Should American Law Seek Out and Respond To the Truth?
Oxford University Press • 1997 • 195 pages • $25.00
Lauren Bain is an attorney and writer living on Vashon Island in Puget Sound. She is the author of Glamorgan’s Tales: A Cat’s Garden of Verse (Companion Star, 1998).
In Beyond All Reason, Daniel Farber and Suzanna Sherry identify a serious threat to our legal system—the assault on the idea that the law should seek and then respond to the truth. Unfortunately, they pull their punches and fail to deliver a knockout blow to this lurking menace.
Much has been written about the farrago of bizarre ideas that goes under the name of “multiculturalism.” Among the stranger notions advanced by the multiculturalists is that reality is a social construct. There is no objective truth; instead, each person or group constructs his own reality. Women, for example, supposedly have their own “way of knowing,” and those who dispute this idea must be a part of the “dominant power structure” and therefore beneath response. Decades ago, Ludwig von Mises destroyed the claims of what he referred to as “polylogism,” but bad ideas have a way of coming back, dressed up in some fancy new language. That is exactly the case here.
Law professors Farber and Sherry see the multiculturalist assault on truth as undermining the very foundations of our system of law. They write, “Critiques of truth, merit and legal reasoning are all tightly intertwined. It is difficult to defend merit if the concept of truth is open-ended. . . . [I]t is difficult to defend truth if the merit of an analysis or argument is wholly subjective. And without either merit or truth, how could judicial reasoning hope to stand?” Well said. They have identified one of the most pernicious tendencies of multiculturalism—its hostility to reason.
Consider, for example, the “indeterminacy thesis” advanced by the “critical legal studies” movement. Professor Mark Tushnet, a proponent of this thesis, explains, “Critique is all there is. . . . A competent adjudicator can square a decision in favor of either side in any given lawsuit with the existing body of legal rules.” But the consequences of adopting indeterminacy are devastating. As Farber and Sherry write, “If the indeterminacy thesis is correct, then it is unclear how legal arguments ever have any persuasive effect, because all arguments are equally sound.” Why bother with argumentation at all; we might as well flip a coin.
The authors go to considerable lengths to deconstruct two crucial tenets of multiculturalist theory: first, that reality is socially constructed, and second, that all constructs of reality merit equal deference in the marketplace of ideas, including the legal system. They are particularly effective in obliterating the “alternative ways of knowing” supposition that the multiculturalists use as a battering ram against the idea embedded in the legal system that the truth excludes all incompatible ideas. This is the backbone of the book and it is strong.
Unfortunately, our avowedly “centrist” authors weaken their effort by trying to pacify the multiculturalists. “We don’t mean that all the work of these scholars is worthless,” they write. They then proceed to validate their multiculturalist colleagues’ “other work” by resort to the non-judgmental multiculturalist trait of presuming merit where no evidence of merit exists. The reader looks in vain for any sound argument from the authors in favor of multiculturalist theorizing, in law or elsewhere.
At one point, Farber and Sherry go so far as to attempt an intellectual rescue of the people whose ideas they have shown to be a menace in the law, saying that the multiculturalists are only guilty of employing wild and sometimes inane slogans as a means of getting across their ideas. But if the ideas behind the slogans are bad ones, what does it matter how they promote them?
At another turn, the authors, attempting to chart a “middle” course, take a completely gratuitous swipe at the free-market camp: “Radical multiculturalists favor ideas relating to the social construction of reality, just as conservative scholars have latched onto other ideas about free markets.” These law professors probably know almost nothing about the vast extent of free-market scholarship (that they insist on labeling it “conservative” is a tip off), but are happy to dismiss it in the same breath as they dismiss the idea that reality is merely a “social construct.”
Their unwillingness to come down hard on the multiculturalists (who are leftist allies, if rather embarrassing ones) and their pandering attacks on freedom advocates undermine what might have been a truly useful book. Like the proverbial road to hell, Beyond All Reason is paved with good intentions. Farber and Sherry smoke out and then wound some of the multiculturalist dragons, but it will have to fall to more courageous writers to slay them.
