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.