Stanley Fish is a scholar of sixteenth- and seventeenth-century English Literature whose work expanded into the areas of legal and political philosophy. This was not a new direction so much as an extension of philosophical commitments that he had developed in his earlier work. One of these commitments was a conception of the self that could be described as falling within the communitarian tradition. Fish argues that the attributes that people acquire by being socialized into different institutions, and by being embedded in particular local contexts, are not secondary attributes of a deeper, more enduring self. Rather the self is completely constituted by its local commitments. Take them away, and you would not have an essential, stripped-down self, rather you would have no self at all. A second important philosophical commitment is to an anti-foundationalist epistemology. Simply put, anti-foundationalism holds that there is no unmediated perception of the world and hence no direct perception, in a positivist sense, of any extra-human “foundations” for truth and knowledge. Any human thinking, perceiving, and acting is enabled and structured by the background commitments already in place as a result of the socialization and local embeddedness that constituted the human perceiver. Experience of the world which was not mediated in this way might be available to God, Fish claims, but not to human beings. Fish asserts that it is the human condition always to live in a world which is given shape, order, and significance by humanly generated categories, beliefs, and values which we hold (or which hold us) because we are embedded in particular communities.
Fish’s conception of the self and his anti-foundationalist epistemology lead him to describe liberalism as an incoherent political philosophy (Fish 1994, Chap. 10). According to Fish, the distinctive mark of liberalism is the search for neutral and universal principles that stand outside the contest between substantive political and moral positions. The liberal hope is that these principles can regulate disagreement between partisans of different conceptions of the good without unfairness to any of the participants. But Fish denies that any such principles can be found. Because humans are necessarily embedded beings, they can never transcend (or rise above, or stand to the side of) their deep and constituting local commitments. All of liberalism’s putative neutral principles will either be so abstract that they cannot tell us what to do in a particular context or they will be able to direct us precisely because the partisan content that they purport to have risen above will have been smuggled in. On Fish’s analysis, liberal principles are not independent and neutral constraints on politics, because it is politics that fills them with the content they need in order to do any work. In The Trouble with Principle, he demonstrates his point with detailed analyses of two important liberal principles: freedom of speech and freedom of religion (Fish 1999).
Fish is not saying that neutrality is impossible. Fish’s anti-foundationalist position is that the abstract notion of “neutrality” can always be given a content, but only from within some locally embedded position; it cannot be identified by stepping outside all forms of local embeddedness. But since the ways of being locally embedded differ, there is no assurance that humans will agree on what is neutral. This is why the liberal project of using reason to discover neutral principles and procedures for ordering political life that all can accept is constantly being frustrated by people who refuse to accept that what liberalism delivers is indeed neutral.
The rejection of liberalism as a coherent philosophical project does not mean the rejection of liberalism as politics, Fish insists. Someone who accepts that liberalism can never achieve the strong neutral principles it seeks and is always advancing some contestable, substantive position can nevertheless endorse that substantive position and join with liberals in seeking to advance it.
Fish sees liberalism as a foundationalist project because its search for universal and neutral principles is a search for foundations of political order that would be the same for any group, no matter what its deep local commitments. But there are also anti-foundationalist projects in political philosophy. Some anti-foundationalists argue that if disadvantaged groups become aware of the socially constructed nature of the values and beliefs that allow others to oppress them, then they will be able to free themselves from these ideological shackles. Other anti-foundationalists argue that if reality is always socially constructed, then we have to accept that our group’s perception of reality cannot claim a higher standing than those of other groups, and so we have to be more tolerant of these groups and less insistent about them conforming to our beliefs and standards. Still other anti-foundationalists argue that if everything is socially constructed, then we need to engage in open democratic discussions as to the kind of reality we should be constructing. These political positions are associated with critical theory, postmodernism, and pragmatism, respectively.
Although Fish is an anti-foundationalist himself, he emphatically rejects any such attempts to derive a political program from this epistemology. This is because he sees such a move as contradictory: If an anti-foundationalist holds that everything is “socially constructed,” then realizing this truth cannot enable him to cease being socially constructed. Accepting the truth of anti-foundationalism could only allow him to be more tolerant, or open-minded, or critically self-conscious, or free from ideological distortion, or democratically inclined, if it allowed him to escape the constraints imposed by his local embeddedness, but this contradicts the anti-foundationalist’s basic premise.
The failure to understand properly the non-implications of the necessarily embedded or socially constructed self is a surprising point of commonality between most foundationalists and anti-foundationalists, Fish argues. They both tend to make the mistake of believing that anti-foundationalism does something and that it has consequences outside the precincts of philosophy. The difference between them is that one group thinks that those consequences are desirable, while the other group thinks that they are undesirable. For one group (typically but not always foundationalists), anti-foundationalism has the consequence of leaving us in a relativistic and chaotic world without the possibility of standards and procedures that are common and authoritative. Fish calls this “anti-foundationalist theory fear,” and he calls those afflicted by this fear “the intellectual right.” For the other group, anti-foundationalism has positive consequences – it can free us from the constraints of our partisan local context and make us freer, or more open and tolerant, or critically self-conscious. Fish calls this “anti-foundationalist theory hope,” and he calls those buoyed by this hope “the intellectual left.” Both the hope and the fear are illusory, Fish insists, because each group fails to appreciate that the grip of local contexts cannot be transcended (Fish 1989, 322–323, 345–348).
For the disciplines influenced by positivism, accurate perceptions of empirical facts are the foundation of all genuine knowledge, while metaphysics and other supposed routes to knowledge that do not rely on empirical facts are rejected. Legal positivism follows this pattern when it stresses law’s character as a matter of empirical fact only and when it rejects the position that valid laws are essentially connected to some nonempirical source such as God or Nature. That is, valid law is created solely by the observable acts of particular identifiable human beings, such as sovereigns or legislatures or judges or other types of officials. It is also characteristic of positivism to draw a sharp distinction between facts and values: Facts are objective, while values are subjective; fact claims can be shown to be true or false, while value claims cannot be; no value claim follows from a fact claim. Legal positivism also follows this pattern by claiming that because valid law is completely a matter of empirical fact, it is essentially separate from the kinds of value judgments found in morality and politics. While moral considerations might sometimes prompt the lawmakers to create a law, this is a purely contingent matter and has no relevance to the law’s status as a law.
Fish’s anti-foundationalism entails a rejection of positivism as an epistemology: Any human apprehension of facts is both enabled and structured by an already-in-place socially constructed background. Consequently our apprehensions of empirical reality are never direct and unmediated; facts are never “brute” and available to all in the same shape. Fish therefore rejects any analysis of law that both makes facts central and conceives of facts in a positivistic way. He directs this criticism at legal realism as well as legal positivism (Robertson 2014, Chap. 12). Fish also rejects the legal positivist claim that a hard separation can be maintained between law and morality. Since the background which is a precondition for any human experience is acquired as a result of humans being embedded in local contexts, it follows that any such background will reflect partisan and contestable viewpoints. This will include moral and political commitments, Fish argues. Therefore, the background which enables and structures the practice of law will contain moral and political commitments too and, indeed, competing moral and political commitments. But this means that legal positivism must be wrong about law and morality being essentially separate. Law can never be essentially separate from morality and politics, Fish concludes, because moral and political commitments are present in the background that structures the surface (or foreground) of law and enables the perception of legal texts and legally relevant facts.
The hope of legal formalism is that subjectivity in law can be reduced and objectivity enhanced by limiting the materials an interpreter may consider in understanding and applying the law. Today legal formalism is typically advanced under the banner of textualism. Textualism asserts that if you understand the grammar of the language the text is written in, and the conventionally accepted meanings in that language of the words making up the text, that is all that you need in order to understand the objective meaning of the text itself. It is not necessary, nor is it desirable, for a law applier to go outside the limited domain of syntax and semantics to consider external matters such as the author’s intention, or the context surrounding the text’s production, or more generally the spirit rather than the letter of the law.
Fish’s broadest argument against formalism flows from his anti-foundationalist position that whatever we apprehend in the foreground of consciousness is both enabled and structured by an unnoticed and already-in-place background. This applies to the apprehension of textual meaning too. But the legal formalist fails to appreciate the crucial role of this background, for in effect he commands us to attend only to the foreground – the legal rule or text – and exclude everything in the background that makes the existence of that rule or text possible. Fish’s critique is that the legal formalist distinction between a limited domain of material that can deliver legal objectivity, and a body of material outside that domain which threatens legal objectivity, cannot be maintained because the outside materials the formalist wants to exclude are preconditions for the existence of the very things that he wants to defend. Attempting to exclude this material is thus like someone in a tree who is attempting to saw off the branch he is sitting on.
Fish is not denying the existence of legal texts with meanings that are clear and compelling and understood by all in the same way – i.e., objective legal meanings. What Fish does reject is the textualist account of how these objective or literal meanings come to exist, and he seeks to provide a more adequate explanation of them. His anti-foundationalist explanation is that a shared background can produce a shared foreground. That is, a group of people similarly trained and engaged in similar practices will share background beliefs, values, and organizing categories, and this shared background explains why the members of the group (which he calls an “interpretive community”) will often see the same clear and compelling meaning in a text.
Fish claims that law is given two incompatible jobs in Western societies: achieving the rule of law and achieving substantive justice (Robertson 2014, Chap. 10). These jobs pull in opposing directions because while the rule of law job stresses the goals of certainty, consistency, predictability, and continuity with the past, the justice job stresses the goals of flexibility, context-sensitivity, an ability to adapt to new realities, and the importance of achieving fair and sensible results. One jurisprudential response to this tension is to reject one of the jobs as improper or impossible, thus leaving the other job in occupation of the entire territory of the law. Another response is to assign a separate territory to each job to avoid clashes between them, as Hart did in Chap. 7 of The Concept of Law. But Fish rejects both of these responses. On Fish’s analysis, each of the law jobs is capable of making territorial claims over any part of the legal field. That is, whenever a legal dispute arises, it will be possible to argue that its resolution requires performing either the rule of law job or the substantive justice job.
The contest between law’s two basic jobs is therefore not resolved logically but rhetorically, according to Fish. Two stories about what the law should do will compete to be the most plausible and persuasive. But the rule of law job has a built-in advantage in any rhetorical contest because it is the dominant story in our liberal culture. The values and goals it advances are more closely tied to the liberal social vision than those of the substantive justice job. Consequently, the substantive justice job is typically advanced indirectly. One important way to do this is to take an existing rule or precedent, reshape it with an eye to the present, efface the evidence of that reshaping, and then declare the law to be compelled in the present case by the past it has just transformed. Fish call this the law’s “amazing trick,” the “the art of constructing the (verbal) ground upon which you then confidently walk.” He describes how this rhetorical move is performed in contract law, where the substantive justice job is done but the result is presented as the rule of law job at work (Fish 1994, Chap. 11).
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