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Use law—Kane evidence

We are not simple legal approach, use law to shift culture

Reject the perfectionism of the alt – grounding rational propositions is irrelevant to their importance.

Harvard Law Review 1999 (“Book Note: Let Us Reason Together” 112 Harv. L. Rev. 958 lexis)

Schlag's critique of reason, although insightful and intriguing, fails to resolve any of the difficulties that he unearths. Throughout Schlag's book, he displays an almost morbid pessimism about our ability to base our system of law on anything other than prejudice. His attacks on reason therefore suffer at times from both inconsistency and perfectionism. It is notoriously difficult for reason's detractors to avoid the self-contradiction of employing reason in their critiques. As C.S. Lewis once wrote, if we try to criticize reason objectively, it is "as if we took out our eyes to look at them." n5 Schlag proves surprisingly adept at circumventing this counterargument, however, by limiting his critique to the internal inconsistencies found in the views of reason's proponents. Thus, in a chapter entitled "Predicaments of Reason," Schlag pauses to note that the problems he discusses "are not arguments against reason" (p. 75). Instead, he indicates that his critique is meant only to unsettle the champions of reason, who "are often rendered uneasy by the admission of such problems" (p. 75). One could still say that the very act of arguing against reason, even when delineating an internal critique, requires the use of reason. Schlag has a crafty, if unconvincing, answer to this counterargument as well: "that is true only if the initial condition is met - namely, that argument and dialogue presuppose a commitment to reason" (p. 57). But is not reason the very essence of argument and dialogue? As John Searle states, "You can't prove rationality by argument because arguments already presuppose rationality." n6 By making arguments against the use of reason in law, Schlag presupposes and depends on rationality as much as do the defenders of reason. Despite criticizing the "grids" constructed by legal reasoners, Schlag employs a similar tactic of grid-making in his own analysis of reason's difficulties (pp. 119-24, for example). It is therefore difficult to avoid concluding that Schlag has made "rational arguments in order to prove the fallaciousness and imbecility of reason." n7 [*962] Schlag claims that academic arguments in favor of reason tend to resort "to dogmatic assertions, to rhetorical bluster, to political posturing, to ethical bullying, and to shallow circularities" (p. 60). Schlag never explains, however, what sort of defense would satisfy his demands. Instead, he correctly notes that a "reasoned defense of reason" is "at once impossible and yet mandatory" (p. 60). Such a defense is impossible because defending reason with a reasoned argument is circular; yet it is mandatory because defending reason with an unreasoned argument is self-contradictory. Schlag never explains, however, exactly why this supposed dilemma undermines the utility of reason. One could make the same critique of language. Imagine trying to prove that language is the most effective means of communicating one's inner phenomenological experience. Using language in your proof begs the question, but attempting to make such a proof without using language (by using charades, for example) does not prove anything about language, except perhaps by default. Schlag complains that it is impossible to provide a proof for self-consistency in the framework of reason (p. 60). However, as Kurt Gdel demonstrated in his famous 1931 paper, n8 it is impossible, even in a field as determinate as mathematics, to prove the consistency of a system from within that system. Schlag also disputes the suggestion that people can know that something is true without entirely knowing why (p. 96). Again, Gdel proved that there can be true mathematical statements that are neither provable nor disprovable within a particular system. n9 Although Gdel's theorems seemingly undermine the coherence of mathematical systems, no one has yet proposed that mathematics be abandoned. Rather, because of Gdel's Incompleteness Theorems, "the world of today's mathematician is one not only in which truth is not synonymous with logical proof but also in which merely trusting in the validity of a logical proof is itself a matter of faith." n10 If mathematicians can continue their work after Gdel, legal [*963] thinkers should be able to sketch a similarly "modest" conception of legal reasoning, despite Schlag's pessimism. Schlag never explains why we should demand a more exacting certainty from legal reasoning than is possible even for mathematics. A more modest role for reason might be the answer to one of Schlag's most substantial objections to legal reasoning - its lack of any discoverable ontological grounding. If it is true, as many thinkers have argued, that secular moral and legal philosophy offers no solution to this dilemma, n11 it might be necessary to take a view of reason that would admit an ultimate reliance on faith and belief. n12 Such a view of reason might not, perhaps, comfort those who insist on retaining reason's lofty rulership, but it would nonetheless remain a useful conception of reason's validity. In any case, Schlag's arguments fail to demonstrate that it is impossible to construct an appropriately modest conception of reason that would admit the ontological problem without abandoning reason altogether. If, on the other hand, Schlag is correct regarding the irredeemable conceit of reason, then, somewhat ironically, he draws what might be the only rational conclusion - that law must in the end be based upon nothing more enlightened than dogma and prejudice. Schlag's book, although disheartening to those who place their full-fledged trust in human rationality, is nonetheless an important contribution to our understanding of the nature of law.

Reality and law are coproductive. Changing our thinking about law helps to reconstitute the material realities that we live in. The K implies an impossible immutable position outside law.

Jane Baron, Law @ Temple – Beasley School of Law, 2003 (“Romancing the Real.” 57 U. Miami L. Rev. 573 lexis)

Yet, imagine that what Gordon said were true. There would be an easily discernable point to doing what we legal academics (and isn't Schlag one of us?) do. If legal conceptions and the social world were connected in some way, then thinking about law would also be a way of thinking about the material world, and trying to change the way we think about law - for instance, to use my earlier example, trying to convince people that property need not be modeled on ownership but on obligation - would be a way of trying to change the material world. Questioning what legal doctrine foregrounds and backgrounds, n46 revealing "nested oppositions" in legal rules, n47 and all manner of similar analyses [*587] of the patterns and structure of standard legal argumentation, including the kinds of analyses Schlag himself has so often performed (consider The Empty Circles of Liberal Justification n48), would, or could, at least potentially be useful; if we could see and make others see how we ourselves artificially "froze" reality, we could unfreeze it. n49 At the very least, we could begin to think about changing it because we would no longer be victims of belief in reality's immutability. n50 Twenty-plus years of engaging in various versions of this practice have revealed how much more complicated all this is than it originally seemed. From Stanley Fish we learned how silly it might be to envision standing outside one's own structures of belief in order to change them. n51 From feminists and critical race theorists we learned that "we" might not be "we," but multiple intersecting and overlapping "we's" with potentially differing interests and engagements. n52 From law and society folks we learned to question whether there was any relation between lawyers' and judges' ideas about law and actual social practices; if there was little relation to begin with, changes in legal consciousness (even if "we" could actually effect such changes) would be unlikely to have much impact on everyday behaviors. n53 None of this proves that legal change and social change are impossible, only that effecting social change through law is considerably more difficult and chancy than first had been thought. One could see, however, why it might be worth trying to solve (or work around) the problems: thinking about law would still be a way - perhaps now a more nuanced, humbled way - of trying to fix what was wrong with the world. This strategy would not work, of course, if "the world" is intractably out there, isolated from and immune to thought. That is exactly as Schlag presents the world in those excerpts and in the lists culled from them. The question is why, knowing better - that is, having no illusions about a pure factuality unmediated by perspective or shaping - Schlag would choose to portray "reality" that way.

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