Where is My Body? Stanley Fish’s Long Goodbye to Law

Stanley Fish, author of Doing What Comes Naturally, Is There a Text in This Class?, There’s No Such Thing as Free Speech, and It’s a Good Thing, Too, and other paradigm-shifting books, and who recently left law teaching for a position in university administration, has written one last volume giving his colleagues in the profession he left behind something to think about. In his previous work, Fish, who taught English and law at Duke University, addressed central legal issues such as meaning, communication, and textual interpretation, challenging such received wisdoms as that every text has a single, determinate meaning, or that a regime of free speech is the best guarantor of truth and democratic government. In The Trouble with Principle, the celebrated iconoclast takes on another of law’s most basic premises, namely, that legal reasoning can attain any measure of certainty greater than that with which the reasoner began (pp. 3-4, 9-10, 43-45). The structure of most legal discourse, Fish writes, is irreducibly rhetorical. Appeals to principle serve only as covert argumentative strategies, and persons who begin an argument by saying, “Let’s be fair,” or “We must be consistent,” are merely postponing the moment when they must put their cards on the table and tell us the cash value of their current platitudes (p. 3). This Review begins by smnmarizing The Trouble with Principle, paying particular attention· to passages that· show’ Fish at his antifoundationalist best – sections on hate speech (pp. 75-150), affirmative action (pp. 4, 20-21 , 26-33, 310), academic freedom (pp. 34-45), and religion (pp. 153-284). Because Fish’s prose is elegant but his argument demanding, I offer a metaphor,designed to help readers understand Fish’s insight. I then show that the defect Fish highlights is part of a larger disconnection that afflicts legal discourse, looming up not only when we discuss affirmative action, hate speech, and other controversial public-law issues, but also when we try to fit ordinary private-law rules into a coherent system. In short, Fish exposes only part of a more general self-delusion running throughout our system of legal thought. In a concluding section, I recommend a pragmatic, antinormative approach, similar to Fish’s, but applied more broadly, to guard against thuggery operating under the guise of principle. Such an approach, tied closely to our deeply held moral convictions, I argue, can help us remember to support what we need to support, resist what we need to resist, and avoid losing our way, like a proprioceptively handicapped patient, in the “body of law.”