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CHAPTER ONE
Radical Multiculturalism
and Its Discontents
Postmodernist theory ... is often ponderous rather than playful,
and its jargon-filled texts are opaque to all who have not been
socialized into its vocabularies. While it derides the idea that
American universities should be outposts of British culture, it
often has the effect of trying to transform them into the retail
outlets for the latest Paris fashions.
--DALE JAMIESON
The past twenty years have been a time of great ferment in the academy.
An approach sometimes labeled "deconstruction" has swept through
universities, altering the landscape in discipline after discipline. The goal
of the deconstructionist is to expose, or deconstruct, the underlying
subjectivity and indeterminacy of everything we thought we knew.
Radical multiculturalists adopt this approach, attempting to deconstruct
such fundamental concepts as truth, merit, and law.
In scholarship, as in politics, one of the most common sins is to
mischaracterize an opponent's position in order to attack it. In the hope
of avoiding that failing, we use this chapter to make good on our claims
about the positions taken by the radical multiculturalists.
To avoid distorting their views, we present their views using their own
language whenever possible, either by direct quotation or by integrating
some of their distinctive language into our own prose. In the interest of
brevity and readability, we have limited many of the direct quotations
from their works to a single sentence or less. Readers who are
concerned about whether the quotations are taken out of context should
keep in mind that we are not quoting a few isolated statements that
might have a different meaning in context, but rather a constant theme
repeated by many authors and in many different sources. For readers
who want to investigate the radicals' writings more fully, the endnotes
provide citations for every quotation and paraphrase. Additional
documentation of the views of the radical multiculturalists is also found
in later chapters.
Although we refer to these scholars as multiculturalists, they
represent only the most radical wing of progressive multiculturalist
scholarship. The unique features of this radical wing have been
variously described. The philosopher Charles Taylor distinguishes
conventional multiculturalists, who presume that all cultures "have
something important to say to all human beings," from radicals who
demand "actual judgments of equal worth" for every culture. Diane
Ravitch draws a similar distinction between pluralistic multiculturalists,
who seek an inclusive common culture, and particularistic
multiculturalists, who "insist that no common culture is possible or
desirable." According to sociologists Stephan Fuchs and Steven Ward,
a similar difference exists between conventional and radical
deconstructionists: while the former challenge "only certain moves of
certain competitors," the latter want to "play a different game
altogether." Law professor William Eskridge, a leader of the gaylegal
studies movement, explains that the difference is between people who
would "create new and better stories that fit safely within the system of
prior narratives" and others who "tear up the manual and start writing
anew."
The common thread in all these descriptions is that the radicals
would jettison our inherited culture in its entirety in the name of
empowering the downtrodden. While we focus on somewhat different
aspects of culture, we use a similar distinguishing feature to identify
radical multiculturalists: dissatisfied with incremental change, they
attempt to overturn the foundations of American legal thought.
The Origins of Radical Multiculturalism
The radical multiculturalists are located at the intersection of two
intellectual trends. They are, first, indirect heirs of the legal realist
movement that swept American laws schools from the late 1920s into
the 1940s. Spearheaded by such luminaries as Karl Llewellyn at
Columbia, and Jerome Frank and Morris Cohen at Yale, the legal realists
attacked the formalist notion that law embodies neutral, general
principles derivable from cases. The legal realism instead contended,
in the words of one commentator, that "law is always the creation of
some specific lawmaker, whether legislator, administrator, or judge, and
it usually reflects the policy predilections of that lawmaker."
The realists contended that legal doctrine was both indeterminate
and incoherent: "For each legal rule that led to one result, at least one
more rule pointed toward another result." Thus Walter Wheeler Cook of
Johns Hopkins remarked that "legal principles--and rules as well--are
in the habit of hunting in pairs." Cook argued that two accepted but
conflicting principles can always be construed to apply to any given
case. Llewellyn similarly maintained that in interpreting statutes, "there
are two opposing canons [of construction] on almost any point." By
way of illustration, he listed twenty-eight pairs of contradictory
principles of statutory interpretation that had been used by courts and
set forth in treatises.
The realists suggested that judges are actually guided by subjective
value choices, which are justified and rationalized in their "neutral"
written opinions. The intense concern about the possible ideological
tendencies of recent Supreme Court nominees shows that these realist
ideas are now broadly accepted. But as anyone who follows the Court's
work closely can testify, ideology is actually by no means the whole
story; legal arguments can make the critical difference in decisions.
Although they believed that legal rules are indeterminate, the realists
did not advocate that judges give free rein to their own biases. They
suggested that the empirical social sciences should fill the void left by
the realist attack on formalism. Instead of the formalists' "artificial logical
concepts," realists urged reliance on scientific expertise and empirical
data. Robert Maynard Hutchins, a prominent legal realist at Yale who
later became the president of the University of
Chicago, wrote that scholars ought to do empirical studies to
investigate the actual "operation of legal rules." Indeed, one
scholar has recently characterized the heart of legal realism not
as what realists believed but as what they did: empirical legal
research.
There was thus an affinity between legal realism and the
contemporaneous political events of the New Deal. There is
some dispute about the extent to which New Deal lawyers
actually put legal realism into practice, but there is little doubt that
New Dealers and legal realists shared an emphasis on
efficiency, empiricism, and expertise. For all their rejection of
formalism, then, the legal realists were not as much interested in
societal transformation as they were in efficiency. It was left to
the critical legal studies movement (popularly known as CLS) to
turn the realist insights to progressive political goals several
decades later.
Even before CLS, however, legal scholars wrestled with the
implications of legal realism. If legal principles are infinitely
flexible and decisions depend on what the judge had for
breakfast, "law" is just another name for arbitrary discretion.
Teaching and writing about rules of law become difficult,
frustrating, and ultimately irrelevant activities. In the 1950s and
1960s, legal scholars ultimately restrained the insights of legal
realism by focusing on the need for orderly processes to decide
legal issues, rather than on substantive legal rules. Herbert
Wechsler at Columbia--once a stronghold of legal
realism--was a leading proponent of process theory. In his
highly influential 1959 article, Toward Neutral Principles of
Constitutional Law, he argued that judges must be prepared to
explain their decisions by reference to principles that "transcend
the case at hand." Unlike legislators, courts are not free to
function as "a naked power organ"; they must instead engage in a
principled judicial process. "A principled decision," wrote
Wechsler, "is one that rests on reasons with respect to all the
issues in the case, reasons that in their generality and their
neutrality transcend any immediate result that is involved."
Formalists had demanded that decisions apply clear rules
announced in advance. Process theorists were willing to live
without clearcut rules and were prepared to settle instead for a
fair process of decision making and a principled explanation for
the ultimate decision. For process theorists, a fair hearing before
an unbiased, principled tribunal is the best we can reasonably
expect from the legal system.
Wechsler's article simultaneously helped put to rest any
remaining realist sentiments within the legal academy and posed
a new problem. For Wechsler went on to apply his theory to the
Supreme Court's then-recent decision outlawing segregated
schools. That case, Brown v. Board of Education, decided in 1954
by a unanimous Court, provided Wechsler with the "hardest test"
of his "belief in principled adjudication." Despite his fondness for
the result, he found Brown an ultimately unprincipled decision.
Blacks wanted to associate with whites, but many whites did not
want to associate with blacks; how could a court choose which
side to favor? No neutral principle could justify choosing between
the freedom of association denied to blacks by segregation and
the "repugnant" association forced on whites by integration.
Constitutional scholars would spend at least the next twenty
years trying to extricate Brown from Wechsler's critique without
undercutting his rejection of legal realism.
The failure to formulate a satisfactory version of legal process
theory led, perhaps inevitably, to a recycled legal realism. But the
CLS revival of legal realism, which began in the late 1970s,
differed in several ways from its predecessor. First, as we noted
earlier, CLS critiques of law were focused on
progressive--even radical--political change rather than on
efficient government. Critical legal scholars also recognized and
exploited a contradiction within legal realism. As historian G.
Edward White has explained, the realist practice of exposing the
incoherence and indeterminacy of legal rules conflicted with their
attachment to empirical social science: "Why did they assume
that while arguments based on legal doctrines were necessarily
value laden, arguments based on empirical observation could be
value free?" Critical legal scholars abandoned the latter
assumption, uncoupling the realists' link between indeterminacy
as the problem and social science as the solution. They adopted
only the indeterminacy half of the realist program, leaving behind
as naive the realist reliance on objective empiricism.
Thus, CLS scholars tended to embrace some of the nihilistic
potential of legal realism, which the realists themselves had
mostly avoided. Mark Tushnet (one of the founders of CLS), for
example, once wrote that "critique is all there is." CLS scholars
often focused on what came to be known as the "indeterminacy
thesis": that "a competent adjudicator can square a decision in
favor of either side in
any given lawsuit with the existing body of legal rules." Thus, a
sufficiently smart judge (or a judge with sufficiently smart law clerks)
can always justify deciding a case either way. He can always twist the
law enough to justify his decision. Much of CLS scholarship was aimed
at deconstructing legal doctrine to show its indeterminacy.
One frequent CLS target was the liberal idea of individual rights,
which CLS scholars sought to show were unintelligible. In his 1984
Essay on Rights, Tushnet suggested that any appeal to individual rights
is a "masquerade." The masquerade is sometimes successful, he
continued, "because the language of rights is so open and
indeterminate that opposing parties can use the same language to
express their positions." Reliance on rights is also dangerous, Tushnet
argued, because the same rights that operate on the side of the angels in
one case can be used against them in the next case. He gave as an
example the extension of the right of free speech to include advertising.
The Supreme Court had first invalidated a ban on price advertising in
the drug industry, arguing that it deprived consumers of useful
information. But in the very next commercial speech case, Tushnet
observed, the Court struck down government attempts to help
consumers; the Court invalidated limits on the speech rights of a
monopolistic utility. The right that seemed so progressive in the first
case was turned against progressive causes in the second. Peter Gabel,
another critical legal scholar, denounced rights as part of "an ideological
framework that coopts [people] into adopting the very consciousness
they want to transform." Envisioning individuals as holding rights
necessarily presupposes the existence of the government as the grantor
of rights, Gabel argued. Thus, he said, the idea of rights subtly
"establishes the presumptive political legitimacy of the status quo."
This "trashing" of rights had its critics among political progressives.
The failure of CLS to recognize the real gains that individual rights
theories produced for women and people of color led to a somewhat
uneasy alliance between those groups and CLS. As Columbia law
professor Patricia Williams, who helped inspire what eventually became
critical race theory, put it in 1987: "'Rights' feels so new in the mouths of
most black people. It is still so deliciously empowering to say." Kimberle
Crenshaw, another prominent critical race theorist who is now a
colleague of Williams at Columbia, suggested the next year in the
Harvard Law Review that CLS's "`trashing'
rights consciousness may have the unintended consequence of
disempowering the racially oppressed while leaving white supremacy
basically untouched." Discontented with CLS doctrine, progressive
lawyers were also frustrated at the legal system's resistance to drastic
social change. Eventually, their dissatisfaction ripened into the
beginnings of the new radical multiculturalist movement.
Some straight white males also moved from CLS into the emerging
radical groups. Although relations between CLS and the new groups
were mostly cordial, the split did occasion some vituperative rhetoric on
both sides. New radical and Georgetown Law School faculty member
Gary Peller lambasted his colleague Mark Tushnet as "conservative"
and "part of a larger group of white male progressives for whom the
recent influx of minority and feminist scholars into legal education has
been a source of anxiety." Tushnet responded by suggesting that
Peller's attack contained an "oedipal element" compounded by Peller's
insecurity about whether his contributions measured up to those of the
older generation of CLS. More mildly, one critical race theorist chastised
her CLS predecessors because they "exhibit the same proclivities of
mainstream scholarship": they "seldom speak to or about Black
people."
Like most parents and children, CLS and its progeny share some
characteristics and differ in others. While CLS and the newer
movements share a left-leaning or progressive political outlook, the new
movements tend to have a narrower focus. Where CLS deconstructed
every part of the law--one of the most famous CLS articles is on
eighteenth-century legal scholar William Blackstone and another is on
contract law--the new radicals concentrate on race and gender issues,
and particularly on how the law creates or contributes to unequal power
relations.
Critical race theory, according to Crenshaw, "focuses on the
relationship between law and racial subordination in American society."
Another prominent critical race theorist, Richard Delgado, lists eight
themes of critical race scholarship, including "the belief that knowledge
and ideas are powerful," a "critical examination of the myths and stories
powerful groups use to justify racial subordination," and "criticism of
liberal legalisms." He also asserts that critical race scholars must be
ready to question the premises of civil rights law and to examine how
legal doctrines impede reform. Other theorists assert that radical
feminism is similarly an "attempt to describe
and critique patriarchal jurisprudence." Likewise, gaylegal studies
"investigates a particular but pervasive phenomenon that transcends
multiple fields of human identity, experience, and knowledge and that
negatively impacts all of our lives and many of our laws."
In addition to their focus on race, gender, and sexuality, the new
radical multiculturalists expanded the core ideas of CLS by emphasizing
the thought of French postmodernists such as Michel Foucault and
Jacques Derrida. This meant extending the insight that law is socially
constructed into an argument that everything is socially constructed.
Peller describes this extension as the crucial difference between old and
new radicals: "When left academic politics were about demonstrating
how misguided mainstream scholars were--how much smarter the left
was--critical legal studies and similar organizations were comfortable
places for this left faction. Now that the agenda has begun to consider
the social construction of intellectual merit itself, many likely feel
threatened."
Although CLS was mostly interested in indeterminacy as a way of
threatening law's legitimacy, the new radicals were more concerned with
how indeterminacy conceals racism and sexism. This view had its roots
in another strand of CLS scholarship. Although CLS scholarship had
often focused on the inevitable incoherence of legal doctrine, some
critical legal scholars also suggested that indeterminacy allowed judges
to combine progressive-sounding rhetoric with oppressive results.
Thus, legal discourse "conceals and reinforces relations of domination."
The late Alan Freeman, for example, argued in one of the earliest CLS
articles that antidiscrimination law actually undermined the cause of
racial equality and legitimated discrimination.
The radical multiculturalists focused on this legitimating function of
law, finding confirmation in Foucault's writings. Where some had found
doctrinal incoherence, the new radicals found instead a deliberate
concentration of power in the white male establishment. Law (as well as
everything else) is constructed by the powerful to maintain and
enhance their own power. Derrick Bell, for instance, argues that Brown
v. Board of Education actually served the interests of whites at least as
much as it furthered the interests of blacks. Indeed, he contends that as
a general matter, "the interest of blacks in achieving racial equality will
be accommodated only when it converges with the interests of whites."
Radical feminist Robin West contends that
our legal, political, and social cultures are "pervasively misogynist."
The radicals thus focus on the roles played by race and gender in the
social construction of reality. Their mission is to expose the specific
power relations that underlie legal doctrine and practice.
The Social Construction of Reality
The radicals' core beliefs go by many names: social constructionism,
postmodernism, deconstructionism. Don't let all the isms fool you; their
basic theory is both simple and astoundingly powerful. Stated baldly,
their thesis is that reality is socially constructed by the powerful in
order to perpetuate their own hegemony. As one radical feminist puts
it, "feminist analysis begins with the principle that objective reality is a
myth." Before you respond that this must be nonsense--that, as the
philosopher John Searle notes, Mount Everest exists and is covered
with ice and snow at its peak independent of human action or
perception--let us explore the more particular claims of the radicals.
Most of them, after all, are entirely uninterested in the climatic
conditions of Mount Everest, and while their theory might require them
to deny the peak's objective reality, they have no particular stake in
doing so.
What they do have a stake in is making claims about social aspects
of the world. Here their claims have greater plausibility. The statement
"Mount Everest has snow at its peak" is different from the statement
"Farber and Sherry have written a careful and scholarly book," or even
the statement "Farber and Sherry are law professors." It isn't simply
that a value judgment creeps into the middle statement that isn't present
in the other two. Neither statement about the authors makes sense in
the absence of particular human institutions: universities, law schools,
scholarly books (as opposed to novels, collections of cartoons, or
tabloid articles), standards of judgment about appropriate levels of care,
and even what it means to "write" a book (which may or may not
include using a pen or pencil, and may attribute authorship to only a
limited subset of those who contribute to the final product). In that
sense the statements necessarily reflect, at best, only a socially
constructed truth.
But, as Stanley Fish among others has suggested, that reality is
socially constructed doesn't tell us much by itself: "If everything is
socially constructed then the fact that something ... is socially
constructed cannot count as a reason for dismissing it." Tables are
socially constructed--they're never found in the wild--but they're
certainly real. What difference does it make that reality, or any particular
part of it, is socially constructed?
Here is where the radical multiculturalists, drawing on Foucault and
other modern French thinkers, make their most significant claims.
Foucault at times suggested that underlying what counts as objective
knowledge is a power relation, one category of people benefiting at the
expense of another category of people. The radicals thus see the social
construction of reality as a device to reproduce and perpetuate existing
hierarchies. Derrick Bell, for example, writes that "law--and by
extension, the courts" are "instruments for preserving the status quo"
and only "periodically and unpredictably" serve as a "refuge of
oppressed people." Our particular American reality, for Bell, is neither
random nor generally benign and adaptive: it is constructed so as to
benefit those currently in power. Thus it is no coincidence that
Wechsler's call for neutral principles coincided with a defense of
segregation: our social practices are constructed in such a way that
support for the oppressed is perceived as non-neutral. To be neutral is
to side with oppression, which is built into the very order of things.
The beneficiaries of this covert oppression are usually described as
straight white males, or, more pompously, as "the white male
establishment." Everyone else is either a victim, a collaborator, or an
unwitting dupe. The background assumption of the new radicals is well
stated by Richard Delgado: "Racism is ... natural and normal--the
ordinary state of affairs.... It is the 'normal science' of our day, part of
the baseline, the from-which-we-reason. Conversation begins with
racist premises." Jerome Culp also finds racism both pervasive and the
root cause of all social ills: "Without the racism of The University of
Chicago and Northwestern and Duke University, Cabrini Green cannot
exist."
Radical feminists take an analogous approach: "With the tools
provided by social constructionism, feminists have uncovered the deep
connections between our culture's understanding of the human
relationship to reality, on the one hand, and our culture's commitment to
gender difference and gender oppression, on the other
hand." The goal of the radical multiculturalists is thus to expose the
racism, sexism, and other pathologies of accepted legal doctrines and
social practices, and to suggest changes to help current victims.
Radical multiculturalists especially focus on and criticize such
concepts as knowledge, reason, and merit. These concepts are both
fundamental and seemingly unbiased; they claim a universal validity.
All of them involve standards of judgment, which according to the
radicals are socially constructed and culturally contingent, and thus
suspect. As critical race theorist Alex Johnson writes, "the presumed
norm of neutrality actually masks the reality that the Euro-American
male's perspective is the background norm or heuristic governing in the
normal evaluative context." Stanley Fish, a Milton scholar who holds a
joint appointment in the law school and the English department at Duke,
similarly contends that "like 'fairness,' 'merit,' and 'free speech,' Reason
is a political entity," an "ideologically charged" product of "a decidedly
political agenda." Justice, too, is substantively contentless; one critic of
the radicals suggests that they view "talk of 'injustice'" as "a
rhetorically disguised demand for capitulation."
The view that talk about justice merely masks group interests and
dominance hierarchies is well illustrated by a passage in Derrick Bell's
story, "The Space Traders." This passage, which we mentioned in the
Introduction, deserves a closer look. Recall that the story's premise is
that aliens offer white Americans great benefits in return for an
agreement to allow the aliens to take all of America's blacks away. One
of the few groups that courageously takes a stand on behalf of the
blacks is the Jews, who denounce the alien proposal as genocidal and
form a secret Anne Frank Committee to organize resistance. It all seems
very noble, but it turns out there is a hidden agenda that has nothing to
do with "injustice" and everything to do with keeping Jews from being
at the bottom of the social hierarchy. As Bell explains, "A concern of
many Jews not contained in their official condemnations of the Trade
offer, was that, in the absence of blacks, Jews could become the
scapegoats for a system so reliant on an identifiable group on whose
heads less-well-off whites can discharge their hate and frustrations for
societal disabilities about which they are unwilling to confront their
leaders. Given the German experience, few Jews argued that 'it couldn't
happen here.'" Or to put it another way, this purportedly noble
claim on behalf of blacks is instead
rooted firmly in group self-interest, and a rather ugly interest at
that--for it appears that what the Jews really need is to be sure that
blacks remain available as targets for white racism. Rather than wanting
to rescue blacks from being held hostage by white society, the Jews
really want to use them as human shields to fend off gentile attacks. So
much for abstractions like morality and justice.
This wholesale condemnation of purportedly objective standards
stems from the radicals' rejection of the very notion of objectivity.
Objectivity itself is a sham, perpetrated by the powerful. Radical
feminist Ann Scales describes "the process of objectification: the
winner is he who makes his world seem necessary." Or, as another
radical feminist puts it: "'objectivity' is only a cover for a male
viewpoint." To claim an objective viewpoint is, at best, to mistake a
particular for a universal truth. "There is," writes one radical
multiculturalist, "no objective reference point, separate from culture and
politics, available to distinguish truth from ideology, fact from opinion,
or representation from interpretation." We can thus have no universal
or common standards of judgment. Anything that masquerades as
universal is merely a "mas[k] for the will to political power of dominant
hegemonic groups." All "normative orderings ... reflect the views of
the powerful," and all "standards are nothing more than structured
preferences" of the powerful. One opponent accurately captures the
radicals' beliefs: "Rationality, objectivity, accuracy and standards of
intellectual quality and merit are slogans or masks of oppression
designed to convince the oppressed that subordination is justice."
Catharine MacKinnon offers a succinct summary of the radical
position:
If feminism is a critique of the objective standpoint as male, then
we also disavow standard scientific norms as the adequacy criteria
for our theory, because the objective standpoint we criticize is the
posture of science. In other words, our critique of the objective
standpoint as male is a critique of science as a specifically male
approach to knowledge. With it, we reject male criteria for
verification.
Or, as she puts it a few pages earlier, "the feminist theory of knowledge
is inextricable from the feminist critique of male power because the male
point of view has forced itself upon the world, and does force itself
upon the world, as its way of knowing."
The Attack on Knowledge and Merit
At least since the Enlightenment, knowledge has been thought of as
universally accessible and objective. Something counts as knowledge
not because of its pedigree but because of its content. That the Pope or
the president or the New York Times says it does not insulate it from
challenge. Moreover, you and I can know the same thing. We can
convey that knowledge to others, and we can be persuaded through
reason to reassess what we know. Some things even count as
"common knowledge."
Objectivity is a tricky concept. (Ask any philosopher.) In using the
term objective knowledge, we have in mind something more modest
than eternal, unchanging truth, or what philosophers sometimes call the
God's-eye view of the universe. Knowledge as understood at any given
time is not necessarily the same as ultimate truth. We sometimes think
we "know" things that seem well-established but turn out not to be
true, as when everyone knew that the sun revolved around the earth, or
that chocolate caused hyperactivity in children. These things have
since been disproved, and we now have knowledge of--or at least a
very well-justified belief in--their converses. Knowledge is
nevertheless objective in the sense that it reflects something beyond
fiat or a parochial viewpoint. We would, for instance, tend to discount
an unsupported statement by the chocolate industry denying any
relationship between chocolate and hyperactivity. This is because we
generally believe that there are independent standards for evaluating
claims to knowledge and for mounting challenges to established
knowledge. Moreover, these standards are crucial to our common
vision of knowledge as both objective and subject to change. What
keeps knowledge from being stagnant is its universal vulnerability to
challenge. Objectivity is the aspiration to eliminate beliefs based on
bias, personal idiosyncracy, fiat, or careless investigation.