Critiquing Free Speech: First Amendment Theory and the Challenge of Interdisciplinarity

By Matthew D. Bunker | Go to book overview

CHAPTER 3
Stanley Fish, Literary Theory, and Freedom of Expression

After a century as an autonomous discipline, academic law in Amer-ica is busily ransacking the social sciences and the humanities for insights and approaches with which to enrich our understanding of the legal system.

—Richard Posner1

One of the most eloquent and disturbing critics of free speech theory, and of legal theory generally, is Stanley Fish. Fish, a Miltonist and literary theorist, has become an influential legal commentator by bringing his notions of poststructuralist literary theory to bear on law. Fish maintains that legal documents such as constitutional amendments or judicial opinions are “texts” in the same sense that a poem by Milton or a play by Shakespeare is a text. As a result, literary theory's assumption that there is no such thing as an “objective” text may properly be applied to law. Fish claims that the meaning of texts (literary or legal) lies, not in the text, nor in the individual reader, but in “interpretive communities” of which the reader is a member. Fish's approach thus undermines both the claim that law is

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1
Richard A. Posner, Law and Literature: A Relation Reargued, 72 Va. L. Rev. 1351, 1351 (1986).

-63-

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