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Friday, September 02, 2016

Pierre Schlag and the Catharsis of "Why?"

61Ecj1ljuAL._SX322_BO1,204,203,200_This is a repost of something from several weeks ago on The Legal Whiteboard.

Pierre Schlag, with whom I’ve maintained a friendly correspondence for a number of years, was kind enough to pass along a draft of his article The Law Review Article and his new novel American Absurd: A Work of Fiction (Bowen Press, 2016).

I may be the last person others would expect to appreciate critiques with CLS or post-modern or absurdist perspectives. When I was a senior in high school, my honors English project was a paean to rationality, structured as a Gemara-like commentary on Rabindranath Tagore’s poem Where the Mind is Without Fear. That was the idealism of a seventeen year old. With the limited maturity I’ve been able to achieve in the ensuing forty-five years, I’ve come to believe that any reasonable view of reason entails understanding its limits. (That is an underlying theme of my book Routledge will be publishing next year: Beyond Legal Reasoning: A Critique of Pure Lawyering.)

Here’s what I appreciate so much about Pierre’s work.

Pierre wants you to question the extent to which your thinking has settled into (or never left) a comfortable or conventional frame. Some of us try to provoke that introspection by force of reason, but that’s the very point.  Reasoning your way to questioning reason is about as difficult as that sounds.  Hume didn't think it was possible: reason is just the slave of the passions. Nevertheless, even Kant, who wanted to counter that aspect of Humean skepticism, conceded we’d never be able to be able to judge for sure when it was or wasn’t. So Pierre makes the point about reason in the community of law professors by way of form as well as substance. If reading The Law Review Article makes you uncomfortable (as it did me!), then it has doubly achieved its goal of exposing the “deeply stylized form, structure, and vexations” of this particular artifact of our narrow neck of the intellectual woods.

There's an additional timeliness here, given that the theme of the upcoming AALS meeting is “Why Law Matters.” Another friend commented about the theme: “If this were an actual academic learned society instead of a trade group/booster squad, wouldn't the proper title be, ‘Does Law Matter?’ or ‘How Law Matters?’” (Full disclosure: I agreed to be an organizer of a discussion group entitled “Why (Transactional) Law Matters” but I have made it clear to my fellow organizers that I intend to be a contrarian on the subject. I’m no Johnny-come-lately to this: years ago, I presented at a law and entrepreneurship conference on Why the Law of Entrepreneurship Barely Matters and last year at a contract theory conference on Does Contract Theory Matter?)

Pierre’s essay should be required reading.  I hope they put copies in the registration materials, particularly this paragraph:

Yes, indeed, why? In fact why is this colloquium happening? Why are you happening? Why am I? Hell, why is anything happening? Point being, of course, that the question (why is this happening?) immediately points to the impossibility of the answer. The ‘why?’ in the question will only be answered within a frame that everyone pretends is already stabilized (when, of course, it is not) for a subject presumed to be universal (but could not possibly be) from a limited set of vantages and specified orientations (which, of course, are neither).

If there’s an answer to the why? questions, it’s likely to be a little depressing, and that’s the subject of Pierre’s novel, American Absurd, one of whose characters, Prof. Max Stein, earns a citation in The Law Review. American Absurd asks us to question what in our lives is meaningful - how much of what we do is "going from A to B over and over again, without, it seems, actually getting anywhere." American Absurd is a hoot, with its background of L.A. drivers going from point to point forever for its own sake and writers with writer’s block walking the streets of Manhattan for the same reason. The banality of it all gets interrupted by David Madden’s journey from ordinary upscale Mercedes driver to public urinator to cultural icon, the subject of Professor Stein’s typology and analysis of going from A to B.

I reflect on my own repeated travels from A to B. In microcosm, it is my relationship with the New York Times crossword puzzle. On Mondays and Tuesdays, it is too easy to bother with printing, so I do it on my iPad and work against the clock (goal: Monday in under seven minutes; Tuesday in under eight). From Wednesday through Sunday, it’s on paper and in ink, and accuracy is more important than speed. I can rationalize my behavior as a prophylactic against hardening of the cranial arteries, but even that rationalization is proof that I’ve tried to impute meaning into nothing more than repeated trips from A to B. My wife made the mistake once of suggesting that we do the Sunday puzzle together on a Saturday during a drive somewhere; she hasn’t made that mistake again.

It would be easy to dismiss Pierre’s message as cynicism. I don’t believe it is. If it were, he wouldn’t keep at it. We have to aim for a catharsis of “why”, one that acknowledges the futility of it all (in the long run) but still, against all rational hope, refuses to give up. My friend, Susan Neiman, in her masterful reflection on coming to terms with evil, said,

At times the most hopeful gesture we may be able to manage is not to answer whether life is justified but merely to reject the question. Meaning is a human category, and must be won against a background. A life that was inevitably meaningful would defeat itself from the start. Between the adult who knows she won’t find reason in the world, and the child who refuses to stop seeking it, lies the difference between resignation and humility.

That’s me at seventeen and sixty-two. If it’s going from A to B, so be it. But it’s also why I like Pierre’s provocation.

Posted by Jeff Lipshaw on September 2, 2016 at 11:31 AM | Permalink


Orin, I can see how somebody would react that way, but I didn't. Possibly because I have exchanged ideas with Pierre for some time and am therefore inclined to be charitable about motives. In any event, I buried the lede, because the point was not so much about Pierre as about acknowledging the absurd and soldiering on nevertheless. That's a theme of Existentialists like Camus - Paul is a Sisyphus who labors on and finds meaning without succumbing to cynicism. So Paul's post may be a counter to Pierre, but I think it's personal narrative consistent with my own reconciliation of the absurd and evil that appear in our lives.

Posted by: Jeff Lipshaw | Sep 3, 2016 7:25:11 AM

Schlag's work used to be razor-sharp, but he continues to levy 1985 critiques at a scholarly landscape that has changed dramatically over the past 30 years. His shtick only works if he ignores or seriously downplays the diversity of legal scholarship produced today.

Posted by: jlt | Sep 2, 2016 8:29:21 PM

Paul Horwitz's post below was not intended as a response to Schlag, but it's an interesting counterpoint to it.

Posted by: Orin Kerr | Sep 2, 2016 3:04:21 PM

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