BOOK REVIEW / Guilty: old dons with ugly Volvos: 'There's No Such Thing as Free Speech' - Stanley Fish: Oxford University Press, 16.95 pounds. The law to end law: Conor Gearty admires a ringing new critique of the liberal pose
Saturday 09 April 1994
Fish is so intellectually subversive that he makes other iconoclasts look conformist. In this multi-layered volume of essays he has two favourite targets. The first is the neo-conservative backlash which has grabbed the phrase 'political correctness', emptied it of its original ethical meaning, and turned it into a term of vulgar abuse. Fish is alert to the fact that the meaning of words does not come from any intrinsic quality in the words themselves but is rather derived from the context that surrounds them. That context is inevitably political. The right is winning the war of words over political correctness because it can dominate the discourse, just as the Reagan / Bush White House did when it persuaded the world that its enemies (rather than itself) were the 'international terrorists'.
It is Fish's belief in the inherent emptiness of words, and his belief in the pervasiveness of politics, 'the inescapability of partisan, angled seeing', that makes him so vitriolic about his second target, liberalism. It is impossible here to do justice to the magnificience of his anger. Liberalism pretends to 'produce structures that will ensure that contending points of view can coexist in the same space without coming to a final conflict'; in other words it boasts of being above politics. 'Reason' is 'the most popular and prestigious of the names given to (this) nonexistent centre of liberal thought', but 'what is and is not a reason will always be a matter of faith, that is, of the assumptions that are bedrock within a discursive system which because it rests upon them cannot (without self-destructing) call them into question.' What liberalism does 'in the guise of devising structures that are neutral between contending agendas is to produce a structure that is far from neutral but then, by virtue of a political success, has claimed the right to think of itself as neutral.' In fact liberalism has 'a very particular moral agenda (privileging the individual over the community)' which it hides by pretending to be above 'the program of any particular group or party'. And because of its hegemony, important political words like conviction, belief, and passion are now routinely condemned as 'very close to fanaticism'. The heart of politics, the feelings that make us what we are, are forcibly evicted from the political forum by a narrow and arid ideology disguised as an eternal truth.
Fish illustrates the general point in a marvellous chapter on free speech, from which the volume gets its title. This great emblem of American freedom 'is just the name we give to verbal behaviour that serves the substantive agendas we wish to advance; and we give our preferred verbal behaviours that name when we can, when we have the power to do so, because in the rhetoric of American life, the label 'free speech' is the one you want your favourites to wear.' Thus there is plenty of unfree speech in America (obscenity; libel; violent words) and a great deal also of unwanted free speech, freeloading on this obsessional commitment to liberal ideology.
The system of Anglo-American law, rooted as it is on liberal premises, is subjected to the same withering analysis. The formal structure of law, with its supposedly neutral rules of procedure and adjudication, 'was never really formal at all, but was the extension of a social vision from which it was detached at the moment of that vision's triumph.' Thus the rules of contract represent the victory of the market vision of society; the rules of negligence the triumph of industrial progress; and so on. But the rules are full of contradictory exceptions and are capable (the cases prove it) of being jettisoned at will. This exposure of the insubstantiality of law, and the consequent apparent ability of the judges to achieve any result they want by the manipulation of these fluid rules, is the stock-in-trade of critical legal scholars, who then go on angrily to argue that the myth of law must be laid bare, the false rules condemned and consigned to oblivion.
Fish the rhetorician does not agree. It is the tension between the mythic forms of law and the pressures of the real and ever-changing world that produces the inconsistencies that the critics condemn. But such irrationalities should be celebrated as the law's ' 'amazing trick', the trick by which the law rebuilds itself in mid-air without ever touching down.' They ensure that the law is 'already socially and historically constituted', whatever it might say itself. The explicit destruction of the formal structure of law may be compelling philosophy, but it would be bad legal practice which can only operate within the confines of its own culture. If there were no rules, there would be no law, only philosophy, and you can't advise clients with philosophy.
This book ranges across much wider ground than we have covered here. English studies, interdisciplinary pursuits, even the whole academic community, are undermined in the same confident and caustic way. There is a hilariously derisive chapter on the university teacher, the ugliness of whose Volvo (it is always a Volvo) 'becomes its most attractive feature, for it allows those who own one to plead innocent to the charge of really wanting it.'
It is as though Fish can only function in opposition to the constructive thoughts of others; even his celebration of the law is a response to his modernising colleagues who would dismantle it. They say that he may be bright and clever, but what is his point? Fish replies with the marvellous last lines of his book: 'The point is that there is no point, no yield of a positive programmatic kind to be carried away from these analyses. Nevertheless, that point (that there is no point) is the point because it's the promise of such a yield - either in the form of some finally successful identification of a foundational set of standards or some program by which we can move away from standards to ever- expanding liberation - it's the unavailability of such a yield that is my point, and therefore, it would be contradictory for me to have a point beyond that point. People absolutely go bonkers when they hear that, but that's the way it is.'
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