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This is not law nor is it literature. This is the chaos of competing autisms.
The way out of this chaos would take us through history. It would involve the realization that history is not simply a collection of texts. The execution of King Charles I was not a sentence in a book, "King Charles was beheaded today," but was a real fleshy neck on a real block, as an axe swung through its downward arc. As a literary theorist, literary critic, and legal theorist, Fish has consistently dismissed the importance of such physical extra-textual events. It is no wonder that the texts become insubstantial if the world in which they are written is rendered insubstantial, too, so all we have is a group of graduate students sitting around in our own day gabbing about their own gabbling.
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Stanley Fish admittedly has half a point to make when claiming that hiring practices are rarely an exercise in total objectivity and meritocracy. Such decisions made by flesh and blood human beings will indeed be flawed. Subconsciously, if not even consciously, factors such as class, race, gender, etc. may play a disturbing and invalid role. Nonetheless, Fish seemingly pushes his argument to the point of absurdity. The real answer, of course, is that human beings must learn to confront their prejudices and develop the virtuous habits to overcome them. Stanley Fish is merely building a career around the fact that prudential judgment, and not a hard-science absolutism, underpins our decision making. He is something of a con man who exaggerates his main points to deceive us regarding their ultimate value. Perhaps others can perceive the debate over Fish as merely an abstract intellectual exercise of no real importance to the real world. I am not one of these people. Deconstructionism asserts that human beings cannot achieve reasonable certitude in their decision making. The underpinnings of this epistemology destroy any hope of building a democratic society. The result is that we must ultimately rely on pure brute force. One possesses power not because of the ability to persuade others---but you can kick the crap out of them!
The core of Fish's argument is that *any* discussion, by the mere fact of *being* a discussion that uses words in a certain languages, involves "censorship", because the words, terms, and expressions used in the language have hidden biases in them. Therefore, we are better of without preserving the "illusion" that there is an objective right or wrong, or that democracy is objectively better than fascism, or that the first amendment means anything.
Fish, I think, is pulling an "Andy Kaufman" on us. It is highly unlikely that he actually believes any of this nonsense, despite his articulate defense of it. (Fish is, one must admit, a compelling writer, who can get you convinced - momentarily - of the most absurd nonsense. You only notice the logical lapses, non-sequitors, and stretching of anaolgies *way* past their breaking point - if at all - when you finish the reading.) I think it is much more probably that he just wants to get people angry by taking up a "provocative" position with a seemingly straight face - hence the book's title.
The question is what is Fish's purpose in all this. If his purpose is to get an apathetic public to question and defend their beliefs in freedom of speech and democracy, that is good. But it seems to me more likely that Fish is simply being meritricious for personal gain: he is using his considerable rhetorical and pedagogical talents to defend nonsense, not because he believes it or wants others to object to him, but in order to make a name for himself as academia's "bad boy".
PoSTmodERnFoOL
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To a certain extent, _The Trouble With Principle_ repeats the arguments of _There's No Such Thing as Free Speech_, particularly Fish's critique of free-speech absolutism and of the conservative critique of affirmative action. Both these books are less sustained arguments than collections of individual pieces dealing with common concerns and taking a common approach.
This approach is, I must add, somewhat less original that Fish seems to think it is. His argument has two basic points:
1. Ethical principles like "fairness" and "equality" are not self-sufficient, but are used in specific contexts in order to gain certain ends, and skillful rhetoricians pick them up and put them down depending on whether or not they will be likely to obtain those desired ends in a given context;
2. What ends one seeks emerge, ultimately, from some desire or motivation that is not subject to rational argument because it is not held for rational reasons.
Now, this is really nothing except consequentialism; if we desire, for example, the greatest happiness of the greatest number, then sometimes treating everybody equally is going to do that and sometimes making special allowances for particular groups is going to do that.
Whether or not one seeks the greatest happiness of the greatest number is not, of course, up for debate, or, if it is - as Fish points out - then it is only up for debate because something else is not. You can't make an argument without at least one premise and at least one procedural rule. This isn't consequentialism but simply a restatement of the is-ought problem - ethical positions have to start, not even with axioms, but with intuitions that are not, themselves, in discourse.
The paradox of Fish is that he makes this argument very clearly, understanding its implications, and also argues that articulating this changes nothing; we will all continue to do our rhetorical work the same way. Yet the thrust of the particular arguments that Fish makes seem to deny this. He argues that the conservative critique of affirmative action as discriminatory elevates "non-discrimination" from a sometimes useful tool to a deontological (my word) principle that prevents desirable consequences from coming about. Yet why make this argument except as a means of convincing readers to fix their attention _on_ consequences rather than on principles? Unless "we should bring about good consequences" is itself an instrumental and only contextually useful principle - and then the question is, in what contexts would it _not_ be useful?
My biggest disappointment was Fish's slight account of moral change, in which he seems to imply that people only change their minds as a result of a total re-orientation of the personality, an event that is unpredictable. Maybe this applies to the absolute fundamental moral intuitions we hold, but people change their minds in discourse - that is, as a result of arguments and evidence - all the time. It would be interesting to have a more thorough account of that sort of change, which, admittedly, might (or might not) only be possible when important emotional interests are not at stake (I am, for example, willing to be talked into supporting this or that tax policy). In fact, Fish's whole project seems to presuppose the idea that people will change their minds as a result of something as ordinary as, say, reading a book. Wayne Booth's _Modern Dogma and the Rhetoric of Assent_ is very interesting on this issue.
But you should definitely read Fish's book, mainly because it is a peach. The introduction, in which Fish bemusedly surveys the rhetoric of the modern right (caught, as always, between the assumption that basically everybody agrees and the claiming of underdog status against a fearsome array of college professors and federal judges) is particularly clever.
The book suffers somewhat from the repetitive nature of the study (after all, Fish is basically restating the same thesis over and over again). It is as if Fish is playing a rhetorical fugue, creating new variations in each chapter on the same theme. The song doesn't always sound as compelling from chapter to chapter, but the balance of the book is worthwhile and provocative. The best chapter of the book, chapter 1, explores multi-culturalism and affirmative action in compelling fashion. Fish does well to reorient the debate so as to demonstrate how the very concept of principal robs Fish (and I presume, others who agree with Fish's politics) of the ability to include historical particularity as a factor in public policy. Thus, even Fish's deconstruction of principals is a political act, Fish's way of removing an obstacle to the furtherance of his undeniable agenda.
The implication of Fish's thesis is that western culture consists of a complex mixture of competing agendas, stories, and ethical values that cannot cohere through simple appeals to foundational principles ("freedom of individual self-expression," "speech," "religion," ad nauseaum). Even if we give up the notion that there are neutral principals, this only underlines the communally-conditioned principals that distinguish Christian, secularist, Muslim, and Jew. What we have now is not a principal-less society but a society of competing principals rooted in competing conceptions of reality. Fish is much more descriptive than prescriptive in his assessment. In the end, Fish seems to imply that there is no real prescription, only the mushrooming of rhetoric as agendas clash in the public sphere.
The argument of his book, therefore, is that political realism "can be a resource for politics, not for politics in the rarefied sense named by chimeras like fairness and mutual respect but for politics as it has always been practiced, and practiced honorably, in the wards and boroughs of ancient Rome, seventeenth-century London, and twentieth-century Chicago."
The first section of his book sets out the aforementioned "argument" against neutral principle and for politics. The second section focuses on the "arena" of First Amendment jurisprudence within which neutral principles are most active. In the third section, Fish concentrates on the religion clause of the First Amendment, explaining why " the dream of liberal neutrality" encounters so many difficulties when subjected to a discourse "that refuses to be confined within the precincts of the private." In the fourth and final section, Fish shares a number of "general speculations" and then a few of his personal beliefs. The title of the Epilogue ("How the Right Hijacked the Magic Words") correctly indicates Fish's concern that liberals and progressives have lost control of "the vocabulary of America's civil religion" to their traditional opponents, the conservatives. According to Fish, this is a lamentable but undeniable political reality.
I was curious to know what others have said about this book. Although I have not read all of the reviews, those I have read seem to fall within two predictable categories: readers who share Fish's concerns and convictions praise the book; those who do not tend to dismiss it as misguided polemics. Why do I rate it so highly? There are three basic reasons. First, it is very well written. Second, the power of Fish's assertions has forced me to re-examine my own convictions (eg about "the vocabulary of civil religion" and the larger issue of how any terms are defined). Third, Fish has directed me to a number of other books and articles which were previously unknown to me. He thus helps to broaden and deepen my frame-of-reference. I am eager to explore all of these sources.
Dante reserved the seventh (and worst) ring in Hell for those who, in a moral crisis, maintained their neutrality. Perhaps this is what Fish had in mind when he observes (in the Prologue): "Taking sides, weapon in hand, is not a sign of zealotry or partisanship; it is the sign of morality; and it is the morality of taking sides, of frank and vigorous political action, that is celebrated (not urged; it is inevitable) in the pages that follow." Fish need have no fear of that seventh ring.
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This approach to Milton was regarded as radical when the book first came out, rather oddly, since Milton's tactics of indirection had already been noted by several critics, though not foregrounded as here. What's new is the thoroughness and clarity of the treatment, and Fish's sheer intelligence as a reader. This is criticism at its best: lucid, engaging, responsible, illuminating.