Reports of the growing decadence of American scholarship have grown so commonplace that Beyond All Reason: The Radical Assault on Truth in American Law reads at times like a rather late report from the academic front of our Kulturkampf. Even the alarm expressed by Daniel Farber and Suzzana Sherry, two conventionally liberal law professors at the University of Minnesota, at the growing influence of radical multiculturalism and post-modernism in law schools is comparatively dulcent. After insisti ng that they view radical multiculturalism as "serious, profound and dangerous," Farber and Sherry hasten to note that their "liberal Jewish backgrounds" give them particular discomfort in attacking the work of progressive minority scholars. Of course, th is is the design of the ethic that contemporary liberalism shares with radical multiculturalism: to put the work and ideas of "progressives" beyond reasoned criticism and to establish for them a privileged place among society’s "regimes of truth."

And yet Michel Foucault’s infiltration into the American legal academy Has more immediate implications than the rise of French post-modernism in the humanities. For the fugitive ideas of law professors, however fanciful, have in time an aptitude to ani mate and command the law. Shelley aside, law professors, not poets, are the unacknowledged legislators of the world. This can be seen in the influence of critical race theory, a constituent part of radical multiculturalism, in the Simpson jury verdict and in arguments that ghetto rage exculpate criminal conduct.

Attacks on traditional legal scholarship are, of course, not new. Some figures in the American legal pantheon, such as Justice Brandeis, are ensconced in it precisely because of their innovations. Early in this century, the "legal realist" school of th ought, associated with the New Deal drive for efficiency in law and government, argued that legal doctrine was "indeterminate," thereby making legal judgments the product of judges’ personal predilections. The legal realists’ project was not to scrub the law clean of distorting prejudices. That was the impossible hope of old "legal formalists," who argued from "abstract logical concepts" and insisted on clear rules of law upon which litigants could rely. Instead, the legal realists sought to replace tradi tional rules of law with empirical social research.

The perceived failure of legal realism and earlier systems of reform Gave rise to the "critical legal studies" movement. CLS theorists noticed that if law was indeterminate as the realists argued, then the social research realists would substitute was also unreliable. Furthermore, the whole enterprise of formulating rules is endlessly frustrating when the object is political reform or revolution. Every rule breaks state action, and so can be used in the fullness of time and variety of circumstance for and against one’s political objectives. In one case it can promote preferred political objectives; in another case thwart it. Take individuals rights. Today, the Free Speech Clause can be used to protect the rights of a flag-burner protesting the fascism of the Republican Party -- a good thing -- but tomorrow it could be used by the fascists to attack "progressive" candidates -- a bad thing.

The story of "reform" in the legal academy is one of progressive Disillusion with prior regimes of reform because of their failure to obtain sufficiently thoroughgoing liberal objectives, and their succession by more radical and openly political reform s. Thus when CLS did not achieve complete success, radical multiculturalism replaced it on the vanguard. But where CLS emphasized the supposed indeterminacy of the law, radical multiculturalists -- critical race theorists, "gay legal" theorists, and femin ists -- employ postmodern theories to make more universal claims: moving beyond the supposed indeterminacy of the law, to contest the very existence of truth, merit, objectivity, even reality itself. One radical writes, "There is no objective reference po int, separate from culture and politics, available to distinguish truth from ideology, fact from opinion, or representation from interpretation." Everything -- some radicals claim even the laws of physics -- is socially constructed by the dominant class t o advance its own interests and oppress minorities. Another radical says that what we know as merit is merely an index of what white men admire in themselves.

 

Take the case of Tawana Brawley, a fifteen year girl from New York City, who accused two white policemen and a district attorney of rape and later was shown to have fabricated the story in order to avoid the ire of her stepfather for having stayed out so late at night. Even after a grand jury refused to indict and there was evidence that Brawley had scrawled racial epithets on her clothing and smeared dog excrement in her own hair to give her accusations the feel of truth, Patricia Williams, a prominen t law professor at Columbia University, insisted "Tawana Brawley has been the victim of some unspeakable crime. . . . No matter who did it to her -- and even if she did it to herself. Her condition was clearly the expression of some crime against her, so me tremendous violence, some great violation that challenges comprehension." In other words, whether she was telling the truth or not, she was violated by society and its agents. Another radical, Alex Johnson, explains it is perfectly acceptable . . . if that which is presented as the truth turns out not to be objectively true in the way in which that standard typically is viewed and used." (A civil case against Brawley is currently being tried.)

It should then be no surprise that "progressive" minority scholars Generally do not attain the same level of success as their "mainstream" colleagues – a distinction that may not be discernible outside the academy. The supposed indexes of merit and obj ectivity are essentially contrived to deny minorities advance, thereby securing the dominance of, variously, white supremacists, the patriarchy, or heterosexuals. An opponent of the multiculturalists captures the radical mindset, "Rationality, objectivity , accuracy and standards of intellectual quality and merit are slogans or masks of oppression designed to convince the oppressed that subordination is justice."

Naturally, if merit and objectivity do not exist, then traditional scholarship by which professors demonstrate excellence is equally flawed. Legal scholarship is generally concerned with discovering the intent of the authority that promulgated the la w, or harmonizing or explaining complex areas of the law, or with empirical studies of the real-world effects of the law. This studies presuppose the existence of some degree of objectivity, toward which scholarship is aimed. It also emphasizes the linea r reasoning of the law, moving from established premises to a reasoned conclusion. But as Stanley Fish of Duke University reminds, like "fairness, merit, and free speech, reason is a political entity." Reason is merely a contrivance and thus the work of s cholarship is a sham.

In place of traditional scholarship that thwarts their advance, radical multiculturalists emphasize "storytelling." Only by use of stories can the "dominant mindset" -- that of Enlightenment rationality -- be transcended and the racist, sexist and homo phobic nature of society be challenged and reformed. Stories release the emotional power of those who have "seen and felt the falsity of the liberal promise," says one radical Storytelling, says critical race theorist Gerald Lopez, "de-emphasize[s] the lo gical and resurrects[s] the emotive and intuitive." Falling prey to the use of reason and linear logic would be surrender to the established order which the radicals have as their purpose to deconstruct.

 

All sorts of objection may be raised to the storytelling movement. The stories may be atypical, not statistically representative of a larger universe of data, and thus not the proper basis of generalization. The stories may be inaccurate, incomplete o r entirely falsified, allowing their authors to draw conclusions and demand action on the basis of facts that do not exist. And whatever the veracity of these stories, they are susceptible to all of the interpretative contests that surround ordinary stori es. But to multiculturalists this is not merely beside the point, but proof of the hold the dominant mindset has over the legal academy. If truth is socially constructed, then these stories are no less true than those that are measured by conventional ind exes. In this way, radical multiculturalism has a wonderfully self-insulating quality. Every criticism of multiculturalism is based on the false premise that truth, objectivity or merit exists, employs illegitimately western rationality, and attempts to s ilence a distinctive and authentic minority "voice" that tells the tale. If everything established has no basis in fact, then nothing can be challenged as untrue or less true than anything else. This is the democratization of the truth.

If the whole system of western culture is arrayed against them, there is but one way that radical multiculturalists can guarantee their success: proportional representation at all levels of power within society. And their representatives must be by aut hentic minorities, not collaborators with the dominant class. There is no other way multiple cultures can attain the same statistical level of achievement and respect within a society. Arguments thatvarying levels of success among various races, ethniciti es and nationalities are attributable to differences each culture place on, among other things, education offend the egalitarian promise of democracy. But with strict proportional representation the success that all prior systems of reform promised but fa iled to deliver can be achieved. Here the social constructionist theories of the radicals fatally undermine their demands. The only rationale for effecting a revolution of this type in American law would be some appeal to justice. But the radical multicul turalists necessarily reject the objectively identifiable meaning of any such abstraction. It’s not merely that justice is amorphous, but that it simply does not exist. If so, the radicals have no real basis upon which to make their demands. After all, if truth is defined by the dominant class independent of reality, is nothing but the exercise of raw political power, what incentive does it have to change the system to benefit minority classes at its own expense? The philosophy of multiculturalism preclud es an answer to this question. In a perverse way, the theories of radical multiculturalism not so much challenge as secured the established order, at least in so far as their theories are treated seriously. There is no objective rationale for substituting the radical notion of justice for the status quo if both are socially constructed.

 

Farber and Sherry also express fear that if Enlightenment notions are displaced by radical multiculturalism, then pre-Enlightenment evils, such as anti-Semitism, will return. The authors find this particularly ironic, given the prominent role Jews have played in the secularization of American culture. It seems entirely beyond their grasp that the hyper-secularization of America may be partially responsible for generating the decadence they fear. As G.K. Chesterton wrote early this century, "In so far as religion is gone, reason is going. For they are both of the same primary and authoritative kind. They are both methods of proof which cannot themselves be proved." When faith is displaced, men do not necessarily surrender their passions to stern reason . As we have seen, when the fruits of reason are unsatisfying, men may much more easily return to racial, national, ethnic, or tribal loyalties, or turn to other forms of irrationality. Chesterton explained that religion was the guarantor of reason, its d efenses arrayed to prevent reason from turning on itself and denying its own capacity to perceive reality, or even the existence of reality -- which is precisely the menace of radical multiculturalism.

 

Conceivably, this thin volume could be read with optimism. It could be argued that the vanguard of the American left has succumbed to the final madness, denying the existence of objective reality. And yet, one is left with persistent doubts whether Ame rican society retains any immunizing defenses against even the most insensible ideas, or whether the post-modern ideas that alarm Farber and Sherry have already so permeated American society that the radical skepticism of multiculturalists defines not so much the avant-garde as the mainstream. Daily there are attacks on standards of every variety, be they standardized admissions scores and hiring criteria, or standards of journalism and the practice of politics. Nothing really shocks the conscience today. Everything is relative. There are no First Principles. The television flickers relentlessly and monotonously with universal empathy for the most freakish tales of decadence. And in the White House sits a man who cheerfully exalts the emotive over cognit ive, and whose aides delight in the manipulation of the truth. Rather than a fresh report of outrages from the avant-garde, Beyond All Reason may more properly read not as a sign of hope but of loss.