Abstract

This Review begins by summarizing The Trouble with Principle, by Stanley Fish, paying particular attention to passages that show Fish at his antifoundationalist best--sections on hate speech, affirmative action, academic freedom, and religion. Because Fish's prose is elegant but his argument demanding, I offer a metaphor designed to help readers understand Fish's insight. I then show that the defect Fish highlights is part of a larger disconnection that afflicts legal discourse, looming up not only when we discuss affirmative action, hate speech, and other controversial public-law issues, but also when we try to fit ordinary private-law rules into a coherent system. In short, Fish exposes only part of a more general self-delusion running throughout our system of legal thought. In a concluding section, I recommend a pragmatic, anti-normative approach, similar to Fish's, but applied more broadly, to guard against thuggery operating under the guise of principle. Such an approach, tied closely to our deeply held moral convictions, I argue, can help us remember to support what we need to support, resist what we need to resist, and avoid losing our way, like a proprioceptively handicapped patient, in the "body of law.".