants to go back to a state of wholeness, 45 yet the symbolic realm seems to forbid this (impossible) retreat into "jouissance." 46 The subject has submitted to the painful discipline of the symbolic - the "universal initiation rite of subjectivity." 47 The pain experienced is precisely the sense that jouissance has been lost. Accordingly, the subject feels that the symbolic realm owes restitution. 48 This thing allegedly being wrongly withheld, this missing part, Lacan calls the phallus - that which would render whole the castrated subject. 49 This metaphor comes from the conceit that a man "has" the phallus. That is, a [*1917] man is complete and whole, and his phallus is evidence of it. 50 But man of necessity does not have the phallus. The subject is by his very constitution castrated - an "emasculate conception."

Returning to Schlag's brief against law, Schlag is angry at law (i.e., language). In particular, law does not deliver a robust referent - a signified. Justice is what law signifies. Justice is the robust referent - the phallus. If law committed a primordial crime on the subject by castrating him, the subject demands justice - the restitution of the missing parts.

The phallus purports to be a "signified." But there is no signified as such; only the mere vacant place where the signified should be. When called upon to define the signified, we can only fill the air with additional signifiers about it. This, as Schlag correctly emphasizes, is all the practice of law reduces to. The phallus, however, is precisely what is beyond all these signifiers. It cannot be reduced to propositional form.

(CONTINUED…)


AT: Norm – no pure subject – 2 of 2

For this very reason, justice is quite opaque to general definition. Being a phallic trope, justice never has been and never will be defined. Any definition of justice could only occur by use of signifiers, yet justice is precisely what is beyond signification. 51 So conceived, it is clear that justice must always fail. 52

Doing justice is therefore always an act of "sublimation" - in sublimation, I "elevate an object to the dignity of the Thing." 53 Justice, as this void between legal concepts, participates in what Slavoj Zizek calls the "ethics of the Real," which is

the moral Law in its impenetrable aspect, as an agency that arouses anxiety by addressing me with the empty, tautological and, for that very reason, enigmatic injunction 'Do your duty!', leaving it to me to translate this injunction into a determinate moral obligation - I, the moral subject, remain forever plagued by uncertainty, since the moral Law provides no guarantee that I "got it right"... 54 Justice, I contend, is Professor Schlag's "robust referent." Yet what Schlag does not consider is that justice always necessarily fails. Justice is a negative located in the interstices of law. Any attempt to legislate justice [*1918] is mere sublimation. To deliver on this promise of justice, law would have to fill the legal universe and crowd out the negative moment of justice. 55 To the extent law fails to deliver on its promise - when it fails to fill the legal universe - it precisely leaves open the possibility of justice itself. 56 Justice is designed to fail!

According to the false Lacanian autobiography, law has promised justice, but it cannot deliver. Law has castrated the subject but has not lived up to its side of the bargain. It has defaulted on its promise of restitution. Law only fills the field of justice with more signifiers, on a logic by which law is remade with every instance of legal practice. Revealingly, Schlag writes: "To be really good at 'doing law,' one has to have serious blind spots and a stunningly selective sense of curiosity." 57 Professor Schlag captures the practice of law acutely in this remark. "Doing law" is filling the gap with signifiers, a practice that does indeed require serious blind spots in the performance of it. To speak or to act is literally to forget - that the castrated subject is not whole. 58

There is no sense, however, in being angry about judicial failure. Law cannot be blamed for what it cannot deliver. The healthy subject comes to learn that this failed bargain is a falsehood. The subject never had the phallus. 59 Nor does the symbolic realm withhold it. Nothing has been lost and no restitution is due. 60 Schlag's insinuation, that the symbolic realm has breached its obligation to deliver justice is thus false. 61

When we learn to acquit both law and language (the symbolic order) for not living up to their side of the bargain, 62 we adopt what Jeanne Schroeder calls the "feminine position." 63 But this state of repose is the [*1919] reward of a lifetime of contemplation. It is very hard not to project our inward, personal failure onto law, blaming it for the winter of our inward discontent. The fault, however, is not in the law but in ourselves that we are underlings.


AT: Norm – assumes romantic subject

SCHLAG’S VIEW OF A PRE-LEGALISTIC SUBJECT IS ROMANTIC AND NAÏVE, AND IT ASSUMES A UNIFIED AND NORMATIVE SUBJECT


Schlag criticizes his opponents for paying no attention to epistemological issues, 65 but, in his own work, he is at least as silent as those he criticizes. One is merely left to infer the epistemology from Schlag's work. Accordingly, under this license of free foot, 66 I infer from Schlag's work that "objective existence" means sensibility to feeling - what Hegel would call "immediate knowing." 67 Feeling is immediate, either through [*1920] sense or through emotion. Feeling, not reason, is truth's guarantor, and feeling's domain extends both to the object and to the subject. 68

In his disenchantment with reason, Schlag has written that, just because lawyers pursue their profession "does not establish whether liberal categories such as 'individual rights' are on the order of rocks, trees, dollar bills, rubles, words, advertising images, or angels." 69 Within the gross and scope of this ontic spectrum, rocks and trees are trenchantly existential. They can be felt. Dollars are perhaps less so, on most measures of the money supply, but rubles, words, advertising images, angels and liberal category drift into the realm of "ontological entities" 70 - mere figments of the imagination. These latter items do not "exist." Perception mediated by thought is not to be trusted.

Law's defect, then, is that, like Macbeth's dagger, it is insensible to feeling. Law is nothing but thought. Thought (mediation) does not exist, and neither does law. 71 Tangibility - immediacy of intuition - is, I infer, Schlag's criterion of epistemic certainty. What is tangible does not rely on language for its integrity. 72 Tangibility transcends the legal order. It is quite alegal and for this very reason valid. 73

Such a criterion of reality means that, in the end, Schlag's program is a romantic one. Law has deprived the subject of its jouissance. If law would kindly step aside, the subject could enjoy an immediate restitution of its lost parts - a unity that would be certified by feeling. Therefore, justice supposedly demands that law abolish itself so that the concrete subject in its negative freedom can be guided by its natural, uncomplicated [*1921] dimension - by feeling - towards wholeness. 74 But for law, the subject could enjoy itself all the time. 75

Now law's restriction of enjoyment is nowhere explicitly stated in Schlag's work. Yet I maintain it is the very point de capiton that underlies it all. 76 It is part and parcel of the charge that law has stolen the phallus and will not give it back. Subjective feeling - the pain of castration - tells the subject that he has lost the phallus. It is feeling that underwrites the tangibility of this withheld object - the surplus enjoyment held back by law.

This nostalgia for tangibility 77 is reflected in Schlag's harsh condemnation of reason - tangibility's great competitor. For empirical, historically situated selves, reason is a trick, says Schlag. 78 Indeed, reason is simply passion disguised, but an illegitimate passion: "Liberalism depends upon a demonstration that it can be the outcome of reasoned choice by those who are ruled. It is thus ironic that the addressee of liberal justification is systematically frightened, shamed, seduced, and romanced into acquiescence." 79


AT: Norm – Just deal with it!

LAW EXISTS, EVEN IF IT’S A PURE CONSTRUCT. EVERYTHING IS A CONSTRUCT MEDIATED BY SYMBOLS, BUT WE STILL TRY TO NAVIGATE THE WORLD ON ITS OWN TERMS ANYWAY.


This treatment of reason and tangibility is philosophically unacceptable. So far as objects are concerned, a conception of existence that relies on feeling or tangibility far too narrowly conceives of objects and knowledge of them. Laws (and law as such) are indeed "things," just as much as rocks and trees are. Intangible things "exist."The consummate philosopher of "things" is Hegel. In his Science of Logic, Hegel usefully distinguished between "existence" and mere "being." 80 [*1922] "Being" is extremely crude. 81 Being has no staying power but constantly and instantaneously turns into its opposite - nothing. 82 In fact being is nothing but the negation of nothing and therefore does not even "exist" apart from its correlation with nothing. 83 Being is "illusory." 84 It cannot survive its encounter with its other. 85Existence is much more resilient. Existence is an attribute of "things." A "thing" is a relation of all its properties. 86 The thing exists, but only as the empty locus of infinitely numerous properties and conditions. 87 As such, this "frame of things disjoint" has a negative constitution. Thingness stands literally for "nothing" but the negative unity of its properties. 88 As such, a thing is resilient because it remains what it is - a negative unity of properties - even if it loses some of its properties. 89 Existence is the capacity to "have" properties. 90 Thus, if we say "this rock has a given shape," it remains the "same" rock even if we chip off a corner of it and change its shape. In contrast, if I say, "this rock is a given shape," I have much demoted the rock to its mere geometric form. To change the form now (or even to contemplate the substance beyond the form) is to make the rock into something entirely other than what it was. Being is formal and hence transient, but existence is essential and hence resilient.On these metaphysics, we need not think ill of law for its intangibility. Existence is always intangible. Tangibility is merely a property that a thing might have. Intangible property has an equal right to exist.It is easy to show that tangibility, implicitly held out by Schlag as the ideal form of knowledge, is not so impressive and is just as mediated by thought as intangible things, such as law. This demonstration was performed by Hegel at the outset of the Phenomenology, where he criticized the notion of sense certainty. 91 Sense certainty is knowledge of objects without the intermediation of thought - the very criterion that Schlag implicitly relies upon for epistemic authenticity. Sense certainty is the "natural attitude in its more pure and unreflective form." 92 Hegel explains, "because of its concrete content, sense-certainty immediately appears as the richest kind of knowledge... It has not as yet omitted anything from the object." 93 Yet "this very certainty proves itself to be the most abstract and poorest truth. All that it says about what it knows is just that it is...." 94 According to Hegel, knowledge of a tangible thing - a rock, for example - requires an "I" to do the knowing. Both the "I" and the rock are mediated by their other. What seemed to be separately subject and object turn out to be complicated poles of a subject-object continuum - a matter of degree. 95An abstract thought ("this," or abstract indexicality) 96 is essential to knowing the concrete rock. 97 "This" must be taken as a temporal as well as a spatial term - it refers to "now." Presence is an idea separate from the rock, and it is furthermore a universal idea - one that still exists even if the rock is removed from sight. Thus, the subject, retaining the "this," turns from the rock and bestows indexicality on some other object he beholds - a tree. The rock-in-itself is obliterated by direct consciousness (though the thought of the rock is preserved). 98 Only the "thisness" of the rock-in-itself endures. At this point, the "real" thing - the thing that endures - is "presence." Presence must be "performed" - nothing can precede it. Indexicality confers symbolic (intangible) identity upon the [*1924] rock. 99 The tangible rock, in contrast, is inessential and passes away. It is no longer present. Tangibility has thus been reduced to inessentiality. What was essential was the subject's consciousness of the rock (not the rock-in-itself). Consciousness thus "discovers itself in the object which it thought it had discovered." 100Rocks are objects mediated by the subject's cognition. But they are hardly reducible to cognition. There is something about the rock that exceeds the subject. Its existence may not be just imagined away entirely, and, for this reason, we duck when the rock is thrown at us. Like rocks, law is beyond the subject. It cannot entirely be wished away. 101 Law resists manipulation by a single subject. It may not be perfectly determinate, but neither is the rock. As things, both law and rock are negative unities that cannot be known directly and can be known only indirectly through the perceptions of specific properties. 102 Indeed, Schlag himself, at times, "perceives" law 103 and hence concedes its existence, as when he writes: "Law is quite obviously a rich amalgamation of feudal social aesthetics, nineteenth-century juristic science, early twentieth century legal realist policy analysis, legal process proceduralisms, Warren Court normativity...." 104 Here on display are law's various properties and the cosmological unity 105 called "law" that organizes this set of particulars. In this formulation, Schlag confesses the existence of law.Because of the negativity of this unifying essence, law and rocks are metonymic entities, 106 as even analytic philosophy has discovered. 107 We can name only the context and properties of the thing. We cannot name the thing itself. 108 This is true of rocks and of law. One exists just as surely as does the other.Diogenes liked to defeat Plato y kicking a rock and thereby proving it "existed." But all this showed was the utility of the rock - its status as an object for actual consciousness, 109 or the "being-for-other" of the rock. 110 Such a reality is one-sided, in that it emphasizes the negativity (being-for-other) of the thing and excludes the side of being-for-self. 111 Such an insistence on the factum brutum - the "being-for-us" of the rock - paradoxically renders the rock entirely subjective and denies the rock the very integrity that the attribute of "reality" should have provided for it. 112Tangibility is not a property of law in the first place, and this makes law a different kind of thing than a rock or tree. Nevertheless , law has an objective - i.e., inter-subjective - existence. 113 It exists in the minds of the multitude. It is "social substance." 114


AT: Norm – rejection = self-defeating

YOU CAN’T JUST REJECT LEGAL THOUGHT – LEGAL THOUGHT IS HOW WE MAKE SENSE OF SYMBOLS IN THE WORLD, AND IT IS THE VERY MEDIUM FOR LAUNCHING CRITIQUES LIKE SCHLAG’S


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. 312

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.

Schlag is very hard on law professors who give advice to judges. He mocks their work as mere "pretend-law," 313 mere journalism. 314 "One need only pick up a judicial opinion, a state statute, a federal regulation, or a law review article to experience an overwhelming sense of dread and ennui." 315 Meanwhile, judges are not even paying attention to legal scholarship 316 - which, experience teaches, is disappointingly true.


AT: norm – Schlag’s epistmlgy simplistic

SCHLAG’S DENOUNCEMENT OF ‘REASON’ IS SIMPLISTIC AND IT IS THE SAME EPISTEMOLOGICAL FRAMEWORK THAT HE HIMSELF USES


Leaving aside, for a moment, speculation about Schlag's personal values/antipathies and their implication in the arguments he mounts in The Enchantment of Reason, it must be recognized that his preoccupation with reason as a source of belief is both striking and pre-emptive. It prescribes a particular test for the validity of knowledge. To be valid, knowledge must ground belief. And, Schlag argues, reason can no more ground belief than magic or faith. Sometimes (often in fact) it is simply magic or faith. Suppose, however, that we consider the validity of knowledge in different terms? Suppose we reject the notion that to be valid knowledge must ground belief in favor of more open, flexible, pluralistic approaches to knowledge validation. Do magic and faith then emerge as self-evidently without value?Take, for example, fairy tales. These are narratives positively steeped in the world of enchantment. Is there a sense in which fairy tales are "valid" knowledge? Do they perhaps offer useful, sometimes even powerful, insights that enhance understanding, foster self-knowledge, liberate the imagination, and satisfy or induce desire? Indeed. 58 Do we have to believe in them to conclude they have some validity as forms of knowledge? Of course not. The relationship between knowledge, understanding, and belief is much more complex and often much less direct than Schlag's invocation of reason would admit. 59The point is that Schlag's notion of reason is an exact reflection of that deployed by those he seeks to criticize; it mirrors the epistemological framework of the mainstream legal academy in allowing the elision of knowledge and belief to stand. Hence, for example, Susanna Sherry's shock at the use by legal scholars of stories that may not even be true! 60 Hence, too, her misplaced comparison of feminist legal scholarship/critical race theory with the beliefs of religious fundamentalists. 61 Sherry presupposes (rather than proves) that religious believers and radical legal scholars are making similar kinds of knowledge claims and therefore stand or fall on the same test of validity (neither can properly ground belief). Schlag's strategy is to show that whatever test of validity she is invoking, reason fails it too: "once reason is demoted to the status [*555] of belief ... it loses its claim to rule." 62 Proceeding as if reason can do what Sherry and others in the American legal academy attribute to it, he goes on to show--categorically--that it cannot. 63What, though, are the consequences of this mirroring strategy adopted by Schlag? Do the gains of immanent critique outweigh the losses that flow from remaining within the frame he is seeking to dissolve? This is probably impossible to assess and Schlag does not make it easy for himself because he never really spells out the gains beyond the satisfaction of demonstrating that Susanna Sherry's defence of reason undoubtedly qualifies as a classic instance of "faith, prejudice, dogma, and company" in legal scholarship. In fact, the political gains are potentially great as I will endeavor to show later in this article, but there are costs too, and I am not sure that Schlag is as conscious of these as he should be.In occupying the terrain of the opposition, there is always a risk of conceding too much and probing too little. In Schlag's case, the concern is that too many aspects of the discursive framework within which he locates himself survive intact because of his lack of awareness of their operative significance. For example, the anti-faith stance of the champions of reason finds it way unbidden but not wholly unwelcome into Schlag's critique. Likewise, magic is presented as ridiculous, fantasy disparaged for its own sake, and states of enchantment presumed to be malign. 64 Thus, Schlag inadvertently reproduces rationalist norms of knowledge validation at the same time as he disputes them. Similarly, in drawing the boundaries of American legal scholarship in the narrowest of terms to correspond precisely with the work of the academy's mainstream, not only does Schlag exclude "non-traditional" legal scholarship from the ambit of his consideration, but, by doing so, risks affirming that exclusion from the definitions of "proper" scholarship posited by those whose work he derides. Such an effect is exacerbated by his inclusion of and enthusiastic identification with a recognizable canon of radical white male theorists comprising Fish, Kennedy, Derrida, and Habermas (the usual suspects). While Schlag clearly considers these writers to have insights that cast light on the activities of the mundane and misguided legal mainstream (comprising Dworkin, Sunstein, Nussbaum, [*556] Rawls, Sherry, Radin, and sometimes Hart and Raz as honorary American legal scholars), the unspoken assumption is that no similar enlightenment is found in the work of feminists and critical race scholars. Schlag may protest that such a conclusion should not properly be drawn, but by that he simply means he did not consciously intend it, that it is a mere by-product of the discursive constraints within which he locates himself. I will not argue with this.


AT: Norm – Schlag links to self

ALL-IN-ONE: SCHLAG LINKS TO HIS OWN CRITIQUE IN SEVEN WAYS: A NAÏVE NOTION OF SUBJECTIVITY, AN ABSTRACT PERSPECTIVE, A SELF-ERASURE OF SOCIAL LOCATION, A DUALIST VIEW OF THE SUBJECT, MAKES MORALIST ARGUMENTS, AND RELIES UPON LEGAL AND SYMBOLIC SCHOLARSHIP


I began by suggesting that Pierre Schlag assumes the position of a duellist. 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. 328

(2) Schlag warns that, by definition, theory abstracts from context. 329 He warns that assuming the right answer will arise from context unmediated by theory is "feeble." 330 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. 331 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. 332 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. 333

(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.

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?


AT: Norm – Schlag uses reason

SCHLAG’S PORTRAYAL OF “REASON” IS AMBIGUOUS AND OVER-EXAGGERATED, AND HE USES ‘REASON’ AS MUCH AS THOSE HE CRITICIZES


It is perhaps an obvious question to ask but ... enchanted by what precisely? In Schlag's case, the answer is far less apparent than one might expect. It should be stressed at the outset that this is not--nor does it purport to be--an abstract philosophical discourse on reason. 27 Reason for Schlag's purposes is bound by the confines of the legal academy; it is what passes for reason among American legal scholars that concerns him. Interestingly, at no point does he define what he means by reason. This is probably a wise move. Given the variety of views--even within law--on what counts as reason, attempts to define it are invariably tricky, eliciting pronouncements that are either hopelessly vague or internally contradictory. 28 Acts of definition also raise the risk of side tracking debate with considerable amounts of intellectual effort exhausted by interminable disputes of definition and scope. Anyway, Schlag's pointed avoidance of any definitional exercise necessarily flows from the arguments he is making. Once reason is defined, mapped, plotted, and located, it becomes not reason exactly, but whatever it is that is defined, mapped, plotted, and located. "Reason," for these purposes, becomes no more than a construction of the logic of the disciplinary frame within which the scholar/topographer is working. Schlag is not going to fall into that trap.

Nevertheless, Schlag's refusal to delineate with any precision the object of his critique is not a risk-free strategy. One difficulty arising is that reason remains deliciously ephemeral throughout, assuming a [*550] dream-like, shadowy quality that at times heightens its allure and triggers a desire to capture and contain it. This is of course a reflection of Schlag's own ambivalence towards reason, signalled in particular by his use of the word "enchantment" 29 to denote our (his?) affinity to it. Schlag's portrayal of reason is that of a siren, a femme fatale, who simultaneously entices and deceives. And, while he urges us endlessly to recognize her pathological tendencies, we remain suspicious that he is still in her thrall. More importantly, however, the nebulous quality of Schlag's invocations of reason is misleading and belies the prescriptive content of the notion(s) he deploys. Reason, for Schlag's purposes, is bounded in ways he does not openly acknowledge. Woven within the fabric of his critique is a particular perspective from which reason's purposes are derived and its shortcomings identified and assessed.


AT: Norm – Schlag = inside law

DESPITE SCHLAG’S RECOGNITION THAT HE IS AN ‘INSIDER,’ HE FETISHIZES THE LEGAL REALM TOO MUCH AND ULTIMATELY CHOOSES TO REMAIN TRAPPED INSIDE A LEGAL FRAMEWORK WITHOUT CONSIDERATION OF EXTRA-LEGAL AND SOCIAL FORCES


A final concern emerging from the confines of Schlag's selective mimicry of the mainstream lies in its resolutely legal character. American legal scholars do not, by and large, like to stray too far beyond the boundaries of what is acceptably "legal" 65 and interestingly, neither does Schlag. He/they prefer the snug confines of traditional legal discourse and its discontents, modestly professing ignorance and lack of expertise beyond the terrain of law, narrowly understood as judicial decisions and the doctrines and theories legal scholars derive from them. Schlag bemoans this narrowness repeatedly but seems in no great hurry to escape it. Indeed, one sometimes wonders whether or not his insistence on so limited an enquiry masks a fear of his moving beyond what he has experienced as safe and steady ground. By his own admission, this is the critique of "an insider," 66 but does it simultaneously affirm the attractions of remaining "inside"? This dogged determination to steer clear of the complexities that an extra-legal dimension might introduce is also manifest in Schlag's exclusive preoccupation with reason's aesthetic appeal. While I applaud his efforts to draw attention to the coercive power of particular aesthetic forms--in the context of law, the compelling effects of grid-like manifestations of reason--his neglect of, indeed total silence in relation to, other features of law's coerciveness puts him at risk of overstating his case. This is particularly so when what is neglected is so closely bound up with what he addresses at such length. Here, I am thinking in particular of the ideological context within which law operates and upon which reason seeks to make her mark. In my view, there is an ideological dimension to the effective deployment of reason that is not, or is only secondarily, dependent upon its aesthetic form. There is a detectable distinction (not always but sometimes) between invocations of reason that are dependent upon the political and ideological landscape for their validity and deployments of reason that [*557] draw upon (or seek to develop) our aesthetic inclinations, particularly our attraction to order and coherence. 67 Often, what seems reasonable is inextricably related to our understanding of what is possible, and yet, it is not always the case that what is possible is determined by the boundaries of reason. The ideological landscape abounds with all of the "sources of belief" making an appearance in Schlag's critique.


AT: Norm: Schlag = normative

SCHLAG’S ALTERNATIVES TO NORMATIVITY ARE THEMSELVES NORMATIVE (FOR FUCKING REAL..)

SCHROEDER AND CARLSON IN `03 (JEANNE L. AND DAVID GRAY CARLSON, PROFESSORS OF LAW, THE BENJAMIN N. CARDOZO SCHOOL OF LAW, YESHIVA UNIVERSITY, NEW YORK CITY, “SYMPOSIUM: BEYOND RIGHT AND REASON: PIERRE SCHLAG, THE CRITIQUE OF NORMATIVITY, AND THE ENCHANTMENT OF REASON: LAW'S NON-EXISTENT EMPIRE,” MIAMI LR)

Yet, when we read Schlag, we find that he inadvertently addresses the very questions he insists must not even be posed: "What should we do? What's the point?" ... "If normative legal thought isn't going anywhere, what should we do instead?" "What do you propose?" "What's the solution?" 8Schlag calls these questions an "interruption" from what the task at hand should be--deconstruction of the very project of normative legal scholarship.Yet, in spite of this apparent opposition to normativity, we find that Schlag is himself normative. His program is that we should stop being normative. This is as much normativity as the normativity he attacks.In fact, we believe that Schlag's attack on legal academics and the legal profession generally is a mere by-product of the main point: an attack on law as such. 9 Accordingly, Schlag blames the law for failing to deliver what it promises--a "robust referent." 10 Instead of delivering this robust referent, law instead proffers a chain of signifiers (which Schlag calls "ontological entities" 11). Each signifier disappointingly refers only to other signifiers. None of these signifiers is a robust referent. Schlag reveals that law is a tale told by an idiot, signifying nothing. It literally does not exist. Law engages in the petty pace of infinite regress--a bad infinity--without ever reaching the ultimate signified. 12 For this reason, law is pseudoscience, nonsense, madness, "faked, bluffed, or simulated." 13The core of this attack on law is well taken. Law is a fiction, as Bentham 14 and Lacan 15 have strongly emphasized. But what is the normative payoff to this observation? Schlag ends one of his books by tentatively suggesting that "maybe what comes next is that we stop treating 'law' as something to celebrate, expand, and worship. May we learn to lay down the law." 16Is there not an enormous problem with this suggestion? Even while he suggests that we lay down the law and legal scholarship about the law, Schlag actually does legal scholarship. His opponents are well justified in accusing Pierre of an inconsistency in this regard. As Henry V [*770] put it, "Tis good for men to love their present pains upon example." 17 Yet Schlag has not given the troops a very good example of his program; he has remained a productive legal scholar. The very passion, let alone the sheer volume, of his writing belies Schlag's recommendation that we should lay down the law. How could he tell us what to do--to lay down the law--if he himself were to lay down the law? The only way he can successfully get us to lay down the law is if he himself does not lay down the law.Beyond laying down the law, another normative program emerges from Schlag's work: "What is missing in normative legal thought is any serious questioning, let alone tracing, of the relations that the practice, the rhetoric, the routine of normative legal thought have (or do not have) to the field of pain and death." 18 The suggestion is that we should come to realize that law itself is the very ground for the field of pain and death. When this is realized, the normative program to lay down the law becomes a high moral imperative. It appears from Schlag's work that the proper project for legal scholarship is to expose law's responsibility for pain and death. This is what we should do. When legal scholarship has achieved this task, presumably pain and death will have been eliminated. Turning the tables on law and economics, Pierre implies that it would be efficient (i.e., useful to human utility) if law would abolish itself.But, stranded on a field exfoliated of pain and death, what next? The implicit program seems to be that, once the distortions of law are removed, the subject simply does not have to be told to do anything. Whatever the subject does will be authentic. This is the free, liberated subject that Schlag's normativity implies--a natural subject from whom completeness and authenticity has been unfairly denied by the legal bureaucracy. If we are right, then underlying Schlag's polemic against law is an uncritical romantic psychology. This would in turn mean that Schlag is not so much a critical scholar as a romantic one.This implicit psychology means that Schlag has something in common with the political liberals he attacks. Both Schlag and liberals believe in the autonomy of the human subject--and the possibility that the subject can achieve this desired state of freedom. Furthermore, they both believe in the existence of subjectivity in a state of nature on which positive law or social engineering cannot possibly improve.Law, then, has become a tool for oppressing the bureaucratic society that legal academia unwittingly serves. Legal subjects, subjected to the law, are alienated from themselves by the law. The corollary to this [*771] is that there must be at least the possibility that subjectivity could be other than it is now--distorted by law.


AT: Norm: Schlag = totalizing, too

SCHLAG’S ROMANTIC CONCEPT OF A PRE-LINGUISTIC SUBJECT USES THE SAME TOTALIZING AND FLAWED APPROACH TO KNOWLEDGE THAT HE CRITICIZES (BECAUSE IT’S CONSTITUTIVE OF ALL LANGUAGE)


Cosmology is postulation writ large. It refers to the totality of all phenomena. 125 A cosmological solution is a totalization of all of the conditions or properties given in an object. 126 For Schlag, cosmological solutions to infinite regresses are doubly unacceptable. Any attempt to end the infinite regress in a cosmological proposition creates new contradictions. 127 No such proposition is any better than any other. 128 Even Wittgenstein is chastised for merely producing another unacceptable postulative [*1927] turtle. 129 A chapter in Laying Down the Law is spent on criticizing Stanley Fish for constantly imposing cosmological solutions to fix meaning. Thus, by asserting that any interpretive rule must itself be interpreted ad infinitum, Fish ultimately concedes that meaning exists. Such a solution is cosmological and hence unacceptable. 130Since he insists on tangibility, Schlag has no patience whatever for such ideas as God, 131 conscience, 132 or reason 133 (even while he insists on the robust reality of justice). Reason, law and morality are, like God, quite dead. 134 Being supersensible, they are beyond the domain of feeling, and so are disqualified from the field of romantic reality.In lieu of postulation, Schlag favors thought that is not totalizing, but rather is conflicted, and interstitial. 135 Coherence is but an aesthetic 136 [*1928] criterion, and hence not authentic. 137 Because a given person modulates between different cognitive modes, coherence according to any one mode prevails only by ignoring and suppressing the other cognitive modes. 138This entire position, however, is a misinterpretation. First, we have already seen that Schlag himself refers to law as "a rich amalgamation of feudal social aesthetics, nineteenth-century juristic science, early twentieth-century legal realist policy analysis, legal process proceduralisms, Warren Court normativity." 139 This is precisely a cosmological conclusion about law as a totality. Indeed, Schlag could not speak of law without indulging in such totalizing behavior. 140 Totalization is a necessary (but inadequate) moment in symbolic existence. 141More fundamentally, if I have correctly inferred that Schlag's program is a romantic "law of the heart," then this very program is a cosmological postulation. Such a program, as we have seen, is based on the hypothesis that the subject was once a whole, and might be a whole again. This postulation - to which feeling testifies - is just as much a "totalization" or "ontological entity" as law is.Indeed, postulation is necessary to the very program that Schlag implicitly promotes - liberation of the concrete self from legal scholarship, law, and language. For the concrete subject to be free, it must have a two-sided nature - one natural and one supersensible. The supersensible side - free will, or the moral capacity to choose - is presupposed by Schlag in his very appeal against legal scholarship. If his readers were incapable of heeding his appeal, there would be little point in making it. There would be nothing to liberate. Once free will is abolished, the self would be a mere automaton in the thrall of legal scholarship. 142The supersensible side of personality can only be postulated. 143 If, however, we postulate free will, as something separate and apart from [*1929] inclination, 144 then it is possible to presuppose a pre-existing law that a judge, in the exercise of her moral capacity, is free to follow (in lieu of her inclination). 145


AT: Norm – Schlag = vanishing mediator

SCHLAG POSITIONS HIMSELF AS A NEUTRAL AND OBJECTIVE CRITIC, WHICH IS MORE NORMATIVE AND ABSTRACT AS THE VERY LEGAL STRUCTURES HE CRITICIZES


Perhaps Pierre Schlag's most famous point is his imperative, "Don't be normative." The values of the legal academy are little better than advertising purveyors 192 - hypocrites who try "to achieve strategic advantages largely (if not entirely) unrelated to the observance or realization of those professed values." 193 Values are used as totems or tools to induce guilt or shame. 194 Stifling and narrow, 195 normativity is not even a thought - only an unthinking habit. 196 Normativity argues that, if it does not hold sway, terrible social consequences would follow. 197 Normative thought is designed to shut down critical inquiry into the nothingness of law. 198Not only are values deceitfully strategic, but they are ineffective. 199 They are too vague to be self-determining. 200 "Normative legal thought's only consumers are legal academics and perhaps a few law students - persons who are virtually never in a position to put any of its wonderful normative advice into effect." 201 Judges are not listening. 202 Even if judges had the time to read and study all of academia's suggestions, they would be unlikely to implement any which would require radical changes in the status quo, since, Schlag notes, "only those kinds of norms that already conform to the audience's belief are likely to meet with any sort [*1937] of wide-scale approval." 203 Thus, Schlag concedes, sometimes normativity is empirically effective after all - but not because of intrinsic authenticity. Normativity is effective because it tracks and incorporates "folk-ontologies," such as order, salvation, or progress. 204 Like Antony, norms tell the people only what they already know.Norms and values are lies, Schlag says, when proffered by legal academics, but it was otherwise with Sophocles 205 or the Warren court, 206 who were authentically in touch with real pain. By implication, values are authentic when immediately connected to feelings. 207 Values, properly used, are worthy of commendation. 208 But the mere invocation of values does not guarantee their authenticity. The proof of values is in context. 209At first impression, Schlag's imperative against normativity seems startlingly contradictory. Is it not a norm that one should not be normative? If so, how is it that the norms of the legal academy are lies, while Schlag's very meta-norm is legitimate?Schlag's view is not at all contradictory within the context of romantic psychology. Norms and values are defined by Schlag as concepts which are severed from what Schlag likes to call "context" - understood as nature, or the state that precedes the introduction of legal distortion. 210 In fact, norms and values are the same non-thing or non-sense as law. They are the corruptions and mutilations that destroy context. They are castration itself. 211If, however, context could speak directly, what it would say would not be a norm. 212 When context says, "Don't be normative," then context is [*1938] not itself normative. Rather, context would be speaking a natural, well-grounded, immediate truth - not a mere norm. 213This is, I think, what organizes Schlag's critique of norms. The norms offered by legal academics are inauthentic because they are universals, standing apart from context. Schlag, Sophocles, and Chief Justice Earl Warren, however, are in touch with context (through sense-certainty or immediate feeling), and what they speak is the concrete truth, not a norm. In short, Schlag appeals to a natural law which is, while other legal academics appeal to mere "ontological identities," which merely ought to be. This is precisely the claim of the romantic, who, "exempt from public haunt, Finds tongues in trees, books in the running brooks, Sermons in stones, and good in every thing." 214In the world of the romantic, things speak directly. Thus, when Schlag reports what natural context says, no thought or "norm" enters to distort the message sent by nature itself. Schlag thus puts himself forth as what has been called a "rational observer" of natural law 215 - a vanishing mediator, in Zizekian terms. 216Schlag complains that positive lawyers are empty vessels. Thus, Dworkin's Hercules is said to be a "vacuous fellow." 217 Ironically, it turns out that Schlag himself is just as vacuous. In order for context to speak, Schlag must erase himself and be the vanishing mediator between nature (i.e., context) and legal audience. In short, Schlag, who vociferously opposes the Kantian subject, 218 puts himself forth as the perfect Kantian. 219


Norm = Consciousness – 1 of 2

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Like judicial opinions, 305 legal scholarship is deceitful. 306 It insincerely denies that it reifies. 307 It generates useless complexity in order to [*1950] produce the "sense that there was truly something there." 308 It is frightened; it "dare not have a creative idea, certainly not a big idea, lest it chip or crack the monument of law in an irretrievable manner." 309 Legal scholarship finds in nature the very sermons it placed there. 310 Its methodology insures that the participants in the enterprise will never recognize the foundational gestures by which law is created; as a result, the search for the object of law will never be consummated. 311

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. 312

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.

Schlag is very hard on law professors who give advice to judges. He mocks their work as mere "pretend-law," 313 mere journalism. 314 "One need only pick up a judicial opinion, a state statute, a federal regulation, or a law review article to experience an overwhelming sense of dread and ennui." 315 Meanwhile, judges are not even paying attention to legal scholarship 316 - which, experience teaches, is disappointingly true.

Vicarious participation in litigation or legislation can nevertheless be defended as a participation in culture itself. Law professors can contribute to that culture by making law more coherent, and in this sense their project is at least as worthy as any that philosophy, history or astrophysics [*1951] could devise. Law has an objective structure that exceeds mere subjectivity. This objective structure can be altered by hard work. An altered legal world, however, is not the point. Evidence of consequential impact is gratifying, but this is simply what mere egotism requires. It is in the work itself that the value of legal scholarship can be found. Work is what reconciles the failure of the unhappy consciousness to achieve justice. Work is, in Hegel's view, desire held in check, fleetingness staved off... work forms and shapes the thing. The negative relation to the object becomes its form and something permanent... This negative middle term or the formative activity is at the same time the individuality or pure being-for-self of consciousness which now... acquires an element of permanence. 317

(CONTINUED…)


Norm = Consciousness – 2 of 2

Hegel, then, gives a spiritual turn to that worthy slogan "publish or perish." By working the law, lawyers, judges, private citizens, and even academics can make it more permanent, more resilient, more "existential," 318 but, more to the point, they make themselves more resilient, more "existential." 319 Work on law can increase freedom - the positive freedom that relieves the worker of "anxiety" - fear of disappearance into the Real. 320 When work is done, the legal universe swells and fills itself out - like an appetite that "grows by what it feeds on." 321 But far more important, the self gains a place in the world by the very work done. Work is the means of "subjective destitution" or "narcissistic loss" 322 - the complete externalization of the subject and the surrender of the fantasy support upon which the subject otherwise depends. In Lacanian terms, "subjective destitution" is the wages of cure at the end of analysis. 323 Or, in Hegelian terms, cure is "the ascesis that is necessary if consciousness is to reach genuine philosophic knowledge." 324 In this state, we precisely lose the suspicion that law (i.e., the big Other) does not exist. 325 In Hegel's inspirational words:

Each individual consciousness raises itself out of its allotted sphere, no longer finds its essence and its work in this particular sphere, but grasps itself as the Notion of will, grasps all spheres as [*1952] the essence of this will, and therefore can only realize itself in a work which is a work of the whole. 326

I make no special claim that legal academic work is worthy of extra-special respect. It is a craft, like any other. As such, it is at least worthy of its share of respect. If spirit unfolds and manifests itself in the phenomenal world of culture, 327 why should it not also manifest itself in the law reviews?

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