Recently, a colleague described to me a colloquium that he had just attended. The subject was a draft paper written by one of the participants; the topic was the reception of newly freed African Americans into society during Reconstruction. Slightly bewildered, he reported that the paper appeared to argue that granting former slaves the legal right to marry was actually a bad thing—a way for the dominant culture to force its hegemonic institutions on a subject population and to impose racist and gendered legal norms on previously private consensual relationships. In fact, he said, the writer seemed to claim that the varied, fluid, “egalitarian” and “communal” sexual relationships among slaves rendered slave society superior—at least in this regard—to nineteenth-century white society.

On closer inspection, it turns out that the writer intended to join the critique of “rights-based strategies” on behalf of “abject groups,” the point being that the effort to gain inclusion in the dominant institutions of society initiates regulation by a “bureaucratic juridical apparatus” which itself becomes an instrument of further subordination while generating inauthenticity and false consciousness. However, as my informant nervously recognized, an uncharitable reader—like myself, perhaps—could find in this argument a backhanded defense of slavery, about which I used to believe it was socially inappropriate to say anything good.

This is the world of legal academia. I tell you this story to show that I, too, can participate in the scholarship of narrative that has come to dominate my craft. I, too, can toss about the language of gendered hierarchies and socially constructed reality that constitutes postmodern legal scholarship. I also tell you this story in the full knowledge that I will not lunch in this town again.

It is this disturbing combination of intellectual wooliness and implicit intimidation that has prompted Daniel Farber and Suzanna Sherry’s new book, Beyond All Reason: The Radical Assault on Truth in American Law. Professors Farber and Sherry both teach at the University of Minnesota Law School and have published widely on constitutional law and legal scholarship. They are, in their politics, conventional liberals. They know whereof they speak.

Farber and Sherry take as their target the avant-garde wing of the so-called multicultural movement, which they define as sharing the belief that all cultures are equal, that no common culture is possible, and perhaps somewhat inconsistently—that Western culture should be overthrown in the interests of empowering the downtrodden. Stripped to its essentials, Farber and Sherry’s book argues that the ideology of radical multiculturalism “fails on its own terms because it cannot support the kind of world that it seeks to create or maintain,” a world of absolute egalitarianism.

The book is well-researched, well-written, evenhanded, and, at some fundamental level, surprisingly naïve.

By and large, the book is an effort to engage in a scholarly dialogue with the radicals, beginning with a description of their views and moving to a critique of the consequences of their positions. The book is well-researched, well-written, evenhanded, and, at some fundamental level, surprisingly naïve. It is as if Farber and Sherry cannot quite swallow the fact that people--responsible people, tenured law professors at that—really believe these things, that they really reject the premises of the Enlightenment and liberal democracy while enjoying their benefits. But then, it does strain credulity to find that a tenured law professor would write that “racism and enlightenment are the same thing” and that “if you are black or Mexican, you should flee Enlightenment-based democracies like mad, assuming you have any choice.” Yet, the author of both statements is Richard Delgado, one of the more well-published and sought-after multiculturalists.

As Farber and Sherry put it, the whole radical enterprise boils down to a single breathtakingly simple insight: “reality is socially constructed by the powerful to perpetuate their own hegemony.” It is the marriage of American legal realism with French deconstructionism, presided over by hard Left politics. The goal of the radicals is ostensibly to expose the racism, sexism, and other pathologies that inhabit the present legal regime and to argue for change in the interests of its victims.

Of course, multiculturalism is not as simple or benign as all that. If reality is socially constructed in the interests of the powerful, so are all forms of knowledge and all conceptions of merit. There is no such thing as objectivity. None of this is surprising to the readers of this journal. What is surprising are the jejune turns that deconstructionism takes when left in the hands of amateurs, namely law professors.

As Farber and Sherry detail, chief among the radicals’ claims is that women and minorities have distinctive nonrational ways of knowing things not accessible to members of the majority culture, a privileged knowledge that is expressed in a unique “voice” of color and gender. This, of course, tends to put the kibosh on reasoned discourse. It also makes persuasion rather problematic. As an answer to that problem, the radicals offer a new form of scholarship: narrative and storytelling, through which they hope to bring about an intuitive frisson of recognition and, consequently, insight in their audience.

But, Farber and Sherry explain, narrative has turned into autobiography. And, they lament, this has some unpleasant results. First of all, reliance on autobiographical accounts has led to some nasty intramural debates on authenticity—who has the right kind of experience to speak for women, gays, or people of color—and some extremely ugly attacks on outsiders who attempt to criticize these accounts, since, by definition, all criticism is personal. What is more, as University of Virginia law professor Anne Coughlin has written, many of the autobiographical stories are, by ordinary standards, inaccurate, as the writers seek to fit themselves into the categories of minority experience. Fortunately for them, as the radical Alex Johnson has said, “it is perfectly acceptable … if that which is presented as the truth turns out not to be objectively true.” (For her pains, Coughlin was denounced by the aforementioned Richard Delgado for “coming perilously close to replicating the sin of the slave master” described by a feminist literary critic who worried that, by applying literary theory to texts by black writers, white feminists replicate a slave owner writing a “ruthlessly reductive” account of the behavior of his slaves.)

But, Farber and Sherry explain, narrative has turned into autobiography.

Even leaving aside autobiography and authenticity, Farber and Sherry point out, the radical critique of objectivity has unfortunate consequences for more traditional legal scholarship, which frequently deals with the history of laws and institutions such as the Federal Constitution. Without a concept of objective truth or fact, there is no defense against even the most outrageous distortions of history since, after all, everything is a matter of perspective. In practice, social constructionism has led to a rather insouciant attitude toward facts--particularly inconvenient facts—among radical legal scholars. Thus, Patricia Williams, a black law professor at Columbia University, says it doesn’t matter whether Tawana Brawley was lying or telling the truth about being the victim of a racist assault; either way she “was the victim of some unspeakable crime—and even if she did it to herself.” Williams also accepts one of the more outré assertions of Afrocentrism, namely that Beethoven was black. This kind of thinking makes rational discourse about policy issues unlikely at best.

As Farber and Sherry conclude, the radical critique both is non-falsifiable and ignores the values central to liberal democracy and to a democratic citizenry, including rationality and tolerance. What Farber and Sherry cannot bring themselves to admit is that the radicals simply do not care about the same things they do, including facts, rationality, and tolerance.

The problem is that it is difficult to say anything new about these trends in legal scholarship and what is probably the most original part of Farber and Sherry’s book—the discussion of meritocracy—is arguably its weakest. For, interestingly, Farber and Sherry’s argument is limited by its own version of identity politics. There is an old vaudeville joke whose punchline, I believe, goes something like, “Well, yes, but is it good for the Jews?” At times, Farber and Sherry’s book seems like a 145-page set-up for that punchline.

Farber and Sherry contend that the radical assertion that conventional notions of merit simply reflect “what white men value about themselves” is inherently anti-Semitic and, in addition, that the radicals’ rejection of the Enlightenment has anti-Semitic implications. It is this claim of bias—extended to encompass anti-Asian sentiment as well—that rests at the heart of Farber and Sherry’s assertion that the radical ideology is internally inconsistent. In fact, they argue, the radicals “have it exactly backwards” because the Enlightenment’s commitment to reason and merit provides a way to escape oppressive regimes that allocate benefits on the basis of irrelevant characteristics such as race.

It seems, however, that Farber and Sherry are themselves a little overeager to claim the coveted status of victim. They begin from the observation that Jews and Asians are successful out of all proportion to their numbers. In particular, they note, Jews comprise about 2.5 percent of the total population, but constitute as much as 50 percent of the faculty at some elite law schools. Indeed, as Farber and Sherry feel compelled to tell us, they themselves are Jewish, although by their own reasoning this ought to be of no import. As I understand their argument, it boils down to this: Jews are a minority subject to discrimination, yet they have succeeded under the current meritocratic regime. Thus, when radicals argue that Jews are occupying spaces that ought to go to persons of color and other oppressed groups, their claim is inherently anti-Semitic. Farber and Sherry further suggest that the radicals have only four explanations for Jewish success, all unacceptably racist: either Jews have sold out to majority standards, are members of a worldwide conspiracy, are collaborators with the current empowered elites, or have themselves inappropriately influenced American culture.

Even if this were an exhaustive catalogue of possible radical explanations for Jewish success—which I doubt—I am not certain that the thrust of the radical position is truly anti-Semitic so much as antiestablishment. Although Derrick Bell may be a fellow traveler with the Reverend Louis Farrakhan—and has, in his own right, said some ugly things about Jews—Jews do not figure in his writings as special targets, but as cogs in a white power structure that oppresses persons of color.

It is here that Farber and Sherry are most hampered by their inability to accept that the radical critique is as radical as it purports to be. If law schools are performing the wrong tasks, then people who disproportionately succeed at those tasks ought not to be there. Only if you believe that law schools are performing the right tasks does the radical critique become arguably anti-Semitic or anti-Asian.

Yet, as I read Farber and Sherry’s dispassionate treatment of the radical literature, I was struck by something I had never noticed before. The radical multiculturalists harbor a more pessimistic view of human nature than the most ardent believer in original sin. After all, even the most rock-ribbed Calvinist believes in the possibility that divine grace can raise us out of our brutish state. But multiculturalists see us all as irrational beings driven by appetite and a lust for domination over others. If we are exposed to malignant influences—say, pornography or racist language—we immediately internalize their messages and act accordingly. It is for this reason that the radicals reject the Enlightenment’s faith in the marketplace of ideas and argue that society must suppress all distasteful speech and images.

After all, even the most rock-ribbed Calvinist believes in the possibility that divine grace can raise us out of our brutish state.

But, having reduced civil society to something fairly close to the Hobbesian state of nature—a war of each group against all—the multiculturalists can only demand more of the world’s goods from the already empowered. Theirs is a world without a coherent account of justice, human dignity, rights, or altruism; indeed, they deny the possibility of a universal account of justice or human dignity. Lacking a moral call on those in power, they cannot supply a reason—short of fear—why “haves” should share with the “have nots” of this world. Indeed, given their belief in socially conditioned mindsets, as an epistemological matter it is difficult to understand how the empowered are even to recognize the plight of outsiders. Instead, as I have said elsewhere, if power is the only thing in society, we all might as well sign up for militia training at the first opportunity.

There is, moreover, a strangely insular quality to the entire debate, since, as far as I can tell, it is largely fought out over hiring and tenure standards for professors at American law schools. Now, law school faculties are a not a particularly representative community of the oppressed. And as Farber and Sherry note, statistics kept by the Association of American Law Schools indicate that minorities are far more likely to be hired for law school faculty positions than white candidates; that between 20 and 25 percent of new faculty hired at law schools are people of color; that the percentage of black women on law school faculties is far higher than the percentage of black women lawyers. Indeed, one unpublished study circulating in the legal underground purports to demonstrate that the most underrepresented group on American law school faculties is white Protestant Republican women. While Farber and Sherry offer this as a prime example of the type of facts that radicals tend to ignore, I might instead argue that the composition of law faculties is a problem less pressing than, say, world hunger and genocide in Bosnia and Rwanda. As the Harvard Law School professor Randall Kennedy—a black man—observed after a Columbia faculty workshop brutally skewered him for his suggestion that ordinary standards of merit might have some role to play in tenure decisions of persons hired by law schools under affirmative action, this is an issue that is hardly immediate to the lives of ordinary members of minority communities, including people living not five blocks north of the Columbia campus.

On the other hand, as Farber and Sherry thoughtfully point out, the significance of multiculturalism’s foothold in the legal academy is that lawyers, unlike English professors, actually affect public policy. It is Catherine MacKinnon—recently listed among the fifty most influential women lawyers in America by a widely read trade publication—who has brought us much of the current law regarding sexual harrassment in the work place. It is Stanley Fish—a Milton scholar defected to Duke Law School—who has helped to bring us campus speech codes that restrict the range of expression among students. And, it is their students who will be the lawyers and the policy makers of tomorrow’s government.

If there is any serious flaw in Farber and Sherry’s work, it is that the book is too moderate, that it makes too much of an effort to meet its subject more than halfway. With its own lucid prose and irenic tone, the book gives credibility to the lunatic arguments it criticizes. As folks used to say back in the Sixties, “Moderation in the defense of liberty is no virtue.”

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This article originally appeared in The New Criterion, Volume 16 Number 9, on page 65
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