Beyond All Reason: The Radical Assault on Truth in American Law.

• Author: Roithmayr, Daria

Beyond All Reason: The Radical Assault on Truth in American Law. By Daniel A. Farber and Suzanna Sherry. New York: Oxford University Press. 1997. Pp. 195. $25.

On October 9, 1997, radicals everywhere celebrated the thirtieth anniversary of the death of Che Guevara, the revered Cuban and South American rebel known as much for his guerrilla manifestos as for his scraggly facial hair and the black beret positioned slightly askance.

At the same time Latin Americans and revolutionaries were marking the death of their beloved Che, Professors Daniel Farber and Suzanna Sherry were publishing their long-awaited book, Beyond All Reason: The Radical Assault on Truth in American Law. The professors' timing was, unintentionally, quite appropriate. Like many of Che's manifestos, the book sounds an ideological call to arms, urging liberals to root out the insurgents of radical legal theory, which threatens the very foundations of American Law, legal culture, and, indeed, life as we know it. Or so the authors would have us believe.

The very subtitle of the book -- "The Radical Assault on Truth in American Law" -- conjures up a vision of crazy ideologues, descending on law schools in ever-increasing numbers,(1) seeking to subvert the academy and overthrow the Enlightenment as they rush to man the barricades. Playing on an already well-developed "Che anxiety" in liberals and conservatives,(2) the authors paint radical scholars as dangerous subversives, skulking about darkly in the annals of American law reviews and planting seeds of treason against the all-sacred Truth in the minds of impressionable young law students. Thumbing through the first chapter, we can almost picture angry radical scholars, dark-skinned fanatics in their Che berets, Army fatigues and camouflage war paint, overturning tables and toting fearsome black Uzis, with bayonets ready to slice through the most well-reasoned judicial opinion.(3) There is much to fear from these infiltrators, advise Farber and Sherry, despite the fact that radical scholars are in the minority on law school campuses. "War and ideas are difficult to contain" (p. 5).

In direct contrast to the disorder and violence of this lunatic fringe,(4) Farber and Sherry position themselves as soothingly rational and moderate, acolytes of a calm, well-reasoned pragmatism that concedes where it must, but fights to vanquish the threat of violent chaos with superior logic and reason. We picture Farber and Sherry, well-dressed not in natty bow tie and smart Nordstrom's business ensemble (as illustrated on the inside of the book jacket),(5) but in ethereal, appropriately Socratic garb -- perhaps translucent white robes -- with the Light of Truth and Reason shining down upon their earnest, upturned faces.

In their book, these soldier-scholars of goodness and light argue in increasingly rising tones that we cannot give up our faith in Reason and Truth -- without it, we are left to the dictates of the dark side, where force, violence, and power are the only way to adjudicate competing claims. Radical theory is also condemnable for other reasons: it is anti-Semitic and it distorts public discourse. But above all else, radical theory is inevitably nihilist and politically totalitarian. Without Truth, we have no hope of protecting the disempowered or of adjudicating between competing philosophies. Without the shield of the Enlightenment, we have no response to those who would claim that the Holocaust never happened, and no defense to those who would shoot us on the spot with no explanation.(6)

Yet something about the authors' argument catches our attention. How is it that calm rationalism beats back the dangerous nihilism of ideological radical scholarship? How is it exactly that reason goes about quelling the violence of Nazis and irrational radical scholars? It does not take long to figure out -- once the thought occurs to us -- that rationalism can displace anarchy and disorder only if it possesses some coercive power of its own. Reason and truth can only quell the terrorist assault of radical theory if reason and truth are actually weapons in a counter-counterinsurgency.(7) That is, reason and truth must possess the coerciveness and violence of Che's shiny Uzi, if truth is to function as the conversation-stopper, or right answer, that Farber and Sherry envision it to be.

And so it comes to pass that Farber and Sherry are revealed, not as the descendants of Socrates, but only as Che Guevaras in law professor clothing, brave soldiers(8) fighting a battle to defend a political and legal ideology of their own.

The foregoing introduction is meant to be a lighthearted -- and therefore very serious -- poke at the earnestness with which Farber and Sherry undertake their mission of warning the world against radical legal theory. Despite their penchant for drama, or perhaps because of it, Beyond All Reason is quite a provocative book, the first large-scale attempt to provide the rationalist response to radical legal thought. The book is a collection (with substantial revision and reorganization) of several law review articles coauthored by the authors, together with several articles written by each individually. The collection does a nice job of integrating these former articles and essays into a coherent whole, and of attempting a comprehensive indictment of radical legal theory and defense of Enlightenment rationalism.

Great organization does much of the trick. In the first part of the book, Farber and Sherry attempt to document the radical critique, "explor[ing] the tenets of radical multiculturalism" and trying "to establish that there are indeed a number of prominent legal scholars who are taking quite extreme positions about truth, merit, legal reasoning" (p. 11).

The second part of the book levies a three-pronged pragmatist critique of radical legal theory. First, the authors argue, radical legal theory is pragmatically undesirable because of its impact on certain groups. In particular, the critique of merit is anti-Semitic and anti-Asian because "[it] implies that Jews and Asian Americans are unjustly favored in the distribution of social goods" (p. 11). Second, radical legal theory produces unacceptable distortions in scholarship and public discourse, because radical storytelling is atypical and self-interested, which makes civil dialogue with critics difficult if not impossible (pp. 72-94). Finally, radical legal theory is nihilist because it accepts all competing viewpoints and arguments and cultures as equally valid, thus eliminating any defense against those who deny the existence of the Holocaust or promote totalitarianism (pp. 95-117). In general, the authors argue, we should embrace Enlightenment rationalism because it is better at promoting equality, because it provides a way to choose between competing viewpoints, and because it provides us with a strong defense against evil.

Part I of this review sorts out the authors' rendition of radical legal theory, and then sets out a more fully-fleshed-out account of radical legal thought beyond the truncated version that Farber and Sherry have provided. Part II examines the authors' rationalist defense of merit and argues that their defense eventually undermines itself when pushed to its logical conclusion. Part III similarly deconstructs the authors' argument that radical theory degrades public discourse. Finally, Part IV reviews the authors' nihilism argument, using it as a point of departure to contrast the authors' overly conservative pragmatism with Richard Rorty's progressive pragmatism, and then with a form of pragmatism that I call radical pragmatism.

1. PUNCH LINES ONLY

   In Chapters One and Two, Farber and Sherry attempt to document the views of prominent radical legal scholars, and to link their critical arguments to such revolutionary concepts as storytelling scholarship and hate speech proposals. The authors do a nice enough job of tracing the origins of radical legal theory from realism to Critical Legal Studies ("CLS"), and subsequently to Critical Race Theory ("CRT"), Radical Feminism, and, more generally, postmodernism.

   The authors oversimplify a bit when they try to conflate Critical Race Theory with postmodernism. In fact, many Critical Race Theory scholars have rejected the pure postmodernist argument that race is "socially constructed" and therefore meaningless as an essential category for making sense of social experiences. Scholars like Angela Harris argue that Critical Race Theory exhibits a tension between the postmodern argument that race is a socially constructed concept and the more modernist claim that race nevertheless forms the basis for much of a person of color's experience of social life.(9)

   Farber and Sherry are also a bit off-base with their references to schools of thought and their categorizing of particular authors. With regard to the former, for example, they seem to find postmodernism, deconstruction, and "social constructionism" to be interchangeable,(10) though most scholars on those subjects would beg to differ.(11) With regard to categorizing scholars, the authors label Jerry Lopez as a critical race theorist, even though he and his writing do not dearly fall within the genre.(12) Similarly, they characterize Robert Post as a solid liberal, and not at all radical, when some of his writings on free speech appear to belie that description.(13)

   All might be forgiven in the name of simplifying ideas for the lay audience, were it not for a more serious transgression that Farber and Sherry commit throughout the book. When sketching the tenets of radical theory, the authors present the radical scholars' conclusions without providing any of their underlying analysis or explanation. Of course, conclusions without any supporting analysis are about as silly as punch lines without the set-up for the joke. It may be that Farber and Sherry are rather ungenerously "setting up" the radical scholars for the...