"The Attack on Truth": A Sidelong Take

Yesterday's Chronicle of Higher Education contained an op-ed titled "The Attack on Truth," by Lee McIntyre, a research fellow focusing on the history and philosophy of science. There are standard-issue versions of op-eds by this name and on this subject for both the left and right, and for both science and the humanities; this one is the standard-issue left version for science. It's just decent as these things go, but there is an interesting passage in the middle with some possible payoff for legal academic writing:

[T]hen a funny thing happened: While many natural scientists declared the battle won and headed back to their labs, some left-wing postmodernist criticisms of truth began to be picked up by right-wing ideologues who were looking for respectable cover for their denial of climate change, evolution, and other scientifically accepted conclusions. Alan Sokal said he had hoped to shake up academic progressives, but suddenly one found hard-right conservatives sounding like Continental intellectuals. And that caused discombobulation on the left.

A similar potential phenomenon, along with a second and more concrete interesting reversal, is also apparent in legal academic writing in my field of public/constitutional law. The scholarly legal analog to the "left-wing postmodernist criticisms of truth" and "Continental intellectual"-aping literature that McIntyre refers to above is Critical Legal Studies. As I've suggested elsewhere, in the fields that I'm most concerned with, especially law and religion, the most fertile population for such skeptical criticism these days comes from the right, not the left. There are a variety of reasons for this, I'm sure, but I suspect the most important one is that conservative positions on these issues are now more clearly minority positions than they used to be in the legal academy (as opposed to the courts themselves, although the ground may be evening up there as well). Insofar as CLS was born and used in large measure as a device for fighting guerrilla actions by undermining and sabotaging the overly confident assertions and assumptions of the majority, it makes sense that it would now be more useful for legal conservatives. In my view (see the linked article above), Steve Smith has for a long time made particularly productive and skillful use of it in his work. For the same reasons that, if McIntyre is right, this kind of thinking has become more prevalent on the right in certain areas, I would not be surprised if its use increased on the right in public/constitutional law scholarship. This is a good thing, in my view, and has been little remarked upon.

Equally little remarked upon is the degree to which legal liberals in this field have, of late, mostly ignored or forgotten CLS and its insights (again). This, too, is understandable, for a variety of reasons. Winners don't spend a lot of time casting doubt on their own premises or attempting to undermine the central ground on which they themselves stand. And, at least in the scholarly community and to some degree more broadly, in politics and public discourse, the legal liberal position on issues such as law and religion occupies the central ground. And so one sees a lot of writing these days that is wholly confident about and quite lacking in skepticism concerning such easily and commonly bandied about phrases as "equality" or "egalitarianism," "dignity," "the rule of law[!]," and so on.

I suppose it shouldn't be a surprise that there is so little trace of CLS thought in this literature. I'm sure the veteran crits would be happy to point out that legal liberals mostly ignored it back in the day too, and that the crits' work was aimed as much or more at legal liberals as it was at legal conservatives. But it is customary now for liberal legal scholarship to contain rote statements about how we are all legal realists now, or nods to classic crit critiques of various conservative legal assumptions, such as the idea of a color-blind Constitution. In that sense, I find it striking that most of the mainstream law and religion work I am reading these days betrays little or no trace at all of having ever taken on board anything in the CLS literature, or of unease or skepticism about concepts and values that are obviously hugely vulnerable to critique. It's as if a whole chapter of legal thought--one that was, in my view, highly influential despite its overall failure--never happened. 

Although it's not shocking, it is remarkable, and I suspect that the reasons for it, if we dug deep enough, would be both varied and quite interesting. What I find particularly interesting is that while some of this omission is no doubt simply strategic, I suspect that a good deal of it is not. Some of it may be a function of ignorance: after all, memories are short in the legal academy, and our lack of serious institutional grounding in any kind of scholarly canon doesn't help matters. Some of it may have to do with a tendency within any victors' camp toward a combination of Whig and winners' history. And much of it, I think, has to do with a particular kind of naiveté. Many of these writers (like much of the legal academy as a whole) are writing as much or more out of a sense of political idealism and activism as from purely academic interest. And political actors are often long on naiveté and the swift elimination of cognitive dissonance, and short on history (except of the "right/wrong side of" sort), ambiguity, and serious self-criticism.

That's not all bad, of course. The latter qualities, which I consider fundamental academic virtues, nevertheless are more likely to lead to paralysis and quietism than to activism and progress. But it is interesting, especially insofar as all of this is taking place in an academic environment, one in which people purport to be skilled skeptics and to be fully possessed of academic values. In sum, I would suggest that, at least in the kinds of fields I mostly read and write about, there is a lot of room right now for a resurgence of serious critical thought--and that, contrary to two or three decades ago, it is much more likely to arise on the right of the legal academic spectrum than on the left. Not least for its intellectual fruits and entertainment value, I hope to see more of it.