From The Law and Politics Book Review

Vol. 9 No. 2 (February 1999) pp. 80-82.

THE ENCHANTMENT OF REASON by Pierre Schlag. Durham, N.C.: Duke University Press, 1998. 160 pp. Cloth $49.95. Paper $17.95. ISBN 0-8223-2185-8 (cloth), 0-8223-2214-5 (paper).

Reviewed by Lief Carter, Department of Political Science, The Colorado College. Email: lhcarter@coloradocollege.edu.

 

The political rhetoric that constitutes the impeachment and trial of President Clinton has, for this reviewer, provided no end of professional frustration. Virtually never, in politics itself or in the media, do we encounter persuasively reasoned legal arguments on either side of the Clinton case. Hornbook interpretive rules such as EJUSDEM GENERIS, by which we would define the general words "high crimes and misdemeanors" as necessarily having the same gravity as the specific words that precede them (treason and bribery, which are clearly betrayals of the public responsibilities of the office) seem irrelevant. When Clinton’s attorneys invoke the integrity of legal reasoning, they provoke the response that any President who would make such arguments lacks contrition. Somehow the moral basis for the power of law to override popular votes and opinions in the name of "reason" and "the rule of law" seems to have evaporated just when we most need it.

Pierre Schlag’s THE ENCHANTMENT OF REASON asserts that this reviewer should have known better. Schlag holds the Byron White Chair in constitutional law at the University of Colorado in Boulder. Though he lives in Valhalla, his bleak and angry book reads as if it were written by an alienated central European intellectual smoking bad cigarettes in a cheap urban room and getting a lot off his chest. Reason in law is a sham. It cannot be anything but a sham, and, since in liberal culture reason is the basis of law’s authority, liberal versions of law are and always will be shams. Reason can only be understood as a modest and inherently skeptical enterprise, one deeply incompatible with political rule. The rule of law is rule by the beliefs of those in power. Reason is merely power’s rhetorical cover. It signifies nothing, at least nothing honorable. This is Thomas Reed Powell with a vengeance.

Were it not for the remarkable aptness of Schlag’s message to the politics of impeachment, I would recommend this book only to a narrow audience of legal theorists. Readers must know their Derrida, Foucault, Lyotard, and Nussbaum as well as their H.L.A. Hart, Dworkin, and Sunstein to follow the argument. (Indeed, the text refers almost exclusively to examples of the inadequacies of the reasoning of academic writers, not of practicing lawyers and judges.) Readers will probably not finish the book if they are unhappy with such constructions as,

[W]hether something is identified as critical reflexivity or rational frame construction is a matter of perspective. Inasmuch as critical reflexivity institutes its own rational frames, and inasmuch as rational frame construction has its own critically reflexive character, it is hardly clear which is which. (p. 66)

and

To put it in plain language, it is things like the imperative to good judgment or common sense or "situation sense" or the pull of values or moral principles that enable the self to locate itself or be located somewhere within the legal hierarchy. And it is the fact that the legal self experiences law in the objectivist imagery and metaphors of a hierarchical layers of law that allow the legal self to locate itself (or be located) at a particular point in the hierarchical layers of law. (p. 138).

Yes, for Schlag, this IS "plain language." Rhetorically and substantively Schlag seems to follow Heidegger, whom he quotes several times to good effect.

Schlag does not give us a linear argument here. I only found a clear statement of the alternatives to reason, namely "reconnaissance, characterization, description, apperception" (p. 142) four pages from the end of the text. Instead, he leads off with Poe’s story of the purloined letter. He initially leads readers to believe that, like the hidden letter, reason in law is in plain view, but not where we have been taught to look. But since reason turns out to be incompatible with law altogether, he must mean something else. Two things, in fact. First, his non-linear argument compels readers of his text to experience the frustration of Poe’s searchers, i.e., the experience of looking in the wrong places for, in this case, Schlag’s own message. (He does not offer clear working definitions of either "reason" or "enchantment." The latter is not even in the index.) That is, the text itself often seems to teach the failure of reason by deliberately frustrating our own reasonable efforts to understand it. Second, if anything is in plain sight but hidden from our view, it is the truth that law itself is evil. It is not even clear that we should hope to find better forms of political ordering and peacemaking. Since the argument is non-linear, it makes more sense for a review to give some highlights than to outline it. Here are three highlights.

First, in the late sixties in graduate school a professor of mine once tossed off the remark that "The only thing logic proves is that you can’t prove anything logically." This was puzzling at the time, but now seems to be "hornbook" philosophy. While Schlag’s criticisms of reason are not novel, no book that I know explores, in the legal context, logic’s inevitable vicious circles, infinite regresses, and paradoxes quite as aggressively as does this one.

Second, Schlag effectively shows that the published claims of law professors tend to have the same conclusory quality as has legal reasoning itself, a sort of "you either agree with me and my correct beliefs or you just don’t get it." Schlag’s criticisms of passages by Cass Sunstein, Ronald Dworkin, and Suzanna Sherry are telling. (His critique of Martha Nussbaum is less so.) There is a difference between reason and rationalization. Rationalizations run rampant in law and in academic legal argument.

Third, the description of reason as skeptical modesty, the sort of things that a good researcher does when suggesting an hypothesis, is itself very appealing. Robert Nozick provides the source (p. 80). Being reasonable means being open and reflective enough so as to believe, among alternatives, that which is most credible, and being disciplined enough to believe only that which has a higher utility for believing it than rejecting it. This modest reasonability leaves the believer in a state of perpetual changefulness incompatible with our sense of law’s authority. From this position Schlag mounts a cogent criticism of Stephen Toulmin’s objectivist claim that "there is one basis, and one alone, on which our judgments of ‘rationality’ and ‘conceptual merit’ can be truly impartial." (p. 81) Indeed, Schlag seems to have his red alert button pushed by any thinker who, denying his or her intellectual vulnerability, confidently declaims assertions.

The basic problem with this book is that the author relies primarily on the very kinds of arguments he condemns. It is full of immodest and confident assertions. For example, "[H]ow does it come to be that all lawyers think alike? The answer is training…." (p. 126), and on the same page we learn that "many (if not most) legal professionals are considered such boring party companions.") This belief—that Gerry Spence and Lewis Powell and Mary Ann Glendon—all think alike, is an "it" that I don’t get. At the very least I need some hints as to how to tell a lawyer who is not thinking like a lawyer when I see one. (One implication is that feminist theories of law are invalid.) Statements like "Virtually all of American legal scholarship falls within three approaches—not one of which recognizes, much less understands, this propagation of the schizoid." (p. 93) sounds a lot like the Toulmin that Schlag criticized a dozen pages earlier.

Schlag’s implicit definition of reason and his argumentative style are more scholastic than the legal and academic rhetorics that he criticizes. As his worrying about the distinctions between "rational frame construction" and "critical reflexivity" (quoted above) suggests, Schlag is an unrepentant essentialist. Having framed the problem in an essentialist and scholastic way, Schlag estopps himself from addressing the rather obvious alternative, namely that reason exists only at retail and consists of those appealing and context-bound "frissons" of agreement generated by common sense. For example, in CITY OF CLEBURNE v. CLEBURNE LIVING CENTER, 473 U.S. 432 (1985), the city denied a permit to build a home for the mentally retarded in a certain neighborhood. The city argued that the residents in the home would be at risk because the site was on a 500-year flood plane and that the residents might bother the neighborhood. But the majority, ruling against the city, noted that a school was already located on the same flood plane in the neighborhood and that mentally retarded children attended that school. Yes! Schlag implicitly explains why such reasoning, which we might call "coherence in the moment," is less common that we might like, but the wholesale and bitter condemnation of law and legal education may strike readers as overkill. Schlag’s overkill puts the common sense reasoning of the CLEBURNE majority in the same unreasonable category that includes the statement that strawberry ice cream is better than vanilla "because strawberry ice cream is made with fruits." (p. 32) This stance certainly discourages the search for coherences in moments. And without such searching, would the City of Cleburne have won?

In close, this book reaffirms a suspicion I have had about the scholarly work of law professors. Law professors seem much more persuasive when they write articles than when they write books. I have over the last decade or so read a number of very convincing, clearly argued, and analytically admirable articles by Professor Schlag. Since tenure in law school rarely requires a book, book projects often take on the quality of an intellectual holiday. Law professors self-administer therapy by getting things (in Schlag’s case, legitimate gripes about the intellectual shallowness of the legal educational establishment) off their chests without fear that critical reaction will cost them too much. I don’t assert this as objective truth, just as a modest hypothesis.


Copyright 1995