Customer Reviews

Laying Down the Law: Mysticism, Fetishism, and the American Legal Mind

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In the previously published essays collected here, Schlag established himself as one of the most creative thinkers in the contemporary legal academy. To read them one after another is exhilarating; Schlag's sophisication shines through. In chapter after chapter he tackles the most vexing problems of law and legal thinking, but at the heart of his concern is the question of normativity and the normative claims made by legal scholars. Learned readers of modern social thought and of the legal brand of postmodernism will find little new in Schlag's arguments anout the linguistic and rhetorical status of value statement, prescripions, and evaluations. But his work is distinguished by the manner in which he develops those arguments, combining analytic rigor, a learned grasp of the literature relevant to his topics, and a bracing irreverence. He reminds legal scholars of the gap between what law pretends to be and the reality of its bureaucratic presence. In so doing, he revisits legal realism, reenergizes it, and bring readers face-to-face with the central issues confronting law at the end of the 20th century

Schlag's mission to point out what is wrong with the law and legal academia leaves one wondering if he isn't really a nihilist after all. He does sound at some points like he is just playing the fiddle as Rome burns. This is the frustrating half of postmodernism: the purely deconstructionist process that seems to deny the constructivist process that is inevitably to follow.

Nevertheless, this is one of my favorite books on jurisprudence, because it sharply exposes so many of the fictions that academics, lawyers and judges all engage in, often in a way that is highly entertaining. Schlag's ideas resonate in your head and give a new outlook on society generally, beyond just the law. I think about the essay on "Values" every time I hear the President talk about "the Evil One" in Afghanistan.

One interpretation of "lay down the law" is that Schlag is calling for the culture of law to admit its limitations and become more receptive to, continuous with, and even subservient to other areas of human study. Schlag's real concerns are with form and structure. I suggest as examples: psychologists and economists are presented to the courts as "expert witnesses" to serve the biased ends of litigators, rather than serving the court directly; law review articles regularly engage in normative discourse even while acknowledging that no one is listening, etc. There are areas of law that are becoming increasingly defined by economic and "therapeutic" (as opposed to legal) principles; these changes leave legal academics without much to do except cheer from the sidelines.

Of course, Schlag is getting at a lot more than that. Yet assuming that he's right about our inability to become rational autonomous individuals, why bother complaining about it? (The Tao that can be bitched about is not the true Tao, so to speak.) well, at the very least, one does come away from this book with some good ideas to play with.

This series of essays is probably useful to anyone wanting to get a grasp for Schlag, but the Conclusion left me wanting much more. Shlag lists a series of questions that the masses would ask, akin to "what is next in jurisprudence?" His answer is, "Maybe nothing. Maybe what comes next is that we learn to stop treating "law" as something to celebrate, expand, and worship. Maybe, we learn to lay down the law." I have no idea what that last sentence means, and it is never developed. If this is postmodernism, I feel almost compelled to live my life as liberal humanist... at least I can believe in something. He then uses the sentence question as a title for his book... I think that is a tactic he shares with punk bands that name albums after random lyrics. Schlag also throws around the terms "violence", "mysticism", and "fetishism", probably to peek the reader's interest. I'm not sure that those words are very accurate of the situation at hand, and Schlag exemplifies one of the worst traits of the acedemics he is critiquing - - he is writing not out of pure intellectual interest, but rather to gain an audience. Not a bad book, but not a great work of philosophy, either.