Document Type

Working Paper

Publication Date

8-10-2008

SSRN Discipline

Legal Scholarship Network; PRN Subject Matter eJournals; *Humanities - Forthcoming Areas; Philosophy Research Network; Religious Studies Research Network; Law School Research Papers - Legal Studies; Humanities Network; Political Science Network

Abstract

This Review begins by summarizing The Trouble with Principle by Stanley Fish paying particular attention to passages that show Fish at his antifoundationalist bestsections on hate speech affirmative action academic freedom and religion Because Fishs prose is elegant but his argument demanding I offer a metaphor designed to help readers understand Fishs insight 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 publiclaw issues but also when we try to fit ordinary privatelaw rules into a coherent system In short Fish exposes only part of a more general selfdelusion running throughout our system of legal thought In a concluding section I recommend a pragmatic antinormative approach similar to Fishs 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 in the body of law

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