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

• Author: Hills, Jr., Roderick M.

BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW. Daniel Farber(1) & Suzanna Sherry.(2) New York, NY: Oxford University Press. 1997. Pp. 208. $25.00.

Daniel Farber and Suzanna Sherry have written a fair-minded and heartfelt polemic against what they call "radical multiculturalism" in the legal academy. According to the authors, "radical multiculturalism" is the belief that all "objective" standards of factual accuracy, academic or professional merit, or legal coherence are merely "social constructions," meaning that they are really nothing but "exercises of power by one group over another." (p. 118) Rather than strive to conform to such standards, radical multiculturalism maintains that scholars should expose them for what they are--the efforts of white, heterosexual males to subordinate gay and lesbian persons, African-Americans and other racial minorities, or women.

Beyond All Reason attacks this radical multiculturalist strain in legal academia, not because the radical's critique is untrue but because it has bad consequences. According to Beyond All Reason, "the radicals' attachment to social constructionism and related doctrines" undermines attainment of "the radicals' own progressive goals." (p. 7) The book maintains that radical multiculturalism has dangerous (albeit unintended) anti-Semitic and anti-Asian implications, because it casts doubt on the basis of Jews' and Asian-Americans' intellectual achievements. The book also argues that radical multiculturalism leads its practitioners to engage in a paranoid style of argument, in which threats of excommunication are used to stifle free and open debate and one's "authenticity" as a representative of one's sexual or racial group counts for more than factual accuracy or logical consistency.

As an effort to describe and deplore a certain strain in the legal academy, Beyond All Reason has many virtues. It is scrupulously honest in its quotation of the radical multiculturalists that it attacks, its tone is never shrill, and the style is refreshingly unpretentious. Moreover, the book's evidence supports its conclusions: Farber and Sherry provide a depressingly long catalogue of egregiously silly posturing by radical multiculturalists, a list of quotes worthy of a character out of a Tom Wolfe novel. (My personal favorite is Richard Delgado's remark that "if you are black or Mexican, you should flee Enlightenment-based democracies like mad, assuming you have any choice," because "racism and enlightenment are the same thing." (p. 29))

Beyond All Reason, however, is ultimately unsatisfying, because it provides no serious evaluation of the truth of radical multiculturalism's foundational claims. For authors who claim to value truth, Farber and Sherry seem curiously indifferent to it: they exhibit a world-weary anti-intellectualism that is strikingly similar to the attitudes of the radical multiculturalists that they criticize. They concede that radical multiculturalism's claims about objectivity, truth, and merit are "astoundingly powerful," and they seem to believe that any effort to disprove the truth of such claims would be futile. Instead, they stake their entire attack on radical multiculturalism on the argument that its tenets are dangerous--that they will have bad consequences like anti-Semitism, shrill and unintelligible scholarship, and sloppiness about factual accuracy. As I shall suggest below in Part II of this review, this argument from consequences is not a successful strategy. Farber and Sherry seem far too defensive, too lacking in confidence about their notions of truth and value, to mount a convincing defense of Enlightenment and academic dialogue, both of which, after all, are predicated on the idea that the impartial pursuit of truth and justice is a sensible and worthwhile undertaking. In a larger sense, Farber and Sherry unintentionally expose a weakness of the version of conventional "Enlightenment liberalism" dominant in the legal academy-an inability to respond persuasively to radical challenges because of an anemic conception of truth and value. In this sense, Farber and Sherry share in the Trahison des Clercs that they so effectively describe.

I

Before one criticizes the book, it is useful to give an overview of its major claims. Beyond All Reason consists of six chapters. The first two chapters summarize some tenets of radical multiculturalism, while chapters 3, 4, and 5 argue that these tenets lead to various unacceptable consequences, such as anti-Semitism, indifference to factual accuracy, and the breakdown of civil discourse. Finally, chapter 6 dissects radical multiculturalism to explain why such an ideology might appeal to legal academics despite these harmful consequences.

The first chapter provides a fair and concise summary of the ideology that the book later attacks. Farber and Sherry contend that the intellectual foundation of radical multiculturalism is the premise that "reality is socially constructed by the powerful in order to perpetuate their own hegemony." (p. 23) Under this view, statements about social institutions are not "objective." Rather, they are tools by which the persons currently dominant in society--the "white male establishment"--maintain their dominance. Statements about "justice,, "merit", and "truth" in reality serve the interests of social elites. Even the concepts of knowledge and empirical proof are "constructed" by powerful elites in order to impose their view of the world on less powerful persons. (p. 27) Judgments about empirical proof or academic merit do not reflect any objective reality about the world. Rather, they reflect the "mindset" of the dominant social groups--their "bundles of presuppositions, received wisdoms, and shared understandings." (p. 29) (citation omitted)

Radical multiculturalists, in spite of their skeptical attitude toward values like objectivity and scientific inquiry traditionally associated with the European Enlightenment, remain inexplicably loyal to the Enlightenment ideal of egalitarianism. They seek to promote a more egalitarian society and prevent white male heterosexual elites from dominating less powerful groups. Toward this end, radical multiculturalists urge scholars to reject putatively objective standards for assessing law, academic merit, or factual accuracy and instead provide narratives or stories that inspire subordinated communities to resist white male hegemony. (pp. 38-41) Scholarship, according to the radical multiculturalists, is really a species of rhetoric, to be evaluated by its effectiveness in creating an egalitarian society. Radical multiculturalists also maintain that one's membership in ethnic, sexual or gender groups crucially affects one's ability to provide or appreciate such rhetoric: white male scholars may be incapable of understanding or evaluating the narratives of women or people of color, while membership in an oppressed social group may constitute "virtually a presumption of expertise" in understanding such narratives. (pp. 30-31) (citation omited)

What practical consequences does such a theory have for the study of the law? Farber and Sherry argue in chapter 2 that radical multiculturalist legal theory has four notable features, two of which are highly general and two of which concern more specific legal doctrines. First, radical multiculturalist theory charges that traditional legal reasoning is really rooted in the protection of white and male self-interest: the mindset of mostly white and male judges leads them to use the law to protect the interests of other white male persons. (pp. 36-38) Second, radical multiculturalists prefer emotionally stirring narratives to blander, more dispassionate accounts of how the law operates. (pp. 38-40) Third, radical multiculturalists recommend that traditional First Amendment doctrine be modified to permit suppression of speech that may be thought to contribute to the stigmatization of oppressed social groups. For example pornography or racial hate speech should be more easily restricted or banned. (pp. 40-45) Fourth and finally, because the white, male, heterosexual mindsets are often unconscious, courts should hold that laws can deprive persons of equal protection even when such laws are not enacted with any intentional hostility toward some ethnic group, women, or homosexuals. (pp. 45-47)

Farber and Sherry assert without explanation that this ideology of radical multiculturalism is "astoundingly powerful," (p. 23) but, as noted above, they never attempt to evaluate its intellectual merits. Instead, they makes three different arguments in the third, fourth, and fifth chapters respectively that radical multiculturalism undermines radical multiculturalists' own commitment to egalitarianism.

The first (and, as I suggest below, the weakest) of these arguments is Farber's and Sherry's claim, set forth in chapter 3, that radical multiculturalism's attack on the ideal of objective merit is anti-Semitic and anti-Asian. The foundation for this argument is the fact that Jews and Asian-Americans are over represented in academic, intellectual, professional, and economic life relative to their share of the United States population. According to Farber and Sherry, given the radical multiculturalists' premise that academic standards are the result of an illegitimate exercise of power, "It]he radical multiculturalists cannot account for this success without attributing it to the exercise of power by Jews and Asian Americans." (p. 58) In short, if objective standards of merit are the result of a conspiracy, then they are necessarily the result of a Jewish-Asian conspiracy, for Jews and Asians are the beneficiaries of such standards-and, of course, the Jewish conspiracy is the leitmotif of anti-Semitism.

In chapter 4, Farber and Sherry provide a second attack on radical multiculturalism, by arguing against radical multiculturalists' view that scholarship should be concerned with...