Deconstructive Arguments in the Legal Sphere: An Analysis of the Fischl/Massey Debate about Critical Legal Studies

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The field of law has recently witnessed the arrival of a radical new theory, Critical Legal Studies (CLS). The traditional view of law held that for each legal question the law contained a single, correct answer, and that the point of legal argument was to find that answer and apply it in machine-like fashion to a case at hand. The traditional view was challenged early this century by the legal realists who suggested that a series of "extra-legal" factors, ranging from the political climate to the personality of the judge, also influenced legal outcomes. Taking the critique a step further and incorporating more contemporary deconstructionist theory, the CLS movement has maintained that legal questions are indeterminate, and thus legal decisions express simple arrangements of power rather than any principled legal theory. Kelman's (1987) seminal work summarizes the movement in four points: "First, the Critics attempted to identify a contradiction in liberal legal thought.... Second, the Critics tried to demonstrate that each of the contradictions is utterly pervasive.... Third, Critics have attempted to show that mainstream thought invariably treats one term in each set of contradictory impulses as privileged.... Fourth, the Critics note that ... the 'privileged' impulses describe the program of a remarkably right-wing, quasilibertarian order" (pp. 3-4). There are, of course, a host of variations and schools within the CLS movement. The responses to these deconstructive efforts have been no less voluminous and no less vehement.(1)

The CLS debate has reached a critical juncture where it is either to be taken seriously and significantly influence the conduct of law or discarded into the "dustbin of history" (Fischl, 1993, p. 780). The debate is no less important to argument scholars. Because so much of contemporary argument theory is rooted in conceptions of justice, it is informative to examine the debates between those in the legal system who are charged with the task of contemplating justice in the practical context of the law. In addition, these exchanges are interesting locations of argument both because of the CLS critiques of the legal structure itself and because the core of the discussion so often involves the question of what arguments and forms of argument should be given force in legal dialogues. Of course, examinations of the force, direction, and stakes of an exchange hold a symbiotic relationship with argument theory: Argument theory illuminates the discussion at the same time the discussion informs argument theory.

One particular exchange of note occurred between Richard Fischl, an ardent CLS advocate, and Calvin Massey, a critic of the movement and mainstream liberal legal thinker. The debate is sparked on the pages of Law and Social Inquiry, a journal especially interested in the interaction between law and the broader community and with readers located in the bar, the academy, and the policy making community. The debate is of special interest both because it was typical of the arguments passed between CLS authors and their detractors and because of the unique stylistic choices of the arguers. This essay analyzes the debate by explicating the stylistic and logical maneuvers in the texts and offering a critique of the dialogue and the type of argument constructed by the rhetoric.

One final introductory note is necessary. Incumbent on any "argument" analysis is the burden of explaining what constitutes that genre of scholarship. Even defining what an argument is has been an arduous task; the recent debates between Jacobs and Jackson (1986) and Trapp (1986; 1987) and Willard (1989) and his critics (McGee, 1989; Warnick, 1989; Wenzel, 1989) demonstrate that identifying a common definition of argument can be a difficult task. Although this paper will by no means resolve the dispute, there is at least one distinction that may aid in the search for a useful starting point. O'Keefe (1977) distinguishes [argument. …


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