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A READER'S JOURNAL

The Enchantment of Reason
by
Pierre Schlag
(Byron White Professor Constitutional Law, UC Boulder)
Published by Duke University Press/NC in 1998
A Book Review by Bobby Matherne ©2005

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Enchantment of reason for legal matters is similar to the enchantment by paradigm of scientific matters. It acts as blinders to keep any possibility of a change from occurring. Although there have been many scientific revolutions as Kuhn points out, there has been only a progressively more and more encompassing enchantment with reason and not a single legal revolution. Anyone who pays the dues to become a journeyman lawyer or attorney becomes so enamored of reason that they cannot perceive of any other way to argue or to conceive an argument in legal matters. They have "made a machine of their mind" as Petrarch put it.

Pierre Schlag has written an utterly fascinating book about reason and how we as human beings demean our humanity at times by operating on reason as if it were a thing instead of a process. The author's name has an interesting etymology: his first name pierre is French for rock and his last name is schlag which is German for hit. Considering the rocks he throws at those who are so enchanted with reason that they are blithely unaware of their error, his name is apt, and one can only hope that many a rocky missile (pierre) will hit (schlag) its target.

The title reminds me of a story. A fish was swimming in a pond and saw a friend. "Hey, you know what?"
       "What?" his fellow fish asked.
       "I was talking to a frog and he told me that we live completely underwater."
       "Oh, yeah? And tell me what is water?"
       "It's all around us. We live in it apparently."
      "Yeah, sure. Show me some water, if that's the case!"

Well, as you can imagine our intrepid friend was unable to explain to his fellow fish what water was like, no matter how much he tried. His friend was immersed in water, existed in water, breathed in water through his gills, but it was such an ever-present part of his existence, he had no concept or comprehension of the most pervasive substance in the fish world. No amount of fish sleuthing or detective work would ever locate the existence of water. Exactly as no amount detailed detective work could reveal the letter in Edgar Alan Poe's tale, "The Purloined Letter."

[page 3] Here is how the thief "concealed" the letter: He changed its physical appearance by removing the original black seal and affixing a small red seal instead. He soiled the paper so that the letter would have the appearance of something of no particular import. Finally, he placed the letter in a card rack with other correspondence.

There in full sight the stolen letter lay while all the full force of the police department's detective work was called into play to locate the crucial letter. The police arrive looking for a physical object, a letter with a big black seal that is supposedly hidden from them. Immediately they are off on two wrong feet: the letter looks differently and the letter is in plain sight. When their first search does not turn up the letter, they partition off the room into a grid and begin to search systematically every square of the grid of the apartment where they know the letter to be. Still they cannot find it. As Schlag puts it, "They are searching very consistently, very coherently, very methodically in the wrong way for the wrong thing."(1)

[page 5, 6] This is not obviously the case in contemporary academic disciplines. In the contemporary context of the social sciences, the humanities, and the law, it is not clear that there is "a letter" — a fact of the matter — to be found. The "methods" deployed by the various disciplines thus present a certain risk. The risk is not that these disciplines will fail to find their respective "letters." On the contrary, the risk is that they will find their "letters" over and over again — repeatedly, ever more precisely. The risk, in other words is that they will find what they are searching for — even though what they are searching for is little more than the construction of the logic of their own disciplinary frames.

Schlag gives us a glimmer of the magic that academic disciplines can perform: they are assured of success. They can discover whatever they look for.

[page 6] Since, in the academic context, the object of inquiry is often a construction of the same frame that constructs the logic of the search, one would predict a certain success. One would predict that if disciplines are able to cast their objects of inquiry in terms of their own logics of search that success would be a rather frequent phenomenon.

The academic life is governed by the principles of a grid such as the ones the police detectives used to search for the purloined letter. Schlag gives us three examples of notions essential to "good" legal thought: coherence, comprehensiveness, and determinacy.

[page 6, 7] All three are notions that relate intimately to the grid. The notion that it is appropriate for legal thought to be "coherent" — in the sense of hanging well together — is a specification for a properly constructed grid: coherence requires that all the compartments be of the same kind so as to fit within the same plane. Another requirement generally widely believed in American law is that legal thought must be "comprehensive." this can be understood as another aspect of the recipe for a properly constructed grid: all the compartments must be included, none left missing. Another requirement which often goes by the name of "determinacy" also relates to the grid: it requires that the operation of subdivision be performed rigorously — that the resulting compartments be defined precisely so that there are proper conceptual boundaries separating and defining each compartment. All of these grid notions (and many others) are tacitly accepted not just in law, but in many other corners of the university as defining proper methodology.

But the case of the "Purloined Letter" shows that policing can be downright awful no matter how fine the grid it employs. Now we begin to see Schlag's point about the enchantment of reason. Reason is like a grid we employ to operate on the world and there are some grids that no matter how fine or systematic we make them, they will not suffice.

[page 7] The very idea that the methods, protocols, procedures of a discipline could be lacking in value is simply unthinkable to those immersed in the discipline.

Certainly the police searching for the letter did not consider that their search method lacked value. What did they do when the first search turned up nothing? They began another more intensive search using the same methods. They searched for their own particular map of the letter, a piece of paper with a large black seal, and the territory of the letter itself had changed so that it no longer matched the police's map. But the police never changed their map of what the letter looked like. In other words, the letter(time=1) was different from the letter (time=2) and yet the police only looked for the letter (time=1). This processing of ignoring the changes of time is characteristic of academic disciplines — other than General Semantics which specifically teaches the importance of the time index, that letter(t=1) is not letter(t=2).

[page 10] The dominance of spatial aesthetics in the social sciences and the humanities works the same magic. If there is going to be an academic discipline, an enduring frame, then the effects of time must be minimized. And it is space that will serve as the dominant image and metaphor of the real. . . . The borrowing of scientific metaphors, images, and ambitions by some academic disciplines enables their practitioners to presume an almost sensate reality to the grids and operations of their own disciplines.

Like the police, academics feel comfortable with the grid and dread the possibility that their discipline is empty of any real meaning. When it is found to be empty, the former adherents of the discipline disappear into the woodwork, only to re-emerge with a newer, more modern discipline. Consider acid rain — that huge world crisis of the 1960s and 70s which was to doom all the world's forests to blight and ruin due to the emissions of industrial plants. Ever wonder what happened to acid rain? Did emissions stop and acid rain went away? No, the data from extensive surveys showed that the destruction of the forests due to acid in the rain was shown to be a natural phenomenon, not related in any way to emissions. Acid rain lost its bite because the discipline which created it was devoid of meaning, or rather the adherents of acid rain were enchanted by their own reasoning into being convinced that a natural phenomenon was a problem caused by human beings. Consider now the new problems which have emerged from the woodwork to replace acid rain which use the same logic of search and methods to lay the blame for likely natural cycles in the Earth's climate at the feet of human interference: global warming, holes in ozone layer, greenhouse gases, etc. Those who make this claim will disappear once more into the woodwork if the onerous costs to humankind prove to have been wasted due to another academic folly.

[page 10] There is yet a fourth reason that the police and the academics cling to their grid. To put it bluntly, it is less than pleasant to actually consider the emptiness of a discipline when it is one's own. When the same disciplinary frame institutes not only the logic of search (the methods), but the field (the apartment) and the object of inquiry (the letter), the ghost of emptiness begins to haunt the discipline. The circularity begins to wear thin.

When a discipline become circular one suspects it is solipsistic — that it is constructing knowledge of the world without from within itself. Thus constructed, it is assured of finding what it seeks. In a devastating indictment of the academic disciplines, focusing mainly on his own field of law, Schlag lays out his program for this book:

[page 11] The discipline can begin to seem somewhat solipsistic. The thought arises that it may be the sort of discipline destined to find the answers it seeks because it has already constructed the answers. This is not a pleasant thought. It is particularly unpleasant and yet particularly applicable to those disciplines that look the most like the "methods" of the police.
       Understandably, few disciplinary thinkers can be counted upon to consider the emptiness of their own disciplines with great enthusiasm. The disciplinary thinkers will resist this possibility for three reasons.
       First, those who, like thinkers in law, have invested hard, painful labor into the mastery of dry, obscure, and maddeningly intricate grids are unlikely to consider such a thought for very long. On the contrary, what one would expect from such thinkers is a certain ressentiment against those who have not experienced the dreary toiling in the disciplinary trenches. As a general matter, the more painful the mastery of a discipline was to acquire, the less its practitioners will be willing to give it up.
       There is a second reason that disciplinary thinkers will fail to own up to the possibility. For disciplinary thinkers to pursue the possibility that their discipline is organized in solipsistic lines would be to relinquish the advantages that their discipline has bestowed upon them. The cost is highest among those who have been most successful. These leaders are the least likely to turn against their discipline. In American law, loyalty to the discipline is particularly alluring because the discipline is understood (however erroneously) to feed into the channels of worldly power: high government office.
       There is a third, perhaps even stronger, reason that disciplinary thinkers will not consider the emptiness of their discipline. It turns out that the solipsism of the search that always finds the object it constructs is not a problem specific to any particular discipline, but rather one that is more or less common to all. If the problem is well nigh unavoidable, why then not stay with the grid that one knows rather than switch to the ones that one doesn't? Why turn against the grid?
       Why not simply run the academic mazes like the police and continue the "exaggerated application of a principle or a set of principles"? Why not continue to polish the grid, monitor its relays, supervise its connections?
       I have already hinted at some answers. The remainder of this book will elaborate.

And elaborate he does. He shows us that the King's New Clothes are nowhere to be found except in the expectations of his loyal subjects. The grids of the hard sciences are utilized by the soft sciences, the social sciences, when they are not emulating the aesthetics of law itself. The social sciences build up their cases by "outbreaks of law."

[page 13] And, indeed, it is striking that when the social sciences and the humanities are not busy imitating the style of the natural sciences, they are often emulating the aesthetics of law. The aesthetics of a great deal of analytical philosophy, for instance, looks highly reminiscent of the stylistic features of a federal statute: definitions, divisions, subdivisions, cross references — all highly formalized. The technocratic flavor of economic analysis and econometrics often displays the same characteristics — a zeal to articulate the law and the suitably specified conditions that govern given economic phenomena. The outbreak of "theory" in all domains of learning from literary criticism to anthropology can be seen itself as an outbreak of "law." Not all theory is lawlike, but a great deal of it (especially in its normative dimension) clearly is. Theory, after all, is very often a way of "laying down the law," of stating the abstract rules and regularities by which various phenomena are or should be governed.

Since abstract laws are constructs of the human mind, they are necessarily frozen and dead because they do not respond to changes in the territory they are designed to regulate. The modern desire, especially in America to "lay down the law" as Schlag tells us, is not confined to the legal profession, but pervades many other academic disciplines.

[page 14] Rather, in its desire to lay down the law, American law may well be emblematic of a plight encountered in many disciplines. . . . The discipline of American law could thus be seen as a particularly disturbing image of our future: the enchantment of reason.

When I studied physics, my major in college, I learned how various laws of physics were discovered and marveled at the systematic and rational ways that the pioneer scientists discovered their laws. Later, as I read the background for each law or discovery, I found that reasons I had been earlier given were back-fitted to spontaneous discoveries to make them seem reasonable. If a hard science such as physics can do that, all holds are barred for the soft sciences such as sociology and the field of law itself.

[page 25] In American law, not only are the other sources of belief subordinated to reason, but considerable effort is expended to make these other sources of belief more like reason itself. Legal thinkers and actors are continuously striving to rationalize these other sources of belief — to make them appear, in substance as well as in form, more like reason itself.
       Hence it is that sources of belief such as experience, tradition, perception, and the like are increasingly recast in the image of reason itself. They are integrated into the grid. In virtue of the relentless reworking and application of legal materials (what currently goes by the name "legal interpretation"), the various sources of belief are increasingly rationalized and thus transformed.

Any physicist, had I known enough to ask one at the time, would have told me that the origin of discoveries and physics laws are introduced in this way to make them seem more precise, more coherent, and more integrated to those new to the field. Only, in my experience, it wasn't until I read Tom Kuhn's The Structure of Scientific Revolutions some twenty years later that I found someone who would detail to me the real reasons that I was given a lot of malarkey to make physics seem rational to me, even when it wasn't! And now comes Pierre Schlag in this book to show me how this form of folly extends into the field of law.

[page 25] In part, rationalization can be counted upon to make the other sources of belief — experience, tradition, perception, and the like — more precise, more coherent, more integrated. At the same time, this precision, coherence, and integration is accomplished by abstraction and reduction. The process of rationalization transforms the manifold meanings of authority, of experience, tradition, perception, and other sources of belief into the ordered propositional aesthetic of reason. The process of rationalization — of making law rational — does not merely sort, classify, and organize; it has an aesthetic effect on what is sorted, classified and organized as well. Something is gained, but something is lost.
       Indeed, in this rationalization process the hold of experience (as experience), tradition (as tradition), perception (as perception) is typically degraded. And it is easy to see how: to the extent that the raison d'etre for experience, tradition, and perception becomes their conformity to reason, they lose their intrinsic power. The foreign criteria of reason such as coherence and consistency come to displace experience and perception. When rationalization has completed its work, all sources of belief must be redeemed in the court of reason.

Why this is disturbing is elaborated in Chapter 2 "When Reason Runs Out" when Schlag shows us "the moment when reason is unable to furnish an answer in law — when some choice must be made between X and Y and reason supports both sides. These are circumstances faced frequently by appellate and trial courts." What happens is these cases? It's like a meeting of judicial bobbleheads.

[page 15] Here we encounter the enchantment of reason in one of its crudest and most deliberate forms. When reason runs out, everyone simply pretends that it doesn't. The self-evident, the obvious, is simply presented as if it were the work of reason itself. And the nodding heads agree. They nod and they say, "Yes, yes, we here all agree with each other; we are the voice of reason." This move is not pretty; it is often a scam, but, often enough, it works. In American law, this particular scam does a lot of work. And after a while, through sheer repetition, the nodding heads actually start to believe their own lines . . . "

Does it seem strange that American law is a form of scam? Well, relax — as Schlag shows us, it is at least a noble scam.

[page 34] But these arguments are a kind of scam. Now, this scam is not your run-of-the-mill scam. It is instead a "noble scam" — one with an excellent pedigree, the very best history and an affinity for the very best circles. Here is the structure of the Noble Scam: The notion is that law is a kind of game played in certain ways with certain kinds of rules and certain kinds of moves. The claim is that the game, properly played, will produce certain results. This is what Amar and Dworkin and countless others in effect argue. The question arises, who gets to decide whether the game has been properly played or not?

Who, indeed, gets to decide? The answer they give us is "us", meaning them. And why do they get to decide? The answer they give is that they, the legal thinkers, "know how to play the game of law very well."

[page 35] The answer is "According to us" where "us" is . . . "us" and, in the event you disagree, "definitely not you."
       But still, as institutionally efficacious as the answer may be, it is not entirely satisfactory. And so, just one more time, we ask again: "But who empowered this 'us' to decide how the game is properly played?" To which the answer pops back immediately: "The game of law itself, of course." "But how do you know that?" "Well, because, we know how to play the game of law very well."
       Indeed.
      Notice that this is no small-time scam. On the contrary, as scams go, this one is world-class. Of course, as rendered here, the scam may seem somewhat thin. But that is because we have been focused on exposing its schematic structure. As it usually appears in "real law," the Noble Scam is rarely thin.

This scam is based on circular logic but it has a secret weapon to completely delude its audience, namely that "the beliefs of the audience are themselves part of the circle that forms the argument." (Page 37) Thus we come to the end that the chapter two title warns us about: "reason runs out."

In Chapter 3 Schlag gives us the learned arguments for reason and evaluates for us whether those arguments are up to the task. What happens is like watching sausage being made. It ain't pretty.

[page 16] Ultimately, we will see the arguments of the partisans of reason break down in unappealing displays of presumption and question begging.

This would indeed be funny, if we didn't live in a coercive society in which by force, laws constructed on such shoddy bases are applied to our daily life. Now we go from the droll to the ridiculous. In the fourth chapter, "Predicaments of Reason," Schlag shows us that reason, when backed into a corner, turns into its very opposite, "faith, prejudice, and dogma". A Jungian psychologist would immediately recognize this transformation as a client under stress moving to his inferior function.

[page 16] These "predicaments" render reason precarious. But they are not so much criticisms of reason as aspects of reason itself. These constitutive aspects of reason are routinely compromised by the partisans of reason, who are almost always seeking to fortify reason by transforming it into a ruling form — "the rule of reason."

Why should we allow reason to rule? The partisans of reason give us many good reasons for it. They ascribe all the goods of society to the boon we receive from reason and all the evils as coming from the rejection of reason. We get in this next passage a hint of the deification of reason which will arrive full force in Chapter 5. To call the rejection of reason "profane" is to say that reason takes place inside the Fane or Temple of Reason and those who reject reason are the hoi polloi who must forever remain outside, in front of that Temple, or "pro-Fane."

[page 47] In fact, the argument that reason is allied with the good is but a special instance of a more general rhetoric — notably, providential alliance between reason and all the notable virtues. In this providential congruence, all the notable virtues just happen to be allied on one side (the side of reason) in a great struggle against all of the vices on the other side. Hence, reason is depicted as good, divine, true, beautiful, powerful, and healthy. Meanwhile, the rejection of reason is cast as profane, false, evil, ugly, weak, and diseased.

Note that the above alignment of reason with all that is good is a belief. And those immersed in a belief are often unaware of their trapped state. They are like Sleeping Beauty who is enchanted, but remains blissfully aware of her state for a hundred years.

[page 62] To put it bluntly, the problem is this: To those who are caught within the grips of belief (which is to say, everyone) the contents of their irrational beliefs do not produce warnings of their irrationality. On the contrary, to those who are caught within the grips of belief, those beliefs are self-evidently true. In fact, to those who believe, those beliefs seem so self-evidently true that it would be irrational to disbelieve them. And yet, as so much of the history of intellectual endeavor reminds: Garbage in/garbage out.

Schlag goes over several plausible answers to the predicaments of reason given by Kant, Dworkin, and others but he finds they are all flawed because they tend to create napsters on the bench.

[page 68, 69] These are all plausible answers. Perhaps they will even yield in any given context what are called "good" results. And yet despite their plausibility, there is something fundamentally wrong with all these answers. And it is this: They are all in their own way invitations to go to sleep. They are all invitations to forget the predicaments of reason.

Rational frame construction is one means used to avoid the predicaments of reason. That sounds officious and well and good, until we are reminded that rational frame construction was what the new clothiers did for the King in the story of the King's New Clothes! They rationally created a frame about the new clothes which ended up so plausible that the King went out in public wearing the new clothes, oblivious to the reality of his nakedness. In some way, each of us vis-à-vis King Law are befuddled by the words of King Law's clothiers. As a result we see what they tell us to see, and only the eyes of a naive child who has not heard those words will be able to see through the scam. One should expect more from our beloved King Law, but alas, as in the fairy tale, one finds less.

[page 72, 73] Ironically, this necessary and unavoidable displacement by reason of its object is rarely visible to those who engage in rational frame construction (and those who decry critical reflexivity).

It is as though, by rational frame construction, one builds a frame, but soon discovers the need for a larger frame to include the already framed item within its frame. This process continues until the thing itself has become almost all frame. The clothes of King Law, in this manner, have caused King Law himself to disappear, but no one notices because his royal clothiers describe his clothes so eloquently.

Reason is simple enough to understand. Schlag gives this operational definition of reason:

[page 76] Reason, as has been suggested, is a way of selecting, testing, monitoring, and replacing beliefs. Reason is a way of deciding upon what moves to make — what pathways, what relations to create. Reason is, in its various forms (inductive, deductive, analogical, abductive, instrumental, practical), a way of moving from one place to another.

This is fine and good until reason begins going in circles and then it becomes like a spider which weaves its web around us and ensnares us within it. And we're often unaware of the web-building process going on in the legal mumbo-jumbo that surrounds us.

[page 77] It is never entirely clear whether certain path-making activities or certain ordered networks are necessary or useful, or whether they are instead the unnecessary and unhelpful strands of a reason spinning its own web.

We might say God Forbid! if reason had not laid claim to being a form of divinity without revealing that to us. Certainly it is a favorite ploy of the US Senate when reason is made to operate for political shenanigans.

[page 78] Sometimes, reason will simply be hijacked to aid a political or normative program.

If a person is endowed with the absolute right to rule, they soon begin to believe their right to be a God-given or divine right. That leads us to the subject of Chapter 5, "Divine Deceptions." And reason itself gets itself in a crack, a recursive track from which extrication is unlikely.

[page 17] Reason is made to posit whatever is necessary for law to seem reasoned and rational. But since law is neither reasoned nor rational (at least not throughout) it is reason that is compromised. To put it another way: Because law cannot be brought into conformity with reason, it is reason that is brought into conformity with the law.

In this chapter Schlag says he "must dispel a fallacy and grant the enemy a last laugh." What he dispatches is the "progressive fallacy" which says bluntly: In the practice of law, what is good is essential and what is bad is a by-product. Here are his words:

[page 99] The progressive fallacy is the belief that the aspects of a practice (say, law) that are "good" are constitutive of or essential to the practice, while those aspects of the practice that are "bad" are merely by-products or contingent to the practice. Absent unabashed practice worship, there is no reason to believe in this cheery scenario.

Then he describes the two aesthetics that are very much in place in American law: the objectivist and the subjectivist aesthetic. And he unleashes a pre-emptive strike on any legal mind which might attempt to claim that they are neither objectivist nor subjectivist in their legal thinking. He says they can't do that.

[page 100] They can't: for them to say that they are not being objectivists or subjectivists has about as much effect on their actual legal thought as their saying "My thinking is never wrong" or "My thinking is always funny." One may sincerely believe that one is never wrong or that one is always funny, but believing this won't make it so.

When the internal world of the schizophrenic cannot be brought into conformity with the world outside, the world outside is brought into conformity with the internal world of the schizophrenic, who can then say, "See, I told you I was right." The internal impairment is made external and the result is again not pretty. Schlag details how the legal thinker takes the hit when reason is compromised in Chapter 6, "The Legal Self."

[page 17] Indeed, the incompatible demands for reason and law are reconciled in the person of the legal thinker or actor who internalizes the dissonance through a kind of cognitive impairment. The visitation of cognitive impairments on legal thinkers and actors is not a contingent occurrence, but inescapable — at least for those who, like many legal academics, want simultaneously to "think about law" and to "do it." As in many other human activities, trying to do both at once is not a felicitous combination.

Imagine for a moment, an actress playing Lady Macbeth saying, "Is this a dagger I see before me, or merely a prop for a play I am performing in?" It would take something away from the play, wouldn't it? Lawyers are faced with a similar task as actors, they must pretend that doctrines do bind and rights do trump just as the actress who plays Lady Macbeth must pretend the prop in her hand is a real dagger. There is a distinct difference between Macbeth who dies at the hand of the dagger, but not for real, and the client of a lawyer who dies for real.

[page 109] In fact, for the lawyer or the judge, the task is even more difficult than for the actor playing Macbeth. When Macbeth dies, the actor playing Macbeth nonetheless survives. When the lawyer loses his capital case and the judge pronounces a death sentence, the defendant will die. When the consequences of role-playing have such serious implications, it becomes, of course, very difficult for the actors not to take comfort in metaphysics. One would, understandably, like to believe that the consequences that follow from "doing law" originate in some objective (stabilized) and subjective (authorized) reality greater than one's self — a reality that is redeemed in the way things are, rather than in shared social conjectures about the way they might be.

Whatever subjective power of law exists it is "relocated to other mystical guarantors of the 'legal cosmology', — notably, 'the internal perspective,' 'careful craftsmanship,' 'good judgment,' 'the interpretive community,' 'Hercules,' 'conscience' ( and so on). These are grand but nebulous entities." (Page 112) These are the "theoretical unmentionables" that the legal profession does not want to hang on its clothesline in public.

[page 112] These are what I call "theoretical unmentionables" — those items within a theory which, by virtue of the identity of the theory, one can say very little about, but which are absolutely necessary for the theory to do its work. Every theory has at least one. A good theoretic unmentionable, rhetorically speaking, is one that looks as if it has substance and content — and yet remains sufficiently empty that it can perform any work required to defend the theory. God was the all-time champion theoretical unmentionable. Today we have more secular derivatives: We speak of the "the internal perspective" or "conscience" or good judgment." The advantage of talking in such terms is that they seem less superstitious and yet nonetheless come close to satisfying the contradictory requirements of both substantiality and emptiness.

With the US Senate currently debating the removal of the filibuster as a tool to obstruct items on the Senate's executive calendar, one can see a case in point of how a system can grind to a halt by simply following its own rules.

[page 113] Good judgment likewise is substantial inasmuch as it is the knowledge of the ropes that makes any system run. One need only follow rules literally (within any system) to bring the system to a grinding halt. If systems (legal and otherwise) do not routinely come to a grinding halt, it is precisely because those who run the systems have something like "good judgment" that enables them to make the system "work." And yet, like other theoretical unmentionables, "good judgment" is as empty as it is substantial.

This next passage suggests a paraphrase of the passage from "As You Like It" where Duke Senior says that our life "finds tongues in trees, books in the running brooks, sermons in stones and reasons in every thing."

[page 116] This overstepping of reason occurs in the persistent habit of legal thinkers and actors to find a reason in everything — to ascribe to legal actions a mindful source.

For a long time lawyers have urged us to think that “more law” equals more good. It must be so — witness the number of new laws passed in every session at the local, state, and federal level. One could infer from this that more lawyers equals more good, too. This implicit assumption has been called into question in recent years where it seems almost as if plans for lawsuits against drug companies are geared up before the drug is even released by the FDA for public use! No sane person would consider that more lawyers equals more good. One need only listen to the lawyer jokes around the water cooler to confirm that truth.

There is a strange asymmetry which Schlag points out to us: "The law wants mindful agencies behind legal acts, but it wants mindful agencies whose identities are far more ideal and far more trustworthy than those of historical subjects."

[page 117] The latter are often jurisprudentially unreliable.
       This largely unacknowledged asymmetry leads to a pathological systemic preference for law — a systemic preference for more law, whenever possible. The implicit presumption is: law = good. More law = more good. This pathological presumption for law, for more law, is ensconced through the legal system — in the law-legitimating rhetoric of legislatures, courts, and law schools.

It may not seem fair to you if I claim that Schlag says the excesses of our pathological system of law is fostered by the devil, but in the next passage he does hint at a similarity between the practice of law and devil worship.

[page 87] Moreover, the very fact that the practice (pick one: law or Satan worship) may have, as an aspect of its practice, truly wonderful things to say about itself is of no moment to us if we want to know whether it is a worthwhile practice.

Schlag tells us in closing that it is no surprise "that reason should metamorphose into the rule of reason." But there are things about reason that law (and other rule-based systems) must acknowledge and come to grips with if we are all not to end up the place where everyone practices the kind of worship mentioned above.

[page 145] Reason is unstable. Law is not benign. This is not a great combination. When reason runs out, but continues to rule, we get precisely what we see all about us — the excessive construction of a pervasively shallow form of life.

Is there hope? Yes, but it requires that some handsome Prince cut through the briars which shield the castle of the Sleeping Beauty of Reason and plant a kiss on her head. When she awakens from her enchantment we can hope for a happy ever after continuing of our civilization. Pierre Schlag has done his job to plant the kiss, the next step is up to reason: it must recognize its own limitations and dependence as Schlag has outlined in detail for us in this fine book.

[page 81] In coming to recognize its own limitations and dependence, reason is now once again fit to rule.

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~~~~~~~~~~~~ footnotes ~~~~~~~~~~~~

Footnote 1. In a way those police acted like the spiritualists of the 19th Century who looked for spiritual beings revealed by things moving in the physical world. EPV (Electronic Voice Phenomenon) is the 21st Century's version of table tipping in the 19th Century

Return to text directly before Footnote 1.

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Any questions about this review, Contact: Bobby Matherne

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