BEYOND ALL REASON: THE RADICAL ASSAULT ON TRUTH IN AMERICAN LAW by Daniel A. Farber and Suzanna Sherry.  New York: Oxford University Press, 1997.
195 pp. Cloth $25.00. ISBN 0-19-510717-9.

Reviewed by Daniel Lessard Levin, Department of Political Science, Boise State University.
 

In the 1960s, the linguistic turn in philosophy and cultural anthropology left many social scientists wondering it would ever be possible to speak meaningfully about social concepts which varied so greatly in their meaning from society to society. Instead, it was suggested, most prominently by Peter Winch, that the only truly accurate understanding of a particular culture could come from living inside of it and that we could never accurately engage in any form of comparative social science (1958). Responding to Winch, Alasdair MacIntyre defended the idea of social science by noting that, although social practices may differ, social scientists could speak meaningfully about social practices across cultures and continue to have a conversation (1967).

Daniel Farber and Suzanna Sherry's BEYOND ALL REASON is reminiscent of MacIntyre's defense of reasoned discourse because of its incisive critique of the idea that one must belong to an identity-based group to properly understand and appreciate the law's impact and meaning for that group. Farber and Sherry's particular target is "radical multiculturalism," which they associate with the work of critical legal theorists such as Derrick Bell, Patricia Williams, Catherine MacKinnon and Richard Delgado, and which they decry for its rejection of the Enlightenment tradition and its requirement that reason stand as the primary criteria for judging any claim. At its strongest, Farber and Sherry's book shows how disingenuous this strain of legal theory can be. Derek Bell is particularly targeted for his logic-chopping and occasional anti-Semitism, while the ambiguities of Patricia William's work are well worked over and Catherine MacKinnon's unyielding ideology is portrayed as the barrier to dialogue that it is. Through their often well-considered criticisms of these theorists' various excesses, Faber and Sherry make a persuasive argument that reasoned discourse should be the norm in legal scholarship, and that critical race theory is incompatible with both. Moreover, the book is well-written and quickly paced, making it as enjoyable a read as one will find in the often deadly domain of legal theory.

Unfortunately, Farber and Sherry sometimes lose their focus, misspending an entire chapter demonstrating the rather obvious point that narratives often distort reality. Another particularly unfortunate chapter argues that the attack by critical race theorists on the idea of merit in academic hiring is a form of disguised anti-Semitism and anti-Asian sentiment. This is the weakest part of the book because it relies on little textual evidence that such is the intent of the authors discussed or the sole implication of their work. Instead, Farber and Sherry argue that the attack on merit is anti-Semitic because Jews are disproportionately successful in law school employment under the historic pattern of merit-based recruitment. Similarly, they argue that the larger critique of merit can best be understood as a set of assertions about how Jews and Asians have special advantages that allow them to become even more successful educationally and financially than white gentiles. A more likely explanation for critical race theorists' disdain for meritocratic approaches to hiring is simple frustration with the slowness with which law school faculties are becoming more diverse; one need not look for deeper, malicious impulses. While the controversy over the relative success of certain minority groups in the United States is not likely to be resolved soon, and certainly not by legal academics, the more important problem for Farber and Sherry is that they make these arguments in the context of a critique of theorists who, with the exception of Derrick Bell, they do not show to be otherwise anti-Semitic. (Elsewhere in the book they describe an essay by Patricia Williams as unmistakably opposed to anti-Semitism). Such assertions, even implied, should not be made on scant evidence and Farber and Sherry come off as more paranoid than helpful on this issue.

More problematic for the work as a whole is Farber and Sherry's misunderstanding of the project of critical race theory. With their various anecdotes or fictional dialogues, Bell, Williams, and Delgado engage not reason but imagination with the purpose of providing a glimpse into thoughts and feelings of persons with whom the majority may not normally identify. When this is done well, as with Williams in particular, this is as much an aid to understanding, as distinguished from knowing, as any more traditional scholarship might provide. One of the true tests of writing is whether it allows the reader to take the place of others and follow either their logic or their emotions. Williams, in this reviewer's modest opinion, often succeeds, and, though she regrettably misleads her reader at times (as Sherry and Farber are quick to note), she makes few claims about external reality, instead focusing on the interior workings of her characters. Bell and Delgado's fictionalized dialogues use an old, even ancient, rhetorical method; while they are manipulative and self-enclosed with little room for reference to empirical descriptions of the external world, the same can said of Plato. Even as one who views Socratic dialogue as more of a party trick than a logical method, I have a hard time believing that these narrative forms pose a new threat to the Enlightenment project. Farber and Sherry demonstrate their own understanding of that project by countering radical multiculturalist assertions through the use of social science data. While social science may provide a better model for scholarly dialogue, its practices and ethics have never been fully integrated into the legal academy, and there is no reason to believe that critical race and feminist theorists should be bound to do so anymore than other legal theorists.

The most disturbing problem with the radical muticulturalists noted by Farber and Sherry is their intolerance of dissent and criticism. Farber and Sherry demonstrate how many radical multiculturalists dismiss their opponents as either servants of an existing power structure or as suffering from false consciousness, thereby freeing themselves from any responsibility to respond to criticism. From Catherine MacKinnon's assertions that feminist opponents of anti-pornography ordinances are "collaborators" with pornographers (a particularly dualistic version) to Jerome Culp's assertions that critics of storytelling as scholarship are in a process of moving from denial to anger over the demise of white hegemony, Farber and Sherry's examples illustrate how such refusals to engage in dialogue detract from the larger enterprise of scholarship. They pay special attention to the conflicts that have arisen between the younger critical legal theorists and the more traditional Critical Legal Studies movement. Here, Farber and Sherry have better material to work with, and are thus more effective in their argument that radical multiculturalist work constitutes the "assault on truth" of their subtitle. Farber and Sherry argue convincingly that the personal nature of the story-telling approach taken by these younger theorists makes criticism even more personal, leading to greater incivility and weakened dialogue.

Farber and Sherry's hostility to radical multiculturalism does not keep them from endorsing "reconstructive" as opposed to "deconstructive" scholarship. While they identify reconstructive scholarship with such figures as Lani Guinier, Martha Minow, and Morton Horwitz, they do not clearly define the difference between reconstructive and deconstructive scholarship. Providing a guide to what might constitute productive scholarship in this area would be a great contribution. Instead, BEYOND ALL REASON ends with a call for dialogue over the serious questions of race, gender and inequality. Such a call will likely fall on deaf ears for precisely the reasons Farber and Sherry identify. The creation of a productive dialogue will require more attention to how scholars from different communities can engage in discourse which is grounded in the rationalist tradition of the Enlightenment while drawing upon their varied backgrounds in a meaningful fashion. Until that time, BEYOND ALL REASON will serve as a useful critique of the excesses of contemporary legal scholarship.
 

Bell, Derrick. 1987. AND WE ARE NOT SAVED. New York: Basic Books. MacIntyre, Alasdair. 1967. "The Idea of a Social Science." PROCEEDINGS OF THE ARISTOTLEAN SOCIETY 41: 95-114.

Winch, Peter. 1958. THE IDEA OF A SOCIAL SCIENCE. London: Routledge & Kegan Paul.

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