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Laying Down the Law: Mysticism, Fetishism, and the American Legal Mind

PIERRE SCHLAG
Copyright Date: 1996
Published by: NYU Press
Pages: 206
https://www.jstor.org/stable/j.ctt9qg0wb
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    Laying Down the Law
    Book Description:

    In the collected essays here, Schlag established himself as one of the most creative thinkers in the contemporary legal academy. To read them one after another is exhilarating; Schlag's sophistication shines through. In chapter after chapter he tackles the most vexing problems of law and legal thinking, but at the heart of his concern is the questions of normativity and the normative claims made by legal scholars. He revisits legal realism, eenergizes it, and brings readers face-to-face with the central issues confronting law at the end of the 20th century.--Choice, May 1997 Pierre Schlag is the great iconoclast of the American legal academy. Few law professors today are so consistently original, funny, and provocative. But behind his playful manner is a serious goal: bringing the study of law into the late modern/ postmodern age. Reading these essays is like watching a one-man truth squad taking on all of the trends and movements of contemporary jurisprudence. All one can say to the latter is, better take cover.--J. M. Balkin, Lafayette S. Foster Professor, Yale Law School At a time when complaints are heard everywhere about the excesses of lawyers, judges, and law itself, Pierre Schlag focuses attention on the American legal mind and its urge to lay down the law. For Schlag, legalism is a way of thinking that extends far beyond the customary official precincts of the law. His work prompts us to move beyond the facile self- congratulatory self-representations of the law so that we might think critically about its identity, effects, and limitations. In this way, Schlag leads us to rethink the identities and character of moral and political values in contemporary discourse. The book brings into question the dominant normative orientation that shapes so much academic thought in law and in the humanities and social sciences. By pulling the curtain on the rhetorical techniques by which the law represents itself as coherent, rational, and stable, Laying Down the Law discloses the grandiose (and largely futile) attempts of American academics to control social and political meaning by means of scholarly missives.

    eISBN: 978-0-8147-3953-2
    Subjects: Law

Table of Contents

  1. Front Matter
    (pp. i-vi)
  2. Table of Contents
    (pp. vii-viii)
  3. ACKNOWLEDGMENTS
    (pp. ix-x)
  4. I. Introduction
    • ONE This Could Be Your Culture
      (pp. 3-14)

      Law is not doing well currently. The lay public, never overly fond of lawyers to begin with, seems to be especially annoyed with them now. Even lawyers do not like each other very much: they accuse each other of greediness, of commercialism, of lack of collegiality. In the legal academy, things are not much better. Demoralization rules. Legal thinkers have no respect for judges. Judges have no respect for legal academics. And all but the most devout seem repulsed by the imperious overweening advent of America's overwrought legalism.

      There are many reasons for this. One of them is that when...

  5. II. There Ought to Be a Law
    • TWO Normative and Nowhere to Go
      (pp. 17-41)

      There is nothing quite like the exhilarating experience that comes from reading a provocative new piece of legal thought. Of course, at some point this exhilaration will give way to ennui as the new piece of legal thought unravels, ultimately to be classified as yet another possibly clever, perhaps thoughtful, but nonetheless utterly failed contribution. One characteristic feature of our own postmodern condition is the breakneck speed at which the second experience succeeds the first. From exhilaration to failure, the distance has been reduced to a couple of sentences.

      Take the 1980s, for instance. Last I remember, it was 1979...

    • THREE Values
      (pp. 42-59)

      Justice, goodness, Tightness, truth, fairness, efficiency, order, progress, freedom, equality, security, tolerance, neutrality, community, honesty, loyalty, convenience, clarity, precision, comprehensiveness, consistency, rationality, elegance, rigor. These are just some of the key political, ethical, and aesthetic values of contemporary American law.

      Much of American legal thought is dedicated to the identification and classification of these values in terms of rank, intensity, scope, compatibility, and commensurability. These values are analyzed, clarified, systematized, reconciled, balanced, sacrificed, overcome, and overwhelmed. Their implications are traced. They are deployed to support or attack sundry agendas. They are used to justify, redeem, uplift, motivate, command, and defeat....

    • FOUR The Evaluation Controversy
      (pp. 60-76)

      Evaluation is hard to do. It is particularly hard to do once the cultural and conceptual reifications that establish the boundedness, location, and identity of “author,” “text,” and “reader” have become unhinged. With these crucial ontological determinants in question, it becomes difficult to separate what one projects into, or out of, the texts of others from what the authors invest in the texts themselves. If you are not convinced, consider the following sample evaluations.

      This is what Gadamer says of Habermas:

      The concept of reflection and bringing to awareness that Habermas employs (admittedly from his sociological interest)

      appears to me,...

  6. III. Missing Subjects
    • FIVE Contradiction and Denial
      (pp. 79-90)

      I have now written several drafts of a review of Mark KelmansA Guide to Critical Legal Studies—each draft more unwieldy, more cumbersome than the previous one.¹ In each draft, I found myself, in good standard book review form, writing about (what Kelman writes about (what CLS scholars write about (what liberal legal thinkers write about (what they think they are doing (when they say they are doing (law)))))). Not only was it exceedingly difficult for me to keep the players and the plays straight, but I also had all sorts of difficulties keeping my subjects and direct objects...

    • SIX Fish v. Zapp: The Case of the Relatively Autonomous Self
      (pp. 91-113)

      At a conference of the University Teachers of English Language and Literature, the internationally renowned literary critic, Professor Morris Zapp, made the following comments:

      To understand a message is to decode it. Language is a code.But every decoding is another encoding.If you say somethin to me I check that I have understood your message by saying it back to you in my own words, that is, different words from the ones you used, for if I repeat your own words exactly you will doubt whether I have really understood you. But if I usemywords it follows...

    • SEVEN How to Do Things with the First Amendment
      (pp. 114-130)

      I am not here to criticize Stanley Fish’s presentation. I am here to interpret it. I am not here to defend or to criticize the First Amendment. In an important sense, I wont have much to say about the First Amendment at all.

      Now, you’re probably thinking: he can’t do that. This is a conference on the First Amendment. He’s got to talk about the First Amendment. Well, yes. And in a way, I will. But as I see it, all this talk about “The First Amendment” is no more about the First Amendment than fear of stepping on a...

  7. IV. Law without End
    • EIGHT Anti-Intellectualism
      (pp. 133-145)

      There is a recurrent sameness to American legal thought. It is the sameness that comes from saying over and over again what the law is, and saying it, of course, in a way that conforms with the law itself.

      But this is what American legal thinkers understand to be their role. Their role, as they understand it, is very much like the role of judges:it is emphatically to say what the law is.

      And when American legal thinkers understand themselves to be authorized to say what the law is, it is not merely in a descriptive sense. Legal thinkers do...

    • NINE The Legal Form of Being
      (pp. 146-160)

      For those who are legally trained, the violence of the law is extremely difficult to recall. It is difficult to recall because even where it emerges it does so in a legitimated form. The violence of law emerges everywhere under the guise of the already authorized or under the guise of the necessarily justified.¹ For those who are legally trained, the question of law s violence is immediately apprehended within a normative orientation that transforms the enterprise of recollection into a normative question of whether this violence is authorized or justified, how or when it can be authorized or justified...

  8. V. Epilogue
    • TEN Laying Down the Law
      (pp. 163-166)

      For American legal thinkers, the focus of legal thought is always either laws relation to its own internal requirements (formalism) or law’s relation to its object (legal realism). These are the two great moments of American law. A great deal of legal argument consists largely of preferring (or arguing for) one moment or the other. A great deal of legal argument also consists in fleshing out what these relations mean.

      But, of course, there is a third relation—one that is almost never mentioned in American law. This third relation is one between law and the subjects who invoke its...

  9. NOTES
    (pp. 167-188)
  10. INDEX
    (pp. 189-196)
  11. Back Matter
    (pp. 197-197)