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March 20, 2012 / compassioninpolitics

How to answer the critique of normative legal discourse by Pierre Schlag

Normativity is a critique of:
1. legal discourse
2. norms in legal discourse
3. fiat in debate (the should question)

He also makes some similar claims about lawyers (and presumably politicians/public policy thinkers) being more like insurance adjusters (think bean counters or accountants)–then Atticus Finch from “To Kill a Mockingbird.”

Claims in debate are generally of two types:
1. “Factual” or depictions of “facts”
2. Or value & ethics based claims (arguably this includes the ethic of utilitarianism)

Answers to it include:
1. Relativisim fails/flawed (this is a massive refutation of relativism by philosopher Peter Kreft–he makes 7 arguments against it)
2. Values/norms good
3. gotta act/law good (working within the law is effective, we can use the letter of the law against itself).
4. K of normativity = paralysis.
5. K or normativity links to itself. Or their other arguments in the debate link to normativity (with an advocacy or voting issue).
6. Arguably something like Natural law theory good can also be helpful.
7. Law & legal discourse creates change (cultural change & ideological change). Particularly if you can provide before and after, which demonstrates the transformation law has provided.
8. Rationality & reason good. Irrationality bad. Or your K is irrational & the impact is X, Y, and Z.
9. Examples of good legal discourse–where people were really helped by the law.
10. Democracy checks domination & war (card)
11. Federalism checks war (card)
12. Dignity good & rights talk good. Laws against coersion are good.
Our discourse about X is productive–it does X, Y, and Z

If they quote anyone but Pierre Schlag and Richard Delgado….they may be saying something more than I outlined.
Paul Campos writes some similar stuff.

* They probably have answers…but Mark V. Tushnet may answer the argument (assuming you have access to JSTOR). He may be answering CLS–I forget.

The main argument comes from 3 articles Schlagg wrote in the early 90’s.

Apparently Schlagg blogs here:

1. So philosophy and values have never helped anyone?
2. Is freedom better than coersion?
3. Are rights better than slavery?
4. If we don’t act on principles–aren’t we just acting on going with the crowd or how we’ve been influenced. Our defacto instincts would cause us to follow the herd/the group or be animalistic?
5. If your K is true….should washington just stop governing & close up shop?
6. If the K is true, why does he use legal language in law journals and teach at a law school? (cheap shot a little bit….)
7. Should we get rid of legal discourse? Should we get rid of legal bureaucracy?
8. Why is a world without bureaucracy better than a world with it?

It may not help solve your problem all that much but the section of this labeled
“3.2 Language and the normativity of law” should proved to be helpful (link)



Leave a Comment
  1. Nathan Ketsdever / Mar 21 2012 1:51 am

    You can also perhaps find some answers in the value of reason essay here:

    Some of the Wolin quotes which critique anti-humanism seem to apply to normativity.

  2. Nathan Ketsdever / Apr 13 2012 10:44 pm

    James is largely correct here:

    1. A defense of pragmatism, i.e., a philosophical justification for making decisions without having all the facts in the world. Because we can never really have all the facts, right? And if things like modern knowledge production are suspect, how could we ever be sure that we have sufficiently analyzed our situation such that we can start making decisions? This is sort of a synthesis of nathan’s “paralysis” and “action/law good” args. It also probably entails a defense of positivist epistemology.
    2. A defense of role playing. This is in every framework file ever. You should have a couple distinct reasons why it’s good to imagine making USFG policy, even if we don’t actually ‘have our hands on the levers of power.’ High schoolers reading norm often just end up repeating “fiat is illusory!” over and over, so if you can have some nuanced answers that justify strategic uses of the illusion of fiat, then you will get ahead pretty quickly.

    I think if you defend values (aka norms)–I think your defense of pragmatism makes more sense. So, its a critique of humanism & liberalism.

    And the way James frames it of course, pragmatism & law good are essentially one argument.

    Beware, if they are reading more authors than just Schlag & Delgado…the K may be more than what we describe. One possible sign is if they read a DA to your permutation. (they won’t call it a DA it will probably just be norms bad/law bad/values bad)

  3. Nathan Ketsdever / Apr 13 2012 11:16 pm

    If they try to make the following case turn argument…..the evidence is terrible and the argument is even worse. It is entirely non-sensical.

    Very simply, it says that we can’t make clean decisions about what should be done, because the ways in which we make those decisions are already committed to certain structures, norms, ways of thinking, etc., that are themselves the reason why the aff’s harms exist in the first place.

    I should probably add that I may have gone a bit overboard on law good impact turns.

    And the so-called cheap shots probably won’t win you the debate….but they are easy to make & point to the inherent paradoxes of the theory. I think judges are compelled by arguments like you link to your own theory/argument (as long as their “well our alt. solves” doesn’t work). Moreover, they also may get the aff to read “performative contradictions good”–which is actually good for you. At a minimum it should create a time tradeoff which is favorable to you.

    I also recommend reading “Moves” by Delgado as well as his other on Normativity…..given that the former has the some of the AT answers, so you can be ready for what you are going to hear (or at least what you could potentially hear in response to your args.).

    Also, the Schlag blog reference is pretty useless for the purposes of debate–he is just hating on law school (ie the contraversy over law schools overclaiming the value of law school)

    I would add that this is one of the easiest Ks to familiarize yourself with except Feminism and Libertarianism/Coersion and perhaps Global/Local because its based on just a couple of articles.

  4. Nathan Ketsdever / Apr 13 2012 11:25 pm

    Here is a quick summary of some of the arguments (although not precisely)

    You would do better to read a shell from a backfile probably.

  5. Nathan Ketsdever / Apr 13 2012 11:28 pm

    I also like this article about Kafka by the same author:

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