Deconstructive arguments in the legal sphere: an analysis of the Fischl/Massey debate about critical legal studies.

• Author: Bruschke, Jon
• Position: Richard Fischl; Calvin Massey

The field of law has recently witnessed the arrival of a radical new theory, Critical Legal Studies (CLS). The traditional view of law held that for each legal question the law contained a single, correct answer, and that the point of legal argument was to find that answer and apply it in machine-like fashion to a case at hand. The traditional view was challenged early this century by the legal realists who suggested that a series of "extra-legal" factors, ranging from the political climate to the personality of the judge, also influenced legal outcomes. Taking the critique a step further and incorporating more contemporary deconstructionist theory, the CLS movement has maintained that legal questions are indeterminate, and thus legal decisions express simple arrangements of power rather than any principled legal theory. Kelman's (1987) seminal work summarizes the movement in four points: "First, the Critics attempted to identify a contradiction in liberal legal thought.... Second, the Critics tried to demonstrate that each of the contradictions is utterly pervasive.... Third, Critics have attempted to show that mainstream thought invariably treats one term in each set of contradictory impulses as privileged.... Fourth, the Critics note that ... the 'privileged' impulses describe the program of a remarkably right-wing, quasilibertarian order" (pp. 3-4). There are, of course, a host of variations and schools within the CLS movement. The responses to these deconstructive efforts have been no less voluminous and no less vehement.(1)

The CLS debate has reached a critical juncture where it is either to be taken seriously and significantly influence the conduct of law or discarded into the "dustbin of history" (Fischl, 1993, p. 780). The debate is no less important to argument scholars. Because so much of contemporary argument theory is rooted in conceptions of justice, it is informative to examine the debates between those in the legal system who are charged with the task of contemplating justice in the practical context of the law. In addition, these exchanges are interesting locations of argument both because of the CLS critiques of the legal structure itself and because the core of the discussion so often involves the question of what arguments and forms of argument should be given force in legal dialogues. Of course, examinations of the force, direction, and stakes of an exchange hold a symbiotic relationship with argument theory: Argument theory illuminates the discussion at the same time the discussion informs argument theory.

One particular exchange of note occurred between Richard Fischl, an ardent CLS advocate, and Calvin Massey, a critic of the movement and mainstream liberal legal thinker. The debate is sparked on the pages of Law and Social Inquiry, a journal especially interested in the interaction between law and the broader community and with readers located in the bar, the academy, and the policy making community. The debate is of special interest both because it was typical of the arguments passed between CLS authors and their detractors and because of the unique stylistic choices of the arguers. This essay analyzes the debate by explicating the stylistic and logical maneuvers in the texts and offering a critique of the dialogue and the type of argument constructed by the rhetoric.

One final introductory note is necessary. Incumbent on any "argument" analysis is the burden of explaining what constitutes that genre of scholarship. Even defining what an argument is has been an arduous task; the recent debates between Jacobs and Jackson (1986) and Trapp (1986; 1987) and Willard (1989) and his critics (McGee, 1989; Warnick, 1989; Wenzel, 1989) demonstrate that identifying a common definition of argument can be a difficult task. Although this paper will by no means resolve the dispute, there is at least one distinction that may aid in the search for a useful starting point. O'Keefe (1977) distinguishes [argument.sub.1], defined as making an argument, from [argument.sub.2], defined as having an argument. The division neatly overlaps Wenzel's (1990) distinction between argument as a process and argument as a product. At the risk of proliferating different terms for similar concepts, the distinction can be described usefully as argument as a noun, or a logical utterance offered for adherence and with rationales to support it, and argument as verb, or the act of engaging in disagreement.

The two definitions are not exclusive, of course; one can certainly make an argument while having an argument. Nonetheless, they do offer profoundly different starting points for the study of argumentation. If argument is thought of as a noun, one scans a given discourse to extract those elements that are argumentative, that is, those elements that exhibit a logical or structural component that makes the element identifiable as an argument. Van Emeren and Grootendorst's (1990) description of how discussions can be transformed into structures that look very much like the flowsheets of intercollegiate debates is an example of the type of work generated from this starting point. If argument is thought of as a verb, one identifies those encounters that are arguments and then analyzes the totality of discourse that occurs within them. The manner in which Benoit and Benoit (1990) study disagreements - with the inclusion of things like "increased volume and negative tone, irrational beliefs and emotional displays, and the possibility of negative consequences for the relationship" (pp. 70-71) - is indicative of the sort of scholarship generated by taking the argument-as-verb starting point. A special advantage to this latter approach is that scholars can learn something not only about argument but also about the type of discourse they examine as well (Zarefsky, 1990). For Benoit and Benoit, it means learning something about interpersonal relationships.

Although it is unnecessary to choose between these approaches (each may have value and it may even be useful to combine them), this study begins from the second starting point and conceives of argument as a verb. In more definitive terms, the paper will argue that (a) Fischl makes a stylistically more compelling argument; (b) Fischl's use of analogy is particularly effective; but (c) despite the fact that Fischl's argument is more compelling than Massey's, the discourse reveals that the critical method of deconstruction often lacks argumentative rigor. A short review of the debate will preview the issues before a more detailed analysis is offered.

OVERVIEW OF THE ARGUMENT

It was an odd place for an argument to start; Fischl (1993a) was asked to review Mark Kelman's Guide to Critical Legal Studies. Although Fischl certainly reviewed the book, the emphasis of the article was a critique of the criticisms of Critical Legal Studies. In particular, Fischl took to task Massey and other critics who foisted the normative question, "What shall we put in law's place?", on the critical legal theorists. Essentially, Fischl contends that CLS critics have falsely assumed that, since CLS scholars critiqued capitalism, liberal rights, and individualism, CLS must necessarily advocate some sort of collectivist/socialist community. Instead, Fischl argues that CLS scholars aren't advocating anything at all, and it is the critics of CLS who have insisted they have a positive program. Fischl then rails against the suggestion that CLS must advocate policy action and argues that the insistence of critics that CLS solve the horrors of the dominant social paradigm is an attempt to silence descriptive critiques that are generally of the variety "I don't know what we're going to do about it, but this sure isn't working." In fact, the normative "question itself presupposes virtually every assumption about law and legal scholarship that we are attempting to bring to the surface and to call into question" (p. 802).

Massey (1993) responds that, if one attempts so painstakingly to identify the contradictions and attendant privilegings of the current system with the primary intent of identifying the political outcomes of our current mode of thought it is a small "wonder that observers of the CLS scene should politely inquire what sort of political outcome the Crits might prefer" (p. 824). Massey correctly identifies that Fischl believes that, within the current boundaries of our hermetically sealed thought, it is impossible to specify what the alternatives might look like; but Massey contends that given the complete absence of any evidence about what a new paradigm might entail, the more intellectually responsible act is to stay with the devil you know. At the very least you can then understand what you are up against.

To contrast those authors who, like Fischl, find it impossible to specify what a world transformed by critique would involve, Massey identifies the work of Mary Ann Glendon as useful CLS work precisely because Glendon is able to spell out a particular alternative, and one for which Massey has no opposing argument. If Glendon can provide such specific alternatives, asks Massey, why can't Fischl? Finally, Massey asserts that he understands and celebrates contradictions in his own thinking and finds CLS arguments about the contradictions of social life simplistic.

Fischl (1993b) replied in a way that is not unsurprising for a deconstructionist; he analyzed Massey's claim that Massey understood contradictions and revealed through a close reading of Massey's language that Massey truly did privilege individualism, like so many others steeped in the dominant paradigm. Massey's apparent acceptance of contradictions, quite the contrary to its facial claim, "has come here not to 'recognize' contradiction but to deny it" (p. 834, emphasis in original). This is "simply another form of this privileging and denial" (p. 834). In other words, Massey had just found another way to try to impose the...