Black Knights 2006 Kathryn

2AC block to Normativity Page 1 of 5

1) TURN-- SCHLAG’S FEAR OF NORMATIVE LEAGL THOUGHT IS A PARANOID REACTION THAT OVER-EXAGGERATES
BUREAUCRACY, SUSTAINS THE STATUS QUO ORDER, AND ASSUMES A METAPHYSICAL AND ROMANTICIST VICTIM THAT LINKS
MORE TO HIS OWN CRITIQUE

CARLSON IN `99 (DAVID GRAY, PROFESSOR OF LAW, BENJAMIN N. CARDOZO SCHOOL OF LAW, “REVIEW ESSAY: DUELLISM IN MODERN
AMERICAN JURISPRUDENCE,” COLUMBIA LAW REVIEW)

Schlag presents a dark vision of what he calls "the bureaucracy," which crushes us and controls us. It operates on "a
field of pain and death." 259 It deprives us of choice, speech, 260 and custom. 261 As bureaucracy cannot abide great minds, legal education must suppress greatness through mind numbing repetition. 262 In fact,
legal thought is the bureaucracy and cannot be distinguished from it. 263 If legal thought tried to buck the bureaucracy, the bureaucracy would instantly crush it. 264

Schlag observes that judges have taken "oaths that require subordination of truth, understanding, and insight, to the preservation of certain bureaucratic governmental institutions and certain sacred texts." 265 Legal
scholarship and lawyers generally 266 are the craven tools of bureaucracy, and those who practice law or scholarship simply serve to justify and strengthen the bureaucracy. "If there were no discipline of American

law, the liberal state would have to invent it." 267 "Legal thinkers in effect serve as a kind of P.R. firm for the bureaucratic state." 268 Legal scholarship has sold out to the
bureaucracy:

.
Insofar as the expressions of the state in the form of [statutes, etc.] can be expected to endure, so can the discipline that so helpfully organizes, rationalizes, and represents these expressions as intelligent knowledge

As long as the discipline shows obeisance to the authoritative legal forms, it enjoys the backing of the
state... Disciplinary knowledge of law can be true not because it is true, but because the state makes it true.
269
Scholarship produces a false "conflation between what [academics] celebrate as 'law' and the ugly bureaucratic noise that grinds daily in the [*1946] [ ] courts...." 270 Scholarship "becomes the mode of discourse by
which bureaucratic institutions and practices re-present themselves as subject to the rational ethical-moral control of autonomous individuals." 271 "The United States Supreme Court and its academic groupies in the
law schools have succeeded in doing what many, only a few decades ago, would have thought impossible. They have succeeded in making Kafka look naive." 272

. Schlag's bureaucracy must be seen as a "paranoid construction

Lacanian theory allows us to interpret the meaning of this anti-Masonic vision precisely

according to which our universe is the work of art of unknown creators." 273 In Schlag's view, the
bureaucracy is in control of law and language and uses it exclusively for its own purposes. The bureaucracy
is therefore the Other of the Other, "a hidden subject who pulls the strings of the great Other (the symbolic
order)." 274 The bureaucracy, in short, is the superego (i.e., absolute knowledge of the ego), 275 but
rendered visible and projected outward. The superego, the ego's stern master, condemns the ego and
condemns what it does. Schlag has transferred this function to the bureaucracy.

. It
As is customary, 276 by describing Schlag's vision as a paranoid construction, I do not mean to suggest that Professor Schlag is mentally ill or unable to function. Paranoid construction is not in fact the illness

is an attempt at healing what the illness is - the conflation of the domains of the symbolic, imaginary, and
real. 277 This conflation is what Lacan calls "psychosis." Whereas the "normal" subject is split between the
three domains, the psychotic is not. He is unable to keep the domains separate. 278 The symbolic domain
of language begins to lose place to the real domain. The psychotic raves incoherently, and things begin to
talk to [*1947] him directly. 279 The psychotic, "immersed in jouissance," 280 loses desire itself.

Paranoia is a strategy the subject adopts to ward off breakdown. The paranoid vision holds together the
symbolic order itself and thereby prevents the subject from slipping into the psychotic state in which "the
concrete 'I' loses its absolute power over the entire system of its determinations." 281 This of course means
- and here is the deep irony of paraonia - that bureaucracy is the very savior of romantic
metaphysics. If the romantic program were ever fulfilled - if the bureaucracy were to fold up shop and let
the natural side of the subject have its way - subjectivity would soon be enveloped, smothered, and killed in
the night of psychosis. 282
Paranoid ambivalence toward bureaucracy (or whatever other fantasy may be substituted for it) is very commonly observed. Most recently, conservatives "organized their enjoyment" by opposing communism. 283
By confronting and resisting an all-encompassing, sinister power, the subject confirms his existence as that which sees and resists the power. 284 As long as communism existed, conservatism could be perceived.
When communism disappeared, conservatives felt "anxiety" 285 - a lack of purpose. Although they publicly opposed communism, they secretly regretted its disappearance. Within a short time, a new enemy was
found to organize conservative jouissance - the cultural left. (On the left, a similar story could be told about the organizing function of racism and sexism, which, of course, have not yet disappeared.) These humble
examples show that the romantic yearning for wholeness is always the opposite of [*1948] what it appears to be. 286 We paranoids need our enemies to organize our enjoyment.

287 As Schlag has perceived, the symbolic order of law is

Paranoid construction is, in the end, a philosophical interpretation, even in the clinical cases.

artificial. It only exists because we insist it does. We all fear that the house of cards may come crashing down. Paradoxically, it is this very "anxiety" that
shores up the symbolic. The normal person knows he must keep insisting that the symbolic order exists
precisely because the person knows it is a fiction. 288

The paranoid, however, assigns this role to the bureaucracy (and thereby absolves himself from the
responsibility). Thus, paranoid delusion allows for the maintenance of a "cynical" distance between the
paranoid subject and the realm of mad psychosis. 289 In truth, cynicism toward bureaucracy shows nothing
but the unconfronted depth to which the cynic is actually committed to what ought to be abolished.

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Black Knights 2006 Kathryn
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2) Perm—do plan and all non-competitive portions of the alternative. This solves best because
normativity can never be escaped completely and this allows us to still operate in the best ethical
framework

3) Perm solvency:

4) Reject the Negative because the is no alternative—normativity is part of being human

and is inescapable

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Black Knights 2006 Kathryn
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5) YOU CAN’T JUST REJECT LEGAL THOUGHT – LEGAL THOUGHT IS HOW WE MAKE SENSE OF
SYMBOLS IN THE WORLD, AND IT IS THE VERY MEDIUM FOR LAUNCHING CRITIQUES LIKE SCHLAG’S

CARLSON IN `99 (DAVID GRAY, PROFESSOR OF LAW, BENJAMIN N. CARDOZO SCHOOL OF LAW,
“REVIEW ESSAY: DUELLISM IN MODERN AMERICAN JURISPRUDENCE,” COLUMBIA LAW REVIEW)
Professor Schlag terminates one of his books with this memorable passage, in which he suggests that the
entire project of legal scholarship be abandoned:

The genres of legal thought associated with legal process and Warren Court normativity are intellectually
exhausted...

... Some legal thinkers are rendered quite anxious in the present moment. "What comes next?" they want to
know. "What will be next?" they wonder. "What admirable vision of law will next capture the legal
imagination?"

Maybe nothing. Maybe what comes next is that we stop treating "law" as something to celebrate, expand,
and worship. Maybe, we learn to lay down the law. 312

Should normative legal scholarship be abolished, as Professor Schlag suggests? Some of Professor Schlag's
points about legal scholarship are undoubtedly well taken. But it doesn't follow that it should or even could
be abolished. In truth, whether he admits it or not, Professor Schlag himself does legal scholarship. He does
not follow his own advice about not doing it. Nor could he. If legal scholarship stands for participation in
the realm of the symbolic, then legal scholarship - i.e., culture - is the very medium that perpetuates self-
consciousness.

Schlag is very hard on law professors who give advice to judges. He mocks their work as mere "pretend-
law," 313 mere journalism. 314 "One need only pick up a judicial opinion, a state statute, a federal
regulation, or a law review article to experience an overwhelming sense of dread and ennui." 315
Meanwhile, judges are not even paying attention to legal scholarship 316 - which, experience teaches, is
disappointingly true.

Logic: Not as prevalent as you wish it were

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6) TURN: SCHLAG’S OVER-ARCHING AND INCREDIBLY PESSIMISTIC VIEW OF LAW IS BASED IN HIS
PRIVILEGED AND LUXURIOUS RELATIONSHIP TO LAW – HIS CYNICISM IS DISPASSIONATE AND COLD

CONAGHAN IN `03 (JOANNE, PROFESSOR, KENT LAW SCHOOL, UNIVERSITY OF KENT,

“SYMPOSIUM: BEYOND RIGHT AND REASON: PIERRE SCHLAG, THE CRITIQUE OF NORMATIVITY,
AND THE ENCHANTMENT OF REASON: SCHLAG IN WONDERLAND” MIAMI LAW REVIEW, APRIL)
Insofar as Schlag's concern is with developing strategies of resistance to these mind-numbing effects, I am
with him all the way. Nor do I see this as a solely pedagogic issue, although Schlag's work has strong
pedagogic promise. What Schlag does is open up a space for new understandings of what "doing law" can
entail. His focus on the delusions that afflict those who deploy conventional legal methods does more than
affect their discreditation. In his sharp delineation of the intellectual structure and internal dynamics of
traditional legal arguments, Schlag exorcizes reason and frees the legal self from the prison of her own
alienation; or, at least, he contributes to conditions in which we might come to believe this to be possible. It
is a pity, then, to see that even he has blind spots. It is disheartening to recognize--just at the very point
where liberation from "small thinking" 126 and "shallow forms of thought" 127 seems possible--that he is
still, to some extent, imprisoned. It is impossible not to want to save him from his gloomy pronouncements
about the inescapability 128 and dreariness 129 of it all. At the same time, one cannot suppress the lurking
suspicion that his all-pervading scepticism derives from the luxury of occupying a position where he
[*571] does not have to believe--passionately and unremittingly--in the possibility that we can shape the
world to better ends.

In the end, it comes down to this. Representations are always approximations and we each simultaneously
instigate and operate under conditions of constraint. These are the important insights. They should not
remain obscured behind blustering invocations of the rational autonomous subject; nor should they be
dismissed as trite or inconsequential. 130 In tracking the delusions and excesses of American legal scholars,
Schlag makes these insights harder to ignore. Yet, he remains unwilling to look closely at what precisely
they entail. After all, there is constraint, and then there is constraint. There are representations, and there are
representations. Standpoint methodology highlights the gap between the representations of the dominant
and the lives and experiences of the oppressed; it helps us distinguish the recognition that discourse
generally is accompanied by constraint from the specification of the particular constraints that characterize
the lives of oppressed and marginalized people. Without standpoint, there is a real risk, as Schlag's book
demonstrates, that these differences simply will not surface. Effaced from discourse--radical or otherwise--
they are simultaneously effaced from our consciousness.

The Enchantment of Reason is a powerful book with concrete political implications, but its standpoint
(unsurprisingly) reflects the situation of its author. It is the standpoint of someone who is bemused by the
prodigious invocation of an idea which is either not what it purports to be or which, pushed to its limits, is
without substance. It is not the standpoint of an "outsider/within" the academy. That does not mean it is
without value to feminists, critical race scholars, and others with "outsider" status. On the contrary, in
collapsing reason into its "traditional enemies," Schlag's book constitutes a compelling indictment of the
intellectual status quo in American law, exposing its tendentiousness, folly, and fragility.

Logic: Not as prevalent as you wish it were

Black Knights 2006 Kathryn
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7) Performative contradiction:
SCHLAG’S PORTRAYAL OF “REASON” IS AMBIGUOUS AND OVER-EXAGGERATED, AND HE USES
‘REASON’ AS MUCH AS THOSE HE CRITICIZES

CONAGHAN IN `03 (JOANNE, PROFESSOR, KENT LAW SCHOOL, UNIVERSITY OF KENT,

“SYMPOSIUM: BEYOND RIGHT AND REASON: PIERRE SCHLAG, THE CRITIQUE OF NORMATIVITY,
AND THE ENCHANTMENT OF REASON: SCHLAG IN WONDERLAND” MIAMI LAW REVIEW, APRIL)
It is perhaps an obvious question to ask but ... enchanted by what precisely? In Schlag's case, the answer is
far less apparent than one might expect. It should be stressed at the outset that this is not--nor does it
purport to be--an abstract philosophical discourse on reason. 27 Reason for Schlag's purposes is bound by
the confines of the legal academy; it is what passes for reason among American legal scholars that concerns
him. Interestingly, at no point does he define what he means by reason. This is probably a wise move.
Given the variety of views--even within law--on what counts as reason, attempts to define it are invariably
tricky, eliciting pronouncements that are either hopelessly vague or internally contradictory. 28 Acts of
definition also raise the risk of side tracking debate with considerable amounts of intellectual effort
exhausted by interminable disputes of definition and scope. Anyway, Schlag's pointed avoidance of any
definitional exercise necessarily flows from the arguments he is making. Once reason is defined, mapped,
plotted, and located, it becomes not reason exactly, but whatever it is that is defined, mapped, plotted, and
located. "Reason," for these purposes, becomes no more than a construction of the logic of the disciplinary
frame within which the scholar/topographer is working. Schlag is not going to fall into that trap.

Nevertheless, Schlag's refusal to delineate with any precision the object of his critique is not a risk-free
strategy. One difficulty arising is that reason remains deliciously ephemeral throughout, assuming a [*550]
dream-like, shadowy quality that at times heightens its allure and triggers a desire to capture and contain it.
This is of course a reflection of Schlag's own ambivalence towards reason, signalled in particular by his use
of the word "enchantment" 29 to denote our (his?) affinity to it. Schlag's portrayal of reason is that of a
siren, a femme fatale, who simultaneously entices and deceives. And, while he urges us endlessly to
recognize her pathological tendencies, we remain suspicious that he is still in her thrall. More importantly,
however, the nebulous quality of Schlag's invocations of reason is misleading and belies the prescriptive
content of the notion(s) he deploys. Reason, for Schlag's purposes, is bounded in ways he does not openly
acknowledge. Woven within the fabric of his critique is a particular perspective from which reason's
purposes are derived and its shortcomings identified and assessed.

Logic: Not as prevalent as you wish it were