The Trouble with Principle.

• Author: Delgado, Richard
• Position: Review

THE TROUBLE WITH PRINCIPLE. By Stanley Fish. Cambridge, Massachusetts, and London: Harvard University Press. 1999. Pp. vi, 328. $24.95.

THE TROUBLE WITH PRINCIPLE

Stanley Fish, (1) author of Doing What Comes Naturally, (2) Is There a Text in This Class?, (3) There's No Such Thing as Free Speech, and It's a Good Thing, Too, (4) and other paradigm-shifting books, and who recently left law teaching for a position in university administration, (5) has written one last volume giving his colleagues in the profession he left behind something to think about. In his previous work, Fish, who taught English and law at Duke University, addressed central legal issues such as meaning, communication, and textual interpretation, challenging such received wisdoms as that every text has a single, determinate meaning, or that a regime of free speech is the best guarantor of truth and democratic government.

In The Trouble with Principle, the celebrated iconoclast takes on another of law's most basic premises, namely, that legal reasoning can attain any measure of certainty greater than that with which the reasoner began (pp. 3-4, 9-10, 43-45). The structure of most legal discourse, Fish writes, is irreducibly rhetorical. Appeals to principle serve only as covert argumentative strategies, and persons who begin an argument by saying, "Let's be fair," or "We must be consistent," are merely postponing the moment when they must put their cards on the table and tell us the cash value of their current platitudes (p. 3).

This Review begins by summarizing The Trouble with Principle, paying particular attention to passages that show Fish at his anti-foundationalist best -- sections on hate speech (pp. 75-150), affirmative action (pp. 4, 20-21, 26-33, 310), academic freedom (pp. 34-45), and religion (pp. 153-284). Because Fish's prose is elegant but his argument demanding, I offer a metaphor designed to help readers understand Fish's insight. (6) I then show that the defect Fish highlights is part of a larger disconnection that afflicts legal discourse, looming up not only when we discuss affirmative action, hate speech, and other controversial public-law issues, but also when we try to fit ordinary private-law rules into a coherent system. (7) In short, Fish exposes only part of a more general self-delusion running throughout our system of legal thought. In a concluding section, I recommend a pragmatic, anti-normative approach, similar to Fish's, but applied more broadly, to guard against thuggery operating under the guise of principle. Such an approach, tied closely to our deeply held moral convictions, I argue, can help us remember to support what we need to support, resist what we need to resist, and avoid losing our way, like a proprioceptively handicapped patient, (8) in the "body of law."

1. CATCHING A BIG ONE: FISH ON PRINCIPLE

   Consider the controversy that broke out when civil rights activists demanded that South Carolina stop flying the Confederate flag over its statehouse on the ground that it insults African Americans by gratuitously recalling the evil regime of slavery. (9) For their part, a number of South Carolina citizens retorted that the flag has nothing to do with slavery or white supremacy, but merely symbolizes regional pride and tradition. (10) They marshaled, in other words, the very same principles -- respect for history and the feelings of a social group -- that blacks and their supporters invoked to retire the flag.

   Or, consider the controversy that broke out on January 17, 2000, General Robert E. Lee's birthday, when an unknown person set fire to a banner of the Confederate general in Richmond, Virginia. (11) The Sons of Confederate Veterans immediately demanded that the police treat the torching as a hate crime. (12) As with the first example, forces on either side of the controversy cited the same principle -- antibigotry -- in support of their position.

   Over the course of sixteen short but tightly woven chapters, Stanley Fish documents how paying attention to the way language works in controversies like these enables us to avoid ensnarement in traps of our own -- or our adversaries' -- making. He shows how arguments from principle almost always conceal, in fact presuppose, politics and self-interest. He explains how we can avoid having principles we hold up on one occasion turned against us on another.

   Consider a widely held principle of ethics: that one should keep one's word. In an early passage, Fish mentions an episode from the classic western movie The Wild Bunch, which features an outlaw gang led by two grizzled veterans, played by William Holden and Ernest Borgnine (pp. 1-2). At one point in the movie, the two characters are sitting around discussing a one-time comrade-in-arms who has gone straight and now rides at the head of a band of railroad enforcement officers bent on bringing his former friends to justice. The Borgnine character muses that he cannot believe their old friend changed sides and wonders why he does not return to the gang, where the stakes are higher and the life more exciting. The Holden character reminds Borgnine that the turncoat undoubtedly gave his word to the railroad. So what? Borgnine replies. It's not giving your word that is important -- it is whom you give your word to (pp. 1-2).

   The exchange makes plain that Fish sides with the "contextualizer" -- the Borgnine character. Principles rarely guide us in the abstract; only in their use. Always stated at such a high level of generality that a speaker can use them to arrive at whatever conclusion he wants, their very point, according to Fish, is to make discourse appear inevitable and high-minded, when it is the social and political commitments of the speaker that allow them to gain any purchase (e.g., pp. 3, 8-10, 44-45, 115-17, 142-46). And, if we had the courage of our convictions, we would do away with the overlay of appeals to principle that litter so much of legal and social discourse and amount to little more than noise. (13)

   Part I of Fish's book sets out the case against neutral principles, including their inability to appear in any guise "not hostage to [a] partisan agenda." (14) Imagine that someone says: "Let's be fair." Fine, but what kind of fairness? Fairness of equality? Fairness of result? Fairness as merit? Fairness of equal opportunity? Taking into account disadvantage? (pp. 2-3). Abstractions like fairness, reasonableness, and mutual respect only gain content by proceeding "from the vantage point of some currently unexamined assumptions about the way life is or should be" (pp. 2-3). When someone begins an argument by invoking a principle of some sort, we only learn where he is going a little later, when we find out what he means by fairness or equality or due process. "[T]hat someone is invoking neutral principles will give you no clue as to where he is likely to come out until he actually arrives there and reveals his substantive positions" (p. 8).

   One cannot avoid, then, getting substantive and engaging in frankly partisan, ends-based reasoning. Moral commitments are all we really know; principles only help "partisan agents to attach an honorific vocabulary to their agendas" (p. 7). Throughout history, some of the worst cruelty has been carried out in the name of principle -- eugenics, (15) Manifest Destiny, (16) converting souls to Catholicism. (17) One sometimes cannot avoid resorting to principle in making one's point. (18) But one should do so for consciously acknowledged rhetorical reasons -- to advance one's cause, to provide a judge an excuse for ruling in one's favor -- while fully aware that one's opponent will be trying to do the same thing.

   By the same token, one should be wary of the many ways arguments from principle can serve ignoble ends. For example, Fish notes that for conservatives, "the basic move is to turn historically saturated situations into [ones] detached from any specific historical circumstance and then conclude that a proposed policy either follows from this carefully emptied context or is barred by it." (19) Thus, when Justice Brown in Plessy v. Ferguson approved a railroad's "separate but equal" law that consigned blacks to certain designated cars, on the disingenuous ground that it treated black and white passengers "the same," he detached a rule or act from its historical meaning -- indeed, from any meaning at all. (20) Any principle, Fish writes, even that of nondiscrimination, arises in response to historical circumstances. In 1954, society came to believe that discrimination is wrong; (21) before that, it did not. The principle, then, has no inherent meaning; that comes only from the substantive issues with which it has been associated.

   Left of center on most (not all) issues, Fish makes many of his points in the first part, entitled "Politics All the Way Down," at the expense of conservatives. For example, he points out that writers of this persuasion are prone to decry current "circumstances," complaining that the country has gone to the dogs, liberals are running the campuses, barbarians are at the gates, and they -- the right -- are the brave defenders of value in a wilderness increasingly devoid of it (pp. 20-21). But at the same time, they insist that Hispanics and blacks should rise above "circumstances," unaided by affirmative action or special measures aimed at redressing past disadvantage. (22) The same crowd at one time draws attention to circumstances, and at another dismisses their relevance.

   Neutral principles not only provide feeble guidance, they disable us from seeing differences that matter, such as those between pornography and Michelangelo, between oppression and the relief of it, between advocacy of racial reform and Nazis marching in Skokie. (23) ("Nazism is an idea, after all, is it not?"). After Brown v. Board of Education (24) was decided, Herbert Wechsler wondered whether the case was principled, since it seemed arbitrarily to...