Tuesday, February 21, 2006

Notes on Pierre Schlag and Normativity

Schlag's critique of the objectivity of law takes the form of a critique of "normativity." What is "normative legal thought?" It is when legal scholars, advocates and activists take a position on what the law ought to be, how it should be interpreted, etc.

One of the main problems with normative legal thought, according to Schlag, is that normative thinking is NAIVE. Advocates are unaware, or at least seem to be unaware, of how power works, whose hands are on the real levers of power, who essentially "owns" the law. Because of this, legal scholars, advocates, and activists constantly say "this should be done," "there ought to be a law that says this," "the law should be interpreted in this way..." In a larger sense, they say "we need more justice..." etc. They become SELF-SATISFIED with their rhetoric about the way things ought to be, and this self-satisfaction obscures the real reasons things are the way they are--such as the way in which corporate and capitalist interests control the political and legal process, the way in which implicit and entrenched racism, sexism, classism, etc., overwhelms the supposed solvency of normative legal advocacy.

Schlag's "Clerks in the Maze" examines the way in which law seeks to preserve itself through its own authority. These methods of self-preservation are essentially rhetorical, and thus, Schlag's criticism serves as a model for rhetorical criticism we can use in this class. For Schlag, much legal discourse is a denial of the inherently violent nature of the law. Recall that last week we discussed how the law is predicated upon the ability of the state to do violence. Schlag even suggests this violence goes even deeper than the coercive power of the state. "Judges," he writes, "must destroy the worlds of meaning that others have created." Because the law is essentially coercive, and often arbitrary and laden with unacknowledged power hierarchies, part of the purpose of legal rhetoric is "making the law feel really good" about itself.

Schlag outlines two legitimizing rhetorical strategies, both of which can serve as models of rhetorical criticism. First, "Constrain and Control." This strategy paints PARTS of the law, such as some parts of the judiciary, as violent and potentially out of control. It holds up models of "judicial restraint" as a remedy for this. It idealizes procedural regularity, consistency, etc. In doing so, it not only stifles creativity, but also covers up the violence found in that very consistency and regularity. One good application of this criticism to legal discourse would be a critique of various judicial opinions concerning Native Americans: the Plenary Power doctrine, Indian citizenship, etc.

Second, "Justify and Redeem." This is where you find legal arguments emphasizing goodness and rightness. It is especially found in advocacy and decisions that purport to solve for, bring redemption for, past injustices. It is manifest in the law's "grand demonstrations of profound moral concern." It is also often accompanied by what Schlag calls "hand-wringing," the assumption that redemption is found merely in FEELING BAD about past injustices. One could apply this critical model to a lot of legal advocacy about civil rights and other antidotes to systemic oppression.

Schlag's "Normative and Nowhere to Go" is a delightful and provocative article. Read the footnotes--they are hilarious. There's a lot at work in this article. I just want to emphasize Schlag's ridicule of the normative mindset that we ought to always be "doing something." He says that the question "What should we do" is "an interruption posing as an origin." I'd like to hear what others in the class think this quote means before I explain my understanding of it in class on Thursday.

Schlag's conclusion in this article is that when law professors train law students to fight for good things--justice, equality, etc.--without paying attention to how institutional (and perhaps non-institutional) power works in society, these professors are essentially training their students to be "Atticus Finch" in a world where Finch is unreal and impossible. Atticus Finch, of course, is the famous main character in Harper Lee's To Kill a Mockingbird, a morally upright, progressive hero surrounded by evil and ignorant men.

Schlag says that the law is not Atticus Finch, but rather a glorified version of the insurance industry. Insurance adjusters might have some cursory knowledge of philosophical and moral ideals (eg, "responsibility") but they really can't change the way the insurance industry works, nor do they really want to. The machinery keeps running the same way it always does, because those who truly control that machinery don't want it to work any other way. At best, the most idealistic practitioners in the machine merely make the machine look good, rather than affecting any genuine reforms. Schlag writes:
For our students, this role-confusion is unlikely to be very funny. It will get even less so upon their graduation--when they learn that Atticus Finch has been written out of the script. For us, of course, it is a pleasant fantasy to think we are teaching Atticus Finch. When the fantasy is over, it becomes one hell of a category mistake. And in the rude transition from the one to the other, Atticus Finch can quickly turn into Dan Quayle. In fact, if you train your students to become Atticus Finch, they will likely end up as Dan Quayle-- cognitively defenseless against the regimenting and monitoring practices of bureaucratic institutions. Atticus Finch, as admirable as he may be, has none of the cognitive or critical resources necessary to understand the duplicities of the bureaucratic networks within which we operate. Apart from the fantasies of the legal academy, there is no longer a place in America for a lawyer like Atticus Finch. There is nothing for him to do here--nothing he can do. He is a moral character in a world where the role of moral thought has become at best highly ambivalent, a normative thinker in a world where normative legal thought is already largely the bureaucratic logic of institutions.

Certainly a bleak picture, but one we must consider in our quest to understand, criticize, defend, and even deconstruct the themes of legal rhetoric.


Blogger Christina said...

I agree with Schlag's "constrain and control" however isnt that a utopia? I mean how do you interperte the law perfectly? Everyone has thier own idea and interpertation of what the law is, how can one or any person possaibly contain it?

7:04 PM  
Anonymous Anonymous said...

I agree that it does seem to be a utopia of sorts. Nobody can interpret the law perfectly, for interpretation is subjective. Interpreting the law in itself is subjective because nobody sees things exactly alike.

11:24 AM  
Anonymous Anonymous said...

"an interruption posing as an origin" I think this means that interrupting the law as it is in its current state is basically starting a new "idea" and this becomes the origin of a new take or view of the law.
-scott sheets-

7:00 PM  
Anonymous Anonymous said...

"always be doing something"
This seems to me like they feel the law can always be improved upon. But I like to think if it isnt broken dont fix it.
-scott sheets-

7:02 PM  
Anonymous Anonymous said...

Pierre Schlag's attack on Normative Legal Thought and all that is associated with it is predicated, it seems, on two assumptions: that justice is a quantifiable (or measurable) phenomenon, and that it is possible to obtain it in desired amounts at will.

Bear with me on this.

Take, for example, it took nearly 50 years before the U.S. government paid reparations to WWII Japanese internees, through an act of congress. Where was justice (Korematsu v. U.S.?) in 1942? Where was justice until 1988? Most importantly, is $20,000 (the amount allotted each internment camp survivor) the price of atonement? These questions cannot be answered by the mainstream of normative legal thought, exposing its glaring weaknesses.

In saying that NLT decrees, but does not decide (as in the case of "Clerks in the Maze's" authoritative texts- and judge's rulings) the law, Schlag effectively neuters the extent of its influence. Also, he argues quite well that words (i.e. "Freedom") are loaded (to me, like baked potatoes) with all sorts of assumptions, associations, and ascribed values. This leads to a degeneration of thought into a black and white, us vs. them world of stark, autocratic law, not nuanced, humanistic thought.

Okay, maybe it's not so bad- normative legal thought isn't the end-all that is purported. But as Schlag implies, Pepsi certainly did not bring down the Berlin Wall.

11:09 PM  
Anonymous Anonymous said...

Ooops- that last one was me.

-Tony C. Yang

11:50 PM  
Blogger Ashley Colgan said...

I completely agree with Schlag about the fact that we need to be asking more of "Where are we?" rather than "What should we do?" but he is looking at demanding the entire legal thought process to be dropped, and meanwhile not offering a solution on how to get there. If we could get to the point of actually looking at the "origin," then foundational thought of what the law is now could be entirely lost.

10:19 AM  
Blogger Holly said...

"always be doing something" that is how america works, it's hard to ask the question where are we, instead of what should we do. our entire culture is based on instant results and always fixing the problem at hand, not worrying about how we got into the situation to start with.

12:31 PM  
Blogger Holly said...

"always be doing something" that is how america works, it's hard to ask the question where are we, instead of what should we do. our entire culture is based on instant results and always fixing the problem at hand, not worrying about how we got into the situation to start with.

12:31 PM  
Anonymous Anonymous said...

I agree with Schlag when he says that people are unaware of how the law works. They want justice, yet they want the law to work in the way they seem fit. A lot of people don't like how the law works in the american justice system, but the truth is, it's not perfect. There will never be a complete consensus about laws or the interpretation of laws--Even judges are an example of this through the dissents in court cases. I think that as long as the majority agrees what the law is doing and as long as it benefits most people, then I think the law is doing its job. You can't please everybody.

11:29 AM  

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